Sure, why not do this one?
Let's see...I'll go with the nominations that made it through the Senate. Yes, there was some foot-dragging that successfully delayed others, but nothing that's really a big deal, and the ones that got through are now done. Plus there were new judicial nominations this week. Both the number of judicial vacancies and vacancies without nominees -- most of them blue slip issues -- remain stubbornly high, but things are better than they were.
Obviously this week's silliness -- Pajama Boy, White Santa Claus, Duck Dynasty, whatever else -- didn't matter, and once again you don't need me to tell you that.
What else? What do you think mattered this week?
Showing posts with label judicial nominations. Show all posts
Showing posts with label judicial nominations. Show all posts
Saturday, December 21, 2013
Saturday, December 14, 2013
What Mattered This Week?
The confirmations. I think I said this before, but put aside the drama (and real importance) of the Senate rules fight: the nominations at stake, especially those three DC Circuit picks, are quite important.
Of course the various Mandela memorial flaps don't matter, but you all knew that.
What else? It was a pretty newsy week, seemed to me. What do you have? What do you think mattered this week?
Of course the various Mandela memorial flaps don't matter, but you all knew that.
What else? It was a pretty newsy week, seemed to me. What do you have? What do you think mattered this week?
Wednesday, December 4, 2013
Still Hoping to Save the Filibuster
Yes, this is most certainly futile: Republicans aren't going to do it, and most people who care don't want it to happen anyway. But I'd like to see the filibuster saved and I think it's not only possible but actually in the interest of all Senators, so I'll push on with it.
Basically, as I argued a while ago, I think that the filibuster (and the good things about the Senate) has a better chance of surviving long-term if the current post-nuclear situation is replaced by a negotiated settlement on nominations. The key is to get both sides to agree to something which would be better for the minority party than the post-nuclear status quo, but better for the majority party than where things were before Harry Reid acted.
In particular, I think simple majority cloture on judges is suboptimal. As long as we're talking lifetime appointments, I have no real problem with imposing some sort of supermajority requirement. When I've written about this in the past, I've always said that I had no particular attachment to 60, but I've never really had any particular notion of why any particular number should be set as the standard. So, futile as it is, I'm going to return to it with a new argument: the number required for cloture should be pegged to the size of the Senate majority party.
Or, actually, because as long as they're (hypothetically) revisiting the rule, they should set it to the size of the Senate minority.
The most obvious option for the number needed to sustain a filibuster would be equal to the size of the minority party. So, with 45 Republicans right now, continuing a filibuster would require 45 "yea" votes. What does that do? It means that if the opposition party is unified in rejecting a judicial nominee, then Senators from the president's party may have a tough vote. If the nominee is relatively popular, no problem. If not, then, well, that's as good a sign as any that the nominee is in some way unfit or out of the mainstream.
After all, normally we could assume that any party which wins the White House and also wins the Senate -- the conditions under which any of this matters -- will be able to produce judicial nominees who are at least avoid being dramatically unpopular. In fact, all else equal, there's no reason to expect that they'll be unpopular at all. But given the loose connection between opinion on public policy and elections, it's certainly possible, especially if the president actively attempts to fill the bench with ideologues.
Some other variations: one could set it at minority plus two. With a 45 member Republican conference, they would need 47 votes to sustain a filibuster. That makes cloture quite a bit easier; only a truly unpopular nominee would likely lose. Or set it at minority minus two. That way, the majority would have to win at least two minority party votes for cloture (assuming everyone was present and the majority party was united). As we've seen, however, that option may be good for the minority party as a whole, but can force tough choices for Senators who don't want to obstruct but also don't want to be seen as squishes.
In other words, in some ways keeping the number exactly equal to the size of the minority party takes the pressure off them, and puts the pressure on marginal Senators from the majority party. In exchange, of course, at least as opposed to 60, the majority party would normally be able to confirm.
Whatever the exact number, presumably it would be capped at 60 (so a 65 Senators majority party would be able to easily get cloture). I suppose it would have to be drafted carefully to prevent gaming the system (the minority party couldn't change the number by having a half-dozen Senators declare themselves Independents); that seems doable.
