Sunday, January 15, 2006
Disheartened by the administration's success with the Supreme Court nomination of Judge Samuel A. Alito Jr., Democratic leaders say that President Bush is putting an enduring conservative ideological imprint on the nation's judiciary, and that they see little hope of holding off the tide without winning back control of the Senate or the White House.
In interviews, Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.
That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they would take the courts too far to the right.
From altitude, the Democrats are losing this issue because they keep losing elections. As Charles Schumer so correctly put it:
"You either need a Democratic president, a Democratic Senate or moderate Republicans who will break ranks when it's a conservative nominee," Mr. Schumer said. "We don't have any of those three. The only tool we have is the filibuster, which is a very difficult tool to use, and with only 45 Democrats, it's harder than it was last term."
And, of course, the Gang of 14 put an end to the filibuster outside of "extraordinary circumstances," which probably means that a nominee must be manifestly -- or at least arguably -- defective in intellect, experience or morality in order for a filibuster to occur. Since Sam Alito's intellect and experience were unimpeachable, the Democrats on the Judiciary Committee tried to trash his character, their only hope being to fracture the Gang and trigger a filibuster. Hence their absurd emphasis on the "bad facts" of individual cases -- the "stripsearching of the girl" case, for instance -- and Alito's membership in the Concerned Alumni of Princeton.
Looking back, I think we can say that the Republican leadership in the Senate handled the filibuster controversy last April and May better than a lot of conservative bloggers thought they had. Majority Leader Frist and others pushed the "nuclear option," which would have by simple majority vote changed the rules to ban filibusters in connection with judicial nominations. That threat created a crisis in the Senate, which only resolved itself when seven Republicans and seven Democrats joined in a "Gang of 14" to agree to reject any rules change, confirm three specific appellate judges without a filibuster, and refrain from the filibuster in the future other than under "extraordinary circumstances."
At the time, a lot of commenters, including bloggers on the right and left, denounced the deal. Of course, "commenters," and especially bloggers, love nothing more than a fight, but beyond their natural hankering for a Senate cage match lay genuine concerns. Hugh Hewitt denounced it as a "sell-out," Peggy Noonan called the Republicans in the Gang "egomaniacs" (which they surely are but her point was to denounce the deal), and John Hinderaker wrote that "[i]t would be hard to overstate what a disaster this is for the Republican Party." Ed Morrissey carpet-bombed the deal ("this could be merely objectionable and not a debacle, depending on how the GOP signatories interpret 'extraordinary circumstances'"), as did Michelle Malkin, who put together the most comprehensive contemporaneous round-up [link fixed] of righty blogger reactions.. Much of the opposition on the right sprang from a principled objection to the use of the filibuster in judicial confirmation fights, but practical political considerations figured prominently. Power Line, again:
The claim by Senator Graham and others that we need to get this issue behind us in order to proceed with the Senate's business is laughable. The Democrats will be emboldened by this "compromise" and will continue to obstruct. This Congress will accomplish little beyond what it already has, and that isn't much.
Finally, and most importantly, the president probably will be unable to get a Supreme Court Justice confirmed this session unless he appoints a moderate. And barring Republican gains in 2006, he probably will be unable to appoint a conservative Justice at all.
My respect for Mr. Hinderaker is boundless and I proudly wear his logo attire to the gym just to irritate the Princeton liberals, but he was wrong back in May: John Roberts and Sam Alito seem to be as conservative as a competent judge -- by which I mean one who has not made up his mind in advance -- is likely to be.
On the results, at least, the host of conservatives who opposed the filibuster compromise in May were wrong, and are undoubtedly delighted that this is the case.
Of course, many conservatives will still say that the filibuster should have been abolished when we had the chance. Long time readers know that back in May I disagreed, with qualifications, and I still think I was right. Yes, the Republicans would have had an easier procedural job of it had they abolished the filibuster outright in the spring. However, by signing up for the principle that the filibuster would only be deployed against candidates with some fundamental defect, the Gang of 14 essentially renounced ideology alone as the basis for a filibuster and required that the Democrats find something of substance to object to. When Bush picked smart, experienced, moral nominees, the Democrats could not lay a glove on them without resorting to scurrilous attacks that made them look like such idiots that even Joseph Biden had to throw in the towel.
At least this weekend, the Gang of 14's compromise looks as though it has achieved the intended purpose, which is to take some of the nastiness out of the confirmation of judges. This won't happen right away -- too many activists on both sides have raised too much money on the issue -- but the Alito hearings may have represented a watershed: Presidents now know they have to nominate really smart people, and Senators know that they cannot win by smearing nominees. That's progress that even conservatives should concede.
