U.S. Politics XL--Double Down it

[Tempra]

What I don't understand is why you're demanding people provide evidence that Obama's decision was NOT purely partisan when you've provided no evidence that it was. I don't believe anyone is pretending Obama is above partisan politics - he is a politician after all.

I have asked for evidence from someone who has claimed otherwise (i.e. Obama judged him on his actions). There is no support for that statement.

And I think Obama's inability to support his allegations with evidence is ample evidence to support my contention.

Let's look at what a statement with factual support looks like. Here is Senator Feinstein's reasons for opposing Justice Alito's nominations:

It is my conclusion that Judge Alito would most likely join Justices Thomas and Scalia in the originalist and strict constructionist interpretations of the Constitution. And those are the interpretations that have been used by the Rehnquist Court in the past decade to overthrow all or portions of the 30 laws to which I just referred. I have come to this conclusion based on Judge Alito's record in the Reagan administration and on the bench.

In 1986, Congress passed what seemed to me a pretty simple law. It was called the Truth in Mileage Act. It basically forbid anyone from tampering with odometers in automobiles. As a deputy at the Office of Legal Counsel, Judge Alito recommended that President Reagan veto this bill because it violated principles of federalism.

Judge Alito also drafted a statement for President Reagan to make when he vetoed the bill, asserting ‘it is the States and not the Federal Government that are charged with protecting the health, safety, and welfare of their citizens.’

She continues:

Judge Alito's restricted views of congressional authority later surfaced in his decisions while on the Third Circuit. For me, a prime example is the case of U.S. v. Rybar. This case is significant because it was a case where Congress clearly had the authority to enact legislation, and yet Judge Alito wrote a separate opinion, a dissent, to argue against the law. He was the sole dissenter, and he was outvoted.

In his opinion, he used a legal technicality that would have thrown out the conviction of a man who had illegally possessed and sold fully automatic machine guns in the State of Pennsylvania.

In reaching his conclusion, he seemed to ignore past precedents, clearly establishing congressional authority to regulate firearms, such as the Miller case of 1939.

He also dismissed previous statutes that had already outlined the obvious impact guns have on interstate commerce, even when sold within a State. To me, that was a major indication of his thinking.

You can continue to read more of her evidence against Alito here.

Obama's statement, however, is devoid of anything substantive.

[TrackerNeil]

I agree that SCOTUS nominations are very political. One only has to look at how Democrats have handled the nominations going back to Bork: pitifully. What I do object to is people trying to sweep Obama's purely partisan decision under the rug. I would hazard to guess that most senators make purely partisan decisions for SCOTUS, but let's not pretend that Obama is above this partisan bullshit.

Criminy...don't you conservatives ever get over Bork? That happened how many decades ago?

[Former Lord of Winterfell]

Looks like the Democrats are going to push for some reform of the filibuster.

http://thehill.com/homenews/senate/93755--schumer-mcconnell-go-head-to-head-in-fight-over-filibuster-reform

Personally, I support this, and wouldn't mind getting rid of the whole thing. My guess is that they'll just come up with some rules limiting the circumstances under which it can be used, though.

To me, a compromise might be that a filibuster can't last longer than, say, 90 days. Enough time to slow something down and permit the public to become informed on the issue before the vote, but not capable of actualyl killing anything.

[TrackerNeil]

Looks like the Democrats are going to push for some reform of the filibuster.

http://thehill.com/homenews/senate/93755--schumer-mcconnell-go-head-to-head-in-fight-over-filibuster-reform

Personally, I support this, and wouldn't mind getting rid of the whole thing. My guess is that they'll just come up with some rules limiting the circumstances under which it can be used, though.

To me, a compromise might be that a filibuster can't last longer than, say, 90 days. Enough time to slow something down and permit the public to become informed on the issue before the vote, but not capable of actualyl killing anything.

It certainly needs some reform, or at least a return to its roots. Perhaps if those who want to use the tactic actually had to filibuster instead of just raising a finger and stating an intention, we'd see less of it.

Also, I'm starting to think that filibusters have the net effect of separating voters from the consequences of their decisions, which in my mind is a bad thing. In the current system you can vote for the craziest candidate you can find, because he's unlikely to be able to deliver on his crazy promises. You might be less eager to vote for the knucklehead who promises to repeal Social Security if you thought he might actually have a shot at doing so.

[Tempra]

Criminy...don't you conservatives ever get over Bork? That happened how many decades ago?

SCOTUS confirmations are very rare. The hyper-politicized confirmations that we have today stem largely from the Democrats treatment of Bork (and then Thomas).

