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The Supreme Court: The Role Of The Senate

Digby points out that Linda Greenhouse, the NYTimes Supreme Court reporter for many many years, is hanging up her pen. Her last column recalls the importance of defeating Robert Bork's nomination to the Supreme Court:

It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.

Very true. It reminds us that the Senate should not be a rubber stamp for ANY President. While I really enjoyed Jeff Toobin's book on the Supreme Court, titled "The Nine," I was annoyed by his acceptance that the Senate has no actual say in who is seated on the Court:

[O]ne factor--and one factor only--will determine the future of the Supreme Court: the outcomes of Presidential elections. . . . This is as it should be.

No, that is NOT as it should be. The Constitution says, in clear and express terms, that the Senate has the right and duty to "advise and consent" to the President's SCOTUS nominations. It is absolutely NOT as it should be that the Senate has chosen to become a rubber stamp. What better example than the rejection of Robert Bork? It is time for the Senate to reclaim its Constitutional role.

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    Scalia and Thomas should have never been (5.00 / 1) (#1)
    by Saul on Mon Jul 14, 2008 at 07:34:48 AM EST
    confirmed.  We could start with those.

    Thomas certainly not (5.00 / 1) (#2)
    by Demi Moaned on Mon Jul 14, 2008 at 07:44:05 AM EST
    ... and I feel the same way about Alito, who in his confirmation hearings didn't try to appear as anything other than a partisan hack.

    Every time people on the left blogs start to get warm and fuzzy about Arlen Specter, I always remember the Thomas confirmation hearings and grit my teeth.

    Parent

    GOP conscience is considering the right thing. (5.00 / 1) (#15)
    by Lysis on Mon Jul 14, 2008 at 08:11:27 AM EST
    Then doing the wrong thing.  

    Parent
    Let's not forget (none / 0) (#63)
    by oldpro on Mon Jul 14, 2008 at 10:09:39 AM EST
    the unforgiveable Biden and Kennedy spectacle.

    Parent
    Sorry (none / 0) (#95)
    by Demi Moaned on Mon Jul 14, 2008 at 11:14:23 AM EST
    I have forgotten it-- irretrievably.

    Parent
    Let's not forget that the dems abetted in the (5.00 / 3) (#17)
    by suzieg on Mon Jul 14, 2008 at 08:15:48 AM EST
    confirmation of the conservative judges:

    Antonin Scalia--Appointed by Ronald Reagan. Confirmed 9/17/86 by a vote of 98-0.

    Clarence Thomas--Appointed by George H.W. Bush. Confirmed on 10/15/91 by a vote of 52-48.

    John G. Roberts--Appointed Chief Justice by George W. Bush. Confirmed 9/29/05 by a 78-22.

    Samuel A. Alito--Appointed by Bush. Confirmed 1/31/06 by a 58-42 vote.

    Let's name names:

    Antonin Scalia was approved by the Senate on Sept 17, 1986 by a vote of 98-0. There were two senators absent: Barry Goldwater and Jake Garn. "I announce that the Senator from Utah [Mr. Garn] and the Senator from Arizona [Mr. Goldwater] are necessairly absent", Sen. Alan Simpson, explained at the time. "I further announce that, if present and voting, the Senator from Utah [Mr. Garn] would each vote "yea".

    Senator Al Gore and Ted Kennedy (champion of women's rights?) voted to confirm Scalia.

    Clarence Thomas: dem votes for confirmation:

    Republicans found 11 of the Senate's 57 Democratic votes to add to the 41 Republicans who voted to confirm Judge Thomas. Those Democrats who voted for Judge Thomas were Senators Sam Nunn (being considered as an Obama VP choice) and Wyche Fowler Jr. of Georgia, Dennis DeConcini of Arizona, J. James Exon of Nebraska, Richard C. Shelby of Alabama, Alan J. Dixon of Illinois, J. Bennett Johnston and John B. Breaux of Louisiana, Chuck Robb (son-in-law of Pres. Johnson) of Virginia, Earnest F. Hollings of South Carolina and David Boren of Oklahoma. Two Republicans voted to oppose Judge Thomas: Bob Packwood (reputed sexist) of Oregon and James M. Jeffords of Vermont

    On Alito, dem votes to confirm:

    Democratic Senators Byrd, Conrad, Johnson, and Nelson (Nebraska) voted FOR both cloture and confirmation.

    On cloture, fifteen Democratic senators apparently sought to have it both ways. These are senators who can now tell their constituents they voted against Alito when they are up for reelection, while not rocking the procedural boat in the Senate by supporting a filibuster. To me, that looks like a victory of politics over principle, nothing more.

    Those fifteen Democrats are thus responsible for the confirmation of Samuel Alito. They are Senators Akaka, Baucus, Bingaman, Cantwell, Carper, Dorgan, Inouye, Kohl, Landrieu, Lieberman, Lincoln, Nelson (Florida), Pryor, Rockefeller, and Salazar.