UPDATE: Based on a couple of the comments, I seem to have left the impression that I did not think that the Alito hearings were nasty. I did. But I believe that the nastiness -- which the Dems were driven to because of the standard erected by the Gang of 14 -- hurt the Democrats more than it helped them, and that they now know that. My point -- perhaps poorly expressed the first time around -- was that the May compromise will have the ultimate effect of reducing nastiness.
UPDATE: Dianne Feinstein said this morning that Alito is qualified, and that it would be a mistake to filibuster him:
A Democrat who plans to vote against Samuel Alito sided on Sunday with a Republican colleague on the Senate Judiciary Committee in cautioning against a filibuster of the Supreme Court nominee.
"I do not see a likelihood of a filibuster," said Sen. Dianne Feinstein (news, bio, voting record), D-Calif. "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court."
I don't get the logic, but that would be too much to ask for. The point is, Dianne Feinstein, who is not a member of the Gang of 14, has been forced by the May deal to subscribe to the notion that ideology alone is not a reason to filibuster an otherwise qualified nominee. She has to vote against him because she can't anger her base by voting for him, but she is closing the door on a filibuster.
I still think that the May deal was a winning political trade for Republicans, and has created better incentives for all parties -- the President, Senate Republicans and Senate Democrats -- than the alternatives (the status quo ante or the "nuclear option").
I had postulated at the time that the deal had in fact killed the fillibuster. The fly in the Democrats ointment has proven to be an impeccable, Conservative jurist. Which is what we right of center bloggers wanted in the first place, a fight on our terms.
The formula has been written -- I only hope the perscription is dispensed liberally to all right of center members of Congress and the President keeps a dose at his bedside. You truly do win more battles with reasoned debate than through conspiracy theories, name-calling, and sleazy innuendo -- just as Buckley had said.
Tigerhawk......."to take some of the nastiness out of the confirmation of judges." ????
Did you watch the same hearings I saw? Nastiness is way too nice a name for the Democratic postulating, character attacks, etc. they imparted to this man.
I have seen no nastiness disapear, nay it may be worse. The only change possible from the Gang of 14 activity is a delay in attempting to filibuster. That will fall with the 1st attempt at so doing.
Duke of DeLand
The Duke makes a good point. Had the Republican's succeeded in blocking the use of filibusters on judicial nominations the math for the Democrats would have been so obvious that they would clearly being wasting everyones time trying to peel of moderate (aka liberal) Republicans. They may have still put on a show for their kook base, but it is hard to imagine they would have been as ridiculous. The Gang of 14 deal puts forward the evil day and it is the Democrats hope that the 2006 election will make it easier for them to thwart democracy.
Nice Post! While I was definitely in the "grrrr" camp about the compromise, it did turn out a lot better than I thought. However, all of it can fall apart the moment that our gang of 7 gets squishy in the slightest bit. Having to hang your hat on that situation makes me less than easy.
After the Alito nomination is wrapped up, will the Dems finally start to realize that elections mean something?
I can't follow how you reach your conclusion, TH. Leaving aside the fact that he hasn't been confirmed yet, I'm not sure what evidence there is that the gang-of-14 is responsible for your (hoped for) lack of a fillibuster this time. Surely you aren't suggesting that the "extraordinary circumstances" language actually means anything to the Democrats (or a couple of the Republicans) who signed on. They each get to decide for themselves when such circumstances exist, so the Republicans gained exactly nothing.
You fail to make a convincing case for why eliminating the filibuster entirely would not have been preferable. Surely it could have not made these hearings more pointlessly contentious. As it stands now, the President has to make sure that a nominee is not only well qualified, but that there's not something stupid in his background that dishonest liberals can't claim is "extraordinary."
Republicans are right that sustained filibusters of judicial nominees are never constitutional (short ones to gather evidence are a different story). Further, since Democrats have explicitly refused to renounce the filibuster, the fight over the filibuster is inevitable. What was to be gained by postponing it?
Some fights need to be fought. This was one of them. If the Republican half of the gang of 14 hadn't sold out their party, this battle would have been fought, won, and over, once and for all. Instead, the filibuster threat will continue to cast a pall over judicial nominations for the foreseeable future.
It didn't have to be this way.
