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Hurrying Hamilton?

Today the Senate Judiciary Committee held its first hearing on an Obama judicial nominee, David Hamilton, albeit not in the usual hearing room and without the standard webcast or many Republican Senators. Most committee Republicans refused to attend on the grounds that they were not given enough time to review Hamilton's record. Hamilton has been a federal district court judge in Indiana for nearly fifteen years. President Obama nominated Hamilton to the U.S. Court of Appeals for the Seventh Circuit fifteen days ago -- limiting Republican Senators' ability to review his record. The BLT reports:

Sen. Arlen Specter (R-Pa.), the committee's top Republican, said his staff received a background questionnaire from David Hamilton, nominee for the U.S. Court of Appeals for the 7th Circuit, on March 18. Specter said the timing of the hearing kept his staff from fully examining Hamilton's record, including 1,150 written opinions taking up 9,500 pages from Hamilton's 15 years as a judge for the Southern District of Indiana.

"The Constitution, as we all know, calls on the Senate to confirm. And indispensable to the confirmation process is an opportunity to examine the record of the individual. And that means a hearing, and that means questions and answers, and that means an opportunity to prepare," Specter said.

The AP reports that Hamilton is a potentially controversial nominee:
Hamilton, a U.S. district judge from Indiana, has issued a number of controversial rulings in more than 1,100 opinions and nearly 15 years on the bench. He struck down the use of sectarian prayer to open the Indiana legislature and also ruled against a state law that required a woman seeking abortion services to receive counseling from her doctor. The counseling was required at least 18 hours before the procedure.

Both decisions were reversed by the Chicago-based 7th U.S. Circuit Court of Appeals, where Hamilton would serve if confirmed. The circuit hears appeals from lower courts in Wisconsin, Indiana and Illinois.

More from CQ's Legal Beat and Ed Whelan.

As I've argued before, I believe that the Senate should be fairly deferential to a President's judicial nominees, and ensure that all receive a prompt up-or-down vote on the floor of the Senate. Senators should have ample opportunity to review a nominee's record, but this should not be an excuse for undue delay. In this case, it seems to me Senator Leahy is rushing things along, imposing a tighter schedule than he would have tolerated when Republicans were in charge. Yet even with additional time, I doubt Senate Republicans will uncover anything that would justify opposing his confirmation. Even if Senator Leahy gives the Republicans more time, I expect he'll still be confirmed before the summer.

Brian K (mail):
Hamilton, a U.S. district judge from Indiana, has issued a number of controversial rulings in more than 1,100 opinions and nearly 15 years on the bench.

i would find it far more shocking if none of the 1100 opinions were controversial. with that many opinions nearly everyone can find something to hate.
4.1.2009 11:09pm
TalkingHead:
A stitch in time saves nine later... Best to vet the nominee well now when there is an opportunity.
4.1.2009 11:10pm
John Moore (www):
Now you tell us? Where were the talking heads when the Obame
ssiah was the nominee?
4.2.2009 12:16am
Cornellian (mail):
Sheesh, the guy is a District Court judge. Ninety percent of his opinions are going to be one page rulings on trivial procedural stuff that you can read in about 15 seconds. Three weeks is plenty of time to read every one of them.

I'm curious about that state law by the way. I wonder how a law forcing a doctor to tell his patients particular things before performing an abortion is consistent with the First Amendment. Perhaps it was tied to state funding in some way?
4.2.2009 12:16am
Rich Rostrom (mail):
Cornellian:

"Three weeks is plenty of time to read every one of them."

If one has nothing else to do. Senators do have other demands on their time, as do their staffs. But let's take your estimate that 90% of the opinions are trivial. That leaves 110 substantial opinions.

To review an opinion, one has to read the whole thing, then read the relevant trial documents to see whether the opinion was a reasonable interpretation of the facts of the case, and also research the background of the case to see if there were political or other influences at work. Can all this be done in in an hour? I don't think so. But three work weeks is 120 hours, and you assert that that is plenty of time to review 110 opinions.

