Talking about the filibuster is a mistake

[suigeneris]

It puts us on the ground the Republicans want us on, so they can say that no judicial nominee has ever before been filibustered who had majority support in the senate.*

Talking about the filibuster also leads to arcane arguments about whether Republicans used it in the past on nominees such as Abe Fortas, etc. We might win the arguments on the merits but they are a side show, I think, and cause anyone who isn't a political junky's eyes to glaze over.

A more effective approach is just to straight up state that the issue is whether a good sized senate minority ought to be able to stop a nominee for a lifetime appointment to the bench when they conscientiously believe that person would be bad for the country?

A lot of people will agree or can be convinced that such a principled position as preventing a sincerely believed odious nominee from taking the bench makes sense. Exactly how is a detail of senate arcana.

The mechanism for doing this is chosen from the tools available to the minority at the time. Under Clinton Republicans prevented dozens of nominees from reaching the floor for an up or down vote by bottling them up in committee using blue slips, etc. That means is not available to Democrats now, but the filibuster is. Exact same result, different tactic is all.

There are good sources in The Federalist for extended arguments about why presidents cannot appoint, but only nominate, and that the senate role as regards those nominees was deliberately crafted so the senate would not be a rubber stamp for the executive.

The anti-majoritarian nature of the senate can also be supported in the Federalist as can the Founder's intent that senators be diverse and should be free to exercise great latitude and independence in their judgements.

*It's worth noting, if this point need be argued, that if there was never a vote on the floor there is no way of knowing whether or not there was majority support, there is only supposition.

[BurgherHoldtheLies]

1. Good point. And obstruction of tyranny is a POSITIVE....

If Frist pushes the nuke button, I hope the Democrats stick together in grinding the Senate to a crawl. No matter which party did what in the past re: Senate procedures to stop nominees, it is the extremist right-wing who nuked the Senate for LESS THAN 10 nominees. If Frist & co won't compromise for LESS THAN 10 nominees, the Democrats shouldn't compromise either.

[chomskysright]

2. well said: relatedly, my letter to editor today:

ANYONE: PLEASE COPY/ PASTE: USE AS YOU LIKE:

The filibuster as emergency braking system

Opposition to the filibuster has been described as a way to pull forward judicial nominees who have more of a conservative agenda. We all want our opinions expressed through court rulings. However, bear in mind that 'conservative' can also hide information about a nominee. For instance, the previous rulings of judicial nominee Janice Rogers Brown are clearly anti-employee, racist, and supportive of age discrimination.

In a nutshell, Brown is a non-mainstream, ultra-conservative, pro-business and anti-employee nominee as evidenced by her rulings, not infrequently rendered as the sole dissenter in controversial cases. She supported : the use of racial slurs in the workplace (case: guilar vs. Avis Rent A Car Systems, Inc.) ; the searching of someone's house w/o a search warrant: (case: People vs Ray), and age discrimination (case: Stevenson vs. Superior Court).

Is this what the people want in a judicial nominee?

[suigeneris]

3. Yes, very good. Sooner or later the discussion will

turn to what is the reason for opposing a certain nominee and we need to be well-armed. I think Ted Kennedy's website gives a lot of good detail. A DUer put me onto that.

[suigeneris]

4. It's also important to stress that a replacement nominee

will have to be made be the president, not the senate. "You mean to tell me that with all the thousands of qualified conservatives out there the president can't find one person that shares his point of view but who is also acceptable to Democrats? Remember, 95% of his nominees have been approved."

[cestpaspossible]

5. the Nuclear option frame is working for us.

I say stick with what works.

[suigeneris]

7. I don't disagree. The important point is to stress

that the filibuster is a mere tactic, the principle is the obligation of the minority to prevent conscientiously opposed nominees from taking the bench.

And if they somehow succeed in extorting enough party loyalty among senators like Snow, Chafee, Hagel and McCain to pull the nuclear trigger, it is not clear how the country will feel as we slow things down. Further, they might immediately move Rehnquist out before the smoke clears and propose a female and racial minority for the court that will be politically uncomfortable to oppose.

We are much better off if the nuclear option is avoided, IMO.

[suigeneris]

6. When Republicans complain that Democrats want to apply

a litmus test the answer is that it is the president who applied the litmus test in choosing this nominee. "The senate minority is happy to support responsible conservatives but when it is our independent judgment that the president has proposed an extremist or judicial activist it is our duty to use whatever means the Founding Fathers made available to the minority to reject that nominee and allow the president to propose a better one."

[Pepperbelly]

8. These assholes are acting as though ...

it is a sacred POWER of the President and if you actually view the relevant part of the Constitution from where this power flows, it is very clearly a JOINT decision with the President's prerogative of no more importance than the Senate's.

Fuck these sons of bitches and their fucking whining. :nuke:

[suigeneris]

9. Right. The Founders wanted the president

to do the picking but the senate to be a check and balance by offering or witholding its consent. Hamilton and Madison (Publius) are very clear about that.

Further, the advise responsibility was used by Hatch and his fellows who sent a list of acceptable Dem jurists to Clinton that they agreed to support if nominated for the Supreme Court. I've sent a note to Reid that we should have such a list today, that it should be long and all should be acceptable conservative Republicans so it will not be possible to say that Dem senators are just obstructionists. I hope he's done it.