Spoons, in this post I'm not really tackling the principled case for abolishing judicial filibusters, or confining them as you suggest. I don't really buy the constitutional argument that you and others make, but I appreciate that in conservative circles my view is the minority position.
Addressing the politics, though, I think that your view of the alternative outcome in May is unrealistically optimistic. In the eyes of a lot of people, including a huge chunk of the center, abolishing the filibuster would have been seen as a desperation move by Republicans, and undermined the legitimacy of Bush's appointments. Also, I might add, I think there is a serious argument that it was the May deal that made it possible to torpedo the Miers nomination. Consrvative bloggers like to take some credit for raising that ruckus, but the real problem would have been that her lack of intellect and experience would have given rise to the "extraordinary circumstances" that would have permitted a filibuster even if the Republicans had been able to sustain a party-line vote on the merits.
Now, you are right that the May deal did not define what "extraordinary circumstances" are, but if Alito gets through without a filibuster the group will have established as precedent the basic point that ideology alone is not enough. That's a good thing, because it creates the right incentives on both sides.
None of your conclusons logically follow:
The Democrats cannot now filibuster because the replublicans would enact the "nuclear option" and confirm him anyway.
The "gang of 14" had nothing to do with that, except that the repubicans on that gang will no longer obstruct that plan. Which would have been solved just fine if they hadn't been obstructionist in the first place.
Now, if the democrats could block the "nuclear option" and chose not to do so, THEN you could say that compromise had achieved something more than putting a fuzzy warm feeling in your head.
Otherwise it's just a case of repbulicans not blocking republicans, and having nothing to do with a sudden change of heart on the part of the democrats at all.
I think the filibuster issue needs to be hashed out. Hashing it out equates to governing - as opposed to simply strategizing for how to be re-elected, and how to maximize party power. Let the chips fall where they may. At some point, someone will figure out that governing IS the path to maximizing party power.
Second: If the filibuster was off the table, we might have gotten Alito in the first place - instead of stealth candidate Miers. I believe Miers happened b/c Bush was playing a weak hand - and the filibuster helped to weaken it. Without the threat of a filibuster, Alito would've looked like a better bet back in the fall.
Tigerhawk your wrong and it is way too early to see the results of the Gang of 14.
Judges still languish at the nomination level because of the stupid deal. See Hugh for details...
Also don't believe for a minute that if the Democrats had 51 Senators they would show any restraint whatsover.
They will bury Republicans if they ever get another chance that you can count on.
And I suspect you know that to be true.
So the fact that a 55 member majority made HUGE concessions to a 45 member minority is not a "win-win" at all.
The Democrats learned NOTHING and expect them to be downright BULLYING if they get majority rule again.
You are simply wrong.
The Democrats will honor the filibuster deal the way the Palestinians honor ceasefires... exactly as long as it suits them and not one second longer.
Frankly, their base is so frothing over this that I expect them to mount a doomed filibuster just to keep the Dean Scream Green coming in...
Commentors above overlook the fact that the MSM would have portrayed any change in the filibuster rule in the middle of a congressional term as "illegitimate" and tarred any appointee with that moniker for the rest of his career. They also overlook the way most Senators really do value their archaic perogatives, someday a conservative minority may need the filibuster to hold off a new progressive era's excesses. The real purpose of the Gang of 14 was not to allow the squishy Republicans to betray thier party, it was to give the Red State Dems a fig leaf to abandon Ralph Neas and the other pressure groups' demands. I think that was made very clear by Graham and Warner and has been borne out by events.
I think you are giving the dimocrats credit for way too much integrity. They will yell "extraordinary circumstances" and filibuster anyway. After all, it's a Bushitler nominee and therefore qualifies.
Here's my question - Can you imagine a New York Times headline referring to "glum Republicans" in sympathetic terms? It seems highly unlikely to me.
Also, this has got to be one of the dumbest lines ever - "...Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate..." What has the process come to when someone can say something like that with a straight face? Imagine the gall of getting a candidate confirmed for a job he's qualified for! There ought to be congressional hearings to figure out what's gone wrong that would let something like that happen.
I also wonder about this line:
"But while there was some self-criticism among Democrats, the main concern coming out of the hearings was that the nation had reached a turning point in the ideological composition of its judicial system."
Is it poorly written? Was an implied point left out? Should it have said "...the main concern coming out of the hearings for Democrats..."?
Or was it written as it was meant - drawing attention to the "fact" that the so-called "turning point" in the judiciary was a "concern" to all Americans?
