May 10, 2005

"Our government was not designed to be efficient."

The Washington Post reports:
President Bush yesterday called for an immediate vote on two of his most controversial judicial nominations, increasing pressure on Senate Republicans to consider a historic rule change that would make it easier for him, and future presidents, to reshape the federal bench, including the Supreme Court....

The president, who initiated the conflict by renominating judges whom Democrats had blocked during his first term and demanding new votes this year, is essentially guaranteeing a showdown that is as much about the power of the presidency as Democratic obstinacy, according to numerous government scholars. The result could be a more powerful White House, a weakened Congress and the possible erosion, if not end of, the most powerful tool available to the minority party, the filibuster, the scholars said.

"This is being done to . . . help a president achieve what he wants to achieve," said former representative Mickey Edwards (R-Okla.), now a scholar at the Aspen Institute. "It's a total disavowal of the basic framework of the system of government. It's much more efficient [for Bush], but our government was not designed to be efficient."
The Senate wasn't designed with a filibuster either. It's true the government wasn't designed to be as efficient as possible, but it also wasn't designed to be as inefficient as possible. A balance of efficiency and inefficiency was thought best. The filibuster is an extra inefficiency the Senate chose for itself. How is it "a total disavowal of the basic framework of the system of government" to return to the degree of efficiency provided in the Constitution? You can argue that more inefficiency is a good idea and that it isn't unconstitutional for the Senate to adopt addditional inefficiencies, but don't think you can palm it off with pieties about your faithfulness to the intent of the Constitution's Framers.

Similar rhetoric is deployed by proponents of the President's nominees:
Supporters of the proposed rule change say it would restore the proper balance of powers between the executive and legislative branches. They contend the Democrats' repeated filibusters of appellate court nominees are imposing a new and unfair standard that requires 60 votes, rather than 51, for any appointee the minority party finds objectionable.

"Respect for the separation of powers has been tossed aside," Senate Majority Leader Bill Frist (R-Tenn.) said yesterday.
I suppose no one is able to think straight about whether the filibuster is a salutary brake on the power of the majority. Everyone already knows whether they would like to see the majority act efficiently or the minority have an active role checking its power. So everyone professes fealty to the Constitution and shock that the other side would betray it.


Mark Daniels said...

Your last paragraph says it all. Pomp and pretense notwithstanding, proponents of both views on this question arrived at their positions not by way of the Constitution, but via politics.

The thing that both sides need to consider, I think, is that once power shifts to the other side, as it inevitably will, they may take very different positions. The Republican Party can fully expect that the Democrats will play turnabout once they're in the majority.

I have never been a big fan of the filibuster in any context. It has almost always been the tool of those opposing reform or civil rights. So, there are, I think, good reasons for dumping it and not just for judicial nominations. But I think it impolitic for the Republicans to get rid of it at this time. It may provide them with short-term benefits and long-term problems.

dax said...

This opposition to the Bush nominees is unprecedented and is the result of the LibDemocrat losses at the ballot box.
Everyday I'm astounded at the patience (maybe lack of "cojones" is more appropriate) shown by the Republican majority and the President. It is quite possible that they find glee in seeing the LibDems continue to act like petulant children on the national stage.

Dean said...

Exactly. I gotta link to this.

SteveR said...

I think time is running out on the status quo. What bothers me is that some have indicated that the Dems will allow some of the blocked judges to be confirmed as part of a compromise. Well I thought they were unqualified and that's why they were filibustered, but 4 of 7 are somehow now qualified? While I'd prefer to believe that the WH and Senate Republican leadership are playing this out to some political advantage, I think both sides look bad because they are.

Cervus said...

Dax: Unprecedented? The Republicans did the very same thing to Clinton's nominees. See Here Excerpt:

A long-running dispute over executive appointments flared again today as a Republican senator said he would block every one of President Clinton's nominees for federal judgeships until the president left office.

The senator, James M. Inhofe of Oklahoma, said he would put personal "holds" on every judicial nominee submitted to the Senate for confirmation and urge other senators to do the same.

December 21, 1999

Sloanasaurus said...

This debate is not about checks and balances or the power of the presidency or about Senate tradition, it is about the liberal agenda - specifically abortion.

Right now, the Federal Judiciary uses judicial activism to legalize abortion and to create other rights. It is clear that if it was not for the federal courts that SOME red-state legislatures would limit abortion rights. It is cear that most states would not allow third-trimester abortions. It is also clear that abortion up to twenty weeks would remain legal in most states.

Everyone knows that this is the issue, but will not admit it.