As to the abortion-counseling law: physicians are required to inform patients of the actual effects and potential consequences of most elective medical procedures. Plastic surgery, for instance.
4.2.2009 1:55am
Cornellian (mail):
Actually I was using the phrase "plenty of time" with the demands on a
Senator in mind, but from the opposite direction. Given the number of
nominations they have to consider, as well as the non-nomination work
on the Judiciary committee, the Senator's other committees, and the
Senator's other work, if they can't turn around a Circuit court
nomination in three weeks time, they're basically saying they're not
up to the task of being a Senator on the judiciary committee. As you
suggest, they don't have the luxury of being a law professor and
contemplating the nuances of all 110 opinions, putting them all fully
in context, then coming up with reasoned arguments about all of of
them. They're going to skim those opinions for a phrase or two they
can use, and that's about it.
4.2.2009 3:08am
Cornellian (mail):
As to the abortion-counseling law: physicians are required to inform patients of the actual effects and potential consequences of most elective medical procedures. Plastic surgery, for instance.

That is undoubtedly true in the general case, but Indiana had a law specifically dealing with abortions, so presumably the Indiana legislature passed a law requiring the doctor to say something beyond that general obligation.
4.2.2009 3:11am
Oren:

Can all this be done in in an hour? I don't think so. But three work weeks is 120 hours, and you assert that that is plenty of time to review 110 opinions.

There are 8 GOP members on the committee, if they each contribute one aide for a week they can review each for 3 hours apiece and barely break overtime (no doubt Congress exempted itself from the labor laws anyway ...). Or they can all get together and get it done in a weekend.

I know it's trendy to mock the idea that twice as many people can get the job done twice as fast, but reading stacks of papers screams for task-level parallelism.
4.2.2009 4:05am
Angus:
That leaves 110 substantial opinions.
You can usually tell after reading 4-5 substantive positions whether the judge is good or not. Going on to read all 110 (to take your estimate) would be for purposes of collecting ammunition, not judging qualifications.

Frankly, when I first started to read the post, I thought maybe Hamilton had been nominated the day before or something. Then I saw that he was nominated on March 17th, and conservative advocacy groups began attacking him within 24 hours. Vetting must not take as long as Republican Senators claim.
4.2.2009 5:55am
RPT (mail):
As Angus notes, Hamilton was opposed immediately, just as any Obama nominee would and will be opposed. The substance of his record is not relevant.
4.2.2009 8:26am
AF:
In addition to staff, Senators have the benefits of conservative advocacy groups who, if they are competent, can easily ferret out a district court judge's most controversial opinions in a couple of weeks.
4.2.2009 8:50am
Joe T Guest:
I'm tired of hearing Specter whine - like he'd do anything if this guy was bad news anyhow. Specter brings nothing of substance to the table, constantly raising serious issues as if he meant to do something about them, then walking away. Even in the World's Greatest Bloviative Body, he stands out as the sound &fury that ultimately signifies nothing, kind of a Republican Robert Byrd except without the Klan leadership street cred.
4.2.2009 8:56am
Displaced Midwesterner:

Sheesh, the guy is a District Court judge. Ninety percent of his opinions are going to be one page rulings on trivial procedural stuff that you can read in about 15 seconds. Three weeks is plenty of time to read every one of them.


Doubtful. Your average district judge has to deal with more substantive issues than your average appellate judge in any given year. Plus the procedural stuff. If he actually bothered to write opinions on them, they are probably more than one-page rulings on procedure. Of course, he could have for some reason decided to only write opinions on piddly stuff and ruled from the bench on anything important, but it seems unlikely.

That said, a couple of minutes will tell you whether the given opinion presents any issues that need to be delved into.
4.2.2009 9:31am
Houston Lawyer:
Yes, far better to just hold a vote prior to a hearing. We know that all of the Obama nominees so far have been squeaky clean and the public has been harmed by delaying their immediate confirmations.
4.2.2009 9:32am
Just an Observer:
It is obvious that the atmosphere on Senate Judiciary has become rancorously partisan on both sides. No doubt each party blames the other.
4.2.2009 9:36am
cboldt (mail):
-- The substance of his record is not relevant. --
.
It is "relevant" in the sense that the substance must contain sufficient material to provide at least a pretense for opposition. The principle is simple, don't give the other party an inch.
4.2.2009 10:04am
Rock Chocklett:
I disagree that the President's judicial nominations are entitled to any particular deference. Sure, Obama won the election, but so did the senators. I have no problem with their opposing nominees on any ground they see fit. That's part of the check-and-balance system. I do think, however, that nominees should receive reasonably prompt consideration and an up-or-down vote.

