So now a couple of Democratic senators have talked of filibustering Samuel Alito, President Bush's choice for the Supreme Court. They probably won't have the numbers, since even Democratic leader Sen. Harry Reid has said it's a bad idea. But is it?
I have serious questions about Alito's seemingly excessive deferrence to presidential power. The Constitution mandates a separation of powers. It delineates specific authority to each of the three, theoretically co-equal, branches of government. The Constitution offers no such provision for those separations to be erased at the whim of the executive, even during an undeclared war waged ad infinitum against a nebulous enemy.
Though Democrat Robert Byrd, the Senate's leading critic of Congressional subsevience to the executive branch, said he'd vote for Alito.
And I acknowledge that judicial nominees are different than other nominees because once approved, judges can serve for life; Congressional hearings are the only oversight unless they're involved with impeachable misconduct.
But while I'd probably vote against Judge Alito's accession to the Supreme Court, I still wouldn't support a filibuster against him. I guess I'm a believer in giving people their day in court, if you'll excuse the pun. He, and all nominees, should be given an up or down vote.
It's one thing to filibuster a bill, but unless a singularly grave threat to the Republic is being nominated, you shouldn't filibuster people. And it's hard to argue that one justice on a nine-person body constitutes by himself a grave threat to the Republic. Maybe he wouldn't be so great, but a grave threat to the Republic? I've seen no evidence to that. I remember back when liberals said the sky would fall if David Souter were confirmed to the bench. And now he's one of its more liberal justices.
The Senate has no obligation to act on legislation proposed by the president, but it does have a constitutional responsibility to advise and consent on judicial nominees. Up or down.
It's true that Republicans acted much differently when Democrat President Bill Clinton was in power. But given all the ethical scandals immersing the Republicans in Washington, taking the high road is not only the right thing to do for Democrats, but probably the politically smart one as well.
15 comments:
People for the American Way is hardly an objective source. Democrats did filbuster a significant number of Bush's judicial nominees, which I don't believe had been done before. BTW, with regard to a prior, pre-editing response of yours, you shouldn't refer to an anonymous responder's job that you happen to know, but respect his/her anonymity.
Dear Anon,
If you have a questions about PFAW's numbers or doubts about their methodology, then by all means share them. But a simple ad hominem isn't going to change my opinion.
The issue is giving nominees an up or down vote. To suggest that denying nominees an up or down vote is ok provided it's not called a filibuster seems to me a distinction without a difference.
As for your final comment, I don't know who you are or what you're referring to for sure. But I can only remember one note I've left which fit the criteria you mentioned above. I have since modified that note accordingly. If that was in reference to you, I apologize and assure you no malice was intended by it.
The difference is that a filibuster is a tactic used by a minority. It's more undemocratic to block a nominee whom a majority of senators support than one who is not supported by a majority. And it simply reduces your credibility to rely on partisan, ax-grinding groups as purportedly objective sources of statistics. And why are the letters one has to copy to file a comment here written in that weird swirly script?
How does one know a majority doesn't support a nominee if the nominee is never brought up for a vote?
If the GOP claim is "Give a nominee an up or down vote," a claim I accept, then one shouldn't resort to semantic games.
Again, a distinction without a difference.
I'd be happy to hear your position.
And your credibility in attacking PFAW's stats will be zero until you state what is wrong with their numbers or their methodology.
I urge you to get specific because the ad hominem demonstrates nothing.
As for squiggly letters, blame blogger. It's to prevent spam from appearing as comments, something which briefly plagued this blog.
Unless you have a majority, i.e. control of a committee, you can't block a nomination from coming to a vote.
I don't have the time or inclination to research PFAW's claims, but think I am entitled to offer an opinion on whether they are a credible source, based on what they have said for many years. I have seen conservative groups come up with statistics on judges that seem to demonstrate the opposite, probably with equal credibility. One thing PFAW leaves out is that Clinton's two Supreme Court nominees were confirmed with overwhelming Republican support, even though it was quite clear they would, for example, vote to uphold Roe. Yet the possibility of a Bush nominee voting to overturn Roe is enough to get him tagged as an extremist by my New York senators.
Why do the letters have to be squiggly to prevent spam?
Either one believes a nominee should get an up or down vote or one doesn't. Period. Semantic gymnastics notwithstanding.
