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The Judicial Filibuster
Posted by tgirsch

Back in April, I got into a debate over the filibuster over at The Dawn Treader. I’m going to pick on Jeff over there a little bit. He has consistently opposed the filibuster of judicial nominees, but tellingly, his stated rationale for opposing it changes. Originally, he claimed to oppose it because it was unprecedented. When that turned out to be false, he opposed it because (he said) the Constitution required a straight up-or-down vote. Actually, it requires no such thing, and once he learned this, his tune changed to something along the lines of “the filibuster isn’t one of the Constitutionally-mandated checks and balances,” and “the checks and balances aren’t there to balance partisan interests anyway.” Throw in a little “Byrd and Boxer tried to end judicial filibusters once, too” for spice, and you start to get a full picture. (For the record, Byrd and Boxer were as wrong then as Frist is now.)

I single Jeff out here not because his views or his shifting reasoning are unique or unusual. Rather, I do it in part because our debate at his site inspired this post, and in part because his views and shifting rationale are typical among conservatives (especially religious conservatives) who oppose the judicial filibuster. Despite all their high-minded rhetoric, their opposition has nothing at all to do with constitutional principles, tradition, precedent, standards, or the interest of fairness. Instead, it has everything to do with the fact that the filibuster is the only thing standing between them and something they want desperately: justices who oppose abortion rights, gay rights, and church/state separation. That’s really the only possible explanation.

A question I have asked repeatedly (and which nobody has bothered to answer, for what I think are obvious reasons) is this: how is lowering the bar for judicial approvals going to result in a less partisan, less activist judiciary? The answer is obviously that it won’t. Instead, it will simply (in the short term) result in the appointment of judicial activists whose activism they approve of. Longer term, when the pendulum inevitably shifts, you will get extreme liberal activists appointed, and the long-term result will be an even more fiercely divided judiciary than the one we’ve already have.

So instead of whining about the fact that the Democrats have used the filibuster to block a whopping 10 (4%) of Bush’s nominess (while approving over 200), the “high road” here would be to simply nominate other justices that are agreeable to everyone. Not partisan liberals. Not partisan conservatives. Principled justices whose jurisprudence is acceptable to all (or most).

How hard would this be? Let’s look at what the Republicans never want to talk about: the justices that were approved by the 108th Congress:

  1. Roger Titus, passed with 97 votes (nobody voted against him; there were three abstentions, and I bet you can name two of them)
  2. Dale Fischer passed with 86 votes and 14 abstentions
  3. William Hayes passed 98-0-2 (and the two no-votes aren’t who you think).
  4. Margaret Catherine Rogers passed 82-0-18.
  5. Ronald A. White passed 93-0-7
  6. Marcia Crone passed 91-0-9
  7. Carlos Bea passed 86-0-14
  8. Michael Mosman passed 93-0-7
  9. Dana Makoto Sabraw passed 95-0-5
  10. Larry Alan Burns passed 91-0-9
  11. Kim Gibson passed 94-0-6
  12. Henry Ford passed 89-0-11
  13. Glen Conrad passed 89-0-11
  14. Sandra J. Feuerstein passed 92-0-8
  15. R. David Proctor passed 92-0-8
  16. Steven Colloton passed 94-1-5 (our first “nay” vote!)
  17. Frank Montalvo passed 95-0-5
  18. James Cohn passed 96-0-4
  19. Earl Yeakel passed 91-0-9
  20. Allyson Duncan passed 93-0-7
  21. Lonny Suko passed 94-0-6
  22. Samuel Der-Yeghiayan passed 89-0-11
  23. Victor Wolski, a claims court judge (15 year appointment, rather than lifetime), is our first contentious candidate. He passed 54-43-3. But notice that the 43 nay’s didn’t feel strongly enough about it to filibuster here, so it’s not as if they’re filibustering every candidate they oppose, as the Republicans would have you believe.
  24. David Campbell passed 92-0-8
  25. R. Hewitt Pate passed 71-0-29 (with Republicans making up 12 of the 29 no-votes)
  26. Mark Kravitz passed 97-0-3
  27. J. Ronnie Greer passed 97-0-3
  28. Richard Wesley passed 96-0-4
  29. Michael Chertoff passed 88-1-11
  30. Consuelo Callahan passed 99-0-1
  31. S. Maurice Hicks passed 86-0-14 (Republicans were 6 of the 14 no votes)
  32. Cecilia Altonga passed 91-0-9
  33. Deborah Cook passed 66-25-9, our second candidate with sizeable dissent, but still passed with a 2/3 margin, including 17 Democratic “yeas.”
  34. Edward Prado passed 97-0-3
  35. Jeffrey Sutton passed 52-41-7, our third contentious candidate, and second who could have been filibustered but wasn’t
  36. Ross Swimmer passed 72-24-4, nearly a 3/4 margin
  37. Richard Bennett passed 99-0-1
  38. Dee Drell passed 99-0-1
  39. Cormac Carney passed 80-0-20, with Republicans counting for 7 no-votes
  40. Timothy Tymkovich passed 58-41-1, our third nominee who could have been filibustered but wasn’t
  41. Theresa Springmann passed 93-0-7
  42. James Selna passed 97-0-3
  43. J. Daniel Breen passed 92-0-8
  44. Jay Bybee passed 74-19-7
  45. Thomas Varlan passed 97-0-3
  46. William Quarles passed 91-0-9
  47. Gregory Frost passed 91-0-9
  48. Marian Horn passed 89-0-11
  49. Robert Junell passed 91-0-9
  50. S. James Otero passed 94-0-6
  51. John Adams passed 91-0-9

