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Sen. Kyl Threatens Filibuster of Court Nominations:

The Phoenix Buisness Journal reports that Senator Jon Kyl (R-AZ) warned that he would attempt to filibuster any Supreme Court nominations that he deemed too liberal.

Kyl, Arizona's junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.

"He believes in justices that have empathy," said Kyl, . . .

Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster. . . .

Kyl said Obama needs to appoint judges that look at the merits of each case and said filibusters were not inevitable, even for more liberal judges if their decisions have a sound legal basis.

[LvHA]

As longtime VC readers know, I'm generally opposed to the obstruction of judicial nominees of either party. Even though Barack Obama, as a Senator, voted to filibuster several Bush nominations (including that of Samuel Alito to the Supreme Court), I do not believe this justifies Republicans responding in kind.

While I oppose the filibuster of judicial nominees, one practical benefit of a Republican filibuster of an Obama nominee could be the end of judicial filibusters. If Republicans were able to hold their caucus together, perhaps Senate Democrats would be prompted to cut a deal promising to forego any judicial filibusters in the future. Alternatively, perhaps a GOP filibuster would prompt Senate Democrats to invoke the nuclear option, ending judicial filibusters once and for all. Indeed, I would feel better about any GOP filibuster threats if filibustering GOP senators would commit to voting to support the nuclear option if it were invoked. In this way, GOP Senators could maintain a principled opposition to the filibuster of judicial nominations without unilaterally disarming themselves against Senate Democrats (and a President) who have supported such filibusters in the past.

Brett Bellmore:

Alternatively, perhaps a GOP filibuster would prompt Senate Democrats to invoke the nuclear option, ending judicial filibusters once and for all.


That was my argument for resorting to the 'nuclear option' during the last administration: That, once the option had been raised, it became inevitable that it would be used by Democrats the moment Republicans tried to filibuster, so there wasn't really any cost to Republicans using it, only gain.
11.8.2008 11:51am
Andrew Hyman (mail) (www):
The nuclear option should be an absolute last resort.

A much better approach would be to change the Senate rules in the normal way, to eliminate judicial nomination filibusters. Kyl ought to support such a rule change.
11.8.2008 12:01pm
trad and anon:
Why stop with judicial filibusters? I say the dems should get rid of all filibusters. This is an opportunity to move the country forward and there's no point in letting the GOP obstruction prevent that.
11.8.2008 12:03pm
Morat20:
I believe Kyl was one of those endorsing the nuclear option in regards to Bush's nominees. It's amazing how quickly his opinion on the Constitutionality of judicial filibusters evolved, isn't it?

Speaking for myself, I'd be quite happy if the Democrats moved to revoke the filibuster for judicial nominees -- not through the rather strained "interpretation" of Senate rules called "The Nuclear Option", but rather through the normal straight-up vote (which yes, can be filibustered).

My objection to the nuclear option had nothing to do with getting rid of the filibuster (in total or just for nominees) but rather the methodology that was proposed to deal with it.

Nonetheless, Kyl's a giant flaming hypocrite, since 4 years ago he was screaming to high heaven that filibustering judicial nominees was a Constitutional Crisis.
11.8.2008 12:03pm
10ksnooker (mail):
I think Obama deserves to get all the courtesy afforded Bush ... I would like to get my apology to the world in first, I apologize for the ignorant American people who voted this travesty upon an unsuspecting world. I'm truly sorry, there weren't enough of us smart people to save the world from the horror of Obamunism.
11.8.2008 12:07pm
ObeliskToucher:
Schumer changed the rules for judicial nominations; Kyl is just acknowledging that fact.
11.8.2008 12:10pm
Calculated Risk:
Not only should Democrats invoke the so-called "nuclear option" with respect to filibusters of judicial nominees, they should invoke it with respect too all filibusters.

The idea that it should take 60 votes to get anything done rather than a majority is patently ridiculous. Nowhere in the Constitution does it say that it shall take super majorities to conduct ordinary business in the Senate, including confirmation of judicial nominees or the passing of legislation.

It is time to end the filibuster once and for all. And not just for judicial nominations.
11.8.2008 12:11pm
Oren:
As a political matter, I think Reid would prefer to get one of the moderate Rs to support the nominee. The way I see it, the GOP has to lose not more than one of Collins, Snowe, Specter and Smith (depending on the recount). Even McCain might buck the party and support cloture. All in all, it seems far more palatable to preclear the nominees with those 5 senators than to try to change Senate rules (to the detriment of future Democrats).

As a normative matter, any nominee that can't get support from at least a few of those Senators is not fit to serve on the highest court.
11.8.2008 12:11pm
gerbilsbite:
I don't think there's much risk of the GOP Senate caucus holding together on cloture votes for nominees, and I think getting rid of the filibuster would have been a disaster in the last term (unless you enjoy the ring of "Justice Harriet Miers"). There should be a degree of deference, but sometimes Presidents try to make really, really bad appointments that would still likely pull 50% +1 off of partisan loyalty, and there should be a check against that other than ex post impeachment.
11.8.2008 12:14pm
Oren:
The idea that it should take 60 votes to get anything done rather than a majority is patently ridiculous. Nowhere in the Constitution does it say that it shall take super majorities to conduct ordinary business in the Senate, including confirmation of judicial nominees or the passing of legislation.
The Constitution provides that that each house of Congress shall make its own rules. If the Senate wants to pass a rule that says that every bill must spend 13 months in committee before it can come to a floor vote, that's their Constitutional right. If you don't like it, vote for different Senators.

Of course, no Senate can bind future Senates to their rules, so the nuclear option seems to me constitutional, just a horribly bad idea as far as maintaining collegiality. Moreover, requiring supermajority consent for legislation is, by definition, a recipe for getting more moderate business done -- business that is more likely to refelct the true center of mass of the electorate.
11.8.2008 12:15pm
R Nebblesworth:
When the Senate "obstructs" judicial nominees, isn't it just witholding the "consent" part of "advice and consent"? Why shouldn't the Senate concern itself with judicial nominees' ideology, given that the President certainly does when making his picks?
11.8.2008 12:21pm
Calculated Risk:

My objection to the nuclear option had nothing to do with getting rid of the filibuster (in total or just for nominees) but rather the methodology that was proposed to deal with it.


Sorry, but the Senate only needs a majority to change Senate rules. It is unconstitutional for the Senate to create rules for itself that fundamentally alter the power of a majority. For example, it would be unconstitutional to require any rule changes or legislation to be agreed to unanimously without any procedure where a simple majority could change the rules.

Having a filibuster in the Senate rules is perfectly constitutional. As long as there is some procedure that allows a simple majority to change this rule. Thankfully, there is such a procedure.

Senate rules, including the rules that authorize a filibuster itself, can be changed by a simple majority using a procedure that is not subject to filibuster.

You may be uncomfortable with this "strained" reading of the rules that allow an actual majority of Senators to change Senate rules in accordance with our Constitution, but I am not. In fact, without such a procedure in the rules, rules providing for filibusters would clearly be unconstitutional.
11.8.2008 12:21pm
Oren:
Calculated Risk, you are right that the Senate is a deliberative body that can change its rules in accordance with the majority's will. That said, perhaps it's not a good idea for the majority to do so in this particular instance?
11.8.2008 12:27pm
Kazinski:
I don't think the Republicans should try a Fillibuster except in the most extreme case. And even then, getting a poster child for extreme judicial activism on the Supreme court might be just what the Republicans need over the next 20 years. Someone that makes a point of writing flaming dissents for denial of cert for Mumia, or your garden variety child killer/rapists would be just the ticket.
11.8.2008 12:28pm
Calculated Risk:

Of course, no Senate can bind future Senates to their rules, so the nuclear option seems to me constitutional, just a horribly bad idea as far as maintaining collegiality.


Then we are agreed.

