Well, and as far as I can tell, the big news of the day is that Janice Rogers Brown, William Pryor and Prescilla Owen get lifetime appointments to the federal appeals court, from which it will be hard to describe them as ‘unqualified’, should some lunatic decide to nominate them to the Supreme Court.
Well, no, the big news of the day was three new car bombings, killing thirty-three people and wounding a hundred and twenty, and another today, killing three of our fellows, which has got to be bigger news than some legislative procedural infighting and the confirmation of a few bad judges. Still, if by big news, we mean news printed above the fold on the front page of major newspapers, then, no, the car bombs were not the big news of the day.
I am not, actually, at all happy with the compromise worked out in the Senate. Of course, I’ve never really thought about this as being about the filibuster, so the fact that the filibuster has been saved is, to me, a minor point. I’ve thought about this as being about the judges, and the people I think of as the most troublesome look to be confirmed. I expect some troubling decisions to come down from those courts; that means more to me than the filibuster.
On the other hand, some of the lefty bloggists have made some good points, if a bit grudgingly, in favor of the compromise. Or if not in favor of the compromise as such, at least pointing out that the silver lining may be as big as the cloud. Mark Schmitt, over at the Decembrist, writes:
If the goal of liberals is to block a truly extremist Supreme Court nominee, block Social Security privatization and more tax cuts, block Bolton, and then begin to shift the debate back to issues of economic security, health care, global leadership, etc., the best possible thing that can happen is for the White House and its agents, such as Frist, to lose their control of all the levers of power in Congress. That's indisputably what this deal does, and for that, I'll learn to love it.
Other people (sorry, I can’t remember which) have pointed out that the Republican leadership defined the issue for public consumption as being about the filibuster, and the Democrats (foolishly, I thought) allowed that to be the definition of the issue, and if that’s the issue, then the Democrats won. That’s likely to help over the next two years. Also, if this really does put paid to the presidential hopes of Senators Frist and McCain, well, that ain’t all bad. It doesn’t get a Democrat in the White House, but it doesn’t hurt.
As far as I can tell, the Democrats get two things out of this. They block two bad nominations, and they get the Republican’s promise to behave later. Now, it’s almost certain that Our Only President will nominate somebody as bad as those two, possibly those two themselves, to the appeals courts, and it’s very likely that Our Only President will nominate somebody truly dreadful to the Supreme Court. If that happens, and if the Democrats take up their responsibility to block those nominations, and if the Republicans who signed on to the agreement maintain it, then something good will have come out of it. Likely enough, though, any actual use of the filibuster to block any nomination, no matter how outrageous, will be met with feigned shock and the sudden discovery that the agreement has already been violated by the Democrats. Surprise! You been punk’d!
On the other hand, I do believe in compromise. On the other other hand, I’d prefer to compromise with honest people. Some of my Gentle Readers, I know, feel that compromise with this Republican leadership is a fool’s errand, and I have a lot of sympathy with that. On the other hand, refusing to compromise isn’t exactly productive either. One way or another, if there’s reason to be cross with the Democrats for accepting a compromise which allows some bad nominees to be confirmed, there’s reason to be frothing-at-the-mouth furious at the leadership that nominated them and supports them.
And, in with all of this, is the fact that the whole filibuster business just wasn’t the big news of the day.
chazak, chazak, v’nitchazek,
-Vardibidian.
Well, and over 100 people were killed in traffic accidents yesterday in the United States. But deaths aren’t news.
The federal Appeals Court IS the Supreme Court for most cases. That is, for most cases, the federal Appeals Court is the court of last resort, the court that issues precedent-setting decisions binding lower courts, the court that interprets the federal Constitution and creates new law (because case law IS the law in this country). This system has historically functioned moderately well because most of the Appeals Court judges try to stay within moderate bounds. The ones who go far off the reservation are infrequent enough that the Supreme Court can keep up with slapping them down. But putting more and more extremists on the appeals court will strip the Supreme Court of its importance in setting precedent and settling the law, because the Supreme Court cannot take on more and more cases.
If you don’t like the decisions from the Supreme Court overall, you can take a few approaches to neutralize the Supreme Court: stack the court (tried and failed under FDR), refuse to abide by their decisions (tried and failed on civil rights), wait for justices to die or retire and nominate new ones (somewhat unpredictable and painfully slow — note that most people thought GWB would get a nomination in his first year in office, and we’re still waiting), or simply place extremists on the Appeals Court who will rapidly overwhelm the Supreme Court’s ability to keep up (in process, and working fine).
This last option has been gaining steam for about 24 years. Republicans nominate on the right, Democrats nominate in the middle, and the Appeals Court tilts ever rightward. To me, this is news because it is ultimately about stripping the Supreme Court of its power (and furthering corporate dominance of public policy).
The Supreme Court decision on federal sentencing guidelines wasn’t about the rights of those convicted of a crime or the balance of power between the legislative and judicial branches. It was about keeping the Appeals Court busy with an immense influx of new cases, none of which the Supreme Court would need to review (because none would present a new issue that the Supreme Court cared about). It was about the balance of power between the Appeals Court and the Supreme Court, within the judicial branch.
apart from left-wing radicalization of the sen– haha heh ha ha ha ha ha ha hoo HA HA HA HA HA hoo ha. ah. ahem
apart from left-wing radicalization of the senate, “what is to be done?”
