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The one-sided "debate" about judges
November 7, 2005 9:15 AM   Subscribe

Dahlia Lithwick in Slate urges Democrats to grow a spine, and use the Alito hearings to provide the American public with some liberal talking points for a change. "If the Scalias, Thomases, Alitos, and Borks of the world had their way ... there would be no meaningful gun control. States could have official churches. Hard-fought federal worker, environmental, and civil rights protections would disintegrate. What you currently think of as the right to privacy would disappear. These are the questions Senate Democrats need to ask of Sam Alito: Should property rights trump individual rights? Should the right to privacy be interpreted as narrowly as the framers might have intended? Do you believe that a return to the morals and mores of two centuries ago is in the best interest of this nation?"
posted by snoktruix (76 comments total)

 
These are the questions Senate Democrats need to ask of Sam Alito: Should property rights trump individual rights?

Maybe Senate Democrats should grow a pair and ask that question of centrist and left-of-center justices already on the bench, namely Justices Stevens, Kennedy, Souter, Ginsburg and Breyer.
posted by Rothko at 9:22 AM on November 7, 2005


I think this is the key part of her piece:

Those questions were clumsy proxies for the clumsy theory that judges should just fix life for sad people. I am calling for something else. It's time for Senate Democrats to recognize that a) there is a national conversation about the role of judges now taking place; and that b) thanks to their weak efforts, it's not a conversation—it's a monologue.
posted by loquax at 9:24 AM on November 7, 2005


What a ridiculously horrible hack piece.

would be no meaningful gun control. States could have official churches. Hard-fought federal worker, environmental, and civil rights protections would disintegrate. What you currently think of as the right to privacy would disappear.

Everything on here is complete fabrication. This person has just purely made up hysterical theories with no basis for saying them.

If it wasn't so facially asinine, it might be worth treating it with something other than derision.
posted by dios at 9:33 AM on November 7, 2005


I would like to urge democrates to stop with the single link editorial FPPs. It is never to late to abort them.
posted by srboisvert at 9:34 AM on November 7, 2005


Should property rights trump individual rights?

The liberal consensus is that, no, property rights do not trump individual rights. For example, a business-owners property rights do not allow him to trample on the workers' rights. However, from the perspective of the judges who voted in Kelo, the "individual rights" of the city government trumped the "property rights" of the owners who didn't want to sell their land for redevelopment. I'm not saying that I agree with the decision, but Kelo is a decision specifically about the limits of property rights, not the limits of individual rights.
posted by deanc at 9:35 AM on November 7, 2005


Let me add one thing, there is definitely a fertile ground for topic here: what will be Democratic response to the call for clause-bound interpretivism?

But the article doesn't do anything to bring forth or add anything to that topic beyond alluding to Sunstein's new book. The rest of the article is aimed at poisoning the well. The sheer fact that anyone can expect to be taken seriously on the topic of jurisprudential theories and then write that paragraph suggesting the results of an emphasis on interpretivism renders the entire discussion stillborn at the outset.
posted by dios at 9:39 AM on November 7, 2005


t's time for Senate Democrats to recognize that a) there is a national conversation about the role of judges now taking place; and that b) thanks to their weak efforts, it's not a conversation—it's a monologue.

Bush won the election. How dare the Democrats in any way promote a conversation about their values during the interim between the previous election and the next. Doing so publicly in a way that would influence the confirmation of a Supreme Court justice is unacceptable obstructionism against the agenda of Dear Leader.
posted by deanc at 9:40 AM on November 7, 2005


deanc, promoting a conversation is one thing. Actually presenting an alternative position creates a dialogue. Saying "No, no, no" is not promoting a conversation. Saying "he is evil and will bring back slavery!" is not promoting a conversation. It would be nice to have a conversation about what kind of judges one wants. It is a converation that fans of clause-bound interpretivism would love because they know they will win. But a conversation would be embraced. Mischaracterizations of judges, politics by proxy and blanket obstruction is not promoting a conversation. Presenting an alternate view would be nice.
posted by dios at 9:47 AM on November 7, 2005


Actually presenting an alternative position creates a dialogue. Saying "No, no, no" is not promoting a conversation. Saying "he is evil and will bring back slavery!" is not promoting a conversation.

It's actually not been the Democrats, as far as I could tell, who have lately demonstrated how well a completely false and idiotic argument works, if repeated loudly enough.
posted by nervousfritz at 9:51 AM on November 7, 2005


Saying "No, no, no" is not promoting a conversation. Saying "he is evil and will bring back slavery!" is not promoting a conversation.

Can you name someone specific on the Senate who has said any of these things, and provide us with quotes from reliable sources?
posted by Rothko at 9:52 AM on November 7, 2005


Please. What is the purpose of me wasting time looking up things you know exist? Everyone is well aware of the opposition to Alito. He is called "too extreme" etc. Which is say "No, no, no." The reference to "he is evil and will bring slavery" was a characterization of the comments in this article--included in the text of the FPP-- that we all know full well are being shouted from all corners of the left. Why would I need to link to something to reference all the comments about "rolling back civil rights" and all the other nonsense?

If you want to engage me on a substantive point, then do so. But I'm not wasting my time searching for links to prove up my position which is evident to anyone even loosely following the topic.
posted by dios at 10:01 AM on November 7, 2005


Saying "he is evil and will bring back slavery!" is not promoting a conversation.

A November win by Democratic presidential candidate John Kerry would put the United States at risk of another "devastating" terrorist attack, Vice President Dick Cheney told supporters Tuesday.

Yeah, lots of conversation being promoted by the Right these days.