It sickens me that some Bush nominees languished in nomination purgatory for months or years without ever having received even a committee hearing, but this guy gets a hearing in a matter of days. Sure, it's the spoils of political victory, but let the senators call it that. What claim can Leahy and company have to the high road given their track record? In the future, let's be fair: vote no if you want, but give the nominees the courtesy of a hearing and a vote.
4.2.2009 10:26am
Thales (mail) (www):
"Hamilton, a U.S. district judge from Indiana, has issued a number of controversial rulings in more than 1,100 opinions and nearly 15 years on the bench. He struck down the use of sectarian prayer to open the Indiana legislature and also ruled against a state law that required a woman seeking abortion services to receive counseling from her doctor. The counseling was required at least 18 hours before the procedure. "

Of course, the two rulings described were clearly mandated by existing Supreme Court and 7th Circuit caselaw, and so are utterly uncontroversial acts for a district judge.
4.2.2009 10:30am
rosetta's stones:
Of course, the two rulings described were clearly mandated by existing Supreme Court and 7th Circuit caselaw, and so are utterly uncontroversial acts for a district judge."


How can that be, as they were both reversed on appeal?

And now, he's being nominated for the appeals court that reversed them. Pretty neat trick, that.

15 days isn't enough time to review a candidate's qualifications for a professional position, not in any scenario that I've been involved in. Other considerations are in play here, obviously.
4.2.2009 10:47am
Thales (mail) (www):
"How can that be, as they were both reversed on appeal? "

Easy, the 7th Circuit changed the way it applied the applicable S. Ct. precedent (Marsh v. Chambers and all the post-Casey law about notification periods and doctor "warnings" i.e. the crap legislatures come up with to hollow out Roe). Or the wrong 7th Circuit panel came up. That doesn't make the lower rulings "wrong" and should not make them controversial.
4.2.2009 11:26am
Gabriel McCall (mail):

And now, he's being nominated for the appeals court that reversed them. Pretty neat trick, that.



Well, if one believes that a circuit is on the wrong track, one of the obvious ways to resteer it would be to appoint judges to that circuit with different views from the current body.
4.2.2009 11:27am
PatHMV (mail) (www):
I say the GOP should do to the Democrats EXACTLY what the Democrats did to the Republicans during the Bush Administration. We offered a number of solutions which would guarantee all nominees a straight up-or-down vote, regardless of which party held the Presidency and which party held the Senate. They would have stopped the tricks the Democrats were using when Bush was President and the Democrats were in the minority, and it would have stopped the tricks the Republicans were using when Clinton was President and the Republicans were in the majority. But the Democrats said NO. So screw 'em.

You can't have a boxing match where one guy is playing by Queensbury rules and the other is playing by ultimate fighting rules. We can keep advocating for reasonable rules, but until the other side agrees, we have to play by the same rules they play by, or we'll get beat every time.
4.2.2009 11:37am
Dave N (mail):
The interesting question is whether Cornellian, RPT and Angus will feel the same way the next time there is a Republican President in the White House--with a Republican Senate to boot. Will they be as sanguine then about a federal district court judge being scheduled for a confirmation hearing only 15 days after nomination?
4.2.2009 11:53am
Brian K (mail):
The interesting question is whether Cornellian, RPT and Angus will feel the same way the next time there is a Republican President in the White House--with a Republican Senate to boot.

We already know how republicans feel when there is a democrat in the white house. all you gotta do is look up comment to pathmv for the "principled" conservative viewpoint.

although i can't say the sudden change in conservative beliefs is surprising since i and many many others predicted this would happen a long time ago.
4.2.2009 12:15pm
Bob from Ohio (mail):
O is entitled to nominate whoever he wants and 99.99999% ought to be confirmed. He won and the Dem senators won big as well.

What's the hurry though? Only 2 judges left on the circuit so they can't form a panel?

It's counterproductive for Leahy to do this. He can run over Specter now of course since he has the votes but maybe down the road he might need him. That's the way politics works, pissing off someone for no reason usually bites you later.
4.2.2009 12:44pm
cboldt (mail):
-- We already know how republicans feel when there is a democrat in the white house. --
.
Majority Leader Frist also stiffed a few nominees who had been voted out of Committee - several GWB nominees never got their up-r-down vote, at the direction of a Republican-controlled Senate.
.
It is normal for the Senate to deny up-r-down votes. Hamilton has no right to an up-r-down vote, never-mind a timely one. Seeing as his record supports a pretense for opposition, the Republicans can object to further proceedings.
4.2.2009 12:44pm
Oren:

It's counterproductive for Leahy to do this. He can run over Specter now of course since he has the votes but maybe down the road he might need him.