Hmm... I like your reasoning, but it's not selling me. A lot of your conclusions are based upon events which haven't happened yet. There is no new happiness about judicial nominees, there is no roadblock to Democrats misusing the fillibuster, there is no (as yet) reduction in the nastiness of the confirmation hearings.
I think the true test will come during the next batch of judicial nominees. Not the SCOTUS nominations, but the lower courts where the hearings won't be televised and where the MSM won't be providing updates on the six o'clock news. The hearings where they Democrats don't set the stage by showing the American people exactly how badly they are outclassed by the nominee. At this point, they can't fillibuster because the world heard that Alito was a nice guy and the Democrats couldn't find a reason for him to be rejected. But let's see what happens when the nomination is for someone on the 9th circuit, and the Democrats think nobody is paying attention to whom they're rejecting.
You are, to my eyes, assuming that things will get better. We don't know that yet. You do, however, make a good case that they might.
While not convinced, anything that added to the "kook show" was worth it: I think the scope of liberal insanity has reached the pulic in a significant, critical-mass kind of way.
If the "deal" contributed to the moderate image of the GOP and the radical image of the media and the liberals, then it was a good deal.
IMO the thing that many of were wrong about is, essentially, how much authority we do have. From a personal point of view I figured it solved nothing - it's obvious that before the hearing the dems thought so too. I think one of the comments was along the lines of "Stick a fork in him, he's done" over the princeton thing. 10 years ago it would have sunk him, they would have had thier circumstances they needed for the filibuster and most likely would hve dragged those 7 into line. Now, it doesn't stick. They tried and failed, and I think entirely because they didn't have th full controll of the bully pulpit and they couldn't get thier outrageous charges to stick. Instead they came off as mean and unreasonable (which is what they are).
I still think we may find it a mistake in the furture - it's an issue that will be out there. It's a pandora's box, once it's been thought of it can't be unthought and remains in *all* politicians attack box. The dems will eventually get the power again. If politics makes one of it's shifts as it does from time to time the next round of dems may not have this problem, but if the current dems get power I can assure you that a HIGHLY liberal judge will be appointed with trying to paint Alito and Roberts as nearly so far right as to be fascists (and thus, no ability of the repubs to filibuster because idealology chouldn't matter). Never mind that isn't what really was said or meant, it's already been accepted by the majority that is what occured. Maybe the blogosphere will be powerful enough that, like currently, that type of tactic will not work.
If that occurs we will see a VERY bad nuclear option passed - one in which the repubs are punished (see things like the "independant council" laws that were passed - by dems to punsih repub presidents. Though they cried too when one of thiers get hit by thier own laws. So it has happened before). But then, we may not. I also think there is a good chance the dems will not make it unless the move to the right, in which it will not be a disaster, just different from what I would like.
I don't think that this congress, or the next few (or maybe any controlled by the repubs) will get the nuclear option passed. I just don't like gambling that good things will occur, more often than not you are better off doing what needs to be done when you can than hoping things turn out later. That's especially true in politics.
A previous commenter makes a point I wish I had: I think the gang-of-14 was directly (or at the very least indirectly) responsible for us getting the Miers nomination in the first place. It's something of a miracle that we managed to stop it.
Spoons, I think that is a stretch, unless you are simply saying that Bush was weak politically at the time he put Miers up, and he thought she was confirmable because she was a woman (replacing O'Connor) with no paper trail. I think Miers got the nod because (i) she was a woman, (ii) had no paper trail, (iii) was manifestly pro-business, as was O'Connor, and (iv) was close enough to Bush that he probably was confident on her stand on abortion notwithstanding the lack of exogenous evidence. He was weak in September, and did not realize that Miers would irritate his base so much (perhaps because Rove was distracted). He learned otherwise.
Anyone who looks at the Miers nomination and ignores the fact that Bush was weak politically at the time (not only in the polls, but more critically in backing in the only nominally Republican Senate) is ignoring the facts on the ground.
Not that I have an opinion on this subject or anything.
It seemed to me at the time the famous "agreement" didn't really amount to much. The Dems agreed not to filibuster except in circumstances they can argue are "extraordinary," and the Reps agreed not to go "nuclear" (unless, of course, they could argue the Dems had broken the agreement by a bad faith claim to extraordinariness--which they could--with a majority then more likely to pass a rule change). The result gives the Dems a one-shot judicial filibuster gun that's as likely to explode as to do any actual damage. (At the cost of seven conservative jurists denied appellate seats.) Fair deal? Time will tell.