You guys crack me up, really
posted by Cycloptichorn at 10:06 AM on November 7, 2005


Lithwick's paragraph of arguably overheated rhetoric aside, dios, you're echoing the point of her piece -- that Democrats need to come up with an alternative theory of interpretation so that they can say something other than "No, no, no" to the Alitos and their theories. The outcome of such a debate is, of course, debatable.
posted by grobstein at 10:09 AM on November 7, 2005


If I say that sort of comment by Cheney was wrong and deleterious to serious discussion, does your derailing point have any more relevance to this topic we are discussing here?
posted by dios at 10:09 AM on November 7, 2005


grobstein, there is nothing arguable about it. My point was that there is a fertile topic. She at least acknowledges it. But her bringing it up is immediately discredited by her absurd rhetoric at the end. In other words, if I write an article about how we shouldn't call each other names, and I end it with "Do what I say, ignorant fucktards," then I haven't really presented a coherent point. All I have done is added to the problem.

She poisoned the well from the get go. Would that we had something other than her tripe to discuss the topic.
posted by dios at 10:13 AM on November 7, 2005


Metafilter: Do what I say, ignorant fucktards

dios, once again, you're angry and upset that Democrats would have the temerity to influence the judge-confirmation process. The only reason you didn't use the "Democrats need to shut up, Bush won the election" talking point is because I used it first.
posted by deanc at 10:15 AM on November 7, 2005


Sure. It shows that both sides say 'he is evil and will bring back slavery!' on a regular basis; not just Senate Dems.

As for the topic, other than the fact that the author takes certain arguments to their logical extremes, I don't disagree with the piece; it is time to have discussions about the possible implications of programs forwarded by the Right wing of American politics. The major obstacle being, most of these situations can't have their effects summed up in a simple sound-byte, and therefore, there is little political gain to be had by engaging in such a conversation, sad to say.
posted by Cycloptichorn at 10:16 AM on November 7, 2005


An interesting treatment of the topic could be had by presenting the competeing theories out there.

Link to and put forth the originalism of Bork, the textualism of Scalia, the representation-reinforcing theory of Dean John Hart Ely, the Judicial Gap-Fillng of Posner, the structualism "living Constitution" of Tribe, the liberal revisionism of Alexander Bickel, Sunstein's minimalism, or Michelman, Dworkin, Siegan, Epstein, and pragmatism, structualism, on and on. There are theories out there. They should be discussed as they are important. But an effort has to be made to understand them, and currently, the dialogue doesn't get much past Roe v. Wade and civil rights rhetoric. And that is a discredit to both sides: conservatives have to get off their Roe shtick, and liberals need to argue for something instead of just being against something.
posted by dios at 10:22 AM on November 7, 2005


deanc, don't put words in my mouth. Especially when they are explicitly contrary to the words I use. If you can't even bother reading what I write, then don't bother trying to characterize anything I have said.

Cycloptichorn: but do you understand that saying "they do it too" doesn't get any discussion very far?
posted by dios at 10:25 AM on November 7, 2005


Such bad political advice.

One of the reasons swing voters decide against Democrats because they see them as feckless losers. Without a majority in the Senate, the Democrats can't stop Alito. It makes much more sense for them to pass him through, Roberts style, than to make a big fuss, lose as they inevitably will (with at least ten Democrats voting "yes" anyway), and transform into a major defeat something that didn't have to be seen as a fight at all.
posted by MattD at 10:25 AM on November 7, 2005


Please. What is the purpose of me wasting time looking up things you know exist?

To prove that you're not inventing strawmen, as you have a penchant for doing.
posted by Rothko at 10:26 AM on November 7, 2005


Cycloptichorn: but do you understand that saying "they do it too" doesn't get any discussion very far?

Yeah, I understand that, just making a point that neither side is immune to this sort of non-advancing politics; Frist's favorite quote is 'the Dems have no ideas' when it is quite clear that they do.

See the second part of my earlier post about why it just isn't productive for politicians to debate difficult and complicated issues; it may be neccessary, you and I may enjoy those discussions, but it does nothing for re-election. Which is unfortunately pretty much the only thing that matters these days.
posted by Cycloptichorn at 10:29 AM on November 7, 2005


"How dare the Democrats in any way promote a conversation about their values during the interim between the previous election and the next."


What have been the Democrats values of late?
The Dems should grow an outlook before growing a spine. Kerry is a classic example - what the hell was he FOR?
I’m not literally saying the man didn’t say he was for things, but he didn’t leave any impression.
In much the same way there was a zeitgeist around the Iraq war: “WMDs” and “Tearrr”, which left an undeniable impression that those were the reasons behind the war even though apologists argue that is not what was explicitly stated.

We can certainly look past the impression on both subjects into the details, but the Dems have done little in the way of opposition other than offer the “No it isn’t” counter (Monty Python’s argument sketch comes to mind).

Real opposition would come in the form of actual alternative choice.

I suspect part of the reason they are unable to offer this choice - much as I would argue the Republicans were on the whole unable to during the Clinton years.

The exception there is the Repubs had a fanatic wing to give them a vision of sorts.

Debate in this country has of late been more akin to two men in diferently colored suits arguing in a foreign language.

As opposed to an actual contrast in vision such as Jimmy Carter putting up solar collectors on the White House and Regan taking them down.

That said, I have to agree with dios. I didn’t much like the article (Doesn’t mean I don’t think it was a worthwhile post tho)
posted by Smedleyman at 10:29 AM on November 7, 2005


AlexReynolds, my refusal to waste my time linking to something that everyone know is out there is not an indication of my comments being a strawman. It is only proof of my unwillingess to waste time playing your little game. Everyone engaged in this discussion in good faith knowns damn well that the character and prevalance of the comments that I was alluding to. Your little demand for links is only an indication of a lack of good faith in discussing this.