Indeed. Even if Leahy doesn't, Reid certainly will for various cloture bill. He already lost card check (thank god) because Specter won't vote for cloture.
4.2.2009 12:46pm
cboldt (mail):
-- all you gotta do is look up comment to pathmv for the "principled" conservative viewpoint. --
.
By golly, it looks like the GOP and DEMs are in perfect agreement as to what constitutes "principled" for handling nominations. Both sides shift the interpretation of the rules to suit. That's the principle ... WIN.
4.2.2009 12:49pm
theobromophile (www):
Agree with PatHMV, but take it a step further.

Usually, we've had governors in the Oval Office. While we could speculate about what they would do if they had been in the Senate, no such speculation is necessary with Obama and Biden. Both voted against Roberts on ideological grounds, with Obama even stating that he respected Roberts' intellect and temperament, but disagreed with him ideologically. Biden stated in his VP debates (IIRC) that he was proud of having started the political battle over judges - a battle which has spanned decades and had untold negative effects on our country and political process.

So screw 'em - and "'em" is not just the Dems in the Senate, but the White House. It's not just the current Senators that should feel the shoe on the other foot, but the former ones who are nominating these people.
4.2.2009 1:38pm
David M. Nieporent (www):
How can that be, as they were both reversed on appeal?
Easy at least in the case of the sectarian prayer: the law changed in between the time he decided the opinion and the time the appeals court reversed it. The Supreme Court handed down Hein.
4.2.2009 1:55pm
NowMDJD (mail):

I'm curious about that state law by the way. I wonder how a law forcing a doctor to tell his patients particular things before performing an abortion is consistent with the First Amendment. Perhaps it was tied to state funding in some way?

Notification statutes are legal and constitutional, as you know, in a variety of circumstances. For instance, there is the Surgeon General's warning on cigarettes. In Massachusetts, doctors have to talk to patients about breast cancer treatment alternatives before doing surgery. Business speech enjoys less protection than most forms of speech.

I don't remember the case, but I'm virtually certain that the US Supreme Court has upheld a statute with certain notification requirements before termination of pregnancy.
4.2.2009 2:02pm
DangerMouse:
So screw 'em - and "'em" is not just the Dems in the Senate, but the White House. It's not just the current Senators that should feel the shoe on the other foot, but the former ones who are nominating these people.

Agreed. Why should Obama expect people to vote for intelligent and tempermental people who otherwise differ on ideology, when he did the exact same thing to Roberts? All of Obama's ideologues should be voted down for that reason alone.
4.2.2009 2:04pm
hawkins:

You can't have a boxing match where one guy is playing by Queensbury rules and the other is playing by ultimate fighting rules. We can keep advocating for reasonable rules, but until the other side agrees, we have to play by the same rules they play by, or we'll get beat every time.


What an absurd argument. I suspect this was the Dem's exact belief when they were in the minority. Both sides are equally culpable. I will gain much admiration for whichever side is the first to end the "but he did it too" argument.

Its safe to say I wont have to start admiring PatHMV or DangerMouse any time soon.
4.2.2009 2:19pm
Dave N (mail):
Brian K,

I have stated on this very blog that even though I consider myself conservative, I opposed judicial filibusters when GWB was President and I oppose them now.

However, I will comment on hypocrisy when I see it.

Additionally, though I oppose judicial filibusters, I believe that votes should be meaningful, which they cannot be if there is a rush to judgment.
4.2.2009 2:23pm
Brian K (mail):
However, I will comment on hypocrisy when I see it.

did you not see pat's post (or dangermouse's or theo's)? or do you just selectively see hypocrisy?
4.2.2009 2:48pm
LawMan 5000:
Dave N and Brian K,

I agree. I think labeling something as "just politics" is a cop out. And I agree, there may be legitimate practical and philosophical reasons to turn the money down. It is not their motives I question as much is if they will, in the end, turn down the money. How much federal stimulus money will they really be willing to leave on the table versus how much they accept? Will they act according to their words? I am skeptical; I certainly could be wrong.

In your defense, Jindal appears to have already turned down unemployment funds and seems to be in the process with respect to health funds.
4.2.2009 3:03pm
LawMan 5000:
I responded to the wrong post, and the wrong comments within that post. Please ignore my previous comment.
4.2.2009 3:05pm
Joseph Slater (mail):
I opposed all filibusters when the Dems were in the minority, and I oppose them all. Sincerely.

Of course, that and $3.10 gets me a grande latte at my local Starbucks.
4.2.2009 3:09pm
Joseph Slater (mail):
I opposed all filibusters when the Dems were in the minority, and I oppose them all now. Sincerely.

