Patterico's Pontifications


The Legacy of the Gang of 14 and the Judicial Filibuster

Filed under: General,Judiciary — Patterico @ 5:41 am

The Washington Post reports:

The U.S. Court of Appeals for the 4th Circuit, long considered one of the nation’s most conservative appellate courts, is shifting to a moderate direction with the balance up for grabs. A growing list of vacancies — now five — has left the court evenly divided between Republican and Democratic appointees.

With an election year approaching, experts predict the court will tilt decisively to the left if Democrats keep control of Congress and reclaim the White House.

“There is a very good chance that this court will be solidly Democratic for many, many years,” said Arthur D. Hellman, a University of Pittsburgh law professor.

Is this a problem? Uh, yes, it is.

[Professor Hellman] said the current 5-5 split — which began July 17 when Judge H. Emory Widener Jr., a Republican appointee, took semi-retirement — is “tremendously significant.”

The battle over the 4th Circuit, part of the broader struggle for control of the federal judiciary, resonates nationwide because the court has played a key role in terrorism cases since the Sept. 11, 2001, attacks. Its rulings affect everyone who lives, works or owns a business in Maryland, Virginia, West Virginia and the Carolinas.

The 15-member court has lost several prominent Republican appointees. Two of Bush’s nominees, bottled up in the Senate even when Republicans ran it, were withdrawn this year when Democrats took over.

B-b-b-but the Gang of 14 helped us! Right?

(Thanks to jim.)

46 Responses to “The Legacy of the Gang of 14 and the Judicial Filibuster”

  1. I know this will never fly, but don’t US citizens have the right to a fair and speedy trial? Do I assume that the 4th circuit court has a backlog of cases? Is there a reason that the US Supreme Court can’t order the Senate to act and at least vote on nominees?

    MD in Philly (3d3f72)

  2. Somewhere, Dahlia Litwick is smiling.

    Patricia (824fa1)

  3. What ever happened to constitutional requirement that only 51 votes were required to pass legislation and judicial nominees? Because of the filibuster rules, it now requires 60 Senate votes to pass any sort of legislation or nominee. Who tore up the constitution?

    Perfect Sense (b6ec8c)

  4. MD — the Fourth Circuit is an appeals court, not a trial court. Defendants have already received their trial by the time their case reaches a circuit court.

    Perfect Sense — its the Senate’s committee process more than the floor voting that slows down nominations. The ability of a committee chairman to simply bottle up a nomination by not putting it on the committee agenda, or the use of the blue slip hold by the home state Senator, bring the process to a grinding halt.

    But, I rest comfortable knowing that if the Schumer and Leahy want to play this game, the GOP will return the favor in spades if a Dem is elected in 2008 — although I find that less and less likely to be the case.

    wls (48cbad)

  5. wls-

    Thank you for the clarification. I was aware that it was an appeals court, but I never made the connection that while a speedy trial is a priority, the appeal stage doesn’t have the same level of urgency.

    So if the two never came to the floor previously, do I assume we have Arlen Specter to thank for that?

    Back to the drawing board.

    MD in Philly (3d3f72)

  6. Arlen Specter can be thanked, as well as the Gang of 14. I wonder if the Dem members of this Gang will be so will to sell out should the Republicans have objections to a nominee in the future?

    JD (06a9d8)

  7. Supreme Court Justice Anton Scalia on Executive Privilege:

    “[T]he Congress and the Executive have the right to assert their prerogatives. When it comes to an impasse, the Congress has means at its disposal to have its will prevail.”

    “The means are indicated in my testimony. The most effective is the withholding of funds from the Executive. The refusal to confirm Presidential nominees was also used several times under President Nixon, if I recall, to elicit information which had been previously denied.”

    “The Senate simply would not confirm nominees until the information was turned over.”

    alphie (015011)

  8. I really think the new Chevy Yukon is kind of a ugly truck.
    The temp here today was over 100.
    I wonder whats on tv tonight?
    I like wearing shoes.

    buzz (9e5c44)

  9. buzz,

    We’re in the middle of housetraining the trolls (see the “Quote Of The Day” thread), so please don’t feed it.

    I mean, you didn’t, really, so thanks, but for the entire group: if we all could cooperate by not feeding the trolls, then their learning curve might actually, well, curve.

    Thx, everybody.

    ras (adf382)

  10. Sorry, I thought we were shifting to a stream of consciousness thing. My bad. And understandable about the desire of training the trolls, but aren’t you afraid of going to far and possibly losing the rare nuggets such as the mile high berms and balloons? I mean those are classics. Well, anyway I shall respect your attempt and wish you well, but I do have this one warning. My cat supposedly has the IQ of an infant, but I still have trouble keeping her out of the dryer. You’re working with less potential. Good luck.

    buzz (9e5c44)

  11. Buzz,

    you forgot: “Have I shown you my Lundy Island stamp collection?”

    Paul (a47125)

  12. One post of mine elicits endless nonsensical and ad hominim attack posts from the childish right?


    I think I have trained you, ras.

    alphie (015011)

  13. Back to the topic:

    Well, if it tilts left and starts legislating from the bench, we can refer to it as the 4th Circus Court of Appeals.

