Patterico's Pontifications


Happy Third Blogiversary to How Appealing

Filed under: Blogging Matters,General,Government — Patterico @ 9:54 pm

Congratulations to Howard Bashman on the third anniversary of his excellent How Appealing blog.

Funny Supreme Court Quotes

Filed under: Court Decisions,Humor — Patterico @ 8:01 pm

Eugene Volokh is asking readers to submit humorous quotes from Supreme Court opinions. Not surprisingly, most of the submitted quotations were written by our most brilliant Justice: Antonin Scalia.

My personal favorite is his description of the “Lemon test” from Establishment Clause jurisprudence. [The “Lemon test” is simply a test sometimes used to evaluate whether a government action violates the Establishment Clause.] No law can pass the “Lemon test,” so the Court (despite having disapproved its use in the past) drags it out when the majority wants to rule against the government. If the majority wishes to rule for the government, it simply pretends that the Lemon test doesn’t exist. It is this inconsistent application of the Lemon test that Scalia mocks in this passage:

Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.

. . . .

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will.

. . . .

Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Is it any wonder that Scalia is my favorite Supreme Court Justice?

The Reasoning Behind the “Conventional Warfare Option”

Filed under: Judiciary — Patterico @ 6:58 am

I’d like to elaborate a bit on the idea behind the “conventional warfare option” that I discussed yesterday (and in detail back in November). Two points:

1. Republicans need an option that is not called the “nuclear option.” As silly as it sounds, the “nuclear option” is problematic simply because it has a terrible name.

There is a vast group of squishy moderate voters out there who don’t much care about any issue, but who get nervous when it sounds like either side of the political aisle is doing something wacky. These uninformed folks far outnumber the people who actually understand what is going on in the judicial confirmation wars.

This is the group I am targeting with the proposal I have called the “conventional warfare option.” When you Joe and Jill Squishy that you are going to employ something called “the nuclear option,” they get nervous. (And don’t try calling it the “constitutional option.” It’s too late for that.) No matter how much sense it makes, the “nuclear option” sounds radical — and Joe and Jill don’t like anything that sounds radical.

Republicans need to make it clear to Joe and Jill that they are looking for every reasonable alternative to avoid deploying the nukes.

I am open to suggestions for a better name for the proposal. The best name would relate to my next point:

2. Republicans have to explain to voters that the Democrats are scared to go on the record.

The filibuster is not just a way to block judges. It is a “weasel option” that allows Senators to oppose a nominee without putting their opposition on the record. This is especially valuable to Democrats when it comes to voting on Bush’s minority and women nominees.

In the Democrats’ world, women and minorities are expected to embrace a leftist philosophy grounded in a sense of victimhood. Nominees like Miguel Estrada or Janice Rogers Brown scare the hell out of Democrats, because they are brilliant minorities who don’t toe the line. Democrats hate candidates like that, because they destroy their conception of how women and minorities ought to think.

At the same time, Democrats are scared to vote against such candidates, especially when they are clearly qualified. Democrats ran into a fair amount of flak from Hispanic interest groups over the Estrada nomination. Those groups could see through the transparently phony objections to Estrada, and wondered why Democrats were unwilling to vote for a qualified Hispanic.

It’s much easier to oppose a qualified minority judge through a filibuster than through a floor vote. Senators’ floor votes are public. They might have to be explained. Your typical Democrat Senator might have a hard time explaining why Janice Rogers Brown was mainstream enough to garner an overwhelming majority vote in liberal California — but not mainstream enough to confirm as a U.S. appellate judge.

So maybe the “conventional warfare option” should be called something like the “Go on the Record Option.”

That’s a terrible name. Get me a better one.

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