Patterico's Pontifications

6/24/2005

Professor Bainbridge: Another Defector from the Coalition of the Chillin’??

Filed under: Court Decisions,Judiciary — Patterico @ 9:56 pm



Professor Bainbridge says:

As the recent Kelo decision illustrates, it will be essential that President Bush pick somebody reliably – and permanently – conservative when he has the chance to fill a Supreme Court vacancy.

Yes it will, Professor. Of course, that’s going to be difficult, due to the recent Republican capitulation on filibusters of judicial nominees — a capitulation that you supported.

Bainbridge continues:

Yet, the Democrats want Bush to unilaterally disarm:

“The way to avoid the divisiveness and discord that occurred over past judicial nominations is through consensus and cooperation in the selection of future candidates,” the Senate Democrats said in a letter sent to the White House on Thursday. (Link)

The hypocrisy is ludicrious, as Senator Cornyn pointed out:

“Senior Democrats continue to demand a future role in selecting the president’s judicial nominees, while preventing the confirmation of current nominees,” Cornyn said.

Bush should just say: “Sorry guys, but the GOP won the Presidency, the Senate, and the House. It’s our turn to choose.”

Yes, he should. Unfortunately, when he has said that in the past, the Democrats have responded with unconstitutional filibusters of his judicial candidates. Yet you stand four-square against the GOP’s taking action to eliminate that noxious practice.

Pray tell us, Professor Bainbridge. When the Democrats filibuster President Bush’s credentialed and reputable candidates for federal judgeships, and you oppose GOP action to break that outlandish and unconstitutional procedure, just how do you expect Bush and the GOP to say: “Sorry guys, but the GOP won the Presidency, the Senate, and the House. It’s our turn to choose.” How exactly do you expect the GOP to accomplish this?

Face it: if you and the other members of the “Coalition of the Chillin'” continue to have your way, we conservatives are going to have to sit still for more decisions like Kelo. SayUncle has had the guts to admit that he was wrong to join the coalition. He has withdrawn.

What do you say? Will you withdraw as well?

UPDATE: Bainbridge responds here. I respond to his response here.

9 Responses to “Professor Bainbridge: Another Defector from the Coalition of the Chillin’??”

  1. Woo hoo, it’s all coming to a head!

    We all agree on the following — right chief?

    1. Either O’Connor or Rhenquist is going to announce retirement at the end of this session.

    2. Bush will be under tremendous pressure by his base to name a conservative.

    3. Bush will probably do just that.

    Now, let’s assume he doesn’t name either James Dobson or that Klansman who was just convicted for the 1964 murder of civil-rights workers, and instead names a reasonable judge who has experience, a track record of solid, conservative decisions, and who didn’t smoke dope while a professor at Harvard. In other words, someone for whom the phrase “extraordinary circumstances” clearly does not apply.

    Here are the possibilities:

    A) The Democrats cannot sustain a filibuster or perhaps don’t even try;

    B) The Democrats are able to muster 41 votes against cloture; in which case:

    i) Two of the seven dwarfs break from the agreement, giving the Republicans 50 votes to eliminate judicial filibusters;

    ii) The dwarfs do not break, and the Democrats win the constitutional-option battle.

    In case A, the Republicans (and the country) win a partial victory: we get a good justice, but the Dems keep their powder dry for next time.

    In case B(i), we and the rest of the country win a great victory, eliminating judicial filibusters and also getting a good new justice on the Court.

    Only in case B(ii) do we lose.

    If A happens, we won’t know whether the conservative senators among the seven are serious about holding the Democrats to their bargain; but it would mean that the Democrats themselves were actually being honest (particularly if several of the seven sirens, the Demcorats in the deal, vote for cloture). But if B happens, then (i) means they are, while (ii) means they are not.

    So we should find out pretty soon. I argued that the Republicans are under no constraint to keep their side of the bargain if the Democrats don’t keep theirs, whatever the specific wording of the MoU says in a legal-contracts sense. I’m anxious to find out whether I was right or wrong.

    Dafydd

    Dafydd (df2f54)

  2. Paterico, you are exactly right – only organized local action can save our property from the depredations of government. I sincerely hope Kelo galvanizes people into actual action rather than pages and pages of bloviation.

    The USSC has effectively overturned the property rights provisions of the Fifth Amendment and rendered them a dead letter. “Public use” has now been redfined as “any use, public or private, to which any plausible benefit may accrue to the public (whether or not it actually does occur)”. With a few minor changes, that same definition could be used for “Big Brother”.