    Y’know, like the 9th?

    Thank you Arlen Spectre Specter.

    Paul (a47125)

  14. Ras, one of my great flaws is that it’s next to impossible for me to not feed the trolls.

    Patterico: the flip side of this is that, when the Democrats have a majority in the Senate and the Presidency, the minority Republicans will be able to filibuster their nominees.

    Surely that’s a useful power to have to force the President to moderate his nominations?

    aphrael (e0cdc9)

  15. the minority Republicans will be able to filibuster their nominees.

    Yeah, and watch them scream in outrage with the MSM as willing accomplices.

    I can’t wait.

    Paul (a47125)

  16. Perfect Sense, which Constitutional requirement are you referring to? I don’t see a simple majority vote requirement for bill passage in article I.

    aphrael (e0cdc9)

  17. You guys are assuming the Republicans will still have 40 seats in the Senate after the next election.

    21 Senate Republicans up for reelection in 2008.
    12 Democrats.

    I wouldn’t bet on it…especially if Iraq is still dragging on next Novemember.

    alphie (015011)

  18. aphrael,

    one of my great flaws is that it’s next to impossible for me to not feed the trolls.

    Not a prob. We worked out some guidelines that will help you respond in an appropriate and useful manner conducive to the training:

    1. Never respond to a troll’s argument directly, they’re just looking for an ego fix, anyway, not a real discussion. It ain’t about what it’s about, so why bother?

    2. Ridicule of the troll is OK as long as you don’t mention their argument, which would be too much like taking them seriously. Again, since they only do it to make themselves feel important, either praise or anger gives them their fix, but ridicule doesn’t. They are ego-addicts, and all addicts can be controlled by controlling their drug.

    3. It helps if you don’t even respond to the troll per se; direct any related comments at another commentor instead. See the next point.

    4. Trolls really hate it when you talk about them as if they’re not even there. Like I’m doing now.

    5. And always remember, if they do make you mad, you cannot possibly strike back harder or cause them more grief than by ignoring them. We found that using Stashiu’s “ignoring trollish behavior” line worked well; let’s stick with that.

    If we all follow the guidelines together, we can have well-trained trolls. I’d sure appreciate your help.

    Note, btw, that one of the trainees is already trying, on this very thread, to scuttle my motivation; it hasn’t had a fix for a while and is getting a little antsy. And that’s ok, it’s just a stage it’s gotta go thru, one that indicates progress.

    ras (adf382)

  19. On the contrary, ras.

    I enjoy it immensely when you reply to my posts in such a childish matter.

    Do you really think you’re the first wingnut to try to impose your narrow little views on someone else’s blog?

    alphie (015011)

  20. ras, I think he’s wounded. Don’t ignore him any longer, he might die.

    Christoph (92b8f7)

  21. Ok guys, here’s a good example. There is no point in my responding to the adolescent insults: anger is what it’s looking for.

    Ignoring trollish behavior.

    ras (adf382)

  22. But what if the troll, deliberately or as I suspect accidentally, redefines terms such as the now correctly spelled “ad hominem”? The purist in me has trouble not correcting. However, down deep I know if I engage the response will be along the lines of “over there! Shiny object”, so I will refrain.

    buzz (e09efa)

  23. ras,

    You keep on saying the same thing no matter how much any of us tell you it’s not going to work — and that the evidence shows only banning alphie has worked in the past.

    Should we start ignoring you now?

    Perhaps I should start ignoring myself.

    Christoph (92b8f7)

  24. Do you really think you dont appear childish, ras?

    You’re just embarrassing yourself.

    The “nuclear option” Frist was considering (and the Gang of 14 torpedoed), was to declare the filibustering of the president’s appointments unconstitutional.

    But, as my post showed, Anton Scalia considered the blocking of presidential appointment quite constitutional.

    If the (short-lived) Republican Senate majority didn’t have Scalia on their side, it had little chance of succeeding with the “nuclear option” anyways.

    alphie (015011)

  25. ras, Robin, and Christoph – I think the Republicans should do everything in their power to froce floor votes, and if a Dem is elected in ’08, god forbid, they should actually filibuster all nominees.

    JD (0c5b67)

  26. Turns out Excaliber is on TV tonight. Also last comic standing. Are we going to discuss ugly trucks next?

    buzz (e09efa)

  27. Provided the Republicans still have 40 seats in the Senate, that is, JD?

    alphie (015011)

  28. buzz – I am sure that there is something entertaining on Spike tonight. UFC? Re-runs of CSI?

    JD (0c5b67)

  29. If they’re up to it, they should filibuster the old fashioned way, and not yield the floor, rather than this “gentleman’s agreement crap. If you feel so strongly against someone then you should be willing to do a little work. Plus if the Senate is all tied up in filibuster, the opportunity to hose us over on health care, taxes and God knows what else is greatly reduced.

    buzz (e09efa)

  30. Say, JD and Buzz: do either of you hear a jackass braying in the distance?

    Paul (a47125)

  31. Are you sure that wasn’t the wind? It’s getting ready to storm here, I just assumed that’s what it was. Wish it would stop though, anytime you have that much hot air around when the front moves in is when the tornado’s come out.

    buzz (e09efa)

  32. buzz – I could not agree more. If someone is going to filibuster, they should have to actually do it. That was my position when the Dems threatened to do so, and remains the same for Republicans. As you noted, it will provide the added bonus of not allowing them to screw up anything else.