I repeat yet again, if you question PFAW's numbers, provide your own. Even ones from those conservative groups you cite would be the basis of a dialogue. In the absence of such substance, I'll have nothing further to say on this point.
If you don't have the "inclination" to do a tiny bit of leg work preferring to resort to lazy ad hominem, that's not much of a way to have a thoughtful, fact-based dialogue.
You are entitled to offer your opinion of the PFAW's credibility, but I'm going to pay it any mind until the opinion offers some basis in fact or some substance behind it. A little name calling in and of itself has no hope of swaying me.
One thing that you leave out is that the current Pres. Bush's other Supreme Court nominee was confirmed with a majority of Democrats supporting it. Scalia, the most conservative justice, was passed with unanimous Democratic support. And more to the point, ALL nominees of Pres. Reagan and Bush I were given an up or down vote. Let's not forget that the reason Alito was chosen was because conservatives torpedoed the nomination of Harriet Miers before she could even get to hearings. I was never a fan of hers but again, she deserved her day in court.
Your gratituitous mention of Roe perhaps reveals your ideological bias. An apparent bias which made you bring up the case even though it was not part of my original essay or any of the notes; and even though my original essay was not about whether to confirm Alito, but whether to filibuster him.
Perhaps this apparent bias is why you neglect to mention that many of the people who oppose Alito or have questions about him do so primarily because of his views of the limits (or lack thereof) of executive power.
I do not claim to speak for New York senators and I voted for neither of them so you'll have to talk to them about it.
I gather from your latest posting that I am someone who engages in "semantic gymnastics," also "lazy," full of "bias," "gratuitous," unthoughtful and unsubstantive in my arguments. Possibly. But would an objective judge really contend that I was the one in this dialogue engaging in "name-calling" and "ad hominem" attacks?
Miers withdrew after conservatives opposed her. Maybe Bush asked her to, we don't know. What has that got to do with anything? Are you saying conservatives weren't entitled to object to her nomination?
As for abortion and Roe, it hardly seems unreasonable of me to bring the matter up in the sixth of these notes, given that it was the most cited reason for opponents and potential filibusters of Alito. Why is it evidence of "bias" to mention the elephant in the room, the driving force behind the serious opposition to virtually all the Bush judges who have been opposed? And what is the answer to the key question that all the readers of this exchange really want to know, i.e. my prior query about the swirly letters?
What is funny is how the actually, the GOP's biggest fear is Roe vs Wade is overturned. It would destroy the GOP by splitting it. It would take away the Dems biggest argument, for voting for the lesser evil.
You're correct that Alito should be withdrawn, just due to his dogma. Under Bush you'll dislike, whomever he'd pick.
Dear Anon,
""semantic gymnastics," also "lazy," full of "bias," "gratuitous," unthoughtful and unsubstantive in my arguments"
I made those arguments not about you (since I don't know who you are) but about your arguments. Most importantly, I explained why those adjectives applied to your arguments. Your response essentially demonstrates my point. While reproaching me calling your ad hominem lazy, you do nothing to disprove that assertion. You offer none of those mythical conservative numbers to counter those of the PFAW, only the smokescreen of self-martyrdom designed to mask the absence of such numbers.
To wit, the minute you offer concrete counter-numbers or even concrete criticism of the PFAW's numbers/methodology, then you are engaging no longer ad hominem but in fair criticism, a basis for debate. I can't counter your objections to the PFAW's numbers because I have no idea what those objections are based on.
I've already addressed all of the others points you've raised in your most recent note.
It seems clear you are more interested in arguing with a perception of the "standard" liberal argument than actually addressing what I wrote.
I do not purport to represent either the Roe-based opposition to Alito or New York's US senators. You'll have to find other people if you want to argue either of those two issues. I only purport to represent my own opinions.
And the intention of this essay was not to argue the merits of Alito's nomination but the merits of filibustering him. I said that "unless a singularly grave threat to the Republic is being nominated, you shouldn't filibuster people" and that Alito certainly didn't seem to fit that category. Do you object to that characterization?
Since it's clear you're looking to be offended and to argue with some else's conentions instead of my own, I'm not sure there's any point in continuing.
If you wish to return to the topic at hand (which, if you remember, is whether Alito should be filibustered), then I'd welcome that.
It's unfortunate that you can dish it out but can't take it while purporting to hold me accountable.