Of course, that and $3.10 gets me a grande latte at my local Starbucks.
4.2.2009 3:09pm
Joseph Slater (mail):
And I double-posted and I apologize for that!
4.2.2009 3:10pm
DangerMouse:
I'm not sure why people are so sure I'm a hypocrite. I'm in favor of voting down people who agree with the Roe reasoning or are willing to uphold it, and in favor of appointing people who disagree with it and are willing to strike it down.

I don't think I've expressed an opinion on judicial filibusters in the Senate. I favor them to the extent they are needed to defeat an abortion-rights ideologue.
4.2.2009 3:33pm
PatHMV (mail) (www):
As I pointed out, the Republicans, while in the majority (but not a 60-vote majority), offered to pass new Senate rules which would guarantee that NEITHER party could play the games that both parties had played in the past. Had those rules passed, then the GOP would not be able (potentially) to filibuster any Democratic nominees, and there would be an agreed-upon process for handling judicial nominations. Sen. Frist's proposal would have eliminated the practices which had previously been used by both the majority and the minority party to delay and obstruct consideration of judicial nominees.

The Democrats said: "screw you," and refused to agree to the rules changes.

So that means the Democrats thing the rules should be, stop 'em however you can. Those are in fact the rules of the Senate now.

If the Senate now wishes to propose the same rule changes, in their totality, which were proposed by Sen. Frist, then I would support their passage.

It is not, however, hypocritical to play by the existing rules if you lose in your bid to change the rules. Let's look at a sports example. Remember when basketball added the 3-pointer? Suppose you were a team whose owner argued against the rule change, wanted to stick at 2 points a basket, no matter from where it was shot. Is it hypocritical for that team, who lost out on the fight over the rule change, to still take advantage of the 3-point shot? Of course not.
4.2.2009 3:35pm
PatHMV (mail) (www):
Oh, and hawkins, the GOP complaining about this rammed-through nomination is NOTHING compared to the gnashing of teeth and wailing histrionics performed by the Democrats a couple of years ago. Their excuse for the filibusters back then was that the 3 or 4 or 5 years some nominations had been pending weren't enough time to fully vet them. You would have thought the Republic was coming to an end and the Senate would be permanently laid ruin should the GOP insist on up-or-down votes on nominations which had languished for years.
4.2.2009 3:38pm
Oren:

I don't think I've expressed an opinion on judicial filibusters in the Senate. I favor them to the extent they are needed to defeat an abortion-rights ideologue.

The Senate operates on the same set of rules regardless of whether the nominee is pro or anti Roe. If it were up to DangerMouse to write the rules of the Senate regarding nominees, which will apply in all cases ( PC Senate + PL nominee, PL Senate + PC nominee, ...), what would they look like?
4.2.2009 3:43pm
Dave N (mail):
Joseph Slater,

You obviously have not bought coffee at Starbucks recently. $3.10 won't get you a grande anything there.
4.2.2009 3:45pm
DangerMouse:
If it were up to DangerMouse to write the rules of the Senate regarding nominees, which will apply in all cases ( PC Senate + PL nominee, PL Senate + PC nominee, ...), what would they look like?

Lawyers live on rules, but political fights over judicial nominations are pure power matches with no rules. Your question makes no sense at all. If there are any rules to be made over whether filibusers are permitted, it's because one side is surrendering in the power struggle.

It's better to openly admit that you're voting against someone because of ideology, than to Bork them by smearing their reputation. Obama did as much with Roberts. He was polite to Roberts, said he was intelligent and had the correct judicial temperment, and voted against him anyway. I can respect that better than what Kennedy did to Bork. It also makes it much clearer what the terms of that fight really are about. If the people want judicial ideologues, they'll vote for Senators and Presidents who will provide them. If they don't want judicial ideologues, they'll vote the other way.
4.2.2009 3:51pm
Brian K (mail):
Pat,

that is essentially the response i expected.

If every judicial nominee deserved an up or down vote when bush was the one nominating then every nominee still deserves an up or down vote when obama is the one doing the nominee. republicans didn't just arbitrarily decide to change the rules (as in your inapt sports analogy). we were told the rules must be changed for moral, ethical and constitutional reasons. just because i thought this was BS and that republicans only wanted the rules changed for purely selfish and partisan reasons doesn't change the fact that these are the arguments that republicans used.

the right and wrongness of these arguments doesn't change just because the party in power changes or because the other side has shifted its arguments. conservatives, however, seem to think it does which is why they are being hypocritical.

i'm also not going to hold my breath for republicans to reintroduce the rule change to prevent themselves from blocking judicial nominees, even though that would be a principled thing to do.
4.2.2009 3:54pm
hawkins:

the GOP complaining about this rammed-through nomination is NOTHING compared to the gnashing of teeth and wailing histrionics performed by the Democrats a couple of years ago.


