Patterico's Pontifications

6/25/2005

Response to Bainbridge

Filed under: Judiciary — Patterico @ 3:34 pm



I want a nice, juicy sirloin steak on my plate tonight. No tofu or soy substitutes — just a nice, thick, 16-oz. slab of steak. But I don’t want any animal to be killed in the process. That’s my position and I’m sticking with it. I have my principles.

Does my position make any sense? No — but it makes about as much sense as Professor Bainbridge’s position on judges.

In response to the recent Kelo decision, Bainbridge insisted that President Bush nominate a staunch conservative to the Supreme Court:

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.

What’s more, Bainbridge doesn’t want Democrats involved in the selection process:

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

Bold words. Especially coming from a guy who wants the Democrats to be able to filibuster Bush’s judicial nominees.

Last night, I wondered whether this language signalled the end of Professor Bainbridge’s membership in the “Coalition of the Chillin’,” a group of bloggers who support the decision of Senate “centrists” to capitulate on the issue of judicial filibusters.

(In an e-mail to me, the Good Professor characterizes my previous post as “a little cranky” but seems to take it in good humor. Hey, what can I say? I can be a cranky guy. I warn you: the rest of this post is likely to be similarly cranky — but don’t be fooled. I respect Professor Bainbridge a great deal. I recognize that his position on this issue is sincerely held, and that he has spent a lot of time thinking about this. I just happen to think he’s wrong, and I’m going to say so rather bluntly.)

It seemed obvious to me (and still does) that Bainbridge cannot rationally urge Bush to pick staunch conservatives for the Supreme Court, without consulting with Democratic Senators — yet still maintain that Democrats should be allowed to filibuster judicial nominees at will. It makes no sense to urge someone to start something, but deprive them of the tools to carry it through to a successful conclusion. That’s like urging someone to climb Mount Everest, but preventing them from taking any mountaineering equipment with them. It’s like demanding a juicy sirloin steak, but insisting that no animal die to provide it.

We know that the nuclear option will ultimately be necessary to get reliable conservatives on the High Court, because we know that Democrats are going to filibuster any reliably conservative nominees. I have predicted that the first nominee will probably make it through without a filibuster. But the idea that President Bush will be able to place 2-3 solid conservatives on the Court without the Democrats mounting a filibuster is pure fantasy. After all, when Bush has nominated reliable conservatives to the intermediate federal appellate courts, those nominees have been filibustered. Why would the Supreme Court be any different?

Preliminary indications are that the Democrats intend to continue the filibuster strategy. As I have reported here before, minutes after the filibuster deal was signed, Harry Reid spoke to several Democrat signatories to the deal, and secured commitments from most of them to filibuster Brett Kavanaugh and William Haynes. Since then, Kavanaugh’s and Haynes’s nominations have been put on hold, with no definite word as to when their nominations will be submitted to the floor.

If they’re going to do this to Kavanaugh and Haynes, you can bet your bottom dollar that they’re going to do this to solid conservative Supreme Court nominees.

In short, without the nuclear option, we aren’t going to get the judges that Professor Bainbridge wants.

Professor Bainbridge responds to my post here. He asserts that his post from yesterday simply took issue with the wisdom of giving Democrats a role in the selection process:

I was commenting on a report that the Democrats want to have input into Bush’s judicial choice before he even puts forward a nomination. In other words, they wanted to be part of the selection process. It was that request I thought Bush should brush off. I did not intend to suggest that Bush should somehow try brushing off the Senate’s constitutional advise and consent role. Hence, the [relevant] passage simply doesn’t have anything to do with the filibuster.

Is Bainbridge really saying that the Democrats’ demand that President Bush consult with them before submitting the names of judicial nominees has nothing to do with the Democrats’ continuing ability to obstruct future nominees through the filibuster? Get real, Professor! The two issues are inseparable.