Dear Renagade Eye,
Perhaps you too didn't completely read what I wrote. I explicitly said Alito should get an up or down vote. I did NOT say he should be withdrawn. And while it's true I'm not likely to be ecstatic about any Bush nominee, I had no problem with the nomination of now-Chief Justice Roberts.
Seems to me you do know who I am, which is the person you are quoting who previously indicated "you can dish it out but can't take it."
Regarding your previous point about Scalia, when Kerry was asked to come up with a mistake he had made in public life, the Democrats' last presidential nominee indicated voting for Scalia was top of the list. He and many other Democrats did vote against Roberts, many more than the number of Republicans who voted against Breyer or Ginsburg. My original point was that Democrats have been moving toward judicial obstructionism, and I think that is to a considerable extent due to pressure from groups such as PFAW, which punish any deviation from orthodoxy in kneeling before Roe. I regard the Democrats' use and threatened use of the filibuster as a key escalation in judicial obstructionism. I can't make out whether or not you agree, since you spend your time accusing me of things like "self-martyrdom" while also saying I make ad hominem attacks, which strikes me as an inconsistent position. And you continue to shamelessly duck the question of the swirly letters.
"My original point was that Democrats have been moving toward judicial obstructionism, and I think that is to a considerable extent due to pressure from groups such as PFAW, which punish any deviation from orthodoxy in kneeling before Roe. I regard the Democrats' use and threatened use of the filibuster as a key escalation in judicial obstructionism."
That may have been your original INTENTION, but it wasn't your original point. Until this most recent note, you were exclusively concerned with attacking my position at the expense of stating your own. You could've done both. This is a far more concise, salient expression of your opinion than anything expressed in all your previous notes. It's unfortunate you didn't state this in the first or second note, as it would've been the basis for a debate, instead of an argument. By now, my patience is exhausted.
That “lazy ad hominem” was metamorphosed into “you are lazy” and a “your gratituitous mention” was transformed into “you are gratituitous” all indicates to me someone who is going out of his way looking to be offended. If you insist on taking any criticism of your arguments as a personal attack on your whole character, then I have no interest in continuing.
I suspect who you are, but I am not assuming in order to “respect your anonymity.” Given that I suspect who you are, I hoped I would've gotten a pat on the back for encouraging an up/down vote for this nominee that I assumed you were likely to support, instead of World War III about a minor aside. But given who I suspect you are, I suppose I got what I would've expected. And this is the only personal comment I’ve made in this exchange.
So here is the final (and repeated) statement of my positions. I can think of how I can make this any more clear.
-I oppose any attempt to filibuster any judge (barring a “grave threat to the Republic,” which Alito does not appear to constitute). As I’ve stated repeatedly, “He, and all nominees, should be given an up or down vote.”
-I do not consider Democratic filibusters to be “a key escalation in judicial obstructionism,” merely the pathetic continuation of the Pandora’s box opened by the Republicans. Both parties are wrong to block nominees without a vote. I think all nominees should be given an up or down vote. Anything which denies this, whether called a filibuster or not moving him/her out of committee or some other horseplay, is wrong in my view. And yes, I maintain that such "distinctions" are semantic gymnastics.
-And just so it’s clear, I do not consider voting against a nominee to be judicial obstructionism. Implicit in ‘an up or down vote’ is the possibility that the nominee might be voted down. The Senate has a constitutional responsibility to advise and consent, not just to consent. The Democratic Senate allowed an up or down vote on Clarence Thomas’ nomination despite him not getting the endorsement of the Judiciary Committee. They were the majority after all and could’ve used the same legislative shenanigan as the Republicans used against dozens of Clinton’s nominees. Were they wrong to allow a full floor vote? You tell me.
And frankly, if the Republicans and conservative groups have it as part of their political agenda to change the face of the judiciary, then it's astonishing to suggest that the Democrats and liberal groups have no right fighting this as part of THEIR political agenda. While you may support them on many issues, you're not a blind apologist for either Republicans or the president. So why are you suggesting this?
And by the way, Republicans filibustered Abe Fortas, who was LBJ's nominee to succeed Earl Warren. In fact, this was the only time a Supreme Court nominee has ever been blocked by filibuster. Republicans did so to buy time until Nixon took over and could nominate right-wing justices.
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