I agree with this. And with the fact that Leahy should give the GOP more time before confirmation hearings.
4.2.2009 4:00pm
Oren:

... political fights over judicial nominations are pure power matches with no rules.

The Senate operates in a set of pretty strict parliamentary rules, which are not easily or frequently changed. Frist found that out the hard way.

So, will you answer the question -- what sort of cloture rule would you have for judicial nominees?
4.2.2009 4:03pm
PatHMV (mail) (www):
I still think it better for nominees to be given an up-or-down vote, Brian. I'm not in the slightest being hypocritical. If the Democrats wish to introduce the SAME rules changes offered by Sen. Frist, I will continue to support them, even though that would mean that Republicans would not be able to filibuster nominees.

Which part of the rules not actually having been changed are you struggling with? The Democrats said: "you're wrong, Republicans, these filibusters and ideological votes are very important, and those are the rules we demand you play by." They won that battle, basically. Those are currently the rules governing the process. Why is it wrong for Republicans to play by those rules while they remain in place? Can you tell me how my sports analogy is inapt?

Why are you not condemning the hypocrisy of the DEMOCRATS for demanding that the GOP play by rules which the Democrats themselves refused to play by? Do you not think it would be hypocritical for Democrats who filibustered judicial nominees when they start criticizing Republicans for filibustering judicial nominees?
4.2.2009 4:04pm
Oren:

It also makes it much clearer what the terms of that fight really are about. If the people want judicial ideologues, they'll vote for Senators and Presidents who will provide them. If they don't want judicial ideologues, they'll vote the other way.

You know, I don't really think that people vote on judicial temperament. Those that do vote based on judges at all seem to be litmus-test based (e.g. your comments about Roe -- that's not an insult, it's a valid political position).
4.2.2009 4:08pm
theobromophile (www):
The hypocrisy charge is ridiculous. The GOP tried to get the rules changed. The Dems didn't want it to change, even knowing that they would surely benefit from it in the near future. The only hypocrisy is the Dems who want the GOP to play by one set of rules, while allowing their own side to play by another, much nastier, set.

You play with the rules you have, not by the rules you wished you had. The Dems had their chance to institute a different set of rules. They did not, so they are hardly in a position to complain when they are stuck with those rules.
4.2.2009 4:08pm
cboldt (mail):
-- what sort of cloture rule would you have for judicial nominees? --
.
If the Senators won't use cloture as it is supposed to be used (they won't), I'd suggest modifying Rule XXXI: Executive Session - Proceedings on Nominations (Senate Rules) so that it resembles Rule XXX: Executive Session - Proceedings on Treaties.
.
(d) On the final question to advise and consent to the ratification in the form agreed to, the concurrence of two-thirds of the Senators present shall be necessary to determine it in the affirmative; but all other motions and questions upon a treaty shall be decided by a majority vote, except a motion to postpone indefinitely, which shall be decided by a vote of two-thirds.
4.2.2009 4:23pm
dll111:
I'm no expert here, but didn't the bipartisan Gang of 14 thwart the so-called nuclear option, not just the Democrats?
4.2.2009 5:02pm
PatHMV (mail) (www):
dll111... It is correct that the Gang of 14 prevented Sen. Frist from using parliamentary tactics to force through Senate Rules changes over the objections of the Democrats. But the "nuclear option" refers to those parliamentary tactics, not to the proposal to get rid of the filibuster and other dilatory tactics once and for all. A number of Republicans in the Gang of 14 supported the rule change, but opposed the use of the parliamentary tactics which Frist was planning. So it's pretty much just the Democrats responsible for killing the substance of Frist's proposal itself.
4.2.2009 5:17pm
Brian K (mail):
Pat,

They won that battle, basically.

so that explains why conservatives have dropped opposition to abortion, gun laws, etc. oh wait...

this whole thinks smacks of republicans trying to have their cake and eat it too. where were all of the republicans demanding an up or down vote while clinton was president? where are they now that obama is president?

if an up or down vote is morally, ethically and constitutionally the right thing to do as it was when a republican was making the nominations, then it should still be the morally, ethically and constitutionally right thing to do now that a democrat is in the white house. so where are all the republicans reintroducing the up or down vote legislation now that they have a more receptive group of democrats?
4.2.2009 5:25pm
hawkins:
"Democrats are hypocrites!" "But Republicans are hypocrites!"