If the Republicans had the power to confirm any nominee who enjoyed majority support in the Senate, the Democrats could demand a role in the selection process all day long, and Bush could simply ignore them — just as Bainbridge says he wants Bush to do. But with a viable filibuster, President Bush has to pay attention. If he nominates someone the Democrats don’t like, they still have the power to block that candidate. That is inevitably going to have a chilling effect (or, if you prefer, a “chillin’ effect”) on President Bush’s ability to nominate the sort of reliable, permanent conservatives that Bainbridge claims to want on the High Court.

Moreover, consultation with Senators was explicitly contemplated by the Gang of 14 who struck the deal that Bainbridge has praised so profusely. For example, on the day this dastardly pact was struck, Linsdey Graham told Chris Matthews that the message to President Bush was that the deal was going to end filibusters for the time being, but:

[W]hen you send a Supreme Court nominee over, talk to us first. I believe he will. And if we all talk, we can do better.

So it was clearly contemplated by those who struck the filibuster deal that the Gang of 14 would not tolerate the “sorry, guys, but it’s our turn” attitude urged on President Bush by Professor Bainbridge. And if Bush takes that attitude (as Bainbridge suggests) and sends up a staunch conservative nominee (as Bainbridge suggests) then that nominee is going down.

How does Professor Bainbridge want Bush to fight for his judges? Like this:

I believe Bush should do everything possible, short of getting Frist to pull the nuclear option, to ensure that his chosen nominees get through the Senate. For example, he should not withdraw a filibustered nominee, but force the Dems to keep voting on cloture and, if necessary, take the issue to the country in 2006. Alternatively, he could threaten to invoke the Barnett solution threaten to make a recess appointment a conservative who would really scare the Left (Bork comes to mind). Most importantly, of course, he needs to hold the feet of the Democrats who signed the filibuster deal to the fire. But even if none of those work, the costs of invoking the nuclear option are too high (again, see my TCS column).

In other words, Bainbridge wants Bush to do everything except what is actually going to work.

He justifies this lack of follow-through on “sound, prudential, and principled conservative reasons”:

Finally, turning to the filibuster, there were sound, prudential, and principled conservative reasons to support the filibuster deal, as I detailed in my TCS column. Why, pray tell, should one more lousy Supreme Court decision change my mind?

Because, Professor, this lousy decision — and every other lousy decision handed down this term — is further evidence of the screamingly urgent need for solid judges on the Supreme Court, now. This need outweighs the hypothetical future need to use an unconstitutional filibuster, which Republicans have almost never used before anyway, to block judges hypothetically nominated by a hypothetical President Hillary Clinton.

My feeling is: if you aren’t willing to do what it takes to get good judges on the Supreme Court, who will render decisions based on the Constitution rather than on their own personal preferences, you don’t really have any moral standing to complain about the Court’s bad decisions (like you claim Kelo is). It’s rather like a guy who didn’t vote in the election bitching about the President. He has the right to bitch, but he doesn’t really have the moral standing to do so.

The bottom line is simple. If you want to make an omelet, you gotta break some eggs. If you want a nice, juicy, genuine sirloin steak, somebody’s going to have to kill a cow. And if you want reliable conservatives to be confirmed for the Supreme Court, Republican Senators are eventually going to have to deploy the nuclear option.

Time to face up to reality, Professor. Time to withdraw from the Coalition.

UPDATE: Bainbridge responds here, in what is probably the end of the debate. His basic point:

If he could persuade me that there will never come a day when a liberal Democrat is in the White House simultaneously with a Democrat majority in the Senate, maybe I’d agree with using the nuclear option to abolish filibusters of judicial nominees.

. . . .

He’d also have to persuade me that getting rid of the filibuster as to judicial nominees would not result in its elimination as to legislative matters. Remember Hillarycare? Those of us who believe in limited government inherently need the filibuster more than those who believe in expanding government.

The editors of the Wall Street Journal have already stated the arguments, clearly and succinctly:

Some argue that the threat of a filibuster saved us from HillaryCare in 1994, but we think that it was dying of its own weight and would never have had even 50 votes. In any event, no one is talking about doing away with the legislative filibuster. The “nuclear option” would stop only filibusters of judicial nominees.