Yes, some majorities would find it a lot easier to stick together than others. If the president's party has a couple of Senators who normally vote with the out-party on judicial issues, it's going to be harder to get cloture. But that was true under the old rules, too. Remember, it's been rare even in the last two Congresses for Republicans to unanimously oppose cloture on judicial nominees; that may change some with only a simple majority needed for cloture and could change under any set of rules, but if things break down the majority still could threatened a new round of majority-imposed reform.
Again: I don't expect to see this happen, mainly because I don't think Republicans are willing to compromise; I think they would rather get rolled than cut a deal. Democrats might not take it either. But I still think it's a deal that works for both sides, and for the Senate.
Basically, as I argued a while ago, I think that the filibuster (and the good things about the Senate) has a better chance of surviving long-term if the current post-nuclear situation is replaced by a negotiated settlement on nominations. The key is to get both sides to agree to something which would be better for the minority party than the post-nuclear status quo, but better for the majority party than where things were before Harry Reid acted.
In particular, I think simple majority cloture on judges is suboptimal. As long as we're talking lifetime appointments, I have no real problem with imposing some sort of supermajority requirement. When I've written about this in the past, I've always said that I had no particular attachment to 60, but I've never really had any particular notion of why any particular number should be set as the standard. So, futile as it is, I'm going to return to it with a new argument: the number required for cloture should be pegged to the size of the Senate majority party.
Or, actually, because as long as they're (hypothetically) revisiting the rule, they should set it to the size of the Senate minority.
The most obvious option for the number needed to sustain a filibuster would be equal to the size of the minority party. So, with 45 Republicans right now, continuing a filibuster would require 45 "yea" votes. What does that do? It means that if the opposition party is unified in rejecting a judicial nominee, then Senators from the president's party may have a tough vote. If the nominee is relatively popular, no problem. If not, then, well, that's as good a sign as any that the nominee is in some way unfit or out of the mainstream.
After all, normally we could assume that any party which wins the White House and also wins the Senate -- the conditions under which any of this matters -- will be able to produce judicial nominees who are at least avoid being dramatically unpopular. In fact, all else equal, there's no reason to expect that they'll be unpopular at all. But given the loose connection between opinion on public policy and elections, it's certainly possible, especially if the president actively attempts to fill the bench with ideologues.
Some other variations: one could set it at minority plus two. With a 45 member Republican conference, they would need 47 votes to sustain a filibuster. That makes cloture quite a bit easier; only a truly unpopular nominee would likely lose. Or set it at minority minus two. That way, the majority would have to win at least two minority party votes for cloture (assuming everyone was present and the majority party was united). As we've seen, however, that option may be good for the minority party as a whole, but can force tough choices for Senators who don't want to obstruct but also don't want to be seen as squishes.
In other words, in some ways keeping the number exactly equal to the size of the minority party takes the pressure off them, and puts the pressure on marginal Senators from the majority party. In exchange, of course, at least as opposed to 60, the majority party would normally be able to confirm.
Whatever the exact number, presumably it would be capped at 60 (so a 65 Senators majority party would be able to easily get cloture). I suppose it would have to be drafted carefully to prevent gaming the system (the minority party couldn't change the number by having a half-dozen Senators declare themselves Independents); that seems doable.
Yes, some majorities would find it a lot easier to stick together than others. If the president's party has a couple of Senators who normally vote with the out-party on judicial issues, it's going to be harder to get cloture. But that was true under the old rules, too. Remember, it's been rare even in the last two Congresses for Republicans to unanimously oppose cloture on judicial nominees; that may change some with only a simple majority needed for cloture and could change under any set of rules, but if things break down the majority still could threatened a new round of majority-imposed reform.
Again: I don't expect to see this happen, mainly because I don't think Republicans are willing to compromise; I think they would rather get rolled than cut a deal. Democrats might not take it either. But I still think it's a deal that works for both sides, and for the Senate.
Friday, November 22, 2013
Post-Nuclear Etc.
Just a few notes to add to what I said elsewhere, including here for what the GOP was up to and here for something about power and control in the Senate.
* I think the certainty among many liberals that Republicans would rapidly go nuclear as soon as they had unified control of the Senate and the White House is at best unproven. After all, they didn't do it when they had the opportunity during the George W. Bush years. If Democrats ratcheted down to Bush-level selective filibusters...maybe yes, maybe no. It may be true that the next GOP Senate would be more radical-influenced than the last ones, but then again they would still need the votes; if they only have 51 or 52, it's not very likely.
