Patterico's Pontifications


Republicans to Employ “Conventional Warfare Option”?

Filed under: Judiciary — Patterico @ 3:20 pm

Is Senate majority leader Bill Frist reading Patterico?

I wondered that when I read this AP report, which says Senate Republicans have a tentative strategy for employing the so-called “nuclear option” for eliminating filibusters of judicial nominees:

One senior Republican aide, speaking on condition of anonymity, outlined a complicated scenario likely to play out over as much as a week or two.

Initially, this aide said, Frist will inaugurate a lengthy period of debate over [Priscilla] Owen and [Janice Rogers] Brown without seeking a confirmation vote. After perhaps a few days, he intends to seek a test vote on one of the two women that Republicans hope will demonstrate majority support.

A “test vote” to “demonstrate majority support” sounds a lot like the “conventional warfare option” I proposed in November and elaborated on here.

In a nutshell, my idea is to force a vote on a non-binding resolution of support for a solid candidate like Priscilla Owen, who has been smeared by Democrats beholden to special interest groups. The vote would demonstrate concretely that the nominee(s) would win a floor vote. People following this controversy understand this, but I’m not sure that the public at large does. Together with robust debate about the candidate, such a vote would show Americans that this controversy is really about Democratic obstructionism of qualified candidates with majority support in the Senate.

It sounds like Republicans have taken up this suggestion, which they are dubbing a “test vote” — hardly the catchiest name, but then, Republicans are not masters of public relations. (More on that below.) Consistent with a suggestion I made in an update to my original post, the AP story says that the “test votes” will be treated as a potential precursor to the nuclear option:

If Democrats then refuse to allow a final yes or no vote, this aide said Frist is prepared to seek a parliamentary ruling to establish a new procedure to cover confirmation of all appeals court and Supreme Court nominees — a fixed amount of time for debate followed by a vote, no filibuster permitted.

The fate of that proposal will determine which side prevails — whether Bush’s nominees will be guaranteed a yes or no vote, or whether Democrats will retain the right to block them.

I am, of course, speaking with tongue in cheek when I suggest that Senate Republicans are reading this blog. If they truly were, then they would have read my post on how to successfully execute the P.R. component of this strategy. Republicans need to emphasize that they are initially considering options less extreme than the “nuclear option,” which is to be used only as a last resort. Also, Republicans have to explain to voters the reason that Democrats are filibustering to begin with: Democrats are scared to go on the record with their positions against qualified candidates, especially minorities and women.

I see no evidence that Republicans are pursuing either of my suggestions for winning the P.R. war. In fact, it doesn’t sound as though they’re planning on doing much with the “test vote,” which should be conducted with as much fanfare as possible.

So maybe Bill Frist isn’t reading this blog after all . . .

16 Responses to “Republicans to Employ “Conventional Warfare Option”?”

  1. […] ment about the RSS feed for this blog. On the filibuster front: I think Republicans are actually going to use my conventional warfare option. A […]

    Patterico's Pontifications » The Weekend Roundup (0c6a63)

  2. He is -he isn’t – he is- he isn’t …. :-)

    Yi-Ling (c267ae)

  3. The Republicans have shown throughout this fiasco that they have no PR sense, so why should they take your suggestions now.

    With all the hot-shot PR people in Washington, it is unbelievable that they do not have a detailed, hard-hitting campaign ready to roll Monday morning.

    joemurphy (b03137)

  4. The Republicans have shown throughout this fiasco that they have no PR sense, so why should they take your suggestions now.

    Actually to the contrary this is one pragmatic approach to the problem, where judges have in the past leaned towards activism than traditionalism, by employing common law approach enshrined in common law case law development, to constitutional interpretation. This paved the way for judges to make constitutional law beyond the ambit of separation of powers. In an ideal situation, judges did NOT do that. Instead, judges just , like Justice Robert Young , Michigan Supreme Court …. “those who, like me, believe that judges are constrained to apply the actual text of the constitution and statutes to particular fact patterns in the cases before them” .