We can't get anywhere if we can't assume a baseline of understanding and need to reference every point asserted via google.
posted by dios at 10:29 AM on November 7, 2005


liberals need to argue for something instead of just being against something
I can't tell if dios is blindingly hypocritical, or if he has an excellent self-deprecating sense of humor. I really can't tell.
posted by MrMoonPie at 10:34 AM on November 7, 2005


Whole chunks seem to get cut out of my posts (I have to cut and paste on this computer):

"I suspect part of the reason they are unable to offer this choice - is that they are currently somewhat fractious - much as I would argue the Republicans were on the whole unable to during the Clinton years."
posted by Smedleyman at 10:35 AM on November 7, 2005


dios, I see your point, however, you have to think about the medium that is being used to present these arguements. You are hearing about them from a) pundits (talking heads) who really only have time (at least as far as the broadcast mediums go) to say "No, no, no!!!" or "libruls suck". If you really wanted to discuss these theories, you'd have to watch about 4 months worth of PBS on Sunday morning (at least in my market, that's where all the detailed and overly intellectual politics shows are).

The failure is not with those participaiting in the arguements, really. It's a lowest common denominator really. It's been said to death that broadcast media, especially the large conglomerate companies, view their audience as average IQ or 80 with the attention span of 5 seconds or less. If it bleeds, it leads, etc, etc. So when you actually see anything about the debate on the judges, you get a 30 second news story stating "Democrats are saying NO! Republicans are saying Overturn Roe." And then maybe a one to two minute editorial espousing how great one or the other arguement (or lack there of) is. You are not going to get anything interesting, or even worth remarking upon in any mainstream, or even mildly sub-stream media. You might get a conversation with a friend in a coffee shop (I tend to have friends of all differing political views, so we are always guaranteed to have an interesting time talking about how much we hate each others guts) that delves beyond those subjucts, but you will not see anything of the substance you alluded to. I think I've stated that 4 times so far. Damn monday morning thought loops.

Oh, and overall, I see Alito as a decent judge who actaully considers his opinions based on existing case law and a very well educated interpretation of the Constitution, at least from the decisions I've bothered to read.
posted by daq at 10:35 AM on November 7, 2005


Republicans stars crying and bitching when they see their own tactics employed against them news 9 and film at 11
posted by elpapacito at 10:37 AM on November 7, 2005


Saying "No, no, no" is not promoting a conversation. Saying "he is evil and will bring back slavery!" is not promoting a conversation.

Dios, can you specifically name one Senator — right or left — who has said any of these things, and provide us with quotes from reliable sources? Or will you admit that you're arguing with a strawman since no Senator on the judicial committee has said or represents such views?

If you want a good-faith conversation, don't invent your opponent's dialog.
posted by Rothko at 10:38 AM on November 7, 2005


Should property rights trump individual rights?

What a bizarre question. Has the concept of individual rights gained some new meaning I'm not aware of that would put it somehow in conflict with property rights? I'd have understood if she'd said "human rights" which is well-known to be an ever-growing laundry list of faux "rights" to food, medical care, etc. But individual rights usually has a very delimited meaning, close to what the Consititution talks about. I hope this isn't an indication that this necessary distinction is being lost.
posted by mw at 10:47 AM on November 7, 2005


One of the reasons swing voters decide against Democrats because they see them as feckless losers.

The irony is that you view them as feckless losers because they agreed with Bush. Who were considered the most feckless and weak of the Democrats? The Democrats who voted to support the war in Iraq and voted to support Bush's tax schemes. Since Democrats who support Bush are seen as "feckless losers," it stands to reason (and the Social Security privatization debacle bears this out), that opposing dumb policies of the Bush administration that are opposed to Democratic party values puts the Democrats on more solid ground. Which is precisely what Lithwick, in her own way, is attempting to argue.

Of course, the pro-Bush peanut gallery will merely argue, "Bush gets to do whatever he wants because he won the election," but agreeing with that statement is more likely to cast you as a feckless loser than anything else.
posted by deanc at 10:47 AM on November 7, 2005


But an effort has to be made to understand them, and currently, the dialogue doesn't get much past Roe v. Wade and civil rights rhetoric.

Dios, everytime Democrats try to have a real, nuanced dialogue they're accused of being elitist, ivory-tower, arrogant eggheads. Democrats aren't the ones who've spent the last 30 years dumbing down the conversation.
posted by callmejay at 10:48 AM on November 7, 2005


It makes much more sense for them to pass him through, Roberts style, than to make a big fuss, lose as they inevitably will (with at least ten Democrats voting "yes" anyway), and transform into a major defeat something that didn't have to be seen as a fight at all.

no. because when Alito's vote overturns Roe vs Wade, Democrat Senators need to be able to say to American women suddendly in need of a plane ticket to Canada/Mexico to avoid a close encounter with a coathanger, "we tried to stop him".

Democrats need to be able to do that.
on the other hand, since I see the elusive "swing voters" being mentioned here, we'll see how well it works for Republican Senators to try to explain to female swing voters, "well, we voted for him because he's a helluva guy".


Dios, can you specifically name one Senator — right or left — who has said any of these things, and provide us with quotes from reliable sources?

he can't. he's never able to do that. it's part of his charm. let's move on.
posted by matteo at 10:52 AM on November 7, 2005


What a ridiculously horrible hack piece.

Everything on here is complete fabrication. This person has just purely made up hysterical theories with no basis for saying them.

If it wasn't so facially asinine, it might be worth treating it with something other than derision.
posted by dios at 9:33 AM PST on November 7 [!]


dios, I realize you are a rapid posting joke, but really. You could at least attempt to respond to the article without whipping your little dios out and flailing about like Saint Vitus' Dance.
posted by The Jesse Helms at 10:54 AM on November 7, 2005


"Or will you admit that you're arguing with a strawman since no Senator on the judicial committee has said or represents such views?"


