Do you want proof that the two parties operate with two separate rulebooks?
Earlier this month, Republicans required a cloture vote on Barbara Keenan, a nominee to the 4th Circuit Court of Appeals in Richmond, Va. After that vote, Keenan was confirmed by a 99-0 tally.
By contrast, more than half of Bush’s judicial nominees were confirmed by voice vote or unanimous consent. Democrats consented to their confirmation without requiring time to be spent on a roll-call vote on the Senate floor.
Republicans counter that if Senate Majority Leader Harry Reid and the White House believed judges to be a priority, they would use their clout to push them through. Reid controls the Senate calendar.
But a spokesman for Reid, Jim Manley, rejected that notion, saying the necessary cloture votes would chew up time on a Senate calendar already under duress from healthcare and jobs bills.
You can blame the Democrats for not employing the kind of obstruction during the Bush years that the Republicans are employing now, but that is the wrong way of thinking about this. The Democrats behaved as a minority party should behave. They chose a few judges to make a stand on, but they didn’t waste time on most of them. If they were going to be confirmed, the Democrats didn’t prevent them from getting a vote or force delays for delay’s sake.
Our current problem with judicial nominees is a legacy of the civil rights era as well as the emergence of the feminist movement. Because Congress was incapable of doing what was right on Jim Crow and women’s rights, the courts intervened. As a result, the appointment of judges became completely politicized, with both parties wanting to know how judges would rule on hot button issues before agreeing to confirm them. Of course, this didn’t happen right away:
The confirmation process is less about the Supreme Court (let alone the nominee) than about the politics of the moment as reflected, however clumsily, in the questions the senators choose to ask. The transcript of a Supreme Court confirmation hearing is really a document of social and political history. For example, John Paul Stevens, nominated to the court in December 1975, nearly three years after the court’s decision in Roe v. Wade, was the first post-Roe nominee, yet he was not asked a single question about abortion. That shows us that abortion was simply not a hot-button political issue in the mid-’70s—it was still waiting quietly in the wings for eventual capture by the right.
Obviously times have changed.
When John Paul Stevens was nominated by a Republican president, a Democratic Senate confirmed him in 16 days. Byron White took only 12.
It used to be that judicial nominees were vetted for character and qualifications, but not too much for ideology. That worked as long as the courts didn’t attempt to resolve pressing social problems that Congress was incapable of addressing themselves. That’s what the Republicans mean when they talk about activist judges “legislating from the bench.” In a real sense, that is what the court did on the desegregation of schools and abortion rights. In an ideal world, Congress would have taken the lead on those issues. Unfortunately, the world couldn’t wait.
So, now we have this system where the courts are little more than a way to fight political battles by other means. And, in that fight, the Republicans are much more motivated and focused than the Democrats.
What I’m afraid of is that we are now looking at the “new normal” in how things function.
And the Dems can either play the same game, hope that the craziness that is the current GOP eventually flames out with a huge collapse at the polls or try and adapt some middle ground where all they end up doing is hoping for an occasional nugget of cooperation from the GOP.
None of these is really a viable strategy, though, for combating this changed landscape. Somehow, hoping that the voters eventually tire of the Republican scorched earth tactics seems like a pretty thin thread of hope.
The Democrats, if they wish to get anything done, are going to have to find a way to fight the GOP without looking like they are just part of the whole problem. And with the media always playing the “both parties are equally to blame” card, it is going to be a tough sell to overcome that narrative. Down the road, if they adopt the “behaving like a minority should” attitude once again it will most certainly get the Democrats steamrolled when they find themselves in the minority. I am sure that is exactly what the GOP hopes will happen. And the Village will most certainly expect the Dems to play along. Because that is what Democrats are supposed to do in the Village world.
This isn’t going to be the normal game…
As Brad DeLong and Yglesias noted over the weekend, the filibuster as we know it WILL end, and end soon. It can either be the Democrats who end it while they’re still in power so they can accomplish things, or it will be the Republicans who end it when they’re in power.
One way or another, it will be gone, and this will not be how we conduct business.
Yglesias says:
It is also probably a move that the GOP knows is likely too ballsy for Democrats to really do.