    The jurisprudence has been slowly and surely developing all these years which strengthened the notion of constitutional interpretation employing common law approach, so that ALL are colored by them, and so fully IMMERSED in them, that to think without seems heresy at this stage. Yet, it is the going back to the roots o this jurisprudence that developed and developing a new counter jurisprudence that could maybe bring the swinging pendulum a bit back to its central position. It would be a tall task, and would require someone who is trained, legally and in inter disciplinary fields, as well as versed in the duo western legal systems of (1) common law system and (2) civil law system. Those with aptitude and conversant with Continental /European languages would have an upper hand when it comes to grasping the Roman civil law system employed in many of the European countries.

    Why do I say an interdisciplinary approach to law is requisite? Looking back to Justice Robert Young , Michigan Supreme Court eloquent composure [below] where he reckons that making of laws is deciding on social policies, where facts for deliberating social policies are better argued and fought out in the legislatures than in the court room which is limited to the facts of the particular case of the plaintiff and defendant:

    This phenomenon represents nothing short of a usurpation of political power by the judiciary and it is a dangerous threat to our constitutional framework that, with limited exceptions specifically enumerated in our Bill of Rights, respects the peoples’ right of self governance—to make their laws by the majoritarian political process, namely through the legislature.

    I also submit that the judiciary is an institutionally incompetent vehicle for making sound social policy. Because they are specifically designed to create policy, it is entirely desirable that important public and social policy be made by the political branches of government—the executive and legislative branches—rather than the judiciary. The political branches are designed for public debate, discussion and compromise. The judicial branch is not.

    Further, a court must consider issues largely as they are framed by the litigants, who typically do so only in terms that will serve their vested interests, which is to win that particular case.

    Now why do I say the new team of jurists should know both western legal systems to do a good job the swing the pendulum back? Because common law came here via the English common law and continued since with some exceptions in some areas that were once under French rule with civil law and thus their remnants there still. In England, where they had the common law as opposed to civil law system in Europe, England did NOT have a written constitution. A constitution is a form of a code. The common law is about case law development, that is common law develops through case by case. In contrast the civil law is about codification. The civil law is not developed on a case by case approach. With this backdrop, the Constitution is a creature of the civil law system. With this backdrop, the civil law system has no place for stare decisis [ decisions of higher court are binding on lower courts] . Some things taken for granted and treated as sacred in common law systems are not so regarded in civil law systems and they have their reasons why. Unless jurists delve into this and develop cogent jurisprudential arguments with sound philosophical basis, there seems little likelihood to reverse this trend of common law approach to constitutional interpretation that has been and is in the vogue.

    So while there is a jurisprudential need to examine the directional path that courts, jurist and constitutional lawyers have taken in the past, and the need to evaluate that path in the light of the duo legal systems of the western world, and recorrect that path if needs be, there is also a pragmatic need to carry on the battle fought on these grounds of selecting judges whose ideology appeal the party in question, all things if being equal, in that, all are able and qualified. On this latter note, I can understand Patterico digging his trenches and standing his ground to support nominees that appeal to him, all things being equal or if all things being equal. After all it is a reaction to the current foregone situation, while the former note is a response to the current foregone situation. It could also be said it is a reaction too. :-)

    Yi-Ling (482564)

  5. With all the hot-shot PR people in Washington, it is unbelievable that they do not have a detailed, hard-hitting campaign ready to roll Monday morning.

    A detailed, hard-hitting plan ready to roll back forty years [ as a reponse] and roll Monday morning [ as a reaction] ? :-)

    Yi-Ling (482564)

  6. Yi-Ling,

    “as ad response”…”as a reaction” ?

    Good Public Relations is proactive, not reactive. That takes planning.

    When you have done next to nothing to effectively communicate your positions for “forty years”, you end up trying to deal with a public relations crisis.

    And even that requires planning, not just reacting.

    The problem appears to be that the Republicans have neither the PR smarts nor the backbone to do either.

    joemurphy (f526cd)

  7. The problem appears to be that the Republicans have neither the PR smarts nor the backbone to do either.

    You could do well to step aside even for a moment from party politics and ask whether the direction was rightly set and whether it should be re-set.