Roe v. Wade is good and bad for politics. It is bad because it is anti-democratic and therefore cases great discontent. It is good because 1) it allows capitalists such as Clinton to be a Democrat; and 2) it marginalizes socialism (by putting power into the hands of pro-abortion capitalists (Clinton types). Socialism is far more dangerous to our society than abortion.

Sandi said...

"a historic rule change that would make it easier for him, and future presidents, to reshape the federal bench, including the Supreme Court...."

First it's the president's job (with consent of the senate) to reshape the federal bench. Apparently the arguement there is that the Constitution didn't make it hard enough.

*Mark said:
"The Republican Party can fully expect that the Democrats will play turnabout once they're in the majority."

Ya think?... As long as they change (or drop) senate rules within the framework of the Constitution, so what.

"It may provide them [Republicans] with short-term benefits and long-term problems."

Not with any benefits the Constitution didn't provide for, and also no long-term problems that it doesn't allow.

The fight isn't Liberal/conservative, but "originalist" vs a "living Constitution." My interpretation of living constitution:

The Constitution says what we say it means, not what is written in it.

dax said...

jon sleeper. That's not even close however; I applaud your effort.
KEY WORDS: "WOULD BLOCK" Confirming judges by a majority vote is simply following the Constitution.
Like I said, allowing them to continue to obstruct may be a wonderful ploy.

Mark Daniels said...

The virulence of the comments that have been made here shows how hot this debate has become.

A few comments about the comments...

(1) It's become fashionable to dismiss the "cojones" of the President and Republican congressional leadership for not steamrolling this issue.

I would say that if they had the votes, they might steamroll it through. But these folks are pretty good at their math. They know that there is some difference of opinion on the matter of the filibuster within their own ranks. Cojones won't win votes.

(2) I agree that the issue in question here is abortion. The debate isn't just being driven by a liberal Democratic agenda, though. The pro-life agenda (there are lib Dems who are pro-life, by the way) is also driving the rhetoric.

It is the confrontation of these views and the probability that the next few Supreme Court appointees could overturn Roe v. Wade that has, to coin a seeming paradoxical description, given impetus to the current legislative inertia.

(3) Sandi writes: "*Mark said:
'The Republican Party can fully expect that the Democrats will play turnabout once they're in the majority.'

"Ya think?... As long as they change (or drop) senate rules within the framework of the Constitution, so what."

Sandi, what you apparently read as naivete, I was presenting as common sense. Sometimes, it's wiser for those in politics to take a longer view of things than resorting to "nuclear options" that can be destructive of their own philosophies and policy preferences down the line.

(4) As a general observation, I would say that we hold elections for a reason. When we vote for presidential candidate A, we expect him or her to appoint folks to both the executive and judicial branches who are broadly reflective of their views. I expect George W. Bush to appoint pro-life rather than pro-choice jurists to the bench. So, I agree with former Senator Dole, who wrote in the NYTimes a few weeks ago, that the president's nominations ought to get a straight up-and-down vote.

But I also agree with Dole on another point he has made during this debate over judicial filibustering. The majority needs to be smart in how it uses its power. They shouldn't throw out the filibuster on the basis of temporary political exigencies. The nuclear option could blow up later in Republicans' faces. Exercising that nuclear option would then be seen as the act of political suicide bombers.

Quite simply, it's in everybody's best interest that a compromise like that suggested last week by Senator Frist, one that would limit Senate debate to 100 hours, emerges.

If I were a betting person, I would say that a compromise will be worked out. The Dems will have their say. The President will get his judges. The system will work. No one will feel humiliated, licking wounds that will later be the motivation for pushing some other nuclear, all-or-nothing button.

leeontheroad said...

This seems accurate to me:

"Political expediency explains many of the actions of participants in the judicial-appointment process. At various times both liberals and conservatives have supported strict scrutiny of judicial nominees and decried judicial activism. The conservatives’ rallying cry against judicial activism at the start of the twenty-first century is exactly the same rallying cry used by liberals in the 1920s and ’30s decrying the judicial activism of conservative judges who read economic rights into the constitution. [120] Democrats supported the borking of nominees when Reagan was president, but urged a kinder, gentler treatment of nominees when Clinton was in office. Republicans embraced the confirmation slowdown of judicial nominees when Clinton was president, but condemned it when Bush became president. At root, the judicial appointment process is a political one: shaped by changing political dynamics and balances of power. As long as the balance of power remains divided, the process promises to be a contentious one."

Maltese wrote this a few years ago, before the current "nuclear option" debate.

My own view is that changing the Senate filibuster rules, while Constitutionally permissible, wouldn't be a good idea. I like the enforced moderation the rule has thus far required for most judicial appointees.