I think your collegiality argument is overblown. Legislation passes by a simple majority in the House of Representatives by a simple majority all the time without destroying collegiality. And anyway, collegiality is NOT THE POINT of the Senate. When you are a Senator, your job is to represent your constituents, not make friends in the Senate. Now, to the extent that making friends helps you help your constituents, fine. But, if the only way you can "make nice" is by letting your "friends" obstruct legislation that is good for your constituents, then you are just going to have to put your constituents first. (i.e. Just because we are friends, that does not mean that I have to let you obstruct. Friendship has limits.)

Yeah, Senate Republicans probably would be annoyed for a little while if the rules allowing a filibuster were changed. But they would get over it. Especially when they found themselves in the majority again, which I am sure they will eventually.
11.8.2008 12:30pm
Calculated Risk:

Calculated Risk, you are right that the Senate is a deliberative body that can change its rules in accordance with the majority's will. That said, perhaps it's not a good idea for the majority to do so in this particular instance?


To the contrary. It is a great idea to do so in this instance.

These rules need to be changed to allow for a simple majority to actually get work done. Some feelings might be hurt in the short-run. In the long-run, the Senate will be a better institution.

I am a Democrat. I am perfectly willing to accept legislation passed by a majority of Republicans in the Senate when they obtain a majority. That is how normal business in the Senate should be decided -- by majority vote.
11.8.2008 12:34pm
Light Hearted (mail):
I think the nuclear option should be the last resort.

In the halls of Congress I think a biological or chemical approach would be more cost-effective.

:-)
11.8.2008 12:34pm
trad and anon:
When the Senate "obstructs" judicial nominees, isn't it just witholding the "consent" part of "advice and consent"? Why shouldn't the Senate concern itself with judicial nominees' ideology, given that the President certainly does when making his picks?
I've never bought into the idea that the Senate is required to, or should, restrict itself to verifying judicial nominees "qualifications." That would reduce the Senate's advice and consent role to near the level of a rubber stamp.
11.8.2008 12:36pm
Calculated Risk:
trad and anon,

The people who think that "advice and consent" is limited to qualifications do not have either the plain language of the Constitution or history on their side. Advice and consent has been withheld for ideological reasons from the very beginning. The Senate even withheld consent for one of George Washington's judicial nominees in part because he had written against the Jay treaty.

It is perfectly proper to consider ideology or anything else that you think will affect the performance and decisions of a judicial nominee. The President typically does. The Senate is free to if it so chooses and feels that these attributes are relevant.
11.8.2008 12:41pm
Doc W (mail):
As usual in all the hand-wringing over filibusters of judicial appointments, the focus is on a symptom while the underlying problem is being ignored--namely, that the federal government is operating far outside its Constitutional bounds, and the Supreme Court has long since stopped actually enforcing the Constitution with any shred of objectivity. So the selection of justices is not anymore really about judicial competence, it's all about the political question of who's more willing to ignore the Constitutional limits on federal powers, and in what ways.
11.8.2008 12:45pm
Donald (mail) (www):
Am I reading the quote right: that Kyl would filibuster nominees if they were like Breyer and Souter (a Republican appointee)? If that's the case, I can't imagine any Obama nominee being acceptable to Kyl.

Or did Kyl mean to say that he expects to see more Souters and Breyers, and anything more liberal (or "empathetic") is unacceptable?
11.8.2008 12:45pm
AZ Libertarian (mail):
I was present at the meeting with Senator Kyl and he very, very clearly outlined the circumstances in which he thought a filibuster might be appropriate: Where President Obama nominates an individual who prioritizes empathy for the "victim" in the lawsuit over the Constitution. He did not suggest that he would filibuster someone with a more liberal judicial track record, but rather made it clear that his concern is with Judges whose only judicial philosophy centers around empathy rather than the rule of law.
11.8.2008 12:55pm
Oren:
Donald, I would imagine that depends on who retires first. Kyl certainly ought to object more to Scalia being replaced by a new Breyer than he would if it was RGB that retired.

CR, again, I go back to the simple normative point -- anything that is consented-to by 60/100 Senators is guaranteed to be closer to the center of mass of the American electorate than something approved 51/100. Moderation is a value in-and-of-itself.

Moreover, government actions are not binary -- if legislation that I support needs to be compromised a bit to gain some support from 5-10 GOP Senators, then that's a compromise I probably ought to make. If my judicial nominees are so extreme that not a single GOP Senator can support them, then that judge is probably way out of the mainstream.

TL;DR version: The United States Senate represent 100% of Americans, not just the 52% that voted for the majority party. Just remember, you said
When you are a Senator, your job is to represent your constituents, not make friends in the Senate.
and that includes your constituents that voted for the other guy.
11.8.2008 12:57pm
LN (mail):
I think this guy said it best.


For 214 years it has been the tradition of the Senate to approve judicial nominees by a majority vote. Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before... And it's never been the case until the last two years that a minority could dictate to the majority what they could do.
11.8.2008 12:59pm
Oren:
AZL, that actually sounds about right to me. In concrete terms, that means voting for all the current Justices. As I recall, he voted for all of Clinton's appointees.
11.8.2008 1:00pm
Anon21:
I think Kyl's threat is impotent, like many threats Republicans are tossing around in the post-election world. The Republicans have at most 43 seats in the new Senate, with a real chance to slip down to 41. Kyl can vote to filibuster anyone he likes, but I don't think he can get Snowe, Collins, Specter, and Voinovich to back him. In practical terms, Senate Democrats will have no need to invoke the nuclear option for Obama's judicial nominees, at least unless and until Republicans pick up some more seats in 2010.

This raises the question of how Obama will use this opportunity, with a very favorable set of political conditions and the likely retirement of one or two Justices in the near future. I personally hopes he uses it to restore some actual balance to the Court, eschewing someone in the mold of Breyer, Sunstein, or even Ginsburg to appoint a Justice more in the T. Marshall/Brennan/Reindhardt tradition. I don't really know what his options are for nominees like that among judges young enough to make the cut, but I would imagine there are at least some of them out there.
11.8.2008 1:16pm
einhverfr (mail) (www):

Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster. . . .


Actually, if Obama were to nominate judges who did not base their decisions on the rue of law and legal precedents, I would ask my (Democratic) senators to support a filibuster. Precedent (including upholding decisions from Griswold through Heller and Roe and Casey through Milligan) and rule of law are the cornerstones of our society. If we undermine those, the judges should be opposed by everyone.

I see no reason why, as someone who voted for Obama I should be any less critical of his appointees than I was for Bush or hold them to a different standard.
11.8.2008 1:18pm
Oren:
Wow, Ginsburg is not sufficiently liberal for some people?! Even as a liberal I find that almost impossible to believe.
11.8.2008 1:19pm
Dave N (mail):
I think getting rid of the filibuster would have been a disaster in the last term (unless you enjoy the ring of "Justice Harriet Miers")
It is amazing how people don't remember recent history, let alone things that happened more than 5 years ago.

For those who do not remember, one of Harriet Miers' biggest fans was then Senate Minority Leader Harry Reid. It was Republicans who rebelled at her lack of qualifications.

Two other comments, Vice President-elect Joe Biden said he was proud of the politicization of the judicial confirmation process—so the Democrats are hardly in a place to complain.

However, what I suspect Democrats WILL argue is that their rule is that if ONE Democratic Senator on the Judiciary Committee voted to confirm a nominee, then there would be no filibuster. The Democrats on Senate Judiciary are all liberal (for example, neither Senator Nelson is a member and by any objective standard its LEAST liberal member is Diane Feinstein) so unity could be expected.

On the other hand, the Republicans on the committee include members as diverse as Arlen Specter and Tom Coburn—as a result, it will be easier to find one Republican on the Judiciary Committee to vote for confirmation.
11.8.2008 1:20pm
MarkField (mail):

Kyl certainly ought to object more to Scalia being replaced by a new Breyer than he would if it was RGB that retired.