    Consider for a moment, “The 1997 book, A Matter of Interpretation: Federal Courts and the Law, is framed around a clear, accessible essay entitled “Common-Law Courts in a Civil-Law System The Role of United States Federal Courts in Interpreting the Constitution and Laws,” written by Supreme Court Justice Antonin Scalia” and review of it

    “Scalia complains that “So utterly unformed (sic) is the American law of statutory interpretation that not only is its methodology unclear, but even its very objective is.” He argues that one of the key reasons for the penchant of judges to take on legislative powers in the act of legal interpretation is the grounding of American law in the common law tradition. The common law is judge-made law, and even as American law in practice began to be reflected primarily in statutes, judges still approached their practice from a common-law orientation. Justice Scalia points out how, to this day, legal education uses the common law as the foundation for turning students into lawyers. The result, he maintains, is that judges wield all too much influence, thereby doing great damage to the idea of democracy.”

    “The danger in these approaches, he argues, is that democracy will be replaced with government by a judicial elite and that, once the public catches on, judges will be chosen purely on the basis of political preference, putting even our most cherished individual rights in danger.”

    Yi-Ling (f8f031)

  8. once the public catches on, judges will be chosen purely on the basis of political preference,

    Yi-Ling (f8f031)

  9. If your desire is for judges to be chosen on political preference, [ assuming each candidate chosen is competent and able] then you desire the end result of the battle waged for the nomination and successful appointment of judges according to your political preference. If that is so, then filibuster and nuclear options are part of the arsenal for the battle being waged for preferred social policies to be made in the future through judicial constitutional interpretation. Then do not complain, for you like it this way. You like some social policies determined by legislatures and some social policies determined by the courts, even when at times they can exert conflicting social policies like gay marriage.

    If you would rather redress the legal jurisprudential decision made since the adoption of the Constitution and its amendments, which went by common law approach employed on case law development, then you would re-look the basis and method of constitutional and statutory interpretation of codes, in a common law system using a principle then devoid of codes. Unless this hard question is seriously re-looked at with fresh set of eyes, competent eyes thoroughly trained in the two western legal systems, this hiccup is difficult to get rid of.

    Yi-Ling (f8f031)

  10. For Post No. 8, refer too,

    ““Scalia complains that “So utterly unformed (sic) is the American law of statutory interpretation that not only is its methodology unclear, but even its very objective is.”

    Note use of word “unformed” …. Meaning not fully formed, not formed yet?
    Note too use of phrase “ methodology unclear”… meaning method not clear?

    So how come after so many years of interpreting the Constitution, Scalia says its interpretation is not formed yet and its method is not clear?

    So of the method in the past used and now still in use, what is it ? Is it the right method? Is it clearly the right method? Is it the only method available?

    Unfortunately Scalia bemoans that since it is “this” common law approach that is taught in law schools transforming law students into lawyers, where do they have the withal to critic the method that actually transformed them into attorneys?

    Justice Scalia points out how, to this day, legal education uses the common law as the foundation for turning students into lawyers.

    Thus I submit that it takes a law student well versed with the common law system and the Romand civil law system , to address this unformed and yet not clear methodology of statutory interpretation or constitutional interpretation.

    Yi-Ling (f8f031)

  11. Justice Scalia is not to my knowledge trained in the civil law system, and so, even as he can point the direction is to consider the civil law approach, he is not able to distil the wisdom from common law approach AND civil law approach to statutory interpretation and a fortiori, constitutional interpretation, to present the preferred methodology for constitutional interpretation that would also address the separation of powers adequately.

    So those out there who can wield two legal systems should consider taking Scalia’s challenge and advise … :-) :-) :-)

    Yi-Ling (f8f031)


    Civil law may be defined as that legal tradition which has its origin in Roman law, as codified in the Corpus Juris Civilis of Justinian,20 and as subsequently developed in Continental Europe and around the world. Civil law eventually divided into two streams: the codified Roman law (as seen in the French Civil Code of 1804 and its progeny and imitators – Continental Europe, Québec and Louisiana being examples); and uncodified Roman law (as seen in Scotland and South Africa). Civil law is highly systematised and structured and relies on declarations of broad, general principles, often ignoring the details.21

    Common law is the legal tradition which evolved in England from the 11th century onwards. Its principles appear for the most part in reported judgments, usually of the higher courts, in relation to specific fact situations arising in disputes which courts have adjudicated. The common law is usually much more detailed in its prescriptions than the civil law. Common law is the foundation of private law, not only for England, Wales and Ireland, but also in forty-nine U.S. states, nine Canadian provinces and in most countries which first received that law as colonies of the British Empire and which, in many cases, have preserved it as independent States of the British Commonwealth.22