I like that there are poliitical risks each party has to take when it uses a filibuster or other obstruction. Gingrich shut down the gov't, and he politically suffered for it. Meanwhile, Pres. Bill got up to no good on a personal level, and he suffered for it. Every protagonist's flaw was his hubris.

Will it curtail political hubris to change the balance of power so that the President and the Congressional majority can exert its will, regardless of the view of a significant minority? Nope. So I'd rather the filibuster remain and, in any future gov't dominated by another party, I expect it will moderate them, as well.

dax said...

"virulence of the comments" You're kidding, Right??
Mark, this blog is like a "walk along the beach"

Mark Daniels said...

Maybe I should have said, "emphatic, occasionally sarcastic partisan ardor." I agree that the discussion here is a lot tamer than you'll find elsewhere.

lawrence krubner said...

Tradition (stare decis, actually) plays a large role in any country that uses case law as the basis of its legal system. Nowhere in the Constitution does it say that the Supreme Court shall decide what laws are constitutional, but the precedent for that tradition goes back to the 1790s, so we accept it as if has the power the Constitution behind it. Long standing legal traditions should be changed only if they clearly violate someone's rights, as Jim Crowe did.

Dirty Harry said...

Precedent Shprecedent. Who cares? Let's get these courts packed with conservatives.

Enough of starving women -- without living wills -- to death for two weeks in front of their parents.

Enough looking to Europe for precedent.

Enough gay marriage by judicial fiat.

Enough of whatever the hell else these above the lawed, power mad, in for life, lunatics are up to. (And yes, some of them are Republican appointed).

The Dems broke tradition with the fillibuster. It's legal to stop it and return tradition. What is the problem? We got less than four years to PACK the courts. To replace dangerous idiots with people who respect the Constitution and the rule of law.

Yes, I know, I know... People get all wobbly and worried when our Robed Masters are criticized...

And why the judiciary is somehow above the kind of *had enough* criticism leveled at the other two branches is beyond me. Who do they think they are, actors?

Well sorry for the wobble -- but these arrogant legislators and social engineers have got to be replaced. By any *legal* means necessary.

Everything imaginable is found by these power-mad deviants in the Consitution except protecting an invalid WITH NO LIVING WILL from being starved to death in front of her parents for two weeks.

God help us all.

And let the attacks and criticism of our Robed Masters have a chilling effect. Maybe it will slow them down. Maybe they'll think twice before creating more laws from thin air and overturning popular ballot initiatives that no reasonable forensic analyst could find unconstiutional.

So, press the red button already! Launch the nuclear option. That mushroom cloud you see is called a good start.

Ann Althouse said...

Dirty Harry: nearly all the judges -- conservative and liberal -- did the same thing in the Terri Schiavo case. The statute Congress passed was interpreted correctly and consistently by a whole range of judges.

Steven said...

Yes, Jon, unprecedented. Committee holds ≠ fillibuster ≠ blue slips ≠ defeat in a Senate vote, even though all four keep a nominee from becoming a judge, and the first three all block floor votes.

brando said...

Looks like Reid is asking Frist to show his hand...

Dirty Harry said...

Ann: A lot of the lawyers who wrote that law in Congress disagree with you.

Regardless, a helpless invalid was starved and dehydrated to death for two weeks in front of her parents. And she had no living will. No. Living. Will. And our lauded judiciary -- capable of finding almost anything in the Constitution that rings their bell that day -- couldn't find a way to save her?

Suddenly the Robed Masters are helpless. Suddenly the bench-legislators are addicted to precedent. And if you're right Ann, NOW they're all worried about respecting the laws Congress passes.

Isn't that a convenient time to show judicial restraint; whan a helpless invalid with no living will is being slowly starved to death.

These scoundrels have got to go.

Let the court packing begin.

And I'm not criticizing all judges. I know there are some fine one's out there. Most are. But the bad ones need to be named and ridiculed. Criticized, scrutinized, and humiliated. Outed, so to speak. Watched. Made to worry and feel the heat. Held accountable.

The judiciary isn't above the other branches of government. Separate, yes. But also, "equal." The other branches get plenty of deserved hell. Time to spread it around. A little "equality" so to speak.

No mushromm cloud. No justice. I await the kaboom.

The Editors said...

"The president, who initiated the conflict by renominating judges whom Democrats had blocked..."

Looks like someone at the WaPo needs a dictionary. You'd think they'd have one around the building somewhere.

The Democrats "had blocked" (past tense) those nominees, so how is it possible that Bush "initiated" the conflict by renominating them?

We didn't see the WaPo story, can we presume this opinion piece appeared on the op-ed page of the paper? :)

The Editors said...

Ann said, "nearly all the judges -- conservative and liberal -- did the same thing in the Terri Schiavo case. The statute Congress passed was interpreted correctly and consistently by a whole range of judges."