Yes, Kyl's hysteria seems even worse in the abstract. He really shouldn't care that much who Obama nominates to replace Ginsburg. At least that's the way I felt with Roberts/Rehnquist.


CR, again, I go back to the simple normative point -- anything that is consented-to by 60/100 Senators is guaranteed to be closer to the center of mass of the American electorate than something approved 51/100. Moderation is a value in-and-of-itself.


I think your otherwise-valid point is undercut substantially by the unrepresentative nature of the Senate. If the Senate were a representative body, then I'd agree subject to my caveat below.


if legislation that I support needs to be compromised a bit to gain some support from 5-10 GOP Senators, then that's a compromise I probably ought to make. If my judicial nominees are so extreme that not a single GOP Senator can support them, then that judge is probably way out of the mainstream.


For most of US history, I'd have agreed with this (subject to my caveat above). The Republican practice recently of voting in lockstep on all issues according to the majority of their caucus alone makes your argument untenable in practice. If the individual Republican Senators go back to individually evaluating the nominees, then your point is legitimate.
11.8.2008 1:21pm
byomtov (mail):
What is Kyl is saying here:

Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster. . . .

Kyl said Obama needs to appoint judges that look at the merits of each case

So the judges aren't supposed to look at the "factors" in each case, but are supposed to look at the "merits" of each case?

What is the distinction here?
11.8.2008 1:21pm
Anderson (mail):
I believe Kyl was one of those endorsing the nuclear option in regards to Bush's nominees.

The hypocrisy doesn't bother me -- if there's a tool in your kit, use it.

But I'm all for the filibuster -- federal judges serve for life, and have little effective check once confirmed. I don't see where it should be a simple majority confirming, and if a nominee's too controversial to get 60 votes, then maybe he or she isn't such a hot idea.

That was my position under Bush 43, and I don't see any reason to change my mind under Obama 44.
11.8.2008 1:23pm
pjohnson (mail):

It is perfectly proper to consider ideology

Well, there's ideology and there's ideology. Although it won't happen in real life, I'd prefer a Senate that disregards political ideology (liberal, conservative, libertarian, etc.) and evaluates judicial ideology (minimalism, textualism, original meaning, living-Constitutionalism). Of course, the former is certainly relevant if the nominee appears to be result-oriented based on his/her political ideology.
11.8.2008 1:24pm
GV:
I could totally be wrong, but didn't Orin say something like this would happen? (And doesn't he owe me a beer?)

I think the idea of fillibusters are a good thing. I did for the past 8 years (especially over the past 8 years) and I continue to believe that today.
11.8.2008 1:25pm
MarkField (mail):

Wow, Ginsburg is not sufficiently liberal for some people?! Even as a liberal I find that almost impossible to believe.


I'm with Anon21 -- Ginsburg is a moderate liberal. In order to balance out the extremists like Scalia and Thomas, we need a Brennan or a Marshall.


On the other hand, the Republicans on the committee include members as diverse as Arlen Specter and Tom Coburn—as a result, it will be easier to find one Republican on the Judiciary Committee to vote for confirmation.


This is a very subjective point, but it seems to me that the distance between Specter and Coburn is roughly the same as that between Feinstein and Feingold.
11.8.2008 1:25pm
Justin (mail):
Dave N,

It was NOT about her lack of qualifications, for the most part. It was about her perceived acceptance of Roe.
11.8.2008 1:26pm
Sarcastro (www):
Now that my party is in power, I want them to be able to do whatever they want with no regard for the minority.

This is a chance for the policies I agree with to get in! We need to seize that and not care about long term consequences or people who think differently!
11.8.2008 1:26pm
Dave N (mail):
I suspect even the moderate Republicans named, Voinovich, Collins, Snowe, et al, are not as stupid as some commenters believe.

While they are moderate on issues, they are all partisan Republicans--and they remember what the Democrats did. Payback is a bitch.
11.8.2008 1:28pm
Oren:
Mark, I just don't share such a negative view of the GOP Senators (well, there are a few that are more contemptible than others) that you do. The gang of 14 (now reduced by GOP loses to 10, IINM) proved able to buck the party in exchange for some reasonable concessions -- I would have preferred not to have Janice Brown on the DCCA (e.g.) but I am generally pleased with how it went.

The Senate's undemocratic nature very well complements the Supreme Court's undemocratic nature in this instance. Many of the Court's valuable precedents were very undemocratic -- at the time of Loving v. Virginia, the nation was still 60-40 against interracial marriage. At the time of Brown v. Board, segregated schools could easily get a straight majority. Don't even get me starting on Miranda and Mapp.
11.8.2008 1:33pm
Oren:
Mark, with all due respect, Ginsburg is a straight liberal, not a moderate liberal, at least with respect to the current state of the US judiciary. I'm a member of the ACLU and even I acknowledge when my positions deviate from mainstream thought. It's not pejorative to call her a liberal (aside from Heller and WI RTL, I've agreed with the liberal wing) -- it's just the truth.
11.8.2008 1:38pm
AndrewK (mail):
I see at least one poster (Calculated Risk) who is arguing against the filibuster's availability as a procedure at all, rather than in the limited field of judicial appointments.

He makes the claim that the filibuster should not be used to hold up "routine" Senate business. I take issue with this on two counts. First, empirically, I can think of no example where the filibuster has been used to hold up every bit of Senate business for a protracted period of time. More importantly, I think, is the normative claim related to the structure of legislative decisionmaking in the Senate. What is the problem with requiring supermajorities to pass any legislation at all? The practical effect would be that legislation would be that in conference the House would renege to Senate demands more often if legislation were desired, and that much LESS legislation would be passed. I'm not sure what the substantive effects would be--- would this promote broad consensus in passing pork-barrel projects to secure supermajorities? Or would this tilt in a more libertarian direction.

In any case, I am loathe to argue against the filibuster as a procedure, because it is well-entrenched and provides a huge amount of leverage to each individual Senator, and slows down / politicizes legislation. In this day-and-age of the 24-hour news cycle, a filibuster is an effective way of putting issues back into the public arena for debate. In this respect, it is perhaps more democratic that simple majority voting.
11.8.2008 1:38pm
Jon Rowe (mail) (www):
If John Paul Stevens -- appointed by a Republican and 88 years old (I do believe) retires -- I encourage Obama to replace him with Richard Posner. Posner, in my opinion, would be the perfect compromise Justice. Posner it seems to me would be the perfect "compromise" Justice. He's a little old though.
11.8.2008 1:41pm
Anon21:
Oren:
Wow, Ginsburg is not sufficiently liberal for some people?! Even as a liberal I find that almost impossible to believe

Do you really, given the counter-examples I mentioned? Would you seriously argue that Justice Ginsburg is as liberal as Justices Brennan or Thurgood Marshall?
11.8.2008 1:42pm
DiverDan (mail):

Even though Barack Obama, as a Senator, voted to filibuster several Bush nominations (including that of Samuel Alito to the Supreme Court), I do not believe this justifies Republicans responding in kind.


Uh, Yes, it does. I will be urging my own state's Senators, Cornyn (who sits on the Judiciary Committee) and Kay Baily Hutchison, to join Kyl in any filibusters. I would seriously want to kill the nominations of any liberal nominees who even thought that Justice Breyer's or Justice Stevens' dissent in Heller was anywhere close to a reasonable interpretation of the Second Amendment. A 5-4 decision on such a clear case of a Second Amendment violation by D.C. makes me very nervous, and I say the gloves should come completely off for any Obama nominees that might lean the way of those dissents.
11.8.2008 1:44pm
TerrencePhilip:
If John Paul Stevens -- appointed by a Republican and 88 years old (I do believe) retires -- I encourage Obama to replace him with Richard Posner. Posner, in my opinion, would be the perfect compromise Justice. Posner it seems to me would be the perfect "compromise" Justice. He's a little old though.

Only Republicans need to "compromise" or find "consensus" candidates. These things will not be required for the next 4 years.

