Showing posts with label Obama's judges. Show all posts
Showing posts with label Obama's judges. Show all posts

Sunday, November 24, 2013

"Centrists Should Mourn the Demise of the Filibuster: Only the extremists win—and in the end, mostly the Republicans."

A Slate headline, quoted in its entirety at Instapundit, as if he's not seeing the snark.

To see the snark, examine the logic

1. After the filibuster, only the extremists will win.

2. Most of the winners will be Republicans.

3. [Unstated.] Most of the extremists are Republicans. 

What counts as "extremism"? In this context, it has to do with how we think about judges. (And executive nominees, but I'll leave them to the side for simplicity's sake.) The "extreme" should be understood as the more ideologically slanted or threateningly powerful individuals that the President would otherwise have refrained from nominating. But even with the minority party disabled by the inability to filibuster, there are political constraints.

Obama can't just nominate, say, Bill Ayers.
He won't want the criticism, and there will be pressures on members of his own party to say no. The old game of letting the minority party do the dirty work has changed. The other party will still do what it can to trash the reputation of the nominee, but the President's own party will have to vote that nominee down or take the political heat for voting for this awful character.

I suspect that the political check will be more of a constraint on Democrats, because it seems that American voters perceive conservative judicial ideology as more conventional, proper, and neutral than liberal judicial ideology. And this is essentially the insight in the Slate article (which is written by Eric Posner). And by essentially, I mean subtract the subterfuge in the part I've boldfaced:
Next time Republicans control the presidency and the Senate, they will appoint ideologically extreme judges. True, Democrats could cancel out this effect by appointing extremely liberal judges when they are in power, but recent history suggests that Democrats do not care as much as the Republicans about appointing ideologically extreme judges. Unless this changes, picture a federal appellate bench composed of numerous Antonin Scalias and Clarence Thomases, not fully offset by Elena Kagans and Stephen Breyers.
Let me restate the boldfaced part to say what I think is true:  Democrats know that the vigorous left-liberals they'd like to see on the bench would be viewed by the American people as ideologically extreme and unsuited for judicial work.

The reason the Republicans seem to get away with leaning further toward conservatism than Democrats can lean toward liberalism is that conservatism better comports with the people's idea of the role of the judiciary.

Removal of the filibuster helps conservatives not because they are more "extremist" than Republicans, but because the political check on nominating strong judges operates more forcibly on liberals. 

Saturday, November 23, 2013

There are 242 pending nominees to ram through after the end of the filibuster.

But what are the priorities and the politics of this drastic effort?
Top priorities for the White House include the confirmation in December of Jeh Johnson as secretary of homeland security, Mel Watt to head the Federal Housing Finance Agency and Janet Yellen to chair the Federal Reserve, according to a White House official. Obama also hopes for quick confirmation of three nominees to the powerful U.S. Court of Appeals for the District of Columbia Circuit....
And then?
“There is no document; there is no blueprint,” said Robert Raben, a prominent Democratic lawyer close to the White House. “In terms of a strategy, everybody’s blinking really hard.”
I guess "blinking really hard" means it was such a big surprise that they're still trying to wake up into the new reality. Or do you think it's blinking in the sense of losing one's nerve? They looked courageous, but then they blinked?

It would make more sense to say that the strategy must be to begin with the top priorities while continually observing the responses from the GOP and from the American people and developing the strategy as thing proceed. All along, the Democrats should be promoting their brand as the nominees themselves are presented as sound and highly competent, the Republicans attacks are made to seem scurrilous, and the people are manipulated into feeling as though the work of the government is going forward in a proper and beneficial way. The procedure should be used to distract attention from other less pleasant things — notably the Obamacare debacle (which itself might already be working to keep us from looking at even more unsettling matters).

If the Democrats can use this new confirmation process to good effect and they get lucky with a few Republicans looking arguably stupid or mean (not a bad bet), then more nominees can be advanced, perhaps even more advantageously as the moves of the game are learned and perfected.

How will Republicans play the game? They've already resisted confirming a bunch of "low-profile nominees by unanimous consent, as is customary in the Senate before an extended break." They can also absent themselves from committees so there's no quorum, which is needed to move the nominations to the floor. There's the "blue slip" procedure requiring each judicial nominee to get approval by both of their home state Senators. On the Senate floor, there can be up to 30 hours of debate time for every appeals court and Cabinet-level nominee and 8 hours for other nominees. I can picture Ted Cruz finding 30 hours worth of things to say about any Obama judicial nominee. If it's done well, it could help Republicans, but the Democrats and the media will call everything obstructionist and cherry-pick anything to denounce as mean, stupid, evil, etc.
Republicans have not indicated which delaying tactics, if any, they might employ, but they signaled a desire to seek revenge after Thursday’s vote. Sen. John McCain (R-Ariz.) said Democrats will “have trouble in a lot of areas, because there’s going to be a lot of anger.”...

On nominations, Raben said, the change in filibuster rules means that political fights are more likely to take place at the committee level. “Background investigations, courtesy visits, hearings and committee markups around nominees take on heightened importance because once it gets to the floor, absent a horrific fact about a nominee where significant numbers of the majority won’t defend it, it’s only a matter of time,” Raben said.
It's also only a matter of time until next year's elections, and we're already more or less in campaign mode. 30 (or even 8) hours is a lot of debate when you are talking about 242 nominees. And as the nasty, fired-up game proceeds, won't Republicans refine their moves? Pick which debates you want on the floor.
Obama’s aides said the president hopes the change in filibuster rules will get business back to usual, allowing him to staff his administration and fill the federal judiciary with nominees of his choosing without delay.
Obama and hope, a dreary old theme, newly hollowed out.