One, how are you determining if a particular judge is conservative or liberal? "Republican appointee" and "conservative" are not synonymous.

Two, you said, "The statute Congress passed was interpreted correctly..."

The statute required a de novo review of the case. When did that occur?

Dirty Harry said...

Ann's not wrong about the law. Most laws are written so that two intelligent well intentioned people can read the same words and come out with completely different interpretations. That's what's so stupid about the law *he said while kicking dirt*.

And she's correct that some conservative judges punted to snuff the cripple, just like the liberal ones.

(I say "snuff the cripple" to reflect the attitude of those who wanted her starved to death for two weeks in front of her parents. Did I mention there was no Living Will?)

What a great system: Laws are written filled with nuance and who gets final say in what they mean? Those, who in most cases, are not accountable to the voters.

Why can't we write a law that says, "No invalid will be snuffed without a living will that expresses a desire to be snuffed?"

Is that too hard? Am I asking too much? Does a desire for simplicity make me a lunatic?

We must pack the court with conservatives. That's why I'm moving to Ohio. So, I can vote against Hillary. 70 counties. 70 votes. Oh, I can do it. Some No-doz and cruise control? Watch me.

Mark Daniels said...

Upfront disclaimer: I thought that the death of Terri Schaivo was a real tragedy.

My understanding is that the statute passed by the Congress allowed for a de novo review of the case by federal judges but did not mandate it.

Is that correct, you legal types?

Too Many Jims said...

"The Editors said...
The statute required a de novo review of the case. When did that occur?"

Read this prior post for the scope of the "de novo review". If Ann is wrong and you are right it means that the case was decided improperly by (among others) Clarence Thomas, Antonin Scalia and William Pryor (who incidentally is one of the judges that the "nuclear option" is being triggered by).

One question for those of you who now abhor the use of filibusters for presidential nominees: Did Henry Foster deserve an up or down vote to be Surgeon General?


Ann Althouse said...
This comment has been removed by a blog administrator.
Ann Althouse said...

The Editors: you are wrong. The statute did NOT require a de novo review of THE CASE. It required a de novo review of "any right of Theresa Marie Schiavo under the Constitution or laws of the United States" as I explained here. There simply was no federal law right. People who thought the statute would make the federal courts redo the state law questions were mistaken or misled. That's why judges all across the political spectrum took the same position. It doesn't matter what criteria we use to categorize judges as "conservative" or "liberal." They were all on the same page. Face it, the judges got it right and the political types were demogoguing.

Dirty Harry said...

"Demoagoguing" is a little harsh. And not ALL the judges agreed. I recall a 2 to 1 decision in one court of appeals. Was that judge demagoguing?

We take seriously those who rule on cases based on a non-existent right to abortion in a non-existent right to privacy. We take seriously those who rule on cases based on a non-existent separation of church and state.

Are those people demagogues? Because they have a lot less to hang their hat on than Rick Santorum in this case.

And I don't think they're demagogues, even though I disagre with much, though not all, of their rulings. Laws are open to interpretation. My gripe is that if you're right -- the judiciary's sudden fidelity to Congress' wording is interesting. If Santorum's right they ignored what Congress wanted.

Certainly Congresses intent was clear.

Either way, it resulted in a horrible crime against a helpless woman with no living will.

Either way, something's gotta change.

The Editors said...

"There simply was no federal law right"

The right to life? If we don't have that right, then we have no rights.

The statute says, "In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings..."

None of the appeals courts did a de novo review of the facts of the case. To assert that any dissent from your opinion is "demogoguing" is nothing but cheap, arrogant name-calling.

Ann Althouse said...

The Editors: there is a federal right not to be deprived of life without due process. But the state provided very ample process and did not violate that right. Under that process, the state courts determined that she did not want to feeding tube. Now, where is the federal right?

wwhawkeye said...

Before this discussion drifts completely away from the WaPo article that started it, I'd like to make note of one "factual" statement: that Bush initiated the battle by seeking "new" votes on previously nominated candidates.
If there had been "old" votes, those candidates would already be on the federal bench. WaPo appears to remain confused about which party is in the majority.

The Editors said...

I essentially agree with Andrew McCarthy that her due process rights were violated. "Ample" due process for the government to kill an innocent person should be at least as high as that required to kill a serial killer, no?

The federal law passed by Congress required a de novo review of the facts of the case, in my opinion. I think the federal courts were too deferential to the state court judge and essentially punted.

In short, I think there were unanswered questions about the case, and that a person should not be killed while questions are unanswered. A thick coating of cold legalese doesn't change the basic inhumanity of it, I don't think.

But we don't really want to rehash the entire thing again, do we? :)