BTW I love Posner but I doubt he fits the bill for compromise justice . . .
11.8.2008 1:49pm
MarkField (mail):

Mark, I just don't share such a negative view of the GOP Senators (well, there are a few that are more contemptible than others) that you do.


You were impeached before you posted -- read Dave N's post just above yours.


Mark, with all due respect, Ginsburg is a straight liberal, not a moderate liberal, at least with respect to the current state of the US judiciary.


Putting aside whether I agree with this, it's your last clause that I'm objecting to. I'm judging by the standards of my own lifetime, not by the dumbing down of the judiciary over the last 30 years.
11.8.2008 1:49pm
MarkField (mail):

The Senate's undemocratic nature very well complements the Supreme Court's undemocratic nature in this instance. Many of the Court's valuable precedents were very undemocratic -- at the time of Loving v. Virginia, the nation was still 60-40 against interracial marriage. At the time of Brown v. Board, segregated schools could easily get a straight majority. Don't even get me starting on Miranda and Mapp.


Sorry, but I'm not understanding your point here.
11.8.2008 1:51pm
Jon Rowe (mail) (www):
Ooops. Sorry for the redundant prose.

I wouldn't be surprised of Obama nominates Cass Sunstein, who wants to constitutionalize the New Deal, to the Supreme Court. He's a fellow U Chi prof. He's one of the most prestigious law prof. academics. And his idea of constitutionalizing the New Deal fits well with Obama's seeming vision of a "New New Deal." Though, as a libertarian, I strongly hope Obama doesn't do this. It would be kinda neat though, with both Posner AND Sunstein on the Supreme Court. I'm sure they would have a blast together.
11.8.2008 1:51pm
David M. Nieporent (www):
To the contrary. It is a great idea to do so in this instance.

These rules need to be changed to allow for a simple majority to actually get work done. Some feelings might be hurt in the short-run. In the long-run, the Senate will be a better institution.

I am a Democrat. I am perfectly willing to accept legislation passed by a majority of Republicans in the Senate when they obtain a majority. That is how normal business in the Senate should be decided -- by majority vote.
And this post explains why Republicans are foolhardy and shortsighted to attack the filibuster. Big government types who want the government "to actually get work done" hate it, but nobody committed to small government can oppose the filibuster.

Technically, the filibuster for judicial nominees can be separated from the filibuster for legislation, but in practice, undermining one undermines both.
11.8.2008 1:57pm
Oren:
Mark and Anon, you cannot measure today's judges by the yardstick of previous Courts. Like it or not, the country took a general turn to the right after the leftwards movement of the 60s and that defines where the new center is. Obama certainly has a mandate to move that center to the left somewhat (and I voted for him for that reason) but right now, the center is where it is.
11.8.2008 2:06pm
EIDE_Interface (mail):
Shorter left-wing hacks in this forum:

"Crush the GOP because we want to".
11.8.2008 2:07pm
trad and anon:
And this post explains why Republicans are foolhardy and shortsighted to attack the filibuster. Big government types who want the government "to actually get work done" hate it, but nobody committed to small government can oppose the filibuster.

Technically, the filibuster for judicial nominees can be separated from the filibuster for legislation, but in practice, undermining one undermines both.
I'm all in favor of undermining the filibuster for legislation. The Democrats have been spineless cowards who've rolled over for the GOP for the past fourteen years. It's time to play hardball.
11.8.2008 2:08pm
MartyA:
You guys don't understand yet There will never again be a Republican Congress of Presidency. It is unlikely that there'll ever be another election. Obama's objective is to destroy the middle class and turn America in a National Socialist peoples' republic.
Obama's Supreme Court nominees will be people like Bill Ayers, Noam Chomsky, Michael Moore or Alcee Hastings. Implicit in the nomination is that all stops are out and thaat the threat of a filibuster or the filibuster, itself, would not stop the destruction of the court.
11.8.2008 2:08pm
Oren:

Big government types who want the government "to actually get work done" hate it, but nobody committed to small government can oppose the filibuster.

Except when the CBO '74 created a way for the Senate to lower taxes, but not raise them, without fear of filibuster (they call it "reconciliation"). As I recall, Bush's tax cuts were passed by bare majority without the possibility of filibuster.

Mainly, I just think the point is absurd -- the Senate can act to shrink government just as well as it can act to enlarge it (depending on who is in power -- although with the track record of the betwee 2000 and 2006, it's sort of doubtful).
11.8.2008 2:13pm
trad and anon:
Shorter left-wing hacks in this forum:

"Crush the GOP because we want to".
And because we can. There's no point in letting them stop us from undoing the damage they've done to the country in the past eight years.
11.8.2008 2:13pm
geokstr:
Mr. Adler:

...perhaps Senate Democrats would be prompted to cut a deal promising (insert anything you want here - ain't gonna get it anyway)...

Given that the democrats have demonstrated no particular tendency to ever keep a promise (not sure the republicans are that much better), the only thing a "promise" will get is to have some words for the media to spin for them when they break it.

Oren:

Mark, I just don't share such a negative view of the GOP Senators (well, there are a few that are more contemptible than others) that you do.

Gee, I guess there must no be any comtemptible democrat Senators, are there? No partisans to see here, folks, move along now...
11.8.2008 2:19pm
Oren:
Gee, I guess there must no be any comtemptible democrat Senators, are there? No partisans to see here, folks, move along now...

Of course there are contemptible Dem senators. I didn't mention it because it wasn't relevant to my point in the slightest.

Meanwhile, you must think there are no contemptible terrorists. . .
11.8.2008 2:21pm
Steve2:
I was hoping someone would answer byomtov's question, since I wonder about it too. Unless he's trying to say that he thinks the outcome of a case shouldn't be affected by the facts of the case - which I hope he isn't and doubt he is - then opposing justices who base their decisions on the factors of the case... is leaving me confused as to what that means.
11.8.2008 2:24pm
A. Zarkov (mail):
As longtime VC readers know, I'm generally opposed to the obstruction of judicial nominees of either party. Even though Barack Obama, as a Senator, voted to filibuster several Bush nominations (including that of Samuel Alito to the Supreme Court), I do not believe this justifies Republicans responding in kind.

The Gandhi approach to politics. Only in this case, the other side models itself after Attila the Hun. This is the problem with conservatives and Republicans-- they won't fight. Meanwhile the other side will take to streets, ring doorbells, threaten, intimidate and cheat if necessary. I'm afraid it's going to take some ex-leftists to breathe some fire into the Caspar Milquetoasts that call themselves the opposition.
11.8.2008 2:27pm
jgshapiro (mail):
I don't get why Kyl thinks he has the votes to stop a Breyer, a Ginsburg or a Souter. Put aside Souter for the moment.

Recall that Breyer and Ginsburg were both suggested by more moderate Republican senators (Hatch, more moderate, though not exactly from the left) as easily confirmable during the Clinton administration. Neither had any trouble at all getting through. Breyer was confirmed by an 80-10 vote and Ginsburg by a 96-3 vote. Ginsburg even replaced White, a much more conservative justice. Both were confirmed when the GOP controlled the Senate.

The Dems now control at least 57 seats, and it could be as high as 59 seats after the Georgia runoff and the special election to fill Stevens' seat (once he resigns or is expelled from the Senate, one of which is virtually certain). So how would Kyl prevent 1-3 Republicans from voting for cloture? Does he really think that any of the remaining 7 GOP members of the Gang of 14 would join him in stopping someone left of center? Maybe if it was a Brennan or Douglas redux, but not a Breyer or Ginsburg type.

As for Souter, he was a GOP nominee and a lifelong Republican prior to his appointment. Saying that Kyl would block him is like saying Kyl would block a Susan Collins from the court. Does anyone seriously believe that he would get any support from his colleagues for stopping a moderate Republican (or a stealth Republican)?