For completeness, here are the justices who were filibustered:

  1. Miguel Estrada, blocked 55-45 (60 needed for cloture).
  2. Priscilla Owen, blocked 52-44-4
  3. William Pryor, blocked 53-44-3
  4. Charles Pickering, blocked 54-43-3
  5. Carolyn Kuhl, blocked 53-43-4
  6. Janice Brown, blocked 53-43-4

What does all this mean? A few things strike me here. First, if my count is correct, looking at just the 108th Congress, Bush had 51 of his 57 nominees approved. That’s nearly 90%. Further, if you look at his contentious nominees (for which there were at least 20 opposed), five of eleven were confirmed, a success rate of better than 45%. Taking it one step further, and looking at the candidates for whom there was enough opposition (41 nays) to invoke a filibuster, three of Bush’s nine highly contentious nominees were approved, a success rate of 33%. Last, 48 of Bush’s 57 nominees (over 84%) passed with broad bipartisan support, and 46 of these were either unanimous or had only one dissention.

All of this belies the claim that the Democrats are using the filibuster to “unfairly” block Bush’s nominees. The high road here would be to find more nominees like the 46 who passed without trouble, and nominate them. But I suppose it’s asking way too much to expect the Bush Administration or the GOP to take the high road on this or anything else.

May 19th, 2005 Politics, Legal Issues | 7 comments

7 Comments »

  1. Wampum writes:

    Opposing People of Faith?
    I am getting pretty tired of the conservative argument that Democrats are discrimination against people of faith by blocking a few judicial nominations. Over at Lean Left, Tgirsch has put together a list of 51 confirmed judicial nominees from the…

    Trackback 5/19/2005

  2. J. Michael Matkin writes:

    I agree with you about the foolishness of removing the filibuster. It’s entirely unnecessary. Evangelical Christians especially ought to be reminded that being in the political majority is not proof against the natural tendency of the human heart to be seduced by power. Sometimes our enemies are our best friends, when their opposition keeps us from doing everything that we want to do.

    At the same time, let’s not be children about this. To suggest that the Democrats are doing this entirely on principle is naive. You fail to consider the possibility (I would suggest near certainty) that the Democrats have chosen to pick their fights with these particular nominees rather than attacking across the board. Given the nature of political life in general and the (easily understood) desire that Democrats have to stick it to the Republicans in payback for the way that several of Clinton’s nominees were treated, it simply isn’t credible to me to suggest that the rest of Bush’s nominees were just fine, but these six or so are just too extreme. There is a tremendous amount of calculation involved here. I don’t have a problem with that specifically, but let’s not be blind to it and fall into this trap of looking for black hats and white hats. The fact that a handful of Senators have tried to negotiate a private deal to back the Senate away from the abyss highlights well enough the fact that the leadership of both parties have been willing to burn the village in order to save it (for themselves).