* Conservatives who think that Bush-era filibusters were on a par with Obama-era filibusters...just stop it. It's not a serious argument. Obama has faced a true 60 vote Senate, which means that virtually everything has been filibustered (yes, even those judges who were approved by voice vote with no cloture vote only got there because they had secured 60 votes, and that's a filibuster. Or at least it was). That's new. The blockades-by-filibuster are essentially new, too. It's a little more complicated...there have been blockades before, but they're usually by a Senate majority, or at the end of a president's term, or both. Nothing like this one. The escalation is more severe on the exec branch nomination side, but it's still very large on the judicial side.
* And that's without even getting into the blue-slip situation.
* Just to be clear: yes, Democrats definitely ratcheted up judicial nomination filibusters during the George W. Bush presidency. Democrats also bear responsibility for ratcheting up opposition to executive branch nominations, with the Tower nomination a major turning point. Democrats, however, were willing to cut a deal to back down from the edge.
* Some liberals are urging Obama to now appoint very liberal judges. If he does that, it will risk defeat the old-fashioned way, by building a coalition of all Republicans and a handful of moderate Democrats. So far, Obama has stuck to mainstream judges, and that's meant he's retained just about every Senate Democrat on almost every confirmation vote (I don't actually remember any defections, but I assume there have been a few over the years). That's not to say Obama shouldn't do it. Just that there are costs and benefits that are not always easy to calculate.
OK, that's all for now, but I suspect I'll have more points later.
* I think the certainty among many liberals that Republicans would rapidly go nuclear as soon as they had unified control of the Senate and the White House is at best unproven. After all, they didn't do it when they had the opportunity during the George W. Bush years. If Democrats ratcheted down to Bush-level selective filibusters...maybe yes, maybe no. It may be true that the next GOP Senate would be more radical-influenced than the last ones, but then again they would still need the votes; if they only have 51 or 52, it's not very likely.
* Conservatives who think that Bush-era filibusters were on a par with Obama-era filibusters...just stop it. It's not a serious argument. Obama has faced a true 60 vote Senate, which means that virtually everything has been filibustered (yes, even those judges who were approved by voice vote with no cloture vote only got there because they had secured 60 votes, and that's a filibuster. Or at least it was). That's new. The blockades-by-filibuster are essentially new, too. It's a little more complicated...there have been blockades before, but they're usually by a Senate majority, or at the end of a president's term, or both. Nothing like this one. The escalation is more severe on the exec branch nomination side, but it's still very large on the judicial side.
* And that's without even getting into the blue-slip situation.
* Just to be clear: yes, Democrats definitely ratcheted up judicial nomination filibusters during the George W. Bush presidency. Democrats also bear responsibility for ratcheting up opposition to executive branch nominations, with the Tower nomination a major turning point. Democrats, however, were willing to cut a deal to back down from the edge.
* Some liberals are urging Obama to now appoint very liberal judges. If he does that, it will risk defeat the old-fashioned way, by building a coalition of all Republicans and a handful of moderate Democrats. So far, Obama has stuck to mainstream judges, and that's meant he's retained just about every Senate Democrat on almost every confirmation vote (I don't actually remember any defections, but I assume there have been a few over the years). That's not to say Obama shouldn't do it. Just that there are costs and benefits that are not always easy to calculate.
OK, that's all for now, but I suspect I'll have more points later.
Thursday, November 21, 2013
Nuke (Maybe) Day
I'm not posting anything right now because...well, because I'm watching the Senate, and there doesn't seem to be anything more to say until we know what's going on. At least, anything worth posting about.
I'm tweeting, so head over there for blow-by-blow type stuff. I'll probably have something up later over at Greg's place, and then odds are that I'll be back here for more when things wrap up.
My guess at the beginning of the day was a 60% chance of GOP surrender (with perhaps a "deal" that's really surrender with a fig leaf; 20% chance of a deal that gives Democrats most, but not all, of what they want; 10% chance that Democrats are just bluffing, and 10% chance that Reid actually pushes the button. So far, however, there's very little chatter about, well, anything. So who knows?
Anyway, feel free to use this as an open filibuster/judges thread.
I'm tweeting, so head over there for blow-by-blow type stuff. I'll probably have something up later over at Greg's place, and then odds are that I'll be back here for more when things wrap up.