The reality is that the GOP might have the votes to stop someone that is far on the left, like a Harold Koh or a William Fletcher. Hell, with those picks, they could probably pick up support from the more conservative Dems like Nelson or Johnson or Warner, and might not even need a filibuster. But the GOP doesn't have the votes to stop anyone that is merely left of center, like Ginsburg or Breyer (or Kagan, Sotomayor, Wood, Sunstein, Garland, etc.)

Kyl needs a reality check.
11.8.2008 2:37pm
_quodlibet_:
I think retaining the possibility of a judicial filibuster (essentially requiring a 60:40 vote to confirm) is a good thing, because it can prevent the confirmation of truly extreme candidates. But I think that the use of the filibuster should be limited to truly extreme candidates, not merely candidates that lean a bit in one direction or the other.
11.8.2008 2:38pm
Anon21:
Oren:
Mark and Anon, you cannot measure today's judges by the yardstick of previous Courts. Like it or not, the country took a general turn to the right after the leftwards movement of the 60s and that defines where the new center is. Obama certainly has a mandate to move that center to the left somewhat (and I voted for him for that reason) but right now, the center is where it is.

I can't see any evidence that Nixon or Reagan ever thought in these terms when choosing their nominees. Why should Obama? Scalia and Thomas are far further to the right than any of the current Justices are to the left. Why not attempt to use some of the Democrats' political capital to effect some changes in the ideological orientation of the Court?
11.8.2008 2:41pm
MarkField (mail):

Obama certainly has a mandate to move that center to the left somewhat (and I voted for him for that reason) but right now, the center is where it is.


That's exactly why I want him to appoint a Brennan-type as a replacement for Stevens or Ginsburg. It's the perfect opportunity to get one or two actual liberal voices heard. The right shouldn't complain that much if he does, because replacing one liberal with another (even one more liberal) won't affect any outcomes -- Kennedy is still the deciding vote.

If the replacement were for Kennedy, then I'd agree with and accept your view.
11.8.2008 2:55pm
Jonesy:
Obama is not going to choose judicial nominees based on "empathy" or judges way out of the mainstream, and Kyle knows it. This is actually Kyle admitting that there wont be filibusters.

The only way I could see any chance of a republican filibuster is if Obama had a chance to replace Scalia or maybe Kennedy. Otherwise its just going to be a liberal for a liberal.
11.8.2008 2:56pm
Tom Perkins (mail):

Moreover, requiring supermajority consent for legislation is, by definition, a recipe for getting more moderate business done -- business that is more likely to refelct the true center of mass of the electorate.


Calculated Risk is not concerned with the work of government reflecting the center of gravity of the body politics. He wants his unicorn trailing rainbows and with flowers springing from its hoofprints now.

Yours, TDP, ml, msl, &pfpp
11.8.2008 3:22pm
mlhm5 (mail):
For Kyl make good on his boast, he would have to have permission from Mitch McConnell, and I for one don't think that permission will be issued.
11.8.2008 3:25pm
lonetown (mail):
Isn't this where one just drags out all the arguments the dems made to preserve the filibuster?


Partisanship for thee, hypocrisy for me!

Its always been like that with dems.
11.8.2008 4:07pm
darrenm:

Precedent (including upholding decisions from Griswold through Heller and Roe and Casey through Milligan) and rule of law are the cornerstones of our society.



Precedent is NOT a cornerstone of our society. Bad precedent should be (and has been) overturned. If justices (or anyone else) make mistakes, there is no good reason to refuse to correct those mistakes. SCOTUS justices are human. It's already been shown that justices are more than willing to modify their interpretation of the Constitution to reflect their own political preferences and biases. Appeal to 'precedent' in order to enshrine those decisions in the law bypass the political process and are made mainly, though not solely, by those that support those precedents as a political tactic to prevent their reversal by subsequent court decisions or legislatures where the issue in question was not really in the purview of the court to decide to begin with.
11.8.2008 4:35pm
darrenm:

Why not attempt to use some of the Democrats' political capital to effect some changes in the ideological orientation of the Court?

It come down to politics. Democrats have every right to do this. It's just that if Democrats are perceived to be radicalizing the Supreme Court, this hands Republicans another campaign issue. Perhaps they'll think it's worth the risk. I thought a Republican congress and a Democratic president (Clinton) seemed to work out rather well.
11.8.2008 4:46pm
Kelly (mail):
I think the only time the Senate Republicans are going to seriously consider, much less mount, a filibuster against one of Obama's Supreme Court nominees is in the event that he has to replace Kennedy (or one the four conservatives, but that is highly unlikely provided they stay healthy).

As long as Obama nominates someone qualified (and he has plenty of qualified options to choose from), I don't think Kyl or anyone else can present a convincing argument that Stevens or Ginsburg shouldn't be replaced by other liberals. Absent demonstrable radicalism, public perception is not going finely distinguish degrees of liberalism. Add in a handful of squishy Republicans and there's no way a filibuster happens.

Unless Obama has an opportunity to significantly shift the composition of the Court, he'll get the justices he wants. If he does have to replace one of the more conservative justices, I expect all hell to break loose.
11.8.2008 5:04pm
jccamp (mail):
Much as I hate to admit it, Mark Field makes a very valid point at 2:55 PM. The Republican response should be keyed to which justice is being replaced, or perhaps their tactics (re: filibuster) should anticipate a series of vacancies, which may be alternately more or less liberal depending on the respective vacancy. Replacing one liberal justice with another of more leftist views does not change the expected vote on any one decision, although it might create a more liberal reading of law via the opinion. Considering the election, I think Republicans should expect a little of this and be prepared to bite the bullet, except in the case of the most extreme USSC nominee(s) - which hopefully will not occur.

The more conservative point of view (in national politics) just got hammered. Time for us conservatives to discern the difference between loyal opposition and obstructionism. Sen. Kyl could go a long way without making such public comments.
11.8.2008 5:13pm
Cornellian (mail):
If he does have to replace one of the more conservative justices, I expect all hell to break loose.

That would be fun to watch, and a very real possibility, given Scalia's age and the likelihood that Obama will be reelected.

That's not a prediction on Obama's first term performance, just an observation that incumbent presidents tend to get reelected and the strongest argument against him this time around - lack of experience - won't work when he's running for reelection.
11.8.2008 5:15pm
Stormy Dragon (mail) (www):
Can't the Democrats vote to ammend the Senate rules to lower the number of votes needed for cloture?
11.8.2008 5:21pm
Kelly (mail):

If he does have to replace one of the more conservative justices, I expect all hell to break loose.

That would be fun to watch, and a very real possibility, given Scalia's age and the likelihood that Obama will be reelected.


Scalia seems pretty hale right now and there is no way he steps down voluntarily while Obama would be the one to replace him. As long as he's breathing, he'll be on the Court. That's why I think a vacancy due to Kennedy leaving is more likely - they're the same age and I can actually conceive of Kennedy retiring.

Either way, I agree the nomination fight would be great theater. The left will have visions of liberal realignment dancing through their heads and the right will throw the wingnut tantrum to end wingnut tantrums. If it wasn't such an important issue, I'd be making sure I was stocked up on popcorn.
11.8.2008 5:41pm
Mike G in Corvallis (mail):
I think the only time the Senate Republicans are going to seriously consider, much less mount, a filibuster against one of Obama's Supreme Court nominees is in the event that he has to replace Kennedy (or one the four conservatives, but that is highly unlikely provided they stay healthy).

As long as Obama nominates someone qualified (and he has plenty of qualified options to choose from), I don't think Kyl or anyone else can present a convincing argument that Stevens or Ginsburg shouldn't be replaced by other liberals. Absent demonstrable radicalism, public perception is not going finely distinguish degrees of liberalism. Add in a handful of squishy Republicans and there's no way a filibuster happens.

Unless Obama has an opportunity to significantly shift the composition of the Court, he'll get the justices he wants. If he does have to replace one of the more conservative justices, I expect all hell to break loose.