    Names of the 22 Democrats who voted to confirm John Roberts Jr.:

    Max Baucus (D - MT) Jeff Bingaman (D - NM) Robert Byrd (D - WV) Thomas Carper (D - DE) Kent Conrad (D - ND) Christopher Dodd (D - CT) Byron Dorgan (D - ND) Russell Feingold (D - WI) Tim Johnson (D - SD) Herb Kohl (D - WI) Mary Landrieu (D - LA) Patrick Leahy (D - VT) Carl Levin (D - MI)Joseph Lieberman (D - CT) Blanche Lincoln (D - AR) Patty Murray (D - WA) Bill Nelson (D - FL)
    Ben Nelson (D - NE) Mark Pryor (D - AR) Jay Rockefeller (D - WV) Ken Salazar (D - CO) Ron Wyden (D - OR)

    Elections have consequences (5.00 / 1) (#55)
    by ruffian on Mon Jul 14, 2008 at 09:51:25 AM EST
    is what I kept hearing. We have to give the president what he wants, since, after all, he won the election.

    Hogwash. The Senate has consent powers for a reason.

    The fact that we even have to reaffirm that shows how far we have gone down the road to an imperial presidency.

    You would think that at least this would be to the progressive advantage if Obama wins, but the Dems have bought into the 'reach out to the other side' theory, not the autocratic presidency, so Obama will not rebalance the court when he gets a chance.

    I don't want an autocratic Dem president any more than an autocratic Republican one, but in this case it means we are going to have a right leaning court for the next 50 years.

    Labels don't float my boat at all. (5.00 / 1) (#64)
    by MO Blue on Mon Jul 14, 2008 at 10:12:36 AM EST
    The positions that possible justices hold on issues that I care about are important to me no matter what label you care to assign them.

    Now maybe you aren't concerned about that inherent authority of the president and choice might not be a big thing to you but it is to me. Sunstein said what he said about the issues mention. Any label you care to assign to him doesn't change that.

    You would need (none / 0) (#74)
    by flyerhawk on Mon Jul 14, 2008 at 10:25:17 AM EST
    to point out specifics as to what Sustein said.

    Could you be referring to this...

    "What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginning," Mr. Cass said. "As a constitutional matter, I think Roe was way overreached. I wouldn't vote to overturn it myself, but that's because I think it's good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled

    or was it this...

    Roe v. Wade itself was probably a horrible moment for liberal politics and almost certainly created the Moral Majority. Roe simultaneously demobilized the pro-choice movement in politics and fired up the pro-life movement everywhere. There probably would've been an Equal Rights Amendment without [Roe v. Wade], less agitation with the process, and stronger legal commitments to sex equality in general. It's absolutely true that if the court goes in the teeth of the public, it can hurt the cause that you're trying to promote.

    I realize that Sunstein is tied to Obama so obviously he is persona non grata here but he has been one of the leading advocates of judicial Liberalism for some time.  Please don't take snippets of his comments and twist them to make a political argument.

    And if labels don't float your boat why did you try to label him as being no different than Roberts?

    Parent

    Examples of Sunstein's Judicial Liberalism (5.00 / 1) (#88)
    by Dan the Man on Mon Jul 14, 2008 at 10:48:23 AM EST
    Link

    "Sunstein argues that Bush's decision to conduct surveillance of Americans without court approval flowed from Congress's vote to allow an armed struggle against al-Qaeda. "If you can kill them, why can't you spy on them?" Sunstein said"

    Bush's claims for an inherent executive power of the President to torture, wage war without congressional approval, warrantless spying, and detain Americans without lawyers or hearings are not preposterous.

    Link

    "The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary."

    Reading this, you can see why Obama likes him so much.

    Parent

    Reading this, you can also see why (5.00 / 1) (#89)
    by oculus on Mon Jul 14, 2008 at 10:51:13 AM EST
    Obama voted for the current FISA bill.  

    Parent
    I have major problems with what Sunstein is saying (none / 0) (#91)
    by MO Blue on Mon Jul 14, 2008 at 11:00:21 AM EST
    here.

    "If you can kill them, why can't you spy on them?" Sunstein said"

    The issue is not and never has been whether or not you can spy on al-Qaeda. No one wants to prohibit the government from spying on al-Qaeda. The issue is now and always has been spying on American citizens without a court approved warrant.

    Regarding Sunstein's view on "inherent" power of the President, I can see why Obama might like him and that IMO is not a recommendation.  A Democratic president with almost unlimited powers is no more acceptable to me than a Republican one.

    Parent

    Are you comfortabe Obama, (none / 0) (#84)
    by oculus on Mon Jul 14, 2008 at 10:45:44 AM EST
    if elected, nominating Sunstein as a U.S. Supreme Court Justice?  

    Parent
    Both Roberts and Sunstein are proponents (none / 0) (#97)
    by MO Blue on Mon Jul 14, 2008 at 11:18:42 AM EST
    "judicial minimalism" who believe that Roe v. Wade was wrongly decided by its overly liberal court, but it would be wrong to try and overrule that case at one fell stroke, its effect on the law having become a stable precedent. They prefer to slowly modify the ruling of abortion precedents rather than proclaim a lasting ban or legalization on abortion via Constitutional rulings. So his statement that he wouldn't overrule it is consistent with his philosophy. The goal is not to overrule it. The goal is to modify it to death.