My guess at the beginning of the day was a 60% chance of GOP surrender (with perhaps a "deal" that's really surrender with a fig leaf; 20% chance of a deal that gives Democrats most, but not all, of what they want; 10% chance that Democrats are just bluffing, and 10% chance that Reid actually pushes the button. So far, however, there's very little chatter about, well, anything. So who knows?
Anyway, feel free to use this as an open filibuster/judges thread.
Tuesday, November 19, 2013
Filibuster Showdown Update
Greg Sargent is reporting that Harry Reid is going to move towards a showdown on judicial filibusters sometime in the next week, perhaps in the next couple of days.
He has a leadership aid saying Democrats have "no choice," which is pretty much what I've been saying as this thing has been developing.
Think of this as a bargaining game, with the goal of (most of the majority) Democrats to get a situation where filibusters are used, rarely, against nominees who are thought by the minority as far out of the mainstream. They don't want an outcome with no filibusters, because they want to preserve their position when they are in the minority; but they also don't want more frequent filibusters.* As Republicans push farther and farther from the Democratic ideal point, total elimination of the filibuster becomes a more and more appealing second-best end point.
Blockading three DC Appeals Court seats is, I've thought from the beginning, far beyond that line. Thus "no choice."
Remember, we still don't know exactly why the Republicans are where they are. They may want Democrats to eliminate the filibuster; in that case, that's what we'll get. On the other hand, it could merely be a breakdown in the tag-team voting they've used since the summer confrontation to get cloture on nominations, with different sets of at least five (previously six) Republicans voting yes. If that's the case, then it may just mean that the dozen or so tag teamers will get together and figure out who has to cast the three additional votes needed on these judicial nominees.
If however, Republicans mistakenly thought that they could roll the Democrats on this but don't want majority-imposed reform (which, after all, would leave them unable to stop any future nominees), then they'll need to back down, and the question becomes how far. Perhaps they could get a deal in which they only blockade one seat. More likely, they would have to give up the blockade and agree to allow final votes on at least two of the current nominees and a replacement for the other (assuming they want to take their chances with another selection).
(Tweeter Mansfield 2016 reminds us that Democrats want new additional judicial seats, and suggests that could be part of a deal. That's a deal that I think Democrats should be happy to take, but one which Senate Republican dealmakers, unfortunately, can't deliver on because it would require House Republicans to go along. It's worth remember, however, that part of the reason that the DC Circuit's caseload is comparatively low is that Congress has failed for many years now to add seats elsewhere on the federal bench).
As long as I'm here, I should mention two arguments I've made in the past that are relevant to this showdown. One is that I don't think the Democrats will push ahead with a bare majority of 50 plus Joe Biden; I think they won't do it without at least 52. I do think they'll have the votes (as Jennifer Bendery's reporting confirms) -- in fact, I suspect they'll have 54 of 55, everyone but Levin. But some of the less enthusiastic may only be along for part of the ride; indeed, it's even possible that some of them might just be bluffing, and that Harry Reid knows he can't count on them. That's possible, but I don't believe it's true at this point.
The other one is that I really don't give much weight to minority-party threats that they'll shut the Senate down after majority-imposed reform. I expect maybe a few display of outrage, but that they'll fizzle out rapidly.
At any rate, it sure looks like we'll know more very soon.
*It's actually more complicated. They may be indifferent about judicial filibusters, but want to preserve other filibusters -- and believe that majority-imposed reform on one would lead eventually to elimination of all filibusters. But that doesn't really change the situation described here.
He has a leadership aid saying Democrats have "no choice," which is pretty much what I've been saying as this thing has been developing.
Think of this as a bargaining game, with the goal of (most of the majority) Democrats to get a situation where filibusters are used, rarely, against nominees who are thought by the minority as far out of the mainstream. They don't want an outcome with no filibusters, because they want to preserve their position when they are in the minority; but they also don't want more frequent filibusters.* As Republicans push farther and farther from the Democratic ideal point, total elimination of the filibuster becomes a more and more appealing second-best end point.
Blockading three DC Appeals Court seats is, I've thought from the beginning, far beyond that line. Thus "no choice."
Remember, we still don't know exactly why the Republicans are where they are. They may want Democrats to eliminate the filibuster; in that case, that's what we'll get. On the other hand, it could merely be a breakdown in the tag-team voting they've used since the summer confrontation to get cloture on nominations, with different sets of at least five (previously six) Republicans voting yes. If that's the case, then it may just mean that the dozen or so tag teamers will get together and figure out who has to cast the three additional votes needed on these judicial nominees.