I’m not sure what planet he is on with this next comment.
It would be CONSTITUTIONAL CRISIS-DEMOCRATS CONSIDERING NUCLEAR OPTION 24/7 in the media. Nothing else would be talked about. Nothing else would matter. And it is because the Republicans know that not having the filibuster, when they are in such a poor position from strictly a numbers standpoint, would render them inconsequential when it comes to getting things done.
If the Democrats don’t get this done on their own watch, you can be damn certain that it will be at the top of the GOP agenda once they are back in the majority. Keeping the filibuster will only serve to fully neuter any potential Democratic effectiveness for the remainder of Obama’s term. The GOP is counting on the characteristic Democratic timidity when it comes to governing from a position of strength. I think the GOP will be more than happy to call the Democrat’s bluff and see if they will blink.
So what? I don’t give a fuck. I want young hardcore liberals on the bench to ram down reality and truth and justice on conservative throats until they choke on it or move into the modern world.
http://www.google.com/hostednews/ap/article/ALeqM5j8bJNmgkNXos7jmYkKGzZWbuSe6QD9EE12G01
Step one completed lol.
And I was just saying that the filibuster as is will not stand. I don’t think the Democrats are willing to act on it, either, which is a shame because the Republicans will.
…royally pi$$ed off America with a conservative ruling. The classic example of this would be reversing Roe v Wade. The recent campaign finance decision could have similar effects.
right. The courts are number one on the conservative agenda.
One of the biggest mistakes the liberals have made and continue to make is accepting the Republican frame of “judicial activism” for Brown and Roe, and then defending judicial activism. Now, we have Bush v. Gore and Citizen’s United – there’s your judicial activism. The conservative arguments against it were always correct, but dishonestly made given their own intentions. The liberal response was to assume good faith and take the other side, wrongly defending judicial activism.
The court had to take up abortion because two states – New York and California – had already legalized it, which made the underlying principles incoherent on a nationwide basis. One can hold that a fetus is part of a woman’s body or a human being, but to say it is a human being in Georgia but a body part in New York is absurd. A pregnant woman would in some technical sense be “ending a life” just by entering New York. This doesn’t mean the Court had to decide the matter the way it did, but some national standard had to be determined, and either standard would have been as “activist” as the other, as some states were going to have to change in either case.
As for Brown, it was a reversion of Plessy, a previous decision. If you accept Plessy, then, you accept that the question of segregation in education was a legitimate one for the Court to address. And the key finding, as I understand it, is that equality could not be obtained under segregation. One can contest this and hold that it is abstractly possible (the court did have to argue that it could not be equal, rather than merely that it was not equal, as the latter could admit of remedies short of ending segregation, and, as Stevens reminds us re Citizens United, the Court is supposed to seek the narrowest ruling), though I think a stronger abstract argument for the Court’s position could be made today with network theory and such, then the Court actually made. But, at bottom, the assertion behind Brown is a finding of fact. True or false – and I think it is true, and that a better theoretical case could be made today with social network theory and such than could be made in the 50’s – findings of fact are not judicial activism. There is no way the Court can function without making assertions about what is and is not true, and it determined that the premise of Plessy – that equality could exist under segregation – was false.
yes, but the underlying problem was that Congress could not act because they didn’t have the political will to do the right thing. Thus, the courts had to resolve those problems. Fortunately, Congress did follow up on Brown by passing sweeping civil rights legislation, but that has not been the case for reproductive rights.
Meh.
Obama came in so strong and the GOP left so weak ann looking inept that I don’t think the GOP had any alternative but to say no to everything and ignore or make up polls so they can say. “See, they had a majority and couldn’t figure out how to govern so now they are ramming this down the throat of the American people.
Say it enough and it becomes truth for most people.
What are they going to say, “Miss me (Bush) yet?”
Wait, they are saying that too.
I heard Toobin on Fresh Air this morning saying that he thinks Stevens will step down and that Obama will pick Elena Kagan as she has already been vetted.
speaking of the increasing politicalization of the judiciary, did you see this? Justice’s wife launches ‘tea party’ group:
itokiyar, eh.