    I didn't twist his words at all. I stated or quoted what he has actually said about issues I care about. To me, the quotes you provided do not negate the statements I quoted.

    Parent

    They _say_ they believe that. (none / 0) (#98)
    by LarryInNYC on Mon Jul 14, 2008 at 11:20:30 AM EST
    Both Roberts and Sunstein are proponents of "judicial minimalism" who believe that Roe v. Wade was wrongly decided by its overly liberal court, but it would be wrong to try and overrule that case at one fell stroke,

    but I personally believe the Roberts, at least, is lying.

    Parent

    I'm not sure I agree (none / 0) (#105)
    by MO Blue on Mon Jul 14, 2008 at 11:47:54 AM EST
    I don't think that the Republicans actually want to overrule Roe v Wade because the SCOTUS is a great fear tactic and final justification for voting for them just like it is with the Democratic Party. The goal, which is IMO is already succeeding, is to weaken it to such an extent that it is worthless. As long as the end result is realized, I don't think it would be unreasonable to think that Roberts would prefer to maintain the appearance that he isn't tromping on precedent.

     

    Parent

    If that's true. . . (none / 0) (#107)
    by LarryInNYC on Mon Jul 14, 2008 at 11:52:47 AM EST
    (and I don't have an opinion one way or the other) Roberts' interest would be purely strategic -- what's the best way to effectively gut the ruling.  It wouldn't be based on judicial principle.  That's my view of Roberts, although it disagrees with his own presentation of himself.

    Parent
    A supermajority should be needed to confirm any (5.00 / 1) (#71)
    by popsnorkle on Mon Jul 14, 2008 at 10:18:42 AM EST
    judge for life.  

    Judith Resnik in the NYTimes:

    By constitutional design, Congress is periodically reauthorized through elections. It ought to take a supermajority of the Senate to confer power on judges who will exercise it for their rest of their lives.


    Given the past weeks' performance (5.00 / 2) (#93)
    by miriam on Mon Jul 14, 2008 at 11:08:35 AM EST
    of Obama speeding to the right, how can anyone have confidence in his future appointments?  He seems intent on pandering to the Republicans on everything from trashing the 4th Amendment to questioning a woman's right to make the decision herself about abortion, to mixing Federal money with religion.  I wouldn't be surprised to see him nominate a conservative to the Court in a "spirit of compromise" to his good friends on the other side of the aisle.  Strange how his compromises are all in favor of the Republicans.  

    I don't trust Obama, I don't trust (4.85 / 7) (#65)
    by Anne on Mon Jul 14, 2008 at 10:13:06 AM EST
    the Democratic leadership and I don't trust the Senate to do the homework it needs to do in order to properly vet a nominee.  I think there will be an assumption that anyone Obama nominates should be acceptable to the Democratic Senate, and given the relatively large contingent of Blue Dog Democrats, and Obama's leaning in that direction with greater frequency, I am concerned that nominees will be more in keeping with that end of the spectrum.  

    I don't trust McCain, either, and my concerns about the leadership and the Democrats in the Senate stand - I have little confidence that Dems would push back and demand a better nominee that what McCain is likely to offer.

    Whichever one gets elected - I am not optimistic about their potential nominees, nor am I particularly optimistic about what will come out of the Court for the foreseeable future - like to the end of my lifetime.

    Depressing.


    Dems continue to lose the media battle (4.50 / 2) (#22)
    by Mike H on Mon Jul 14, 2008 at 08:39:35 AM EST
    It's about "hearts and minds".  Dems too often use "mind" arguments for "heart" issues.

    It's why the GOP continues to win the propaganda war, and if more Dems stood for their principles and stopped being so accommodating to the erosion of the Constitution, and showed some strength and fire and got at least a LITTLE media savvy, we could do wonders.

    And, for the record, given Obama's recent statements, in what way are we sure he WON'T nominate a Bork instead of a Kennedy?  And would a Democratic Senate just go along for the ride because he's a Democratic President??

    One wonders if we haven't lost the Supreme Court no matter who gets elected President in November...

    The Toobin attitude is stupid ... (none / 0) (#3)
    by Robot Porter on Mon Jul 14, 2008 at 07:50:22 AM EST
    the Senate can use their advise and consent power in anyway they choose.

    In order to (none / 0) (#5)
    by Lahdee on Mon Jul 14, 2008 at 07:57:52 AM EST
    reclaim it's Constitutional role the Senate would have to stop rolling over to the corporate media and it's mouthpieces. It is the Senate's right to advise and consent, to review and critique and to reject if unacceptable. It's not okay to throw up their hands and abandon the fight because somebody with a megaphone says they have to.
    I hope there isn't an opening in the court before January or we might end up with another right wing tool.

    Well, it's not as it should be (none / 0) (#11)
    by andgarden on Mon Jul 14, 2008 at 08:05:23 AM EST
    but t is as it is. I vote accordingly.