If however, Republicans mistakenly thought that they could roll the Democrats on this but don't want majority-imposed reform (which, after all, would leave them unable to stop any future nominees), then they'll need to back down, and the question becomes how far. Perhaps they could get a deal in which they only blockade one seat. More likely, they would have to give up the blockade and agree to allow final votes on at least two of the current nominees and a replacement for the other (assuming they want to take their chances with another selection).
(Tweeter Mansfield 2016 reminds us that Democrats want new additional judicial seats, and suggests that could be part of a deal. That's a deal that I think Democrats should be happy to take, but one which Senate Republican dealmakers, unfortunately, can't deliver on because it would require House Republicans to go along. It's worth remember, however, that part of the reason that the DC Circuit's caseload is comparatively low is that Congress has failed for many years now to add seats elsewhere on the federal bench).
As long as I'm here, I should mention two arguments I've made in the past that are relevant to this showdown. One is that I don't think the Democrats will push ahead with a bare majority of 50 plus Joe Biden; I think they won't do it without at least 52. I do think they'll have the votes (as Jennifer Bendery's reporting confirms) -- in fact, I suspect they'll have 54 of 55, everyone but Levin. But some of the less enthusiastic may only be along for part of the ride; indeed, it's even possible that some of them might just be bluffing, and that Harry Reid knows he can't count on them. That's possible, but I don't believe it's true at this point.
The other one is that I really don't give much weight to minority-party threats that they'll shut the Senate down after majority-imposed reform. I expect maybe a few display of outrage, but that they'll fizzle out rapidly.
At any rate, it sure looks like we'll know more very soon.
*It's actually more complicated. They may be indifferent about judicial filibusters, but want to preserve other filibusters -- and believe that majority-imposed reform on one would lead eventually to elimination of all filibusters. But that doesn't really change the situation described here.
Saturday, November 2, 2013
What Mattered This Week?
The latest filibuster showdown in the Senate matters, both because it might very well end the filibuster, and because it matters whether or not Barack Obama's choices wind up on the DC Circuit Court.
I'm not sure what I have for this week, so I'll just repeat the new research which confirms that open vs. closed primaries don't matter.
That's what I have. What about you? What do you think mattered this week?
I'm not sure what I have for this week, so I'll just repeat the new research which confirms that open vs. closed primaries don't matter.
That's what I have. What about you? What do you think mattered this week?
Monday, October 28, 2013
The Coming Senate Apocalypse. Or Not.
The first of the three DC Circuit Court nominees is headed to the Senate floor this week. Where we can expect...well, apparently we have no idea. Sahil Kapur has an overview here, but it's noticeably lacking anything very specific about what the dozen or so Republicans who have been available on exec branch nominations, since July at least, intend to do.
Way back at the start of August, Kapur had Susan Collins reading to consider each of the nominees "on the basis of his or her merits," which presumably would mean a vote for cloture (and perhaps confirmation, although her vote wouldn't be needed at that stage. He also had McCain as probably on board. As of Thursday, only five Republicans are needed to reach 60 for cloture.
But we really haven't heard much beyond that. It's pretty clear that quite a few Republicans will oppose cloture, but as usual what the radicals do doesn't matter much; what matter is whether McCain, Murkowski, Collins, Alexander, and the rest of that group can produce five votes.
If not? My guess is that a blockade of three seats on the DC Circuit Court would be enough to get Harry Reid to go back to another showdown.
I'm against eliminating filibusters on judicial nominees. In my view, large, intense minorities should have an opportunity to block lifetime appointments. As a practical matter, however, they're only going to be able to keep that opportunity if they use it sparingly. Arbitrary declarations by the minority that appointments to regular vacancies are "court packing," backed by partisan filibusters, are exactly the kind of thing that will lead to the demise of any minority influence whatsoever.
At any rate, what's sort of striking is just how little we know about what will happen this week in the Senate. We could be at the start of an epic confrontation...or it's just as possible that half a dozen or even a full dozen Republicans will vote for cloture. Kapur has been doing a good job by following this important story, and he's a good reporter, but he really doesn't have much, and neither (as far as I've seen) does anyone else. I guess we'll find out soon.