Don't know whether its a strawman or hyperbole. I'd argue the former if dios is actually saying someone said: "he is evil and will bring back slavery!" But if he's using it hyperbolically to express a general concept about the state of discourse I don't see the problem. The Dems aren't simon pure and 'certainly using the Repub's tactics against them' wouldn't elevate the debate.


I agree with daq that the sound byte obsessed media is part of the problem, but as the article pointed out the debate is on C-Span.
There is ample time to present a counter argument to Alito's appointment as well as offer a more detailed vision of how judges should work in the US. Or even offer a view of how the system actually works to counter the distorted picture. It'd be more cogent although admittedly perhaps less attractive to the 80 IQ'ers.
posted by Smedleyman at 10:57 AM on November 7, 2005


Misrepresenting any opposition as simple "no, no, no" is just another example of the current GOP contempt for checks and balances. (A contempt I'm certain will disappear just as soon as they become a minority again.)

What we call checks and balances is currently derided by the right in their current power-drunkenness as "obstructionism".

Strip away all the clever turns of phrase and talking points, and what you have is a bunch of corrupt, power-mad regressives who can't stand being told "no." Simple as that.

They think "advice" is out of bounds (though they're happy to tell us what advice is acceptable to them -- regarding "litmus tests" and "strict constructionism" and "legislating from the bench", "up or down vote" and so on.)

They also seem to think "consent" is mandated (unless it's Harriet Miers, in which case disgregard everything they just said.)

They whine about using the rules to force them to do their mandated job of executive oversight, while they threaten to break the rules to eliminate the filibuster. Frist wants to pass rule changes not at the beginning of the session, but by a point of order. Real respectful of the rules, they are.

The same party that holds open five minute votes as long as necessary to get their desired results, who doesn't allow Democratic legislation to see open debate on the floor, who decides 90%+ of the Congress's business in closed committee, who refuses to do any executive oversight, who neuters the Ethics Committee,...yeah, they're real sticklers for rules.

They're willing to chuck 200+ years of comity in a continuous body just to ram their ideological agenda down America's throat.

Mind you, the GOP may hold a majority of seats, but the Democratic Senators received over 3 million more total votes in 2004 -- which in their view is only a mandate if Bush enjoys it.

So pardon me if I find the obfuscation a tad hypocritical.

Here's what: if the right can impose an anti-choice litmus test on Harriet Miers to deny her an up or down vote, and can bottle up Clinton appointees in committee and filibuster his judicial choices, while threatening to change the rules on a point of order......

They aren't interested in promoting a "conversation" (don't make me laugh), they are interested in a smokescreen, a grand complication. They want what they want and they'll say whatever to get it, not the least of which is tying up "conversation" in knots.

I'm all for taking a sword to their knots.
posted by edverb at 11:01 AM on November 7, 2005


I agree that Lithwick's rhetoric is pretty hyperbolic, but it's still way more nuanced that the "activist judge=bad" argument that Justice Sunday types make.

Also, if there was ever an opening for the Dems to offer an alternative, it's now. Republican unity is cracking, people are getting fed up with the war, indictments are being handed down, etc. What is not useful is for Democrats to make it sound like Alito's vote would overturn Roe. His views on criminal rights and environmental regulations could have a far greater affect on court decisions in the short term.
posted by 912 Greens at 11:01 AM on November 7, 2005


I think many of you need to lay off dios. I don't see where he isn't, in this thread, attempting to address the issues at hand. Disagreeing with everything Republicans have done for the past thirty years is not the same as disagreeing with dios. I tend to disagree with his political positions, but he's not the Official Spokesperson for the Republican Party, and making like he's Scott McClellan every time he posts is unfair.

Comments like The Jesse Helms' don't do anything to advance a dialogue.
posted by you just lost the game at 11:02 AM on November 7, 2005


edverb,
I think you do not understand the "Advise and Consent" role. The power to nominate resides with the President. That is important. What that means is that it is his prerogative to nominate who he thinks should be there. The "Consent" process is to make sure he isn't appointing unqualified people the result of nepotism (there is a good quote from Hamilton that has been floating around on the topic). Assuming that they are qualified, the Senate must give consent.

If the Senate is allowed to vote no on the president based merely on a jurisprudential disagreement, then the power to nominate is taken out of the hands of the president and put into the Senate. Taken to its extreme, a Senate that says, "We will say no to anyone unless s/he believes X, Y, and Z" means the Senate gets to nominate the person because only the picks of their choice would get a "yes."

Such an understanding disrupts the constitutional balances. The Senate has a check on the Court; they can appeach judges. That is their check. The President gets to appoint judges; that is his check. If the power is taken out of the hands of the President, then he loses his check.

Again, the advise and consent clause was put in there to prevent nepotism by the President. The debates during the Constitution make this clear. It was not put in there to be a veto based on political disagreements.
posted by dios at 11:11 AM on November 7, 2005


Here is a good academic article on advise and consent that popped up on google. I don't know who the authors are.
posted by dios at 11:15 AM on November 7, 2005


The Hamilton quote is included in Federalist 76.

To what purpose then require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity.
posted by dios at 11:19 AM on November 7, 2005


Here is an editorial Ms. Lithwick linked to in her editorial which is entirely better than her own piece.
posted by Captaintripps at 11:22 AM on November 7, 2005


Assuming that they are qualified, the Senate must give consent.

dios, where do you come up with this crap from? Oh, right-- you pulled it out of your ass. This is just another version of "the President won the election, he can do whatever he wants" sort of silly reasoning. If the president cannot get the consent of the senate to appoint his court nominees, then they don't pass. That's the way it goes. You're simply mindlessly parroting the talking points of a bunch of Bush-cultists who've been caught up in an obsession with the Imperial Presidency. The correct phrasing is this-- "If a president nominates a judge and the senate gives its consent, then the judge must be appointed."