This ignores the roles of the media and the general public in the political process. Suppose Justice Stevens were to die or resign, and President Obama proposed a younger version of Stevens to replace him. By the above line of reasoning, the Republicans would not, and should not, object. But then suppose that six months later Justice Scalia were to die or resign ... and President Obama proposed a younger version of Justice Stevens to replace him as well. On what grounds could the Republicans object? They would be seen by the public, and certainly portrayed by the Democrats and the media, as having inconsistent standards just for the sake of "raw, naked partisanship" (that's a predicted quote). And the people who now see so much merit in preserving balance on the Court would suddenly be arguing for the Constitutional right of the president to appoint whatever person he saw as the most qualified candidate.
11.8.2008 8:25pm
mls (www):
Both sides are hypocritical on this issue, among others, but there is no sense in belaboring that point. There can only be one rule-- either judicial filibusters are permissible or they are not (when it is advisable to use them is another matter).

Although the use of judicial filibusters has been controversial, it seems to be generally accepted that they are permissible under the Senate rules. Therefore they can only be eliminated through a change to the Senate rules, which requires a supermajority.

It is true that this supermajority requirement is something that the Senate has imposed on itself, and cannot be enforced on it by any external actor. But it is viewed as valid by the Senate itself, and this makes it valid (ala Hart's ultimate rule of recognition) so long as the Senate continues to do so. Should the Senate change the filibuster rule, through the nuclear option or otherwise, by a simple majority vote, it would in essence be overthrowing its own constitution, and would change the nature of the Senate as an institution.
11.8.2008 10:56pm
Alan Jeffries (mail):
You're just a conservative fool, professor, and a shill for federalist society members.
11.8.2008 11:45pm
Calculated Risk:
mls,

Your argument is nonsensical.

The Constitution is very clear about when a super majority is required. For example, it takes a two-thirds vote to ratify treaties.

If a particular Senate tried to impose a super majority requirement to pass legislation not only on itself but on future Senates via a simple majority (the number needed to make a make and change Senate rules), that would amount to nothing less than a fundamental change in government and thus a Constitutional Amendment. Well, the Constitution is quite clear about Constitutional Amendments. They require much more than a simple majority in the Senate acting unilaterally.

The only reason that the filibuster was ever constitutional to begin with was because the rule can be changed by majority vote using a procedure itself not subject to filibuster.

Sorry, as much as you would seem to be arguing otherwise, you can't change the Constitution with a simple majority.

In any case, the Senate is the ultimate judge of Constitutionality in this case anyway. No court would dare touch this issue with a ten foot poll. So, Democrats should just express their views on the Constitutional issue here and be done with it. You know, Hart's rule of recognition and all.
11.9.2008 12:00am
MarkJ (mail):
And because we can. There's no point in letting them stop us from undoing the damage they've done to the country in the past eight years.

And that "damage" would be....? Sheeesh, don't fling around accusations and then smugly expect the rest of us to accept them because "they're all so self-evident." Try getting specific for once.

Otherwise, your unsupported post is just that: unsupported, and, as John Nance Garner might have said, "Not worth a bucket of warm p***."
11.9.2008 12:06am
Robert WCR (mail):
It should take supermajorities to enact anything that is potentially restricting to liberty. Filibusters are a civil war avoidance mechanism.
11.9.2008 12:15am
Freddy Hill:
Robert WCR:

Agree! And commenters in this thread should see Mr. Smith Goes to Washington both as a reminder of the utility of filibusters and for an understanding of how the concept has been bastardized from the ideal of the movie.
11.9.2008 2:12am
josil (mail):
When the SC liberals decided Kelo, it becomes difficult to think of liberals (much less Democrats) as the party of the "little guy". With Senators like Leahy and Kennedy and Biden involved in the consent process, I'd gladly side with Kyl to derail another Ginsberg or Stevens.
11.9.2008 2:15am
davod (mail):
Wasn't the Senate conceived as a way to avoid the tyrany of the majority?
11.9.2008 2:16am
BGates:
Yes, davod, and to give state governments a voice at the federal level. Checks on mob rule aren't progressive, though.

How about Bernadette Dohrn as a Justice? Law professor, director of Northwestern's Children and Family Justice Center so she's got to be chock full of empathy, and she's not afraid to give the f***ing pigs what they have coming to them.
11.9.2008 3:46am
davod (mail):
Bgates: Don't worry, The Obama Admistration will be able to do much damage from within the executive branch. Although, hopefully the damage will not be as permanent as a socialist Supreme Court Justice.
11.9.2008 7:52am
mls (www):
Calculated Risk

I would like to respond to your post, but I can't quite tell what your objection is.

I take it that we agree that the judicial filibuster and the legislative filibuster have the same status, ie, they are rules of proceeding that the Senate has adopted for its own governance.

We also agree that the Constitution specifies no supermajority requirement for adopting (or amending) congressional rules and thus the Constitution permits such action by majority vote.

It follows that the Senate "could" eliminate either or both filibusters by majority vote. This is true in two senses: first, eliminating the filibusters (or otherwise amending its rules) by majority vote offends no provision of the Constitution. Second, even if it did violate the Constitution, it would be in all likelihood non-justiciable.

So far, so good. But just because the Constitution allows the Senate to change its rules by simple majority does not mean that it requires it to do so. And the Senate has chosen to adopt a rule that requires a supermajority to change its rules. This, in the Senate's view, promotes stability and provides assurance that its protections for minority rights will not be subject to the whims of transitory majorities.

Eliminating either or both filibusters by simple majority would violate the Senate's own "rule of recognition" and would be inconsistent with the Senate's counter-majoritarian nature and traditions. Sure, the Senate "could" do it anyway. But this doesn't mean that it is required to do so, or that doing so would be advisable.
11.9.2008 9:15am
Dave N (mail):
This ignores the roles of the media and the general public in the political process. Suppose Justice Stevens were to die or resign, and President Obama proposed a younger version of Stevens to replace him. By the above line of reasoning, the Republicans would not, and should not, object. But then suppose that six months later Justice Scalia were to die or resign ... and President Obama proposed a younger version of Justice Stevens to replace him as well. On what grounds could the Republicans object? They would be seen by the public, and certainly portrayed by the Democrats and the media, as having inconsistent standards just for the sake of "raw, naked partisanship" (that's a predicted quote). And the people who now see so much merit in preserving balance on the Court would suddenly be arguing for the Constitutional right of the president to appoint whatever person he saw as the most qualified candidate.
That seems to be what happened with the appointments of John Roberts and Sam Alito.

Roberts replaced Chief Justice Rehnquist, so it was one conservative replacing another. Alito, on the other hand, was a conservative replacing a moderate conservative, so the opposition level was much higher (Roberts was confirmed by a vote of 78-22 while Alito was confirmed by a vote 58-42).

What really was the differnence between the two judges at the time of their appointment other than the name of the justice being replaced?
11.9.2008 11:57am
Dave N (mail):
I would note that the Democrats use of the filibuster was not of Supreme Court nominees--rather it was primarily used at the Court of Appeals level, appointments off the radar screen of the general public and even many legal practioners.

The question for filibusters is not opposing a Stephen Breyer or Ruth Ginsberg, but rather whether they should be used to oppose a Stephen Reinhardt or Harry Pregerson.
11.9.2008 11:59am
ThomasD (mail):
Perhaps Obama could avoid the whole problem by not nominating far left jurists? Or isn't he serious about hope, change, and a new way of doing things in Washington?
11.9.2008 1:28pm
Calculated Risk:
mls,

It sounds like we are in agreement about most things here. I apologize for characterizing your views as nonsensical.


But this doesn't mean that it is required to do so, or that doing so would be advisable.