Way back at the start of August, Kapur had Susan Collins reading to consider each of the nominees "on the basis of his or her merits," which presumably would mean a vote for cloture (and perhaps confirmation, although her vote wouldn't be needed at that stage. He also had McCain as probably on board. As of Thursday, only five Republicans are needed to reach 60 for cloture.
But we really haven't heard much beyond that. It's pretty clear that quite a few Republicans will oppose cloture, but as usual what the radicals do doesn't matter much; what matter is whether McCain, Murkowski, Collins, Alexander, and the rest of that group can produce five votes.
If not? My guess is that a blockade of three seats on the DC Circuit Court would be enough to get Harry Reid to go back to another showdown.
I'm against eliminating filibusters on judicial nominees. In my view, large, intense minorities should have an opportunity to block lifetime appointments. As a practical matter, however, they're only going to be able to keep that opportunity if they use it sparingly. Arbitrary declarations by the minority that appointments to regular vacancies are "court packing," backed by partisan filibusters, are exactly the kind of thing that will lead to the demise of any minority influence whatsoever.
At any rate, what's sort of striking is just how little we know about what will happen this week in the Senate. We could be at the start of an epic confrontation...or it's just as possible that half a dozen or even a full dozen Republicans will vote for cloture. Kapur has been doing a good job by following this important story, and he's a good reporter, but he really doesn't have much, and neither (as far as I've seen) does anyone else. I guess we'll find out soon.
Friday, August 2, 2013
Nominations Update
Good news #1: The Senate processed a large batch of nominations before they left town for the month. Some ambassadors, some miscellaneous board members, but also a bunch of assistant secretaries. Fewer empty desks is good.
Good news #2: Barack Obama has cranked up the judicial nominations. Last week he sent up six;
yesterday he nominated six district court judges and three circuit court picks.
Good news #3: Along with the judicial nominations, Obama also this week sent up a slew of executive branch nominees. Fewer empty desks is good!
Bad news #1: There are still far too many vacancies without nominees, including over forty seats on the federal bench.
Bad news #2: Yes, they were busy with the executive branch nominations...but the Senate only confirmed two judges in July. They will do two more right away when they get back in September.
Bad news #3: Everyone is still ignoring my call for executive branch nomination reform: far less vetting! Which means that even if we now have simple majority confirmation, or at least least we have it as long as it lasts, it's still far too difficult to fill these spots. Again: the vetting for judges is insane, but at least plausibly justified -- no one wants a lifetime-appointment crooked judge, and those jobs are valued enough that it's unlikely the insane vetting creates any shortage of top-qualified people. But the current vetting procedures for exec branch nominations almost certainly is massively counterproductive. Among other things: I'm willing to bet that crazy over-vetting narrows the pool enough, and filters out enough perfectly good candidates, that the overall effect is to wind up with more crooks and incompetents, not fewer.
Good news #2: Barack Obama has cranked up the judicial nominations. Last week he sent up six;
yesterday he nominated six district court judges and three circuit court picks.
Good news #3: Along with the judicial nominations, Obama also this week sent up a slew of executive branch nominees. Fewer empty desks is good!
Bad news #1: There are still far too many vacancies without nominees, including over forty seats on the federal bench.
Bad news #2: Yes, they were busy with the executive branch nominations...but the Senate only confirmed two judges in July. They will do two more right away when they get back in September.
Bad news #3: Everyone is still ignoring my call for executive branch nomination reform: far less vetting! Which means that even if we now have simple majority confirmation, or at least least we have it as long as it lasts, it's still far too difficult to fill these spots. Again: the vetting for judges is insane, but at least plausibly justified -- no one wants a lifetime-appointment crooked judge, and those jobs are valued enough that it's unlikely the insane vetting creates any shortage of top-qualified people. But the current vetting procedures for exec branch nominations almost certainly is massively counterproductive. Among other things: I'm willing to bet that crazy over-vetting narrows the pool enough, and filters out enough perfectly good candidates, that the overall effect is to wind up with more crooks and incompetents, not fewer.