    In addition to England and its former colonies, some legal systems were converted to the common law tradition: Guyana, the Panama Canal Zone, Florida, California, New Mexico, Arizona, Texas and other former Spanish possessions.23

    Common law and civil law legal traditions share similar social objectives (individualism, liberalism and personal rights) and they have in fact been joined in one single family, the Western law family, because of this functional similarity.111

    A major difference between the civil law and common law is that priority in civil law is given to doctrine (including the codifiers’ reports) over jurisprudence, while the opposite is true in the common law.

    This difference in priority can be explained by the role of the legislator in both traditions. French civil law adopts Montesquieu’s theory of separation of powers, whereby the function of the legislator is to legislate, and the function of the courts is to apply the law. Common law, on the other hand, finds in judge-made precedent the core of its law.

    The civil law doctrine’s function is “to draw from this disorganised mass [cases, books and legal dictionaries] the rules and the principles which will clarify and purge the subject of impure elements, and thus provide both the practice and the courts with a guide for the solution of particular cases in the future.” 113 The common law doctrine’s function is more modest: authors are encouraged to distinguish cases that would appear incompatible to a civilist, and to extract from these specific rules. (Of course, there is a point where the common law author will refuse to draw specific rules that have no policy basis and will criticise openly absurd judgments.)

    The common law author focuses on fact patterns. He or she analyses cases presenting similar but not identical facts, extracting from the specific rules, and then, through deduction, determines the often very narrow scope of each rule, and sometimes proposes new rules to cover facts that have not yet presented themselves.

    The civilist focuses rather on legal principles. He or she traces their history, identifies their function, determines their domain of application, and explains their effects in terms of rights and obligations. At this stage, general and exceptional effects are deduced. Apart from requiring some statutory analysis, determining the area of application of a principle involves some induction from the existing case law, while delimiting exceptions involves some deduction.
    Common law jurisprudence sets out a new specific rule to a new specific set of facts and provides the principal source of law, while civil law jurisprudence applies general principles, and is only a secondary source of law of explanation.

    The English doctrine of stare decisis compels lower courts to follow decisions rendered in higher courts, hence establishing an order of priority of sources by “reason of authority”.114
    Stare decisis is unknown to civil law, where judgments rendered by judges only enjoy the “authority of reason”.115 This distinction makes sense. Confusion would result in the common law world if the core of the law was to differ from one court to the other. This is not true in the civil law world, where the general principles are embodied in national codes and statutes, and where doctrine provides guidance in their interpretation, leaving to judges the task of applying the law. …………………………..

    Yi-Ling (f8f031)

  13. This is a short version

    From Great Britain, we inherited the common-law tradition, which continues to govern torts and contracts in 49 states.
    From Continental Europe (and Rome), we inherited the civil (statutory) tradition.

    Gist of common law tradition
    • Common law is judge-created.
    • The principle of stare decisis is central: respect for precedents.
    • Sharp distinction between what the law is (the underlying principle) and the words of past opinions, decisions.
    Dominated legal training in U.S. since Harvard adopted the ³case method².

    Gist of civil law tradition
    • Dates back to ancient Rome, especially the Code of Justinian.
    • Revived during the Enlightenment: the codification and rationalization of the law.
    • Clearest expression: Napoleonic code.
    • Moved the Founders to adopt a ³written constitution²

    • In Great Britain, the common law tradition coexists with an unwritten constitution.
    • In continental Europe (e.g. Germany), we have written constitution and civil law tradition.
    Only in the U.S. do we combine common law with written constitution.


    Yi-Ling (5c388f)

  14. “t sounds like Republicans have taken up this suggestion, which they are dubbing a “test vote” – hardly the catchiest name, but then, Republicans are not masters of public relations.”

    Its too bad they can’t run congress like they do with their town-halls.

    actus (5b2f21)

  15. The proof is in the pudding :-)

    Yi-Ling (8e7836)

  16. “the proof of the pudding is in the eating.” the true value or quality of something can only be judged when it’s put to use. The meaning is often summed up as “results are what count.”

    Yi-Ling (8e7836)

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