both sides are correct
4.2.2009 5:28pm
Joseph Slater (mail):
Dave N.:

Respectfully, you haven't been to Toledo recently, where you can still get a grande latte for $3.10 at Starbucks. If you are ever in the neighborhood, I'll buy you one. It will probably cost me less than that beer I somehow remember owing Orin Kerr.
4.2.2009 5:32pm
PatHMV (mail) (www):
Brian, and if the Democrats think that it is morally right to use any means necessary to oppose a judicial candidate on ideological grounds, why are they crying about what the Republicans are doing? I've asked that several times now, and you won't address it. If the Republicans are being hypocritical for playing by the Democrats' rules, then the Democrats are being hypocritical for complaining about the tactics the Republicans are using.

At any rate, it is only hypocritical if they were to currently refuse to agree to CHANGE THE RULES. That's where hypocrisy lies or doesn't lie. If Democrats propose the same rules changes, and Republicans don't support them, fine, that would be hypocritical. But you have yet to explain why my basketball rules analogy in inapt.

Did you call Obama and all Democrats hypocrites for refusing federal funding for the presidential election? When Bush did that, Democrats sure screamed. But when it was to their advantage, they did the same thing. Where are you on their hypocrisy? You play by the rules that exist. If you think the rules are unfair, you try to change the rules. But you don't play by the rules you want while the other side plays by their rules. That's just stupid.
4.2.2009 5:41pm
theobromophile (www):
There would be a few ways in which the GOP actions would be hypocritical, but are not now:
*If they (as per PatHMV's previous post) were to refuse to change the rules, now that it would not benefit them to do so;
*If the rules had changed, and they did their best to bypass them,
*etc.

What is NEVER hypocritical is to try to change the rules, but to abide by the ones you have. Not just because you can, but because there is no moral requirement to fall on your sword and die for these beliefs.

What those who are wailing and gnashing their teeth about those Gaia-awful, hypocritical GOP-ers are failing to understand is that the Republicans are still putting forth the best argument possible for the rules that they asked for in the Bush years. Filibustering and stonewalling (D) nominees = Best. Argument. Ever.
4.2.2009 5:55pm
ArthurKirkland:
Some things I would like to see:

(1) More collaboration, and less influence among the extremists, with respect to selection and consideration of judicial nominees.

(2) An explanation of why Judge Hamilton's nomination should be rushed (or why it is not fairly termed "rushed," by historical standards). If Sen. Specter requests (with or without explanation) a two- or three-week period for additional consideration of the nominee, I would like to see that request granted. If a problem could result from delay, explain that situation. If there is a problem associated with the new administration's nomination process (amateur hour, for example) or the nominee, uncover it now.

(3) Better nominees than have been observed in the past 30 years or so.

I believe these three points are likely to be intertwined.
4.2.2009 6:50pm
einhverfr (mail) (www):
Ok, I am going to try to give a rational and level-headed response to this story.

The first point is that I think the Senate does deserve some time to see how a judge approaches the law. Law ALWAYS requires intelligent application, and it is quite helpful to try to understand how various nominees approach some of the difficult issues in this regard. In some cases, I think that filibusters are useful tools in this regard.

I also think that Senator Spector raises some important points about feeling like process in this case shouldn't be a partisan issue.

I have always argued that the senate should reasonably vet candidates and be willing to insist that candidates are able to get a broad appeal from a wide range of folks. One area I disagree with Prof. Adler on is the use of filibusters in pursuit of consensus candidates (I think rapid up/down voting will pack our judiciary with activists of all stripes).

I think Sen. Leahy is unfortunately engaging in the same questionable tactics that Republican lawmakers engaged in during the last 8 years, and the cost will affect our system of government.
4.2.2009 6:59pm
einhverfr (mail) (www):
ArthurKirkland:

100% agreed. The judicial process has become too agenda-driven regardless of who is President. This needs to end.
4.2.2009 7:02pm
Steve2:

But three work weeks is 120 hours, and you assert that that is plenty of time to review 110 opinions.