Just because the sky didn't fall in after they made their deal doesn't mean it was a good thing. As I posted, Alito wasn't filibustered because of the deal, he wasn't filibustered because the Democratic attack dogs couldn't gain critical mass with the public... after all, when the Washington Post urges his confirmation, the fat lady has sung...
I agree, Cass. The question is, was Bush weak in the Senate because of the May deal, or for exogenous reasons? I tend to think that the May deal was at most a symptom of his deteriorating political position, rather than a cause of it. In any case, I certain agree that the Miers nomination is the prism through which the May deal should be examined. If you believe as many do (but I do not) that the May deal was a proximate cause of (or contributing factor toward) the Miers nomination debacle, then you have to disagree with at least part of my post. My own view, though, is that both the May deal and the Miers nomination were a function of the significant decline in Bush's popularity since the election.
One other point: if the decline in Bush's popularity is the real problem, a few blue state Republican Senators falling on hand grenades aren't going to help him. Indeed, it might have been possible to abolish the filibuster at relatively low cost if Bush were at 90% approval, but below 50% (or wherever he was in May) the costs of blowback would have been much greater. There is a pretty good argument that the Gang of 14 deal was the best result in light of Bush's declining popularity.
Anyway, the main point of my post was to observe that things have not, so far, turned out nearly as badly as the conservative bloggers predicted back in May, a point conceded by both Power Line and Ed Morrissey.
Oh, for external reasons, definitely.
I thought this comment (from RWN) rather made my point for me:
My father had the opportunity to talk to Senator Jim Talent (R-MO) when he bumped into him at the bank with his daughter a few months ago and asked him point blank why he should bother sending any money to the RNC at all after the "Gang of 14" incident, and Talent explained to him that they really had no way of knowing whether they'd actually have the votes necessary to pull the nuclear option and then successfully confirm afterwards. Without this knowledge, it was purely a crapshoot - and can you imagine the victory dance in the Democrat circle if it turned out that all the RINOs would vote against a filibuster or the confirmation itself?
With the use of the "Gang of 14" incident, they found out who the weak links were in the RINO group (the ones that could be leaned on to go with the Republican Majority on the filibuster issue). The weak links turned out to be Mike DeWine and Lincoln Chafee, though that aspect of the deal is not widely known. With this knowledge, they know that they could nuke the filibuster without fail and leave nothing to chance. That's what was gained by the GOP with the incident.
FWIW, I agree that the Gof14 deal reflected both Senatorial spinelessness and Bush's softness at the polls. I also think you're entirely correct about things having turned out better than far-righty bloggers predicted, but I wasn't on that bandwagon (I said a truly conservative judge wouldn't be confirmed, but in my view neither Roberts nor Alito is a *truly conservative judge*, as I suspect we're going to find out over time).
All of which makes the weeping, wailing, and gnashing of teeth over Miers just that much more amusing. They *still* didn't get what they wanted: a properly reich-wing *conservative* judge on the Court. I was, however, quite pleased with Alito: that he refused to say Roe was settled law, and as you know I'm tepidly pro-choice, but that was the right call. Good on him - he went way up in my estimation.
I'm happy. They ought to be.
I'm not even sure they got two judges in the mold of Scalia, much less Thomas, who as you know is my favorite. But we got two very good judges.
It was a bad deal then, it's a bad deal now.
The "Deal" threw several highly qualified nominees under the bus to do nothing more that preserve the concept of Senate comity in the face of an obnoxious and stalling minority. Not only were several nominees names withdrawn, several still languish without hearings.
Had the Constitutional Option been pushed and passed at the time Alito would be seated, SDO would be enjoying the Arizona sunshine, and would have several more conservative appellate judges where now we have only open seats. In addition we would not now be faced with the agonizing prospect of the whining from the minority and the media when it comes to replacing the next Justice.
The hearings were nasty because the Judiciary Committee attracts the most vile Democrats out there: Ted Kennedy, Chuck Schumer and Joe Biden manage to make DiFi look almost reasonable by contrast (although she still votes the party line).
The jury's still out on the G-14 deal. At this point, I think it's fair to say that the consequences have been overwhelmingly on the positive side of the ledger. That's not to say that couldn't change in the future, or that we might have been better off pushing the button on the nuclear option.
I was among the charter members of the Coalition of the Chillin' that formed after the historic compromise. I stated my support for the deal in no uncertain terms. Looking back, for an amateur, uncredentialed hack, The Blogging Caesar called it right, I think! :)
Scott Elliott, aka The Blogging Caesar
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