[Former Lord of Winterfell]

Also, I'm starting to think that filibusters have the net effect of separating voters from the consequences of their decisions, which in my mind is a bad thing. In the current system you can vote for the craziest candidate you can find, because he's unlikely to be able to deliver on his crazy promises. You might be less eager to vote for the knucklehead who promises to repeal Social Security if you thought he might actually have a shot at doing so.

It also can separate Senators from the consequences of their votes. They cast "political votes all the time on issue that contradict the what they actually believe, because they know it won't have enough votes to get past a filibuster, and the opposing party will kill it anyway. So they pander to a voting block and poison the realm of legitimate debate by demagoguing issues.

[TrackerNeil]

SCOTUS confirmations are very rare. The hyper-politicized confirmations that we have today stem largely from the Democrats treatment of Bork (and then Thomas).

Yes, it's all the Democrats' fault.

[Former Lord of Winterfell]

Yes, it's all the Democrats' fault.

In terms of how the goalposts have moved, that's pretty much accurate. The treatment of Bork and Thomas were both pretty bad. Neither, obviously, received a significant number of Democratic votes. In fact, you could almost add Rehnquist to that group, because a strong majority of Democrats opposed his elevation as well.

The GOP made a conscious effort to return to a recognition of Presidential deference even after all that. The first Democratic nominee after Thomas' confirmation was Ruth Bader Ginsberg, who had plenty of controversial opinions to her credit but who was confirmed 96-3 anyway. The next Democratic nominee was Stephen Breyer, and he was confirmed 87-9. That's hardly unfair partisanship by the GOP given that an overwhelming majority of GOP Senators voted for both of those nominees. But that pattern of giving the President discretion didn't last when Bush became President.

The next two Justices were Roberts and Alito. There's a case to be made against Alito having written controversial opinions, but no more so than Ginsberg's. The overwhelming majority of Democrats voted against him anyway. For Roberts, there was basically nothing other than the sense that he was more conservative than some would have liked. But nobody pointed to a single opinion he'd written as a judge that was poorly reasoned or out of the judicial mainstream. Yet, even he couldn't get a majority of Democratic votes. The GOP remembered it this time, and a majority opposed Sotomayor. I expect it to continue now.

Anyway, Neil, you agreed that this is the way things should be done. So why are you so opposed to the Democrats getting credit for this approach?

[Tempra]

Yes, it's all the Democrats' fault.

Can you point to a SCOTUS confirmation that the republicans made as contentious as Bork/Thomas's confirmation?

How far back do you have to go? Abe Fortas? Of course, that's 42 years ago, so you wouldn't complain about something that happened six decades ago, would you? :)

[TrackerNeil]

The GOP made a conscious effort to return to a recognition of Presidential deference even after all that. The first Democratic nominee after Thomas' confirmation was Ruth Bader Ginsberg, who had plenty of controversial opinions to her credit but who was confirmed 96-3 anyway. The next Democratic nominee was Stephen Breyer, and he was confirmed 87-9. That's hardly unfair partisanship by the GOP given that an overwhelming majority of GOP Senators voted for both of those nominees. But that pattern of giving the President discretion didn't last when Bush became President.

IIRC, both Breyer and Ginsburg were chosen from lists of nominees acceptable to the GOP, which was compiled by Republican Orrin Hatch, who at the time chaired the Judiciary Committee. Were Roberts and Alito similarly pre-approved by Democrats?

[Former Lord of Winterfell]

Can you point to a SCOTUS confirmation that the republicans made as contentious as Bork/Thomas's confirmation?

How far back do you have to go? Abe Fortas? Of course, that's 42 years ago, so you wouldn't complain about something that happened six decades ago, would you? :)

Fortas, while sitting as a Justice, was so tight with the President that he actually co-wrote the President's state of the union speech, and would pass LBJ inside information about how the Court was seeing issues. That's a pretty legitimate basis on which to have opposed Fortas' elevation to Chief Justice. The fact that he subsequently resigned before being impeached due to financial improprieties doesn't help his historical cause very much.

[Former Lord of Winterfell]

IIRC, both Breyer and Ginsburg were chosen from lists of nominees acceptable to the GOP, which was compiled by Republican Orrin Hatch, who at the time chaired the Judiciary Committee. Were Roberts and Alito similarly pre-approved by Democrats?

The relevant fact is that they gave that "pre-approval" to candidates with whom they disagreed politically. That's the entire point, Neil. Republicans, in general, believed that they should approve a Presidential nominee absent excpetional circumstances, and Democrats, in general, did not. You have agreed that should be the standard, so I'm not sure why you're still trying to argue that Democrats were not the party that pushed it in that direction.