One of the weakest objections offered by some Republicans is that Democrats will do the same thing in some future Senate. Well, yes, but we doubt Republicans would ever have the nerve or unity to filibuster a Democratic nominee, and Democrats have shown in their willingness to filibuster that they don’t need a GOP precedent to do whatever they want. They’ll “go nuclear” if it suits Ted Kennedy’s purposes, whether Republicans do it first or not.

If Bainbridge’s nightmare scenario comes to pass, we’ll just have to persuade the public to pressure Senators vote down any bad judges. In the meantime, Republicans have the White House and Senate now. Let’s seize the advantage we have, rather than quaking in our boots about what might happen in the future.

12 Responses to “Response to Bainbridge”

  1. In short, without the nuclear option, we aren’t going to get the judges that Professor Bainbridge wants.

    And the option is still on the table, it is just that the trigger has not yet been pulled.

    So what’s the problem?

    Paul Deignan (664c74)

  2. Patterico’s Persistent

    My patently perspicacious preceding post plainly persuaded Patterico not in the slightest. He persists in being peeved with me. Sigh. If he could persuade me that there will never come a day when a liberal Democrat is in the White

    ProfessorBainbridge.com (af7df9)

  3. The problem is that he doesn’t want the trigger pulled.

    Patterico (756436)

  4. Patterico,

    A filibuster, used wisely and sparingly, can be a good thing. It’s the never-ending nature of its current abuse that’s the problem. With that in mind, huzzaba the following changes:

    1. Rather than requiring 60 votes to break a filibuster, it shoild initially require at least 40 votes to break it – i.e. let no filibustering senator (such as a dem from a red state facing an impending election) help maintain a filibuster by abstaining. Senators should always go on record on important issues.

    2. The filibuster can continue only as long as it is winning converts, which is its proper purpose, actually, to slow things down just long enough to change legislators’ minds, if possible. The majority leader can re-hold a vote on ending the filibuster once/week.

    Thus, if a filibuster got 42 votes last week, it will require 43 votes this week to continue it. Failure to show such improvement indicates that it is a waste of time that is changing no one’s mind, and cloture can be invoked.

    Note that a clever opposition would, if it had, say 44 votes, be able to space out those votes 40, 41, 42, 43, 44 in successive weeks. The more votes they have, the longer they can filibuster. This means that the larger the minority, the more time they get to make their case.

    But it comes to an end eventually, either by cloture or by defeat of the legislation where the majority have had their minds changed. And in any event, those who maintained it are on record as having done so.

    Just a thought.

    ras (f9de13)

  5. Rather than requiring 60 votes to break a filibuster, it shoild initially require at least 40 votes to break it – i.e. let no filibustering senator (such as a dem from a red state facing an impending election) help maintain a filibuster by abstaining. Senators should always go on record on important issues.

    Ras, don’t you mean it should “initially require at least 40 votes to sustain it?”

    Patterico, I just had a thought: if Bush were to nominate Miguel Estrada (who might be tempted to get back in the game if the prize were a Supreme Court appointment, rather than a mere appellate court), and if the Democrats filibustered, it might be easier to get a vote on the constitutional option… for the simple reason that Estrada would be the first Hispanic on the Court. Thus, senators from states with large hispanic populations — I’m thinking of Sen. John McCain (R-AZ), Sen. Bill Nelson (D-FL), Sen. Jeff Bingaman (D-NM), Sen. Harry Reid (D-NV), or even Sen. Diane Feinstein (D-CA), all of whom would ordinarily be considered reliable votes to preserve the filibuster — might come under great pressure within their home states from Hispanic activists and from (in some cases) the pro-Hispanic, Republican state leadership to allow a vote and then vote to confirm Estrada.

    Might be an interesting collabortation of forces to set in motion, don’t you think?