    Not the point (none / 0) (#13)
    by Big Tent Democrat on Mon Jul 14, 2008 at 08:07:57 AM EST
    I never have THE point, it's just MY point. (5.00 / 1) (#20)
    by andgarden on Mon Jul 14, 2008 at 08:29:53 AM EST
    Look (none / 0) (#19)
    by Big Tent Democrat on Mon Jul 14, 2008 at 08:24:51 AM EST
    It is freaking simple. Jeralyn can delete your account. Not me.

    I can delete comments in my thread.

    You want action? Go spam Jeralyn's posts. OR better yet. Write her an e-mail.

    Your ErrinF imitation is not new nor interesting and most importantly to you, not effective. I can not give you what you want.

    No responses to this commenter please in this thread.

    I would write him an e-mail but I do not know his e-mail so this is how I can communicate with him.

    Fine (1.00 / 0) (#21)
    by Alec82 on Mon Jul 14, 2008 at 08:30:10 AM EST
    I've written emails and played nice with Jeralyn to no avail.  I hoped that you had some editing power.  I was wrong.

     Delete this.  It is pointless.  

    Parent

    OK, let me get this straight (5.00 / 1) (#48)
    by frankly0 on Mon Jul 14, 2008 at 09:40:58 AM EST
    You can't actually stop yourself from posting, you really need to have your account deleted to keep yourself from typing away here?

    This is a problem that goes beyond Jeralyn's powers of deletion, I think.

    Parent

    Alec82 is banned (none / 0) (#106)
    by Jeralyn on Mon Jul 14, 2008 at 11:52:39 AM EST
    I am not deleting his account and all his comments. That's what he wants and I won't do that. He made hundreds of comments in dozens of threads to which others responded and it would makes those threads devoid of context if only his posts were deleted.

    His remedy is to stop posting. Since he repeatedly made insults and used profanity today, he is banned.  And yes, he sent me numerous emails. The first started out stating his position. I responded. The next batch degenerated into insults and I did not respond.

    I'm sorry Alec82 is unable to follow the site rules but he isn't. He's banned and his earlier comments will remain.

    Parent

    BTD was right (none / 0) (#112)
    by Steve M on Tue Jul 15, 2008 at 09:11:04 AM EST
    ErrinF holds the copyright on this technique.

    Parent
    Odd then (none / 0) (#23)
    by lilburro on Mon Jul 14, 2008 at 08:52:05 AM EST
    that someone as well-versed as Feingold would vote to confirm Roberts on the principle that the President be given, basically, unconditional leeway in his appointments.  At least that's how I remember his intention...

    What exactly (none / 0) (#29)
    by flyerhawk on Mon Jul 14, 2008 at 09:13:58 AM EST
    was there to vote against when it came to Roberts?  The guy had a stellar resume.  While it was obvious he would be part of the Conservative block, politically how do you vote against him when he is clearly qualified?

    Parent
    I believe what people want. . . (none / 0) (#31)
    by LarryInNYC on Mon Jul 14, 2008 at 09:18:42 AM EST
    is for the Democrats to do what they don't want Republicans to do -- stop judges based on political philosophy.

    Personally, I can't decide between the two positions

    - Presidents should be allowed to appoint judges who share their political philosophy as long as they are otherwise qualified.

    and

    - The Congress should prevent the appointment of judges for reasons of political philosophy.

    The problem in the current era is that the Democrats seem to operate under the first position while the Republicans operate under the second position.  The net result is the appointment of very conservative judges by Republicans and very moderate ones by Democrats.  Thus, the bench moves right.

    Parent

    I don't think this is true (none / 0) (#34)
    by flyerhawk on Mon Jul 14, 2008 at 09:23:51 AM EST
    I think that Roberts and Alito are the by product of both the White House and Senate being controlled by the GOP.  

    Bush I appointed Thomas but he also appointed far from a Conservative David Souter.  Reagan's appointments were a mixed bag.  

    The problem is that Democrats have only appointed 2 justices in the last 40 years.  Carter was the only President to serve a full term and not appoint a Justice.  Clinton appointed 2 in his 8 years.  

    Both parties operate in the same political climate.  The Republicans simply have had the advantage of appointing 8 of the last 10 Supreme Court justices.

    Parent

    Actually it is worse than that (5.00 / 1) (#72)
    by Molly Bloom on Mon Jul 14, 2008 at 10:18:52 AM EST
    Nixon appointed 4, Ford appointed 1, Reagan appointed 3 (I don't count the elevation of "that clown Renchburg" to CJ), Bush the Elder appointed2, Bush the Younger appointed 2.

    The count is 12 to 2 since 1968.

    The GOP tends to pick young justices making it harder to change the court's shift.

    By their reckoning, only Souter, Stevens  and Kennedy (to some extent) did not work out. It should be noted that all 3 of these are moderate to right justices.  

    People should think long and hard before deciding to sit this election out. It will have long term consequences.

    (FN: I think Hunter Thompson has the quote as "That idiot Renchburg" but I  can't find a cite).
    No liberals have been appointed in over 40 years. President Clinton appointed 2 moderates.