Even in the above-mentioned article you cite, dios, Madison suggested that one mechanism to reject a judge might be with a 2/3rds majority of the senate voting against. That would be valid. However, the senate is at liberty to write its own rules and the current set of rules demand that a majority vote confirm the nominee. We can argue over the appropriateness of the specific mechanisms in place with which to provide the "consent" of the senate, but the constitution specifically leaves the passage open for the Senate to define that for themselves and provide a check on the nominees.

In fact, the courts are awfully reluctant to involve themselves in telling the senate what their own rules are. This is one of those cases where the Senate is allowed to interpret the constitution, and the courts do not get involved in how the Senate interprets its internal functions.
posted by deanc at 11:24 AM on November 7, 2005


deanc, how do you counter the argument that consent is only to make sure the person is qualified and not the product of prejudice, nepotism or personal attachment?

How do you counter the argument that using a substantive arguments against nominees takes the power of nomination out of the presidency?

I don't see an explanation of that at all in your response. You didn't refute the article at all. (Though you are correct, I should not have used the "must". I should have used the word "should").

(And if you want to have a discussion on this, do you think just maybe you can move beyond the insults about "mindlessly parroting talking points" and "Bush cultists" because if you can't, I'm going to have to ignore you."
posted by dios at 11:29 AM on November 7, 2005


Those are interesting links dios - thanks.
posted by The Jesse Helms at 11:32 AM on November 7, 2005


Why do we even have votes to confirm a judge then. If the Senate's check is impeachment, why bother voting to confirm? If an appointee is unfit he can be impeached.
I think in times when one party holds domination over multiple branches of government the Senate should act as a check to the furthing of that power.
the original intentions of the founders are not always applicable to current situations.
posted by edgeways at 11:33 AM on November 7, 2005


Assuming that they are qualified, the Senate must give consent. [...]

It was not put in there to be a veto based on political disagreements.


I'm not a lawyer or legal scholar, so forgive me if my arguments seem juvinile. That said:

You're saying the Constitution mandates a political appointment process, minus the politics? Tell that to Abe Fortas.

In considering a lifetime political appointment to interpret the Constitution, are you suggesting it is out of bounds to ask an appointee how they interpret the Constitution, and to take issue (and withhold consent) where they consider it appropriate?

That makes no sense. The Senate's role in appointing judges to interpret the laws they will pass is a check unto itself.

You're suggesting a VERY limited definition of "advice and consent" that limits them to nepotism-stopper on matters of who gets to interpret the Constitutionality of laws for all of us for a lifetime.

The Constitution itself presents no such limitations on how the Senate must play this role, in fact it gives them considerable latitude on how they interpret and conduct the people's business. The Constitution prescribes that the Senate set their own rules, does it not?

Isn't that the basis upon which Frist threatens to go nuclear? (Though tradition and continuity holds that a rule change must pass by a 2/3 vote, Frist holds that he may change the rules in the middle of the gameby a bare majority point of order.)

Again, it's a matter of circumscribing the Senate's role where it suits them, and making very liberal (small "l") interpretations where it does not.
posted by edverb at 11:36 AM on November 7, 2005


edverb, your quaundry is explained in the the very definition of the words. The Senate may get to set administrative rules regarding internal procedure. But they certainly can't set a rule that would take an explicitly constitutional grant of authority to nominate out of the hands of the president.

I'm not "suggesting a very limited definition"--- I am saying the Constitution mandates it. Because if is not limited, then you are reading against the text of the document and ignoring the explicit granting of the authority in the President. It was contemplated that the Senate has more power in the process, and it was explicitly voted down. See 2 M. FARRAND, RECORDS OF THE FEDERAL CONVENTION 41 (1911).

In the end, you can see the linguistic and textual answer to the Advise and Consent clause by considering the effect of a broad intepretation of it by the Senate:

[T]he President may nominate, but they have a negative upon his nomination, till he has exhausted the number of those he wishes to be appointed: He will be obliged finally to acquiesce in the appointment of those which the Senate shall nominate, or else no appointment will take place."
Samuel Spencer, Speech at the North Carolina Ratification Convention, July 28, 1788.
posted by dios at 11:46 AM on November 7, 2005


feckless = George Bush
posted by Mental Wimp at 11:58 AM on November 7, 2005


dios, I simply agree with edgeways that the original set of circumstances that the founders saw is not applicable necessarily. In fact, they left that clause of the constitution deliberately ambiguous because the founders probably figured that there would be other circumstances beyond mere nepotism that might cause the senate to give pause regarding judicial nominees.

Furthermore, the specific judges that have come into dispute by the Senate are ones in which charges of "nepotism" or "patronage" can be filed. In fact, one could argue that the modern formation of the judiciary has become a large patronage factory with groups like the Federalist society dedicated specifically to churning out "acceptable" judges that serve the political agenda of a certain party. In fact, support for certain judges such as Janet Rogers Brown and Priscilla Owens came specifically from various political interest groups, and I simply don't think it is unfair for members of the Senate to hold up their nominations on the basis of claims that they are being nominated because they serve the agenda of the President's political patrons.