[TrackerNeil]

The relevant fact is that they gave that "pre-approval" to candidates with whom they disagreed politically. That's the entire point, Neil. Republicans, in general, believed that they should approve a Presidential nominee absent excpetional circumstances, and Democrats, in general, did not. You have agreed that should be the standard, so I'm not sure why you're still trying to argue that Democrats were not the party that pushed it in that direction.

FLoW, don't you think it's alot easier to get behind a nominee you yourself have pre-selected? Breyer and Ginsburg wouldn't have made it on the list unless Hatch was fairly certain they'd get a significant amount of Republican support, so using their nominations as examples of jim-dandy Republican bipartisanship is...well, not compelling to me.

Oh, and I'm not arguing Tempra's point that the Democrats are to blame for all that's evil about the confirmation process, because I think his point is ridiculous. I'm arguing that since presidents take nominees' political proclivities into account when making nominations, senators may reasonably take those proclivities into account when debating confirmation.

Edited to add: Ooops...mean to say "Tempra" and not "Tormund."

[Tormund Ukrainesbane]

Oh, and I'm not arguing Tormund's point that the Democrats are to blame for all that's evil about the confirmation process, because I think his point is ridiculous. I'm arguing that since presidents take nominees' political proclivities into account when making nominations, senators may reasonably take those proclivities into account when debating confirmation.

Uhh...what? I don't think I've even posted in the last day and a half or so.

[Tempra]

Oh, and I'm not arguing Tempra's point that the Democrats are to blame for all that's evil about the confirmation process, because I think his point is ridiculous. I'm arguing that since presidents take nominees' political proclivities into account when making nominations, senators may reasonably take those proclivities into account when debating confirmation.

Edited to add: Ooops...mean to say "Tempra" and not "Tormund."

I never said all, but the Democrats deserve the lion's share of the blame for our hyper-politicized SCOTUS confirmations. And until you can point to a counter example, I'll rightfully continue to believe so.

[Former Lord of Winterfell]

FLoW, don't you think it's alot easier to get behind a nominee you yourself have pre-selected? Breyer and Ginsburg wouldn't have made it on the list unless Hatch was fairly certain they'd get a significant amount of Republican support, so using their nominations as examples of jim-dandy Republican bipartisanship is...well, not compelling to me.

I think you're arguing semantics, Neil, because it all goes to the deference issue. Hatch talked about his conversation with President Clinton about Breyer and Ginsberg:

I indicated I thought they would be confirmed easily. I knew them both and believed that, while liberal, they were highly honest and capable jurists and their confirmation would not embarrass the President.

That's the standard he and the vast majority of the GOP were applying then, and I don't think they should apply that any longer. Instead, I agree with you that the whole "liberal/conservative" thing is something that should be at the core of the inquiry whenever a new justice is applinted.

[awesome possum]

But that pattern of giving the President discretion didn't last when Bush became President.

The next two Justices were Roberts and Alito.

Are you forgetting who Bush nominated between Roberts and Alito? Or that Roberts was confirmed 78–22, which was a relatively high number against, sure, but considering that Roberts ranks as the fourth most conservative justice in the last 70 years, and that Alito ranks 5th, don't you think it sort of makes sense for liberals to oppose that?

If Obama were to choose a hardcore liberal, I can understand how the GOP might lip their lids. But Obama can realistically nominate someone who will take number one on the most conservative justices list with a bullet and he'll still be opposed because he is doing the nominating. It doesn't get more partisan than that.

[Former Lord of Winterfell]

But Obama can realistically nominate someone who will take number one on the most conservative justices list with a bullet and he'll still be opposed because he is doing the nominating. It doesn't get more partisan than that.

Oh, I can pretty much guarantee that the Republicans wouldn't oppose Janice Rogers Brown. Maybe Obama should nominate just to prove your point, though....

[Tempra]

Are you forgetting who Bush nominated between Roberts and Alito? Or that Roberts was confirmed 78–22, which was a relatively high number against, sure, but considering that Roberts ranks as the fourth most conservative justice in the last 70 years, and that Alito ranks 5th, don't you think it sort of makes sense for liberals to oppose that?

Scalia's confirmation vote was 98-0. He was number 3 on the list. That was pre-Bork, however. Thomas' (the most conservative) confirmation vote was 52-48, which lends support to the idea that SCOTUS confirmations have fundamentally changed for republican appointees since Bork.