    Parent

    I was actually thinking. . . (none / 0) (#36)
    by LarryInNYC on Mon Jul 14, 2008 at 09:27:05 AM EST
    about lower court appointments as much as the Supreme Court when I wrote my comment.  And the Republicans famously held up appointments to dozens of seats during the Clinton Administration.

    But my broader point is that Republicans would not have allowed the confirmation of someone as far to the left as the Alito or Scalia, or even Roberts, are to the right.  The nominations wouldn't even have been made.

    Parent

    lower court appointments (none / 0) (#41)
    by flyerhawk on Mon Jul 14, 2008 at 09:32:28 AM EST
    are far less politically contentious.  Most people don't even know what the difference between a circuit court and appellate court much less care.

    Parent
    The Senate seems to care. . . (none / 0) (#43)
    by LarryInNYC on Mon Jul 14, 2008 at 09:34:54 AM EST
    or at least the Republican Senate.

    Parent
    What most people don't know is irrelevant (none / 0) (#62)
    by Valhalla on Mon Jul 14, 2008 at 10:08:53 AM EST
    in this case.  The Senate knows.  Or should know.  It's their job.

    The arguments about not blocking nominees based on ideological grounds only works if both sides' Prsident pick their versions of a Souter.  That is, ideologically aligned but not extreme.

    The problem is, the Republicans, when they nominate anyone short of Bork (even extremists thought he was extreme), trot out all this tradition and merit rhetoric, blah blah blah, but when it's their turn to pay, they're gone.  They have no problem playing ideological holdup.  And the Dems fall for it every time.  

    Parent

    Of course it is relevant (none / 0) (#68)
    by flyerhawk on Mon Jul 14, 2008 at 10:14:50 AM EST
    What people know and don't know most certainly does matter.

    Their job is being a politician.  If they act in a way that is counter to what the voters view as proper they will pay a political price.  That is the way it is.  

    Parent

    Until recently, perhaps. (none / 0) (#75)
    by oldpro on Mon Jul 14, 2008 at 10:25:24 AM EST
    No longer.

    We are now seeing well-funded challenges to state appellate court judges this election cycle by recently-formed organizations in Washington State.  Must be happening elsewhere as well.

    Here, the current issue is property rights.

    Parent

    You tell me (none / 0) (#33)
    by Steve M on Mon Jul 14, 2008 at 09:22:40 AM EST
    Bork had a fantastic resume too.

    Parent
    Sure (none / 0) (#39)
    by flyerhawk on Mon Jul 14, 2008 at 09:30:14 AM EST
    And Bork also was a lesson for future Presidents.  No longer would President's appoint justices with any writings on anything approaching a contentious issue.

    And let's not forget that Bork was also a guy who had a political history as well.  

    So while he did have a great resume he had a lot of political blackmarks that could be used against him.

    Parent

    Uh huh (none / 0) (#42)
    by Steve M on Mon Jul 14, 2008 at 09:33:14 AM EST
    But we did not defeat Bork because of the Saturday Night Massacre.  We defeated him solely because his ideology was too far to the right.

    His writings helped, as did his combative demeanor during confirmation hearings, but the bottom line is that there are a million different ways you can make the case that a nominee is too far to the right.  The Dems just aren't very organized on the judges issue these days.

    Parent

    Compare Bork to Thomas (none / 0) (#45)
    by flyerhawk on Mon Jul 14, 2008 at 09:37:27 AM EST
    Thomas was essentially a blank sheet.  The Democrats knew that the guy was a hard core Conservative but there was very little written by the guy to attack.  

    The Republicans readjusted their tactics after Bork.  

    And let's not forget that 7 Republicans voted against Bork.  How many Republicans would have even considered voting against Roberts or Alito?

    Parent

    Well (none / 0) (#52)
    by Steve M on Mon Jul 14, 2008 at 09:45:18 AM EST
    How did the Democrats know Thomas was a hardcore conservative, and why couldn't they have presented that evidence at his hearing?

    Parent
    Fine (none / 0) (#58)
    by flyerhawk on Mon Jul 14, 2008 at 09:56:47 AM EST
    they didn't know he was a hard core Conservative.  How does that change my point?

    Parent
    Well (5.00 / 1) (#101)
    by Steve M on Mon Jul 14, 2008 at 11:29:40 AM EST
    that sounds like you want to make a different point now.

    I don't agree that the Senate is helpless before the power of the "blank slate" nominee.  It's just a question of how hard you want to fight.  If Democrats want to defeat a nominee, they need a coordinated assault including media figures and the interest groups, the way they do it on the Republican side.  The Democrats just don't usually have as much stomach for fights over judges as the other side does.

    Parent

    I watched the hearings and (none / 0) (#76)
    by sallywally on Mon Jul 14, 2008 at 10:26:28 AM EST
    I knew he was a hardcore conservative. I don't remember how, it may have been in the media.... and Elizabeth Drew was a commentator on tv about this. Also, didn't he have a record of not hearing equal opportunity cases when he was in charge of that office?