    Dafydd

    Dafydd (df2f54)

  6. Whoops, collaboration.

    DaH

    Dafydd (df2f54)

  7. Dafydd,

    Yup, I did indeed mean it as you stated. Tip of the slung; thx for catching it.

    ras (f9de13)

  8. Was this Professor Bainbridge character clamoring for a filibuster when Bill Clinton sent the Ginsburg or Breyer nominations to the Senate? No.

    Does Bainbridge advocate that the GOP abuse the filibuster in the future just as badly as the Dems have abused it the past two years? No.

    Did Bill Clinton nominate Ginsburg and Breyer instead of Cuomo and Babbitt because Clinton was threatened with a filibuster? No.

    Would Cuomo and Babbitt have been significantly worse than Ginsburg and Breyer? No.

    Has the GOP ever in history resorted to an endless filibuster of a majority-supported judicial nominee? No.

    Does Bainbridge wish the GOP had endlessly filibustered any majority-supported judicial nominee in the past? No.

    Would the Dems hesitate to use the “nuclear option” if they were in the GOP’s present position, given that the Dems already used the “nuclear option” in 1975 when virtually nothing was at stake? No.

    If the Senate Democratic leadership tells President Bush that the Dems will endlessly filibuster every nominee except Steven Reinhardt, will Professor Bainbridge finally support the “nuclear option”? No.

    Andrew (2977e4)

  9. From Bainbridge:

    Hence, I believe Bush should do everything possible, short of getting Frist to pull the nuclear option, to ensure that his chosen nominees get through the Senate. For example, he should not withdraw a filibustered nominee, but force the Dems to keep voting on cloture and, if necessary, take the issue to the country in 2006. Alternatively, he could threaten to invoke the Barnett solution threaten to make a recess appointment a conservative who would really scare the Left (Bork comes to mind). Most importantly, of course, he needs to hold the feet of the Democrats who signed the filibuster deal to the fire.

    Well, Patterico, I have to agree with you that Bainbridge seems to be indulging in wishful thinking. He assumes that the legislature (Senate) acts as a subordinate body to the President and that the nominee should suffer (Estrada didn’t) the abuse of a filibuster. Finally, Bainbridge is OK with the idea that the most conservative (best) judge should not be nominated as a first resort. If Bork is our man, he should be nominated upstraight.

    This thinking not responsible analysis; this is wishing upon a star. The nuke option must remain in play for any reality to prevail.

    Paul Deignan (664c74)

  10. Like Paterico, I have nothing but respect for Prof. Bainbridge and am a frequent visitor to his blog. However, Paterico has clearly “won” this debate from the standpoint of reasoning. Prof. Bainbridge has reduced his argument to pure wishful thinking, as Paul correctly points out above.

    Sometimes, those of us who hate partisan bickering (of which I am actually not one) will grasp at any straw to avoid a dramatic and vitriolic confrontation which will greatly reduce the opportunities for bipartisanship.

    Bipartisanship is only a good thing when both sides sacrifice and both sides benefit. The Democrats have consistently demanded to have it all their way. They have offered nothing meaningful in the deal except something they would have lost anyway under the nuclear option. Considered logically, there is no real chance that the “Byrd” (or “Constitutional” or “nuclear”, whichever you prefer) will not be attempted.

    Finally, does Prof. Bainbridge actually believe that the Democrats will not engage the “Byrd” option at the first available opportunity when they eventually become the majority? If so, “mildly delusional” may have to be substituted for “wishful thinking”.

    Glenn (2260fb)

  11. It is clearly a Constitutional issue. The Constitution gives the Senate the responsibility to provide Advise and Consent on presidential appointments. If the Senate fails to do so within a certain timeframe (60 days?) it should equal consent. The Constitution requires a super-majority to specific matters (treaties etc) not including the advise and consent process. If the Dem’s want to be involved in the process they need to come up with ideas which appeal to voters and start winning elections.

    LargeBill (657d3b)

  12. ” If the Senate fails to do so within a certain timeframe (60 days?) it should equal consent. ”

    You’re making this up. And that is not a constitutional issue.

    actus (cd484e)


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