I think that’s an excellent point (the anonymous one; I won’t bust david’s bubble about radicalizing the Senate Democratic Caucus). I’ll add that Dave Denison reports in the Boston Globe in an article called Constitutional Dreaming that 10 out of the 13 federal appellate courts are majority Republican-appointed, and by the end of Our Only President’s second term, it’ll be 12 out of 13, for a total of 85% or so of judges at that level. Again, it’s important to note that this is the farm team for the Supreme Court, but it’s far more important to note that this is the actual federal appellate court, and that these judges are making important decisions that create precedent whether they are promoted to the Show or no.
This is, by the way, another of the cases where the right has succeeded at disguising their strengths as weaknesses, crying that the courts are some sort of bastion of liberalism, and that this is another way in which straight Christian white male executives are being oppressed—persecuted!—by leftists who exploit the power inherent in, um, powerlessness.
Thanks,
-V.
Really the DC Circuit Court of Appeals is the farm team, such as there is one. But fewer than half of the Supreme Court justices nominated since 1937 have come from any federal Courts of Appeals, if I remember correctly, and that number may be likely to drop further. Less time on the bench means less time writing decisions that will be scrutinized in hearings.
One of my biggest disappointments over not having a Democratic hegemony is that Clinton won’t get to be Chief Justice. We’d obviously have to restrict him to male clerks, but he’d be a really interesting change. There would be true majority decisions far more often, and he’d work to get 6 or 7 into the majority far more often. Plus, we’d get years of jokes about oral arguments…
A few notes on previous comments…
Blakely was about giving the Appeals courts busy-work? That sounds absurd to me…. Though it was about showing them who’s boss, that’s nothing new for SCOTUS (though it should be noted that a sizeable plurality of the CoA decisions they overturn are from the Ninth Circuit, aka “the liberal / libertarian wackos in California”).
Once a judge has served a few years at the Appeals level, s/he’s considered “stale” for SCOTUS elevation because, yes, there’s too much evidence that can be used to defeat the nomination in the Senate. Scalia was the last notable elevation from the Circuit Courts, and he advanced less than four years after being tapped for the DC Circuit farm team.
Clinton, though lots of folks would like him to be on the Court, can’t be because he’s been dis-barred, and anyone who has ever been dis-barred (even if re-admitted to the bar later) is ineligible for the federal judiciary.
Being disbarred is not a Constitutional obstacle. It would obviously be used against Clinton in arguing against his confirmation, as would many other things. But it’s unlike, say, Das Gubernator needing a Constitutional amendment to become President.
his ticker’d be a bigger problem.
i watched last night a debate among senators on the lehrer show. i don’t know how this would work but i want to register my sincere disgust at the idea of neutral facilitation of a conversation like that.
the judges that were being held up are clearly not neutral arbitrators, nor even good representives of a conservative approach to the law. when the dust settled on the interview, with the distant right republican’s description of the nominees as “not as extreme as they’re being painted” standing without argument from either the moderator or other reporters on the show, it was embarrassing.
to my mind when a judge decides that a state law is in conflict with the constitution because it allows one group to forcibly exploit another, i won’t throw out that decision, i’ll want to know what it’s based on.
but when a judge throws out a law because it impairs a particular industry’s ability to make money from a particular business practice – a practice which represents only one of many ways of doing that particular work – well, THERE’S NO WAY IN HELL that’s the equal of not being allowed to vote, not having access to quality free schooling, not getting work site safety management, not having access to safe drinking water.
i mean i know these things are discussed. i want it right out there all the time though, and i think this is not unreasonable. when a judge believes that “caveat emptor” is the one right way to interpret the constitution, regardless of any language about providing for the general welfare, i think that’s not what people expect from a judge, and it’s worth reporting.
also i would like to know how a vote and an up-or-down vote are different. should we consider changing the constitution to ensure that up-or-down elections are held, instead of just elections?
Jump. While jumping, vote.
No, that’s an up-AND-down vote.
My impression was that the ‘stale’ business had more to do with Poppy’s (and Reagan’s, I think) desire to get some youngsters’ bottoms on the bench, rather than confirmation fears, but I was young at the time.
And, of course, the intention was to distinguish up-or-down votes from procedural votes; I suspect that the phrase was common on The Hill long ago, and has unfortunately leaked out all over us, who don’t need it. Also, I suspect that it tested well, so the Republicans decided to use it as often as possible, until it doesn’t test well anymore, after which the Republicans will never have used it, and using it will be a sign of liberal bias.
Thanks,
-V.
An up-or-down vote is one with no amendments allowed. Which is a silly phrase to use on nominations, where amendments should absolutely be offered. Yea on Owen if we can just add a conscience rider and a corporate-worshipectomy clause.
remember: unregulated everything is part of the shadow amendment written in code on the back of the constitution. our founding fathers foresaw the crisis of faith in the markets in the mid-20th century and provided the faithful with a weapon to be used only as a last resort.