    Parent
    Exactly (none / 0) (#57)
    by squeaky on Mon Jul 14, 2008 at 09:52:23 AM EST
    That Bush refused to release tons of documents that would have allowed the advise and consent process to have merit. The Senators were voting blind.

    Parent
    Should Obama win... (none / 0) (#24)
    by Jerrymcl89 on Mon Jul 14, 2008 at 08:57:20 AM EST
    ... I'll be interested to see if the Republicans abandon their traditional opposition to judicial fillibusters, since they are unlikely to have the votes to block an Obama nominee. I expect that they will, since, obviously, most of their other principles have proven to be negotiable. If they don't, I suppose that would tend to support the views of the Democrats willing to support cloture on Roberts and Alito.

    Filibustering SCOTUS appointments (none / 0) (#26)
    by flyerhawk on Mon Jul 14, 2008 at 09:03:09 AM EST
    is very risky business. IIRC, I don't believe it has ever been done, although I guess Fortas' chief justice appointment comes close.  

    Parent
    Yes, I think Fortas was the only case... (none / 0) (#27)
    by Jerrymcl89 on Mon Jul 14, 2008 at 09:10:09 AM EST
    ... and I think that was an easier sell politically, since it involved corruption charges.

    I think an assessment by Senatorial Democrats that a President has a right, within reason, to appoint judges who share his views is defensible, but only if the Republicans agree when the tables are turned. They did, in fact, confirm Ginsburg and Breyer. So if that's going to remain the precedent, I guess I can live with it.

    Parent

    Well (none / 0) (#35)
    by Steve M on Mon Jul 14, 2008 at 09:24:50 AM EST
    Ginsburg and Breyer were the results of a process where President Clinton asked the Senate Republicans in advance who they would find acceptable.  So it's not like they did us some great favor there.

    Parent
    To be fair. . . (none / 0) (#38)
    by LarryInNYC on Mon Jul 14, 2008 at 09:27:59 AM EST
    Bush's initial pick (Miers) was pre-approved by the Democratic leadership.

    Parent
    Sure (none / 0) (#44)
    by Steve M on Mon Jul 14, 2008 at 09:35:13 AM EST
    But that's a case of Harry Reid suggesting a name to Bush that he was eager to nominate anyway.  Bush wasn't looking to reach out to the opposing party and avoid a confirmation battle in the way Clinton was.  You may recall that after the conservative base defeated the Miers nomination, Bush didn't exactly go back to the Democratic leadership and ask them for another name.

    Parent
    I think it is clear (none / 0) (#46)
    by flyerhawk on Mon Jul 14, 2008 at 09:38:30 AM EST
    that Clinton was much more conciliatory towards the Republicans than Bush has been been towards the Democrats.  

    Parent
    Yes, that was the point. .. (none / 0) (#51)
    by LarryInNYC on Mon Jul 14, 2008 at 09:43:01 AM EST
    of my comment above.

    Parent
    Of course not (none / 0) (#40)
    by flyerhawk on Mon Jul 14, 2008 at 09:31:29 AM EST
    they didn't approve them out of some sort of sense of bi-partisan love.  

    They took the best options available to them.  

    Parent

    I both agree and disagree with you BTD (none / 0) (#25)
    by flyerhawk on Mon Jul 14, 2008 at 08:59:26 AM EST
    You are absolutely correct that the Senate both has the power and should USE the power.  It is their Constitutional prerogative and responsibility to decide whether someone should or should be confirmed.

    However the truth is that the Supreme Court justices appointment process is solely a political affair and based on little else.  

    And since it is a political process rather than a meritocratic process the Senate is beholden to political realities of perception.

    So unless the opposition can find real dirt on the appointment, such as with Bork or Doug Ginsburg, there is very little that they can do politically.  

    This is why John Roberts was such a master stroke by the Bush Administration.  There was nothing the Democrats could do.  The guy's credentials were impeccable and there was no dirt on him.  So unless the Democrats got suicidal and said "We don't feel he's Liberal enough" he was going to get appointed.

    If you want to get good justices on the Supreme Court make sure you get a Democrat in the White House.  It really is that simple.  If you have a Republican in the White House you can only hope and pray he screws up and appoints someone like David Souter.

    It seems fairly clear that Stevens and Ginsburg are holding out for a Democratic President.  The next President could even see Breyer or Kennedy or Scalia retire.  

    Roberts said in his confirmation hearings ... (none / 0) (#28)
    by Robot Porter on Mon Jul 14, 2008 at 09:10:46 AM EST
    that Plessy v. Ferguson was one of the worst decisions in Supreme Court history.

    Then he attempted to essentially reinstate it in the schools case, only held back (slightly) by Kennedy's concurring opinion.


    Parent

    I'm not defending Roberts (none / 0) (#30)
    by flyerhawk on Mon Jul 14, 2008 at 09:15:39 AM EST
    I am speaking about the political feasibility of voting against an appointment.