None of that changes the fact that the hysteria demanding that the president "can appoint whomever he wants" is coming from people with an unnatural cult-of-personality fixation on Bush.
posted by deanc at 12:08 PM on November 7, 2005


Dios, in your own words...you said:

Taken to its extreme, a Senate that says, "We will say no to anyone unless s/he believes X, Y, and Z" means the Senate gets to nominate the person because only the picks of their choice would get a "yes."

and your supporting quotes also address such extreme cases.

In the current context, on the matter of Alito's confirmation, it's hardly such an extreme circumstance. It is a case where the majority party is the same party as the President, where many (if not all) of the GOP Senate majority can be counted upon to vote for confirmation...how does this case warrant a argument taken to it's extreme?

In regards to constitutional roles, it seems the quotes you're posting are designed to prevent a situation where an opposition party may shoot down every nominee a President puts forth "till he has exhausted the number of those he wishes to be appointed".

The current context is no such thing. We are splitting hairs -- not over a question of Presidential acquiescence (after all, it was the right who was decisive in shooting down Miers, and though Roberts was distasteful to many on the left for his judicial philosophy -- he did receive bipartisan support in the Senate) we are talking about a matter of reducing "advice and consent" over a Presidential nominee who may simply fail to garner broad consensus.

An inability for a President's nominee to acheive consensus does not warrant reducing "advice and consent" as you suggest. If we were talking about a Dem majority that refused any nominee Bush appointed, I may agree. But that is hardly the case here.

Bush could acheive consensus by nominating someone who is acceptable to both sides.

I understand perfectly...once-bitten by the radical right on the Miers nomination, Alito was nominated to appease his detractors, so not to lose his political base.

If he expects a nomination process free of politics, then he should refrain from playing politics with Supreme Court nominees. The Supreme Court is not about pleasing your base, nor should the Senate be expected to produce a rubber stamp on request. When they signalled which way they'd vote on Miers, there was no such outcry over the definition of "advice and consent". But put plainly and simply, she failed the right's litmus test.
posted by edverb at 12:17 PM on November 7, 2005


liberals need to argue for something instead of just being against something.

Hey, dios, how many Democrats hold committee chairs in Congress? How many Democrats are there in Cabinet? Oh, yeah, none. They are the opposition party. The Republicans get to set the agenda, and the Democrats oppose it, if they choose to.

That said, the Democratic party is for: immigration reform, strong international alliances, balanced budgets, increasing Pell grants, protecting social security, universally affordable healthcare, verifiable and accurate voting, a clean environment, and vigorous enforcement of civil rights laws. Among other things. Just because they never get on the O'Reilly show (or don't get to speak when they do) doesn't mean they don't have ideas.
posted by jlub at 12:46 PM on November 7, 2005


Politically speaking...Bush's last two nominees are all too typical. He'll nominate an unqualified crony (Miers) or someone on the far, far right (Alito) every time.

Dios, while I enjoy a spirited debate on the Constitution (and I respectfully disagree with your arguments on the definition of "advice and consent"), I think it still comes down to Bush's seeming inability to A) build consensus and B) accept "no."

The Democrats reserve the right to say "no" (especially if the choices are a crony or someone on the far right banks.) And if, after giving him a fair hearing they choose to block Alito's nomination, they will. We'll just have to wait and see what happens.

I'll say this Dios...I'd be curious to see if you argue so forcefully for a strict interpretation of the Senate's traditional role as a continous body (part of which is the tradition of rules agreed upon by a 2/3 majority at the beginning of the session) as you have for your strict interpretation of "advice and consent".
posted by edverb at 12:49 PM on November 7, 2005


I'd like to see the choice/life meme replaced by what it actually is: privacy/government invasion.
posted by bardic at 1:26 PM on November 7, 2005


Laurence Tribe on Alito from the Boston Globe.
posted by bardic at 1:29 PM on November 7, 2005


Although I will say people seem to prefer snarky argument over issue depth.
posted by Smedleyman at 1:34 PM on November 7, 2005


Thanks for the excellent read, bardic. His words bear repetition.
posted by Rothko at 1:45 PM on November 7, 2005


Here is a good academic article on advise and consent that popped up on google. I don't know who the authors are.

For what it's worth, I'm mostly inclined to agree with Dios' points here.

But Republicans would be much more believable on this topic of Advise and Consent if they hadn't done their best to Obstruct and Delay Clinton's judical appointments.
posted by Slothrup at 2:03 PM on November 7, 2005


Jlub, there is close to zero evidence that Democrats are for, in the sense of coherent support for specific institutional proposals, any of the following from your laundry list: immigration reform, balanced budgets, universally affordable healthcare, or verifiable and accurate voting, or protecting social security (unless "just say no and stick your head in the ground" qualifies).

And, of course, positions in favor of "a clean environment, and vigorous enforcement of civil rights laws" are more or less in the eye of the beholder. A Republican who says that pursuit of a clean environment supports banning buses from his township and mandating 5-acre minimum lots probably wouldn't pass your "clean enviornment" test, nor would one who regards abolishing affirmative action as a perfect instance of "vigorous enforcement of civil rights laws" meet your standards, eitehr.
posted by MattD at 2:09 PM on November 7, 2005


Democrats don't talk about balanced budgets, they just happen to achieve them. Remember those halcyon 1990's?
posted by bardic at 2:14 PM on November 7, 2005


MattD: I fully admit that those are the Democratic party's stated positions (I culled them all from the official party website). Obviously there may be (and probably is) a gap between what they say and what they do. My point is that the Republicans are in pretty much the same position (as you point out, they claim certain positions and then take actions counter to those positions). So to say that the Democrats are not 'for' anything but only 'against' things is ludicrous.
posted by jlub at 2:47 PM on November 7, 2005


MattD (again): sorry, I shouldn't have said "as you point out" in reference to your hypothetical. My point stands, however. I hope it's clear enough.
posted by jlub at 2:50 PM on November 7, 2005


An interesting treatment of the topic could be had by presenting the competeing theories out there.

