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.