    Parent
    Just saying ... (none / 0) (#32)
    by Robot Porter on Mon Jul 14, 2008 at 09:22:23 AM EST
    The name floated as Obama's first nomination (none / 0) (#49)
    by MO Blue on Mon Jul 14, 2008 at 09:42:17 AM EST
    for the SCOTUS is Cass Sunstein. This is not reassuring. He shares the same judicial philosophy as John Roberts and publicly supported his nomination to the SCOTUS. He believes that Roe v Wade was wrongly decided and does not believe that there is a right to privacy in the Constitution especially not a right of patients and doctors to decide as they see fit.

    Cass Sunstein supported the Bush Administration theory of inherent authority to spy on Americans without warrants:

    ...    Cass Sunstein: Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11. BTD - Talk Left

    Based on this I do not share your faith that Obama appointment(s) will help to obtain positive rulings on issues that I care the most about.

    Parent

    If the Senate (none / 0) (#37)
    by TeresaInSnow2 on Mon Jul 14, 2008 at 09:27:41 AM EST
    must confirm all nominees, then why have a Senate vote at all.

    The primaries proved that Toobin is an emotional nutcase in many ways.  This is just one of them.

    Why does every media person (5.00 / 1) (#47)
    by flyerhawk on Mon Jul 14, 2008 at 09:40:09 AM EST
    have to be ridiculed?

    Toobin is not an emotional nutcase.  

    Parent

    He's pretty lousy. (5.00 / 1) (#60)
    by northeast73 on Mon Jul 14, 2008 at 10:03:02 AM EST
    And clearly was suffering from CDS in a major way.

    Remember him calling Hillary a "deranged narcissist" back in May?

    Parent

    He also made his fame ... (5.00 / 1) (#67)
    by Robot Porter on Mon Jul 14, 2008 at 10:14:27 AM EST
    prattling on endlessly about the OJ Simpson case.

    Toobin is worthy of constant derision.

    Parent

    I don't ridicule every media person (5.00 / 1) (#69)
    by TeresaInSnow2 on Mon Jul 14, 2008 at 10:15:35 AM EST
    just the nutcases like Toobin.

    Parent
    And, truth be told, most of the ... (5.00 / 1) (#73)
    by Robot Porter on Mon Jul 14, 2008 at 10:20:56 AM EST
    high profile journalists are nutcases.

    There are still good journalists in America.  But most of them slave away in relative anonymity.

    Parent

    Toobin's The Nine is an (none / 0) (#86)
    by oculus on Mon Jul 14, 2008 at 10:46:58 AM EST
    excellent read, free of "nutcasery."  Perhaps he isn't cut out to be a TV personality; or perhaps it is a different skill set.  Got to get noticed, after all.

    Parent
    Nixon's 1969 & 1970 appointments (none / 0) (#50)
    by wurman on Mon Jul 14, 2008 at 09:42:37 AM EST
    For an overview of the processes, here (link)
    Clement F. Haynsworth Jr. The most controversial of President Nixon's nominations for 1969 was that of federal judge Haynsworth to be an Associate Justice of the Supreme Court. The nomination was rejected by the Senate Nov. 21 by a key 45-55 roll-call vote, giving President Nixon his first major congressional defeat of the session. He became the first Supreme Court nominee to be formally rejected since 1930.

    G. Harrold Carswell The most controversial of President Nixon's nominations for 1970 was that of Federal Judge G. Harrold Carswell to be an Associate Justice of the Supreme Court. The nomination was rejected by the Senate April 8 by a key 45-51 roll-call vote.

    The key difference: Senate Majority Leader Michael J. Mansfield (D-MT) was an actual Democrat from the Democratic wing of the party.

    Roman Hruska's (5.00 / 1) (#81)
    by oldpro on Mon Jul 14, 2008 at 10:41:39 AM EST
    famous defense of Carswell (to the criticism that he had been a mediocre judge) is unforgettabled:

    "So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they? We can't have all Brandeises, Cardozos, and Frankfurters and stuff like that there."[1]

    Senator Hruska, a Nebraskan Republican conservative never quite lived that one down.  

    One wonders what they taught at U of Chicago and Creighton Law School that Hruska managed to graduate?


    Parent

    More coffee... (none / 0) (#82)
    by oldpro on Mon Jul 14, 2008 at 10:42:44 AM EST
    typocity this morning....sorry...

    Parent
    They taught him (none / 0) (#100)
    by Steve M on Mon Jul 14, 2008 at 11:26:16 AM EST
    how to make the best argument you have, even if it isn't a very good one!

    Parent
    Hmmm....Lincoln (none / 0) (#111)
    by oldpro on Mon Jul 14, 2008 at 04:20:09 PM EST
    suggests that one would do "better to remain silent and be thought a fool than to speak out and remove all doubt."

    Parent
    The key difference is that Mansfield (none / 0) (#59)
    by oculus on Mon Jul 14, 2008 at 10:01:28 AM EST
    used his power as Sen. Majority Leader.  

    Parent
    As senate majority & minority leaders (none / 0) (#77)
    by wurman on Mon Jul 14, 2008 at 10:28:16 AM EST
    Byrd, Mitchell, Daschle, & Reid all used their powers extensively.  In my opinion, however, not for our (my) programs, projects, & principles.