Link to and put forth the originalism of Bork, the textualism of Scalia, the representation-reinforcing theory of Dean John Hart Ely, the Judicial Gap-Fillng of Posner, the structualism "living Constitution" of Tribe, the liberal revisionism of Alexander Bickel, Sunstein's minimalism, or Michelman, Dworkin, Siegan, Epstein, and pragmatism, structualism, on and on. There are theories out there. They should be discussed as they are important.


Dios is absolutely right about this. The conversation about what types of judges we want is desperately in need of some real talk about constitutional interpretation (and the theories of text and democracy underlying each). At the same time, it is foolish to assume that judges adhere to these theories with anything resembling "outcome" consistency. It's nice to know that Scalia is an avowed textualist (and Scalian textualism varies greatly say, from Amar's textualism), but what does that matter if he deviates from his preferences on occasion? Hell, Stephen Breyer loves his founding era source material as much as Scalia or Thomas, but seems to draw different textualist conclusions from them (and Breyer thinks of himself as a textualist also).

From what I read of Dios, he seems like a Keith Whittington guy to me (although, feel free to correct me). Whittington's book Originalism is the sanest exposition of moderate conservative jurisprudence I've read in awhile. I happen to think that Whittington is dead wrong, but that's just me. So there's a recommendation.

I'm kind of a Dworkin guy, probably grounded a little more in text and history. My book is Freedom's Law.

But that only tells you a little bit about how we'd rule as judges. Dios is a smart dude, he could write an opinion in support of a "conservative" outcome based on Dworkin's "moral reading." Similarly, I am confident I could write (complete with snarks regarding the idiocy of my fellow Justices) an intellectually honest defense of Federal privacy rights in based in Scalian traditionalism/textualism/originalism. Fringe cases lend themselves to tweaking of judicial philosophy because frequently, judicial philosophy is ill equipped to deal with hard cases.

That said, all the non-sequiturs in this debate drive me crazy:

Watching Bush smugly pronounce that he seeks to appoint "strict constructionist" judges, and the constant railing against "activist judges" (and the wildly inaccurate but now almost uniformly accepted perception that these "activists" are "liberals") speaks to how underinformed all the debate is surrounding these nominations.

Can you think of two Justices more politically different than Williams Rehnquist and Brennan? I think of the two of them as the greatest masters of ad hoccery in recent jurisprudential history. Two judicial activists, on opposite ends of the political spectrum, writing outcome driven opinions, sometimes defensible on Dworkonian grounds and sometimes soundly resting on Ely, depending upon the moment.

So I'm saying a two perhaps contradictory things (and perhaps I'll come back later with some more links to good sources--work's a bitch):

1. Theories of constitutional interpretation are underrepresented in this debate. I would like to see Senators ask, for example, why the nominees think that Brown v. Board of Education was, or was not rightly decided. It makes a huge difference if the nominee says "It was rightly decided because the concept of ordered liberty demands and end to segregation, and the equality principle as understood in 1874 is vastly different than the equality principle as understood in 1954" or if the nominee says "The ratification process of the 14th amendment was largely silent on the question of segregated schools and there is good founding era evidence to suggest that there would have been support for a ban on such segregation" [which it was, which there is]. It really does matter why Brown came out the way it did. It matters now. That said;

2. Although this type of talk enriches the academic debate, it can lull us into thinking that these theories will mechanically predict which outcomes nominee X will support. Outcomes matter too, and political preferences play a huge role. What is the difference, really, between the judicial philosophies of Anthony Kennedy and David Souter? Politics.

There are lefties who care about original understanding. There are righties who will grab on to (or utterly disregard) whatever principal supports the outcome they seek. There is an illusion out there (most recently put forth masterfully by Chief Justice Roberts during his confirmation) that judges are, or should be mere "umpires," apolitically applying rules of construction to achieve some sort of objectively correct constitutional outcome. There is something to be said for humility, but this type of posturing belies the politics underlying the application of judicial philosophy.
posted by kosem at 2:52 PM on November 7, 2005


Laurence Tribe on Alito from the Boston Globe.

Prof. Ann Althouse's response to Tribe.
posted by gyc at 2:56 PM on November 7, 2005


Come-latelys are muscling in on my rep as mefi's not-so-closet fascist Ruling Reptile. I'll have to post more rants more often.


Lithwick renders Sunstein:

If the Scalias, Thomases, Alitos, and Borks of the world had their way ... there would be no meaningful gun control.


(empties AK47 magazine in celebration -- into the ground, not the air)

States could have official churches.

None of them would, but they could. Absolutely right.

Hard-fought federal worker, environmental, and civil rights protections would disintegrate.

Not if they are established by legislation instead of judicial fiat.

What you currently think of as the right to privacy would disappear.

What I think of as the right to privacy disappeared with the 16th Amendment in 1913. Past time for the rest of you either to give me back mine or else lose yours in fair exchange.
posted by jfuller at 4:09 PM on November 7, 2005


What I think of as the right to privacy disappeared with the 16th Amendment in 1913.

Woo ha!
Now that is a position!
posted by kosem at 4:20 PM on November 7, 2005


Jlub, there is close to zero evidence that Democrats are for, in the sense of coherent support for specific institutional proposals, any of the following from your laundry list: immigration reform, balanced budgets, universally affordable healthcare, or verifiable and accurate voting, or protecting social security

I went searching for legislation sponsored by Democrats in the Senate...this is the result of five minutes of googling.

