Thursday, May 19, 2005

Federal Judicial Nominees

I, like many, have been watching the filibuster / judicial nominee debate with interest, and I will admit increasing anxiety. Here are my theories on what the debate is actually about:

1) The most likely candidate: This is really about Roe V Wade and the Supreme Court positions that are expected to open up in the next couple years. The Republican Senate wants to overturn Roe V Wade, and so they need to eventually get an obviously anti-abortion judge on the bench. They know that if they choose someone who has an obvious position, and that is the only sure-fire way to get what they want, then the Democrats will try to prevent the nomination with all the parliamentary tactics available to the minority, including the right to filibuster, which requires 60 votes to end. So you trump this current issue up so that the filibuster is removed and isn't done too obviously right when the Supreme Court vacancy comes up. So, basically, the issue of abortion is so important to the Republican party that they risk overturning the minotiry rights that they will need themselves again one day in order to push this through. It is very possible that almost all legislation wil come to a halt if they go through with this, but it is worth it to them.

2) This is just about Frist making a name for himself so he can run for Pres in 2008. This is less likely the fundamental issue, though I am sure it is a small part of it. I just don't think the rest of the Republicans would jump on board so vociferously if this was all there was to it.

3) This is more likely. The current Republican party idenitifies democracy with a tyranny of the majority. In other words, they believe that they should have absolute power over all things because they hold 55 votes. I think this is very likely true, but will not go over all the evidence for it here.

It is hard to separate forward-thinking thoughts on this topic from history, and how disingenous the Republican party is being on this. Let's count the ways that they have no moral platform from which to preach:

1) They claim that the Democratic use of the filibuster is an unprecendented break with 200 years of tradition. This is simply untrue. In the past 25 years, both Republicans and Democrats have used the filibuster on judicial nominees. As recently as 2000, Republican Senator Bob Smith declared the intention to filibuster two Clinton nominees and cited several other precedents showing how the filibuster was a way for a minority to express itself. See this report for a wonderful history that was presented to a congressional panel quite recently.

2) Even ignoring the filibuster, the Senate is full of ways for the minority to express itself, the most common of which is never letting something out of committee. The Judicial Committee simply never schedules a hearing or the floor leaders never schedule a vote, and voila, the nominee never gets the straight up or down vote that Frist and other are now saying is so sacred.

3) The Senate cannot stall all the nominees from confirmation - they have work that needs to be done! This is also a bogus claim. The Democrats have blocked 7 nominees and let 200 others get through. That means that, get this, 99.3% of Bush's nominees have been confirmed and are in their positions. 99.3%. This is not a tactic which is shutting down the judiciary. It is extremely targeted. This must be compared to the fate of Clinton's nominees, where a full, now get ready, 35% of his appointees were never even given hearings by the Republican controlled Senate. So the same party who are devastated that they cannot get every last one of their candidates confirmed denied a full third of the last presidents. Senator Hatch was on NPR today saying how all senators should show the president basic respect by voting on his nominees. Well, Senator Hatch, please speak to your own party first and then come back to us.

After all this, so what though? We can lay moral blame on whoever we wish, but what should we do now? And I have to turn it around, to make myself honest. If these were the nominees of President Kerry and the Republicans would not even allow a vote on them, which side would I be on? That is a hard question because in the end people like to take sides. We all know that had a Republican President had sex with Monica Lewinsky, all the impeachment votes would have just switched parties, and all the Democrats who voted not to impeach would vote to impeach, and vice versa for the Republicans. So I know I am human and perhaps I would fail, but I have to think that the Democrats are in the right here. The entire purpose of the Senate is for minority rights. If it was based on simple up/down majority rule on everything, there would be no need for it, and we could just have the House and close the Senate doors. Can this go too far? Of course. If the minority party indeed was preventing the Judicial branch from funtioning, you would have to do something. But that simply isnt the case. In the end, the Republicans might just have to acknowledge that the 44 million Americans who voted for Kerry exist and might be allowed to have some say in their own government, even if it is the pitiable say of blocking a mere .7% of judicial nominees. That the Republicans fear even this says much about their leadership.


Killer Llama said...

I don't believe that Republican leadership equates democracy with majority rule, although that idea does seem to be a talking point for the media pundits. I don't think that the leadership is thinking in that broadly; rather, they have found themselves with more power now than in decades, and they want to take advantage of it to push through agenda items while they still can. The door is open, they are walking through it.

I do think that they are being extremely short-sighted on this filibuster issue, though. The Senate has traditionally been the more high-minded house, largely because of the membership structure and re-election time-table. Frist's decision to limit minority power here is contrary to the spirit of cooperation in the senate, the body that is largely the most bi-partisan governmental body. The repercusions could be severe and long-lasting, and ultimately cause the Republicans to lose power again. If, by these tactics, the American public sees them as bully's, and if, as promised, the democrates react by slowing legislation to a crawl through procedural obstacles, then the support for the Republicans could evaporate, just as it did when Gingrich and Clinton shut down the government in... what, '94? '98? The question is, do the democrats have anyone as skilled as Clinton that can make sure any Senate slowdowns are blamed on the ruling party, and not the minority.

pacatrue said...

Thanks for the thoughts, though I am depressed to learn I was thinking along the same lines as media pundits, as my opinion of them, and now me, is not high. Your analysis is likely more accurate in that they just want to exercise as much power as they can now. But I confess I still do not completely get it. Why is it so important for their agenda to get these last 7 nominees through? Were the other 193 not enough, but with 200 they will have a no-more-abortion-put-God-back-in-school quorum? I can only think it's either 1) a dummy argument that is really about the future Supreme Court nominees, or 2) just a playground fight, where Frist just cannot stomach that he only controls almost everything, but not quite everything, and he must get that last little bit now no matter what. I sent an email to Frist last year some time when he was proposing constitutional amendments on same-sex marriage. I want to write another now that I find it embarassing that he is from Tennessee. I dont want to admit where I lived for 8 years because it is associated with him.