    Parent
    Not to put too fine a point on it, you (none / 0) (#87)
    by oculus on Mon Jul 14, 2008 at 10:47:47 AM EST
    make a good point.

    Parent
    Sweeping generalizations may be (none / 0) (#94)
    by wurman on Mon Jul 14, 2008 at 11:08:57 AM EST
    overdone by me here.

    Agreed.  There are finer points you could make.

    And you could even argue that they are not sanctimonius rats.

    Parent

    Sunstein is an odd duck ... (none / 0) (#61)
    by Robot Porter on Mon Jul 14, 2008 at 10:08:50 AM EST
    I wouldn't trust him on the Supreme Court.

    Yes they did (none / 0) (#70)
    by flyerhawk on Mon Jul 14, 2008 at 10:16:12 AM EST
    But eventually they relented.  That's why I never understood why Republicans though the Gang of 14 compromise was bad.  They won. They got what they wanted.

    But the Dems were the minority party at the time and only had so much leverage.  

    Who will replace Greenhouse? (none / 0) (#78)
    by oculus on Mon Jul 14, 2008 at 10:37:52 AM EST


    No matter who becomes President (none / 0) (#79)
    by madamab on Mon Jul 14, 2008 at 10:39:19 AM EST
    I want the Senate to grow a spine. Perhaps a larger majority will help.

    I really don't think (5.00 / 1) (#80)
    by TeresaInSnow2 on Mon Jul 14, 2008 at 10:40:54 AM EST
    the problem is spinelessness.  More, I think the problem is that they are doing what they want to do.

    I used to think it was spinelessness, but come on.  How can they be THAT spineless.

    Parent

    They are politicians (none / 0) (#83)
    by madamab on Mon Jul 14, 2008 at 10:43:42 AM EST
    and they can be bought or coerced, just like anyone else.

    Sigh.

    Parent

    Feh. (none / 0) (#90)
    by LarryInNYC on Mon Jul 14, 2008 at 10:53:44 AM EST
    I'm so tired of this kind of talk, which does nothing whatsoever to advance the understanding of why things go wrong in Congress, or to put them back on the right track.

    People like Feingold aren't "bought" or "coerced", they simply have different views from the blogosphere.  Feingold's position that the President is entitled to his nominees barring misconduct on their parts is a position of principle, not one of fear or venality.  The problem with the position isn't the position itself, or why Feingold holds it, the problem is that a one-sided application of principle (that is, by Democrats only) leads to skewed results.

    There are plenty of reasons that people in Congress vote the way they do.  Those reasons may include the corrosive effect of money on politics (which you can reasonably describe as being "bought"), but they also include genuine differences of opinion, the need to engage in horse-trading, additional information that may be held by the legislators, and the different nature of advocacy on one hand, and responsibility on the other.

    The problem with the "they're all cowardly sell-outs" attitude is that it discourages a true understanding of what's necessary to improve the situation.

    Parent

    Good grief. (none / 0) (#99)
    by madamab on Mon Jul 14, 2008 at 11:21:08 AM EST
    We were talking about Congresscritters in general. Some members of Congress are definitely principled, but most will discard their previous positions without a second thought, like Obama.

    I don't buy it that the Democrats who voted "yes" on issues like FISA have any principles whatsoever. They voted against the rule of law and against the Fourth Amendment. There is no principled excuse for such contemptible votes. However, I agree that Feingold is a notable exception, along with other Senators like Bernie Sanders.

    And I don't appreciate being lectured on my understanding of why Congresscritters vote the way they do. That's a lot of assumption you made based on one or two comments!

    Parent

    My apologies. . . (none / 0) (#92)
    by LarryInNYC on Mon Jul 14, 2008 at 11:07:03 AM EST
    The title of my comment is disdainful which isn't the tone I intended to convey.

    Parent
    Another Ambien-driven sleep-typist? (none / 0) (#96)
    by oculus on Mon Jul 14, 2008 at 11:15:14 AM EST
    No, that's. . . (none / 0) (#103)
    by LarryInNYC on Mon Jul 14, 2008 at 11:34:44 AM EST
    PatrickInRI.

    Blogging while working doesn't work too well.

    Parent

    I was referring to another commenter, (none / 0) (#104)
    by oculus on Mon Jul 14, 2008 at 11:41:29 AM EST
    he who shall not be named.

    Parent
    The way things are going. . . (none / 0) (#108)
    by LarryInNYC on Mon Jul 14, 2008 at 11:53:17 AM EST
    pretty soon I'll be "he who cannot be named".

    Parent
    You, sir, may be on the cusp. (none / 0) (#109)
    by oculus on Mon Jul 14, 2008 at 12:01:07 PM EST
    a thoughtful article (none / 0) (#102)
    by proudliberaldem on Mon Jul 14, 2008 at 11:31:50 AM EST
    i loved the part about how moved she was to see a woman on the bench for the first time.  

    Toobin is an a**!!! (none / 0) (#110)
    by AX10 on Mon Jul 14, 2008 at 04:06:49 PM EST
    He is a pundihack like all the others.
    The Senate has the power to confirm, therefore they do have a sizable say as to whom will sit on the courts.