    Comment 5/19/2005

  3. tgirsch writes:

    J. Michael Matkin:

    To suggest that the Democrats are doing this entirely on principle is naive.

    Where did I ever suggest that? I don’t think anyone claims that the Democrats are filibustering these candidates for anything other than purely political reasons. They happen to be political reasons I strongly agree with, but political nonetheless.

    You fail to consider the possibility (I would suggest near certainty) that the Democrats have chosen to pick their fights with these particular nominees rather than attacking across the board.

    Fail to consider? I all but spell it out! But what’s wrong with that? Are you suggesting that filibustering them across the board would be better? No, the whole point of the filibuster (at least the way it’s historically been used) is to allow a sizeable minority to block actions which they find particularly objectionable. And this holds for any Senate business, not just judicial nominees. That’s precisely what the Democrats are doing here.

    And it’s not as if they’re overusing the tactic, unless you consider 10 out of 214 to be excessive.

    … it simply isn’t credible to me to suggest that the rest of Bush’s nominees were just fine, but these six or so are just too extreme.

    Then apparently you don’t know very much about them. I doubt it has very much at all to do with payback, and everything to do with the fact that the Democrats do not want these particular justices on the bench.

    The fact that a handful of Senators have tried to negotiate a private deal to back the Senate away from the abyss highlights well enough the fact that the leadership of both parties have been willing to burn the village in order to save it (for themselves).

    You won’t get any argument here. But in this particular case, I think the Democrats have the more principled stance. That doesn’t mean it’s entirely about principle, it just means that I think the Democratic position on this seems like the one that is better for the country long-term. And I wouldn’t be surprised if there are a lot of moderate Republicans out there who agree with me.

    Comment 5/19/2005

  4. dwight Meredith writes:

    “it simply isn’t credible to me to suggest that the rest of Bush’s nominees were just fine, but these six or so are just too extreme.”

    Really? Janice Rogers Brown does not believe that the protections of the Bill of Rights are incorporated by the 14th amendment so as to apply to actions by state or local governments.

    That is, she would find no First Amendment prohibition on a state law that bans the private ownership and reading of the Bible. She sees no First Amendment prohibition on a state law that required all newspapers to be approved by the Governor before publishing.

    More than 200 of Bush judicial nominees have been confirmed. Can you find even one of those 200 who have views that extreme?

    Comment 5/19/2005

  5. Steve Plonk writes:

    So, are they going to hash this thing out next week? Inquiring minds want to know.
    I am adamantly opposed to the so-called “nuke option”. The filibuster is a unique right of the minority
    and I believe it should be preserved with the rules intact.

    Comment 5/19/2005

  6. J. Michael Matkin writes:

    My suggestion was not meant to imply that these six nominees aren’t extreme (as tgirsch), or that they aren’t the most extreme of the bunch (as Dwight). But it’s not like the rest that got voted on are moderates. Many of the other nominees were far too conservative to be comfortable for Democrats in the Senate. So I don’t think that it’s just a matter of finding “more nominees like the 46 who passed without trouble”. It’s not sufficient to say that what’s going on is politics; everything that gets done in the Senate is political. The question is why. Is it politics in pursuit of principle or politics in pursuit of power. I keep hearing a lot of talk about principle but not much about the power part. That was the sole point I was trying to make.

    Comment 5/21/2005

  7. Pennywit.Com writes:

    Greetings from the Left.
    Recognize any of the following? Care to guess what it is that they have in common? Take a careful look.
    http://www.leanleft.com/ *
    http://www.dailykos.com/ *
    http://www.talkleft.com/ *
    http://www.bullmooseblog.com/*
    http://www.talkingpointsmemo.com/
    htt

    Trackback 5/30/2005

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