Balanced budgets (pay-as-you-go, prohibit fast-tracking budget items, etc): S.19

Affordable healthcare for all (reimportation of drugs, allowing Medicare to negotiate lower prices, small business tax credits, etc): S.16, S.18

Verifiable Voting (federal standards, voter verified paper trail, full funding, shorter lines, etc): HR.550, S.450, S.17, S.330

I could go on, but you get the point. It's self-evident that they defended Social Security, quite successfully. (and BTW I didn't even include what I found on energy independence, veterans affairs, education, etc.) At a cursory glance, it appears that every piece of Democratic introduced legislation I just posted is bottled up in a Republican committee, never to be debated on the floor, never to see the light of day.

Close to zero evidence? More like close to zero debate in a GOP Congress.

This may seem off-topic, but in the case of Alito's hearings it may actually become quite relevant: If Frist should go "nuclear" and destroy comity in the Senate, throwing the rules out the window -- Harry Reid has warned that Dems will no longer follow the tradition of allowing the majority leader to set the agenda, and will use parliamentary procedure to put many of these bills directly on the legislative calendar.

In what would be the opposite of "shutting down the Senate", Reid would force them to debate Democratic legislation on the record, which is the absolute thing the GOP wants to do.
posted by edverb at 5:17 PM on November 7, 2005


*absolute LAST thing the GOP wants to do

big difference, sorry bout that
posted by edverb at 5:23 PM on November 7, 2005


"there would be no meaningful gun control."

That statement begs the question of whether or not there is, ever has been, or ever will be any meaningful gun control. When the CDC can find no evidence that any gun control law has any measurable influence on violent crime rates, you have to wonder what the point is.

It continues to baffle me why the left continues to alienate the majority of Americans with their insistent, reflexive support of gun control laws, which have never actually worked, anywhere, ever. If gun control worked, Washington DC and Chicago would be free of gun violence, rather than the country's leaders.
posted by Obvious Fakename at 5:25 PM on November 7, 2005


Point taken Obvious, but it's hard for DC to keep crime down when many (maybe most, not in the mood to search) of the guns used are purchased in a highly unregulated state like VA next door. But I hope Dems will leave gun control behind as an issue--I agree it does little for them.
posted by bardic at 5:59 PM on November 7, 2005


I'd have understood if she'd said "human rights" which is well-known to be an ever-growing laundry list of faux "rights" to food, medical care, etc.

...and free speech, and life, liberty and the pursuit of happiness, and silly crap like that. Sheesh! What do these people want?
posted by stavrosthewonderchicken at 11:46 PM on November 7, 2005


It's self-evident that they defended Social Security, quite successfully
posted by edverb


To be fair, a monkey could have done that.

in what would be the opposite of "shutting down the Senate",
Reid would force them to debate Democratic legislation on the record,
posted by edverb


Also - to be fair - that is cool.


I think you've hit the nail on the head edverb. We're not seeing the ideas because they're bottled up. But I would have to argue that there hasn't been the presentation of Dems ideas to the country.

Perhaps it's not a united front, perhaps it's the media. Lots of stuff. I would argue there needs to be a healthy opposition and the Dems have not of late been doing much of that. Whether the reasons are fair or not.
posted by Smedleyman at 1:34 AM on November 8, 2005


We're not seeing the ideas in congress.

What the *#$!! is wrong with this machine?
posted by Smedleyman at 1:34 AM on November 8, 2005


Smedleyman: We're not seeing the ideas because they're bottled up. But I would have to argue that there hasn't been the presentation of Dems ideas to the country.

Agreed, they need to do a far better job of marketing their ideas. (Whether one agrees with those ideas or not, I think we all can agree that competition is good and worthy debate is a cornerstone of our democracy.)

You'd think with most of the creative types on the left, they could accomplish that. In my view, Democrats are like the Apple Macintosh of the early 90s...superior design with abysmal marketing -- losing marketshare to an inferior, buggy, insecure product forced down America's throat by monopolistic bullies with better leverage and more cash on hand.
posted by edverb at 10:04 AM on November 8, 2005


The dems have the luxury of putting forth bills they know won't work because they know they will never pass. If I put forth a bill giving blanket healthcare to every man, woman and child that I know won't work if passed am I then a champion of universal healthcare?
posted by Carbolic at 10:59 AM on November 8, 2005


The dems have the luxury of putting forth bills they know won't work

Carbolic, on what do you base this statement? I mean actual bill text, not hypothetical "free ponies for everyone" legislation which doesn't actually exist.

I think allowing Medicare to negotiate lower drug pricing (as the VA does) is viable. So is reimportation of prescription drugs (notwithstanding the bogus "safety first" arguments of Bush appointed big-pharma advocates like Mark McClellan.) There is nothing impossible about mandating a voter-verified paper trail, all that's missing is the will. Pay-as-you-go budget rules were used successfully during the Bush/Clinton era (Gramm-Rudman-Hollings).

The ideas I mentioned all have a track record, or at least an analog.

I'll grant you the second part...none of this will never pass in the 109th Congress -- because a GOP controlled Senate where it never leaves committee and is never debated on the floor, which refuses to address it on the merits will never pass it, obviously. Co-opt maybe. But pass, never.

Stifling these ideas and thereby dooming them to the legislative wastebasket does not define the ideas as proposals that "will never work". That sort of attitude, I believe, does a disservice to positive ideas which could benefit a lot of citizens, if only they were considered in good faith.

Doesn't a mandated voter verified paper trail deserve an "up-or-down" vote too? I guess it depends who you ask. Though I've never heard a single good argument against the idea, not one. The GOP majority never has to endeavor to make that argument, which works out quite conveniently for them. Not so for democracy, but hey -- it's just easier to say the Democrats have no ideas and leave it at that.
posted by edverb at 1:23 PM on November 8, 2005


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