    JD (b830c0)

  33. I say send all of them a copy of “Mr Smith goes to Washington” and tell them to cowboy up. A filibuster should be only done over something that you have very strong feelings about and should require a little effort. Under the current rules filibuster cost the minority party nothing, and I dont care who the minority party is. I have the oddest feeling that the democrats will change their mind about filibusters. Even the old fashioned ones.

    buzz (e09efa)

  34. It takes 66 votes in the Senate to change its rules, buzz.

    Are you predicting a Democratic landslide in 2008?

    alphie (015011)

  35. Cristoph,

    I note, from the original thread of only yesterday, troll “AF” and its progression under the new housetraining regimen:

    1. Your war you stupid motherfuckers. Your war.

    2. And if you or any of your pets think this is off topic you’re lying not just to the rest of us, but to yourselves.

    3. You Say Beauchamp lies about his actions -but nothing’s been resolved yet- and that his lies tar others. So I’ve posted some others. So cut the fucking bullshit and talk policy. I’ve been called a liar here and no one’s even tried to fucking back it up. Stashiu3, read the fucking article

    4. What a bunch of motherfucking idiots

    5. A buch of steroid addicted date-raping refugee closet-cases from a WWF fanclub.

    6. Do you pay these people pat to be this fucking stupid?

    There was more of course. But we persisted in ignoring it and in applying the guidelines as outlined above. It got no reaction, no drug, and saw that none was forthcoming, so by the end of the same thread:

    7. This is all depressing. If that article on military contractors doesn’t get to you, I don’t know what to say.You have no understanding of what this country’s supposed to represent.I’m done. [My emph – ras]

    Any troll problem can be managed, guys, if we all stop feeding them. If AF comes back to troll again we can ignore it again. Ditto the other trolls, till they all learn. Up to us, really.

    ras (adf382)

  36. Yep, storm moving in alright. Can hear the thunder as well as the hot wind.

    buzz (e09efa)

  37. God, I hate breaking the rules and I know I will be sorry, but:

    “The term first came into use in the United States Senate, where Senate rules permit a senator, or a series of senators, to speak for as long as they wish and on any topic they choose, unless a supermajority group of 60% of senators brings debate to a close by invoking cloture.

    In current practice, Senate Rule 22 permits procedural filibusters, in which actual continuous floor speeches are not required, although the Senate Majority Leader may require an actual traditional filibuster if he or she so chooses. This threat of a filibuster can therefore be as powerful as an actual filibuster. Previously the filibustering senator(s) could delay voting only by making an endless speech. Currently they need only indicate that they are filibustering, thereby preventing the senate from moving on to other business until the motion is withdrawn or enough votes are gathered for cloture.”

    buzz (e09efa)

  38. Not sure what your point is buzz.

    It takes 60 senators to end a filibuster.

    It takes 66 senators to change the rules about filibustering.

    Frist’s “nuclear option” was a pipe dream.

    alphie (015011)

  39. buzz – I completely forgot that my favorite drama on television is on tonight. Rescue Me. Leary is brilliant.

    JD (b830c0)

  40. #4 Thanks for clarification. In the heat of the moment, I forgot about the committees.

    Perfect Sense (b6ec8c)

  41. To change the rules about the fake filibuster takes 66 senators. To filibuster the old fashioned way takes one senator. If the filibustering senator(s) give up the floor, it takes 60 votes to kill it. If anyone was curious about my point, please reread the post from 6:14 and refrain from commenting until you understand it.

    buzz (e09efa)

  42. I dropped “rescue me” after the first couple of seasons. Is it worth picking up again?

    buzz (e09efa)

  43. buzz – The new season is excellent so far. It is certainly better than last season. Leary’s character is deconstructing, badly.

    JD (b830c0)

  44. ras,
    Maybe our trolls can just shout “NO. 7!” for instance at the appropriate juncture in the thread instead of blathering on and on. Would save lots of time and effort for them, and us.

    They do inspire a lot of funny banter, though.

    Now I’m off to watch the last episode of the Sopranos. Can’t wait to see how it ends! And I have a Toyota.

    Patricia (824fa1)

  45. AFAIK, the Legislature can set the rules for how it governs itself, and does so as one of the first acts each term.

    steve miller (37a105)

  46. I say we not only go back to the old way of filibustering, but incorporate it into a new true “reality” show, “Our Senate”. On prime time major network each week, highlights of speeches in the US Senate are played and voted on by the public for most outragous, most feckless, most intellectually dishonest, and most likely to fail re-election. Entries qualify by most votes on the show’s website that refers to YouTube clips people post.

    MD in Philly (3d3f72)

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