{"id":12968,"date":"2010-04-13T19:35:59","date_gmt":"2010-04-13T23:35:59","guid":{"rendered":"http:\/\/www.kith.org\/journals\/vardibidian\/2010\/04\/13\/12968.html"},"modified":"2018-03-13T18:55:55","modified_gmt":"2018-03-13T23:55:55","slug":"judicial-nominations-and-the-f","status":"publish","type":"post","link":"https:\/\/www.kith.org\/vardibidian\/2010\/04\/13\/judicial-nominations-and-the-f\/","title":{"rendered":"Judicial nominations and the filibuster, revisited"},"content":{"rendered":"\n

It has been a month shy of five years since I wrote a note called talk about the subject of the conversation<\/a>, in which I detailed the circumstances where a minority legislative Party in this country could be expected to block a judicial nominee. I pointed out that in a situation where the President comes from the majority party, the minority may well want to block a nominee, and has the right to try. I said, “The question is when should a minority exercise that right<\/i>, and the answer must have something to do with the nominees themselves.”\n

I still think that’s true. I thought, at the time, that the Democrats failed to make a case for the nominees themselves being so bad as to justify the block. They came off fairly well politically, I think, although of course they did allow some pretty bad judges and justices to be confirmed. But they have lost several confirmation battles (including yesterday’s withdrawal<\/a>) and have another Supreme Court nomination (or maybe two) on their hands this summer.\n

It is true that the Republicans lost badly on Justice Sotomayor, and did so while (coincidentally, not causally) following my advice about making the nominee battle about the nominee. There were a lot of reasons for that, but primary among them was the obvious fact that Judge Sotomayor was a mainstream middle-of-the-road jurist, an impressive person generally, and the Party that wanted to block her nomination is far, far from the mainstream when it comes to what people want in a Justice. Alas, they are not far from the mainstream of the actual Court, but this is a court that is widely disrespected and disliked, so there’s that. The point is that by picking a nominee that the public would support, Our Only President took away the minority party’s option of blocking her.\n

Let me go into that a moment longer. The reason the Republican Party has been so unpopular is because of all their failures<\/i>. That is true. It is also true, however, that the Republican Party is simply unpopular on policy grounds; a plurality of Americans support the Democratic policy positions on a large number of substantial issues, and the Republican policy positions on very few. The Democratic Party won the Presidency, of course, and the majority of the House seats, and sixty fucking Senators<\/i>, which is a huge, huge number, and more than half of the Governor’s seats, in part because the Republican Party had been led by a secretive cabal of crooks and incompetents for a decade, and in large part because the Republican Party was simply offering no solutions that people wanted. Or, more accurately, the people who wanted the Republican Party’s offerings were outnumbered by the people who wanted those of the Democratic Party. And although the generic Representative ballot looks good for the other side now, the self-identification polls<\/a> still look like they have for a long time.\n

Why is that important to this discussion? Because when we talk about the subject of the discussion, that is, when we talk about the nominees themselves, we will very likely be talking about a person who is right in the mainstream of America (from a political standpoint). It is possible, of course, that Our Only President will knock my socks off with some wildly lefty nomination (there are still lefties in the law schools, I’m told), but that seems unlike him and unlike our Party. When was the last time a Democratic President submitted a nominee that was to the left of the leftmost sitting Justice? Arguably LBJ in 1967, although you could argue that Justice Douglas or Justice Brennan were more liberal in their thinking than Justice Marshall, in which case the answer is FDR in 1939 or so. I’m thinking, here, about the reputation at the time of the nomination, not the eventual reputation of an Earl Warren; for our purposes, I’m just saying that it seems to me unlikely that Our Only President will nominate anyone much to the left of Ruth Bader Ginsberg or Stephen Breyer, notable pragmatists and cautious liberals.\n

What that means to me is that if the Republicans attempt to block the nomination(s) and to talk about the subject of the conversation while doing so, they will lose. This is not a Robert Bork situation, or a Charles Pickering. Or even a Samuel Alito situation, where the record was on the edge of the mainstream. And if you don’t have a legislative majority, and you don’t have popular support, while it’s still possible to block a nominee, it’s very, very unlikely and comes at a tremendous cost.\n

Which, I think, contains in it a lesson for any political Party. Which is (a) do not allow yourself to be led by a secretive cabal of crooks and incompetents, and (2) either keep your Party platform within hailing distance of the public, or move the public within hailing distance of your platform. It ain’t all about the base.\n

Tolerabimus quod tolerare debemus<\/I>,
-Vardibidian.\n

Added: I wrote this on Saturday and evidently failed to post it. In the meantime, a couple of things have come up: Jon Bernstein wrote a note called Wanna Fight<\/a>, in which he details an analysis in favor of the kind of nominee I predict OUP will choose. Left Blogovia has, in general, seems to have lined up to support a truly liberal nominee (although I haven’t seen many actual names). I want to make a couple of distinctions, as long as I’m writing about the general topic. There’s a difference between advocating<\/i> for a liberal Justice and promoting an analysis<\/i> of the politics of nominating such a person. I think (along with Mr. Bernstein) that such a nomination is unlikely, and could quite likely not pass the Senate under current circumstances. I don’t know if nominating a liberal and not getting that nomination through the Senate would be bad for Our Only President’s policy aspirations; I don’t know if the Robert Bork situation turned out badly in the end. But it’s certainly possible that the Republicans in the Senate will successfully block a nomination.\n

But, again, there’s nothing wrong with Left Blogovia saying that they want<\/i> a liberal Justice, and that they will be disappointed with a moderate. We should do so. There’s no downside to advocating; if we actually get a liberal, it’s good for our country (as we perceive these things, being liberals ourselves), while if (as I predict) we get a moderate, we have helped the political framing and whatnottage.\n

But my point up there is that it’s an advantage to any Party to be able to talk about the subject of the conversation, that is, the nominee herself and the policies and philosophy of the Party as they affect the actual government of the nation. Since we can do that, I would rather see Left Blogovia concentrate on advocacy than analysis.\n\n","protected":false},"excerpt":{"rendered":"

In Which Your Humble Blogger finds the shoe on the other proverbial, and if it fits, wears it.<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[204],"tags":[],"class_list":["post-12968","post","type-post","status-publish","format-standard","hentry","category-politics"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/posts\/12968","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/comments?post=12968"}],"version-history":[{"count":1,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/posts\/12968\/revisions"}],"predecessor-version":[{"id":19062,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/posts\/12968\/revisions\/19062"}],"wp:attachment":[{"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/media?parent=12968"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/categories?post=12968"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.kith.org\/vardibidian\/wp-json\/wp\/v2\/tags?post=12968"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}