Agreed. But your argument that a present simple majority should not change a rule adopted by a previous simple majority, because the rule adopted by the previous simple majority can be interpreted to require more than a simple majority to change the rule in the future, in my view has very little to do with the wisdom and advisability of changing the rule. A simple majority of a previous Senate cannot require that future Senate's muster more than a simple majority to change that rule.

So, at the end of the day, the question to be asked is what are the "substantive" benefits of changing or not changing this rule of procedure. I agree with you of course that just because that a simple majority of the Senate CAN change the rule, that doesn't mean that a simple majority SHOULD change it. However, I think that if a simple majority believes that the rule should be changed on the merits (and I for one thing the rule SHOULD be changed on the merits), then they should do so without thinking they need to get a filibuster proof majority to end the filibuster.
11.9.2008 1:41pm
Calculated Risk:

Perhaps Obama could avoid the whole problem by not nominating far left jurists?


Perhaps conservatives could avoid the whole problem by not losing elections.
11.9.2008 1:56pm
Oren:

What really was the differnence between the two judges at the time of their appointment other than the name of the justice being replaced?

Roberts is more of a judicial minimalist -- often to the point that one could criticize him for refusing to meet issues head on (e.g. WI RTL v. FEC which pretty much overruled McConnell v. FEC without explicitly doing so). I've always admired him (concurrent with respectful dissent) for his demeanor and character. Alito seems more like a Thomas -- thoughtful but also rigid and doctrinaire.

That's just my personal $.02 (value may fluctuate).

CR: I shudder to think of the damage the GOP Congress could have down between 2000 and 2006 without the filibuster.
11.9.2008 2:11pm
MarkField (mail):

Roberts is more of a judicial minimalist -- often to the point that one could criticize him for refusing to meet issues head on (e.g. WI RTL v. FEC which pretty much overruled McConnell v. FEC without explicitly doing so).


I wouldn't describe Roberts as a "judicial minimalist". He just uses superficially moderate language to reach extreme results, as your example shows.
11.9.2008 2:26pm
Oren:
We'll have to disagree on that one too Mark (jeez, I'm racking up opponents on both sides of these debates this week) but if allowing private actors to make political statements within 60 days of an election is "radical", then I don't want to be whatever you consider moderate.

Moreover, he's increased the consensus on the court a great deal, which is helpful for the law in the long term (although I admit it will frustrate those like you that want to take slim majorities and start rewriting these things). A 5-4 opinion on a contentious matter is a recipe for reversal, stealth-reversal and general uncertainty.
11.9.2008 2:48pm
MarkField (mail):

We'll have to disagree on that one too Mark (jeez, I'm racking up opponents on both sides of these debates this week) but if allowing private actors to make political statements within 60 days of an election is "radical", then I don't want to be whatever you consider moderate.


We're not that far apart; I just phrased my last post badly.

What I mean is that Roberts reaches important results despite using seemingly moderate language. Overruling a case without saying so, being one example.
11.9.2008 3:15pm
Oren:
Yeah, I have mixed feeling about overruling without explicitly saying so (the magical judicial "distinguish from precedent"). It's not really "radical", since SCOTUS (and many lower court) judges have been doing it forever.

I can see your criticism if you think it's a destabilizing force or even unprincipled (e.g. we keep enough precedents around that we can chose which to apply to any case to fit our liking). OTOH, I see value in getting maximum consensus for each decision and therefore enhancing the durability of precedent. They are, in fact, complementary. The more each precedent represents a solid consensus among the court, the less likely a future court will be to overrule it, either stealthily or explicitly.
11.9.2008 3:41pm
MarkField (mail):

I can see your criticism if you think it's a destabilizing force or even unprincipled (e.g. we keep enough precedents around that we can chose which to apply to any case to fit our liking).


There's another way I think it's unprincipled: it undermines direct evaluation of what the Court is doing. The SCOTUS is designed to be transparent. If the Justices are using soothing language which seems to adopt prior reasoning, all the while dispensing with precedent supported by the prior reasoning, that discourages a robust debate on what the Court is actually doing. Take Roberts' discussion of Brown for example. What he did was claim to follow Brown while completely reversing (and undoing) the reasoning of that decision. It would be better to come straight out and say what he means.


OTOH, I see value in getting maximum consensus for each decision and therefore enhancing the durability of precedent.


Agreed.
11.9.2008 4:21pm
Dave N (mail):
Oren and Mark Field,

You both have discussed Chief Justice Roberts as Chief Justice and Justice Alito as a member of the Supreme Court.

My earlier point had to do with this question which neither of you has answered: What was their principle difference at the time of confirmation that would cause Roberts to get 20 more confirmation votes than Alito?
11.9.2008 5:27pm
flyerhawk:
A hollow threat. The Republicans are not going to filibuster a Supreme Court nominee. Just as the Democrats weren't going to do it 2 years ago. Blocking circuit and appellate nominees is one thing.

Supreme Court nominees are front page news. Blocking the appointment would look terrible politically.

Feel free to invoke a filibuster. If you get half your party to support it, you should count yourself luck, Senator Kyl.
11.9.2008 5:29pm
Calculated Risk:

CR: I shudder to think of the damage the GOP Congress could have down between 2000 and 2006 without the filibuster.


If they did anything extreme, what makes you think they would have even been in the majority after 2002?

We have elections every two years. There is plenty of reason to choose a moderate and reasonable path. I am not afraid of the GOP -- if they go crazy, they will fairly quickly lose any majority they have. Same for the Democrats.
11.9.2008 6:23pm
Oren:

My earlier point had to do with this question which neither of you has answered: What was their principle difference at the time of confirmation that would cause Roberts to get 20 more confirmation votes than Alito?

Roberts had a long and sterling reputation, including arguing some 80 cases in from of the Supreme Court arguing for a broad variety of public and private interests. Moreover, he is (or was perceived, these terms being so subjective) as a more moderate and certainly more minimalist* than Alito. [Moderate here in the sense of falling within the bounds of ideological latitude that ought to be accorded a President" -- another subjective test].

IMO, this is exactly right: Roberts is about what I expect from a President with George Bush's ideology and Alito is pretty much right at the edge of that range. Some Democratic senators thought he was over the edge -- not unreasonable either.

*"I do not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document."
11.9.2008 6:45pm
Oren:

We have elections every two years. There is plenty of reason to choose a moderate and reasonable path. I am not afraid of the GOP -- if they go crazy, they will fairly quickly lose any majority they have. Same for the Democrats.

Senate election years are very different, owing to the number of vulnerable seats each party is defending.

Moreover, I'm not talking about crazy though, I'm talking about intensifying some of the things they did -- removing some of the compromise language. I suppose at heart I believe in some form of Burkean cautiousness is appropriate when steering the ship of state.
11.9.2008 6:57pm
MarkField (mail):

My earlier point had to do with this question which neither of you has answered: What was their principle difference at the time of confirmation that would cause Roberts to get 20 more confirmation votes than Alito?


I didn't realize you were asking me.

I'd answer in two ways. For me personally, a key factor was the nature of the Justice each was replacing. In Roberts' case, it was Rehnquist. Rehnquist was very far right, so switching him out for Roberts wasn't a big deal to me. Roberts' impressive formal qualifications reinforced this.

In Alito's case, though, he was replacing O'Connor, who was more of a swing vote (not entirely, but certainly less dependably Right than Rehnquist). Alito seems likely to be much more hard Right than O'Connor, so I was more likely to oppose him. In addition, his formal qualifications, while good, were not as impressive as those of Roberts.

As far as the answering for the Senate Dems, I think Oren pretty much got it right. I'd add that I believe there was increasing concern about overreaching by the Bush Administration and that Alito was perceived as someone who would give undue deference to executive power.
11.9.2008 7:05pm
Calculated Risk:

I suppose at heart I believe in some form of Burkean cautiousness is appropriate when steering the ship of state.


Well, the reason I disagree with you on this is because I do not necessarily think that the choice to "do nothing" is a free lunch. Instead, the decision to do nothing is a choice with consequences.