The company I used to work for openly told new hires that year-round putting in anything less than 45-47 hours a week was considered slacking off - whether you were an FLSA exempt or non-exempt employee - and would have negative consequences for you. If you've ever known a CPA, you know that during February, March, and the first half of April, putting in anything less than 70 or 80 hours a week isn't going to cut it. And in my opinion, when a legislature's in session, its members and their staff fall into the same boat. Three work weeks for the United States Congress isn't 120 hours. It's supposed to be a 24/7 establishment when it's in session: there's bills to read, bills to amend, statutes to repeal, statutes to introduce bills about, officials to impeach, nominees to vet and confirm or reject, an Executive branch to direct, a Constitution to amend, constituents to listen to. The job can't be done right in a 40-hour work week, so clearly - Congress shouldn't be trying to have just a 40-hour work week.

That said, I do think it's arguable whether or not the 180-240 hours of three congressional work weeks is sufficient to develop a solid understanding of a nominee, especially considering that the only reason all that time's going to be devoted to examining the nominee is that the Senator delegated it to a staffer. On the other hand, the way I understand the Judiciary committee's role in the process is that it's pre-clearing people for consideration by the whole Senate, and there's another week or two of examination by the entire Senate if the committee determines the nominee's worthy of that. Sort of like with public bidding, first you determine who's qualified to bid, and then you determine who the lowest bidder is. First the judiciary committee determines if the nominee's qualified to be debated and voted on, then the entire senate debates and votes on qualified nominees. Maybe it isn't necessary for the committee members to have a full understanding of the nominee, since voting "yes" in the committee is just saying "yes, this nominee merits further consideration", not "yes, this nominee should be confirmed."

Then again, my understanding of the committee's role could differ from its own understanding.

Regardless, all this nonsense about cloture and threatened-but-not-actual filibusters (has there actually been a real filibuster since 1964?) in my mind is like the blue slip and legislative hold nonsense: a symptom of the Rules not imposing a ticking clock on everything. Way I see it, rules for everything ought to be "committee gets an arbitrary number of days, with a limited number of short extensions-for-any-reason and a limited number of short extensions-for-specific-reasons, then committee has to vote, then whole body gets an arbitrary number of days, with a limited number of short extensions-for-any-reason and a limited number of short extensions-for-cause, then they have to vote." None of this leaving stuff to languish and wither. Either something passes, or it gets put down like a rabid dog, but either way it should happen according to the inexorable mechanical juggernaut of a clock, not the current mishmash of motions and procedural votes.
4.2.2009 8:28pm
Oren:


That said, I do think it's arguable whether or not the 180-240 hours of three congressional work weeks is sufficient to develop a solid understanding of a nominee, especially considering that the only reason all that time's going to be devoted to examining the nominee is that the Senator delegated it to a staffer.

Because they can't cooperate?
4.3.2009 2:08am
Steve2:
Oren, I'm not sure which "they" you mean: the nominee, the senators, or the senators' staffers.

I was just making the point that the senators obviously can't spend 100% of the available time on just one thing (the nomination), so the only way the full available time gets allotted to the subject is if a staffer gets assigned to it and only it. And by implication, raising the questions of how hands-on the senator needs to be in overseeing their staff's review of the nominee and how that might affect what a reasonable time frame is.
4.3.2009 11:20am
Brian K (mail):
pat,

a few words of advice:

1) actually read the other guys posts. it really helps you to not look like an idiot. a corollary to this point is that you should not read what is not written. it makes you come off looking like a partisan hack who is desperate for arguments. i've hinted at what i think of the democrats actions but you chose to put words in my mouth instead.

2) the "but clinton did it" was not an a valid argument then and it is not a valid one now. any hypocrisy on the democrats does not excuse the republican's hypocrisy.

3) if you want your opponent to do more than assert an analogy doesn't fit you have to do more than assert that it does fit. i have far too little time to respond to every stupid argument that comes my way.

4) if you demand that your opponent respond to every argument you make, then you might want to respond to every argument that he makes. lest you risk looking like a hypocrite.


if you can't see a difference between the republicans current actions now and those of much of the past 5-6 years, actions that conveniently switched when a democrat came to power, then no amount of explaining will help.
4.3.2009 11:22am
Oren:

And by implication, raising the questions of how hands-on the senator needs to be in overseeing their staff's review of the nominee and how that might affect what a reasonable time frame is.

My point was that if you have 8 GOP Senators contributing 2 aides each, you can burn through the entire stack in a few days tops. The aides can then present an annotated executive summary and you can take it from there.

I'm not saying that they shouldn't get more time -- in the interest of collegiality Leahy should let Specter have a few weeks. My point is that inability to go through 100 odd opinions is the lamest excuse for that delay imaginable.
4.3.2009 12:19pm

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