    I wa-wa-wa-wa-wonder if Bainbridge will read your post, or Reynolds. Their ultimate reaction should tell us a lot more about how “chillin'” they are after the Libs and Kennedy have repealed one of the libertairan’s most cherished rights.

    Glenn (2260fb)

  3. I think you are premature on this, Patterico. Supporting the agreement does not mean that one agrees to roll over when the Democrats threaten a filibuster.

    Nor is there any disconnect in being a coalition member and hoping Bush picks and fights for his first choice for the SC.

    Should the Dems threaten a filibuster, the agreement does not preclude changes to the rules.

    Do you feel that the fact this agreement was reached by several Republicans means that Bush will modify his pick, in effect feeling he can’t count on them and so will choose someone in order to avoid a filibuster? Or that the Repub’s actions have emboldened the Dems into the Dem’s boilerplate request to be consulted? If your answer to the first is yes, then you have a legitimate gripe at this point in time, otherwise, you need to wait a bit.

    The Dems quite predictably will fight any nominee. They would do so whether or not there was an agreement.

    Pigilito (dc51ff)

  4. I think you are premature on this, Patterico. Supporting the agreement does not mean that one agrees to roll over when the Democrats threaten a filibuster.

    As I read Bainbridge, he wants Republicans to roll over, because he wants to maintain that wonderful conservative tool, the filibuster, for the future.

    At the time, I took issue with his position and opined that conservative *judges* are more important than some arguably conservative *mechanism*. I am hopeful that he is starting to see the correctness of that argument.

    Do you feel that the fact this agreement was reached by several Republicans means that Bush will modify his pick, in effect feeling he can’t count on them and so will choose someone in order to avoid a filibuster?

    Absolutely. And he was warned by people like Lindsey Graham to be careful who he picked. And for anyone who supported the deal to lecture Bush that “it will be essential that President Bush pick somebody reliably – and permanently – conservative” says to me that they don’t understand how the deal has made it a risky proposition for Bush to pick just such a conservative.

    Patterico (756436)

  5. Now, you must convince me that bush will pick good judges and do more than play lip-service. I am not convinced of that. If he nominates gonzales, we’re all screwed.

    SayUncle (b6d4b8)

  6. Patterico’s Peeved

    Patterico seems to think that my reaction to the Kelo decision is somehow inconsistent with my support for the filibuster deal or, at least, that I should rethink my take on the latter.Professor Bainbridge says:As the recent Kelo decision illustrates,

    ProfessorBainbridge.com (af7df9)

  7. You know, there are many many more people that are outraged at these SCOTUS decisions–many more than before the compromise. They also direct their anger towards the “moderates” who have for years allowed the court to assume its current composition. It never should have been allowed.

    With few exceptions, our judiciary has been systematically filled with hacks and incompetents. We have yet to impeach a judge that abuses his power in a ruling that I know of. Now we are at a point where our public laws are toilet paper. “Public” means “private”, “equal” means “unequal”, and “life” means “death”. You should be outraged.

    Since the compromise, a number of well quaified judges with integrity have been confirmed. They are now the standard rather than the exception for future appointments. Why? Because our minds are focused on each and every one who is nominated and brought up for confirmation. Each judge that is confirmed is confirmed with the seal of approval of the Senate that they are not “extraordinary” in a political sense. Meanwhile, each one is not allowed to be a compromise candidate–only the best will do. A Souter is now “extraordinary”.

    In short, the trick of the compromise was to convert conservative political passions to judicial excellence. Of course, should Gonzales be nominated to the SCOTUS, I will have to retract all of this rosy talk, but for now I am optimistic that my conservative friends would not tolerate such a squish.

    I’m proud to be a burr in your saddle. Keep up the good work.

    Paul Deignan (664c74)

  8. What Graham said was certain to be said by someone in the President’s party every time a SC position becomes free.

    I don’t think the deal has limited Bush’s options. I would like to see more evidence than a predictable, “X needs needs to take care when making his selection.” from a member of his own party.

    If the Dem’s can make a persuassive argument that what a handful of senators did on their own is a reason that Bush must give up his top choice(s) for any open seat, then I will glady acknowledge the deal was wrong. Doubtless they will try, but they will use any argument to hand in order to prevail.

    I would also wait until one of the deal-making Republican Senators makes the same argument, before sounding any triumphalist notes. Thus my belief that your are premature in attacking the deal on these grounds.

    Pigilito (dc51ff)

  9. Silver Linings?

    Thursday’s decision came one day before the third anniversary of our purchase of “our” home, and the first time since 1981 that I’ve lived at a single address, or even in a single county, for more than three years straight. So…

    damnum absque injuria (38c04c)


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