I think the failure of the Bush administration and the Republican Congress and the Federal Reserve to adequately regulate financial institutions is proof of the idea that the choice to do nothing, like the choice to do something, is a choice with consequences.

The filibuster favors those who would do nothing. I do not think that is always a beneficial outcome (although sometimes it undoubtedly is) nor do I think that it is necessarily usually a better outcome. I certainly do not think we need a huge bias in our system in the direction of do-nothingness, as though our sloth had no consequences.

I think that getting even a majority of individuals thinking that a particular action is a good idea is a major accomplishment. There really need not be a bias towards doing nothing (unless the decision is truly fundamental, on the order of a treaty or a Constitutional amendment).

Anyway, in fact, Burkean cautiousness can be quite dangerous -- the safety it appears to offer can be quite illusory. This financial crises, which is quickly turning out to be the worst since the Great Depression, is proof of that.
11.9.2008 7:37pm
einhverfr (mail) (www):
I listened to the committee hearings on Roberts and Alito, and I have read a lot of court cases authored by Roberts (fewer by Alito).

I think that Roberts is an extremely skilled chief justice. I think his mark on the court has been remarkably positive and I noticed a distinct increase in opinions from the Supreme Court without either concurring or dissent opinions filed separately. I can't think of any justice with whom I agree with all the time, but at least I generally agree with the methodology that Roberts takes. I must admit I learned a lot about the law by listening to his responses as well.

When I listened to the committee hearings on Alito, it was immediately evident that there was an order of magnitude difference in judicial quality. I am not at all certain I like his presence on the court. Time will tell, however.
11.9.2008 9:43pm
David M. Nieporent (www):
Much as I hate to admit it, Mark Field makes a very valid point at 2:55 PM. The Republican response should be keyed to which justice is being replaced, or perhaps their tactics (re: filibuster) should anticipate a series of vacancies, which may be alternately more or less liberal depending on the respective vacancy. Replacing one liberal justice with another of more leftist views does not change the expected vote on any one decision, although it might create a more liberal reading of law via the opinion. Considering the election, I think Republicans should expect a little of this and be prepared to bite the bullet, except in the case of the most extreme USSC nominee(s) - which hopefully will not occur.
Bite the bullet? Whatever the merits of a new Justice Brennan as a justice, Republicans would be politically crazy to filibuster such a nominee if he were replacing one of the liberal members of the court. Sure, maybe he'd move an opinion or to slightly to the left, but a few opinions from a new Brennan would be just what the doctor ordered to remind people why they started voting for conservatives in the first place.
11.9.2008 10:07pm
Calculated Risk:

Sure, maybe he'd move an opinion or to slightly to the left, but a few opinions from a new Brennan would be just what the doctor ordered to remind people why they started voting for conservatives in the first place.


This is laughable. You don't give yourself enough credit. You Federalist Society types are good enough at raising the blood pressure of those who might be inclined to care about these issues enough with your casual accusations of lawlessness and illegitimacy. You hardly need a Justice Brennan. If such a figure would actually help, it would be only very marginally, especially if that figure was not often the swing vote.

The bottom-line is this. The constituency for Federalist Society scare tactics is a limited one, probably consisting mostly of Federalist Society members and those close to it. A Justice Brennan is unlikely to help you improve at what you are already quite good at -- working yourself into a lather and raising your own blood pressure as you have nightmares about activist liberal judicial decisions.
11.9.2008 11:44pm
Volokh Groupie:
Considering McCain, Collins, Snowe, Graham, Lieberman, etc all remain and that the dems have added a couple more blue dog senators who won't exactly be greeted warmly in their home state if they confirm a reinhardt-esque justice, I imagine that there will likely be another compromise brokered it needed.

And calculated risk--you're being myopic. Sure conservative idealogues across the country are already hyped up over possibly getting another Brennan, but where it will matter is in North Dakota or Montana. When Hoeven starts to rail on Dorgan about how he confirmed somebody who disagrees with nearly everything North Dakotans believe in or when Tester faces a challenger who'll point to the justice he just confirmed who doesn't believe the second amendment guarantees a citizens' right to bear arms as currently defined, then you'll see judges becoming a more significant issue.

And in some of those house races in say upstate new york, etc where dems have made some inroads, a very liberal confirmation may likely have the same effect.
11.10.2008 12:06am
Volokh Groupie:
Maybe I should have directed my second and third paragraphs at flyerhawk.

Also, just because the republicans didn't have a SCOTUS nominee blocked doesn't mean that they had some potential nominees effectively blocked by circuit nomination filibusters. If Estrada hadn't been blocked, you can bet that he would have been the nominee instead of Alito considering he would have the additional experience on the DC Court.

There is a reason that Janice Rogers Brown and Priscilla Owen were who the Republicans sought to protect at the expense of a person like Henry Saad, who was less controversial but likely not destined for anything higher than the 6th.
11.10.2008 12:20am
Thorley Winston (mail) (www):
While I oppose the filibuster of judicial nominees, one practical benefit of a Republican filibuster of an Obama nominee could be the end of judicial filibusters. If Republicans were able to hold their caucus together, perhaps Senate Democrats would be prompted to cut a deal promising to forego any judicial filibusters in the future. Alternatively, perhaps a GOP filibuster would prompt Senate Democrats to invoke the nuclear option, ending judicial filibusters once and for all.


I'm curious what effect the constitutional/nuclear/Byrd/whatever option would actually have the ability of the Senate to conduct its other business. Frankly I'm less worried about judicial nominees than I am about Obama's legislative agenda but if the effect of letting him ram through judicial empaths is that his legislative agenda -- particularly in the area of his proposal for what amounts to a federal takeover of the health care system -- gets stopped, it's not a benefit to be dismissed lightly.

That being said, at this point I think a lot of people are just projecting their desired outcome. It's far too early to tell what the effect would be of a judicial filibuster until it actually happens and Senate Democrats respond. Besides which, Senate Democrats can simply amend the rules at the beginning of the next session with a 51 vote majority, which I agree - and said as much when the parties were reversed -- is the proper way to do it, and eliminate the ability to filibuster judicial nominees.
11.10.2008 11:57am
Oren:
Thorley, the Senate operates largely by unanimous consent. A single member (often Tom Coburn) can withhold UC on any bill making it extremely difficult to move it forward (since progress must be made on the floor, by the rules).

If ~40 Senators are of a mind to cease the Senate's busines 100%, they would do alright (the committees might still function but not the floor). Of course, the majority party can retaliate by further circumscribing the prerogative of individual Senators, etc ..

Before you know it, you'll end up with the House rules where the majority leader and whip (and a few committee members) control all the levers and the individual reps hold nothin.
11.10.2008 8:14pm
Jim M (mail):
I'm glad some intelligent people understand that it is called the nuclear option for a reason. Once you set it off, you are done with any chance of having a deliberative process.

I have no problem with filibusters. If you really want to stop a filibuster, that is easy, eschew the gentleman's filibuster and force a real one. Make them stand up there and talk until they can talk no more. The filibuster is the one tool that the minority, if they are only a minority by a slight number, can use to stop things from steamrolling through and moderate the impacts.

I see zero problem with filibustering court appointments. If the new president can't get a nominee that can pick off three or four of the opposing members than it is not a problem to me.

Why would you want to Senate to be efficient? The more roadblocks the better. Look at what happens when you ramrod stuff through. You end up with hideous things like TARP. BTW, is it doing any of the stuff that it was sold to us as doing? This is what you get when there are no roadblocks and our leaders fail to lead.
11.11.2008 12:29am
luagha:
I believe that all of Obama's Apellate court nominations should be filibustered until Bush's suspended nominations are confirmed. (Not voted on, confirmed.)

Sine this is politics, I would be willing to accept some sort of numbers deal where after a certain number of Bush's suspended nominations are confirmed, Obama would get one, and so forth.
11.12.2008 2:48pm