Friday, July 26, 2013
GOP DC Circuit Strategy, Revisited
Glenn Sugameli writes to me after I wrote this one, saying:
I watched Pillard’s hearing, and read all of the broad-ranging letters to the Senate on her nomination, and every article, opinion piece, blog post, and Senator Statement on her nomination, and as a result I agree with much of your post , but strongly disagree with this portion: “with lots of hot-button issues in her writings for them to attack. …. Pillard, however, will have serious opposition, and it's probably more likely than not that she'll be killed by filibuster.”He sends along too a link to his extremely thorough and helpful site.
At her hearing, only three Judiciary Committee Republicans (Grassley, Lee and Cruz) really grilled Pillard (and ignored how their misconceptions and distortions that were dispelled by her testimony and prior writings). Sen. Flake asked good questions and seemed pretty satisfied with her answers.
I strongly conclude that there NOT are “lots of hot-button issues in her writings for them to attack.” [...]
As for a filibuster, Sen. Murkowski [R-AK] always opposes them on judicial nominees, McCain, THE key player on filibusters has disavowed filibusters on the D.C. Circuit nominees and one cosponsor of Grassley’s bill (Collins) wrote an Op-Ed that she would not filibuster on that basis and another (Graham) said he is uncertain.
First, to clarify: when I say that there are hot-button issues, I'm not saying that critics are correct -- or even that critics are basing their complaints on anything real. Only that opponents have raised (bogus or not) the kinds of issues which tend to be difficult for other Republicans to ignore.
But second: I take the vote-counting here seriously. If Flake in particular is satisfied with Pillard, or at least satisfied enough that he would vote for cloture, then he's going to be confirmed.
Or, to put it another way: I may have been totally wrong on this one. I'll keep watching, of course.
Read Stuff, You Should
Happy Birthday to Jeremy Piven, 48. I can't help but liking PCU; given all the Wesleyan people in Hollywood, as far as I know this is the only one actually about Wesleyan.
And good stuff:
1. Dahlia Lithwick on Nina Pillard, Senate Republicans, and "radical feminism."
2. Philip Klein, trying to convince conservatives that sounding like bigots is a bad idea. I think he's acting in good faith (although he might want to work on a stronger description of Jim Crow).
3. Ross Douthat on the politics for Republicans of voter ID and other such laws.
4. Abby Rapoport on the North Carolina voter restriction law.
5. And Molly Ball in This Town.
And good stuff:
1. Dahlia Lithwick on Nina Pillard, Senate Republicans, and "radical feminism."
2. Philip Klein, trying to convince conservatives that sounding like bigots is a bad idea. I think he's acting in good faith (although he might want to work on a stronger description of Jim Crow).
3. Ross Douthat on the politics for Republicans of voter ID and other such laws.
4. Abby Rapoport on the North Carolina voter restriction law.
5. And Molly Ball in This Town.
Thursday, July 25, 2013
GOP DC Circuit Strategy Emerging
Yesterday the second of the three DC Circuit nominees, Nina Pillard, had her judiciary committee hearing; Todd Ruger reports.
The takeaway seems to be that after a hearing for nominee Patricia Millett in which Republicans focused on their bogus "court packing" story, Pillard has emerged as the main target, with lots of hot-button issues in her writings for them to attack.
So here's what's going to happen, apparently. For Millett and for U.S. District Judge Robert Wilkins, the third nominee, we'll get lots of harumphing about workload in the DC Circuit court, and hard-liners will oppose cloture on that basis...but they'll fall short, perhaps by half a dozen votes. Both will be confirmed. Pillard, however, will have serious opposition, and it's probably more likely than not that she'll be killed by filibuster.
That's all still speculative, but I it fits the situation. I very much doubt that Democrats are going to go nuclear over a single judicial nominee, especially if she's opposed on the merits (whether reasonable or not). If, however, Republicans really went along with Chuck Grassley's "court packing" nonsense and blockaded one or more spots on the DC bench...well, that would be a much bigger deal. As it is, a successful filibuster kill of the Pillard nomination along with two confirmations would mean that half of Obama's DC Circuit nominees this year were obstructed -- but Republicans can counter that the overall appeals court confirmation rate is far higher, and then confirm the next replacement.
Again, that's speculative. Perhaps Pillard will squeak through. Perhaps a more intense opposition will develop to one of the others.
But I'm fairly confident that none of them will be blocked on "court packing" alone, which means that there's no (admitted) blockade of these seats, and therefore no real need for Democrats to go nuclear on judicial nominations. At least I don't think that an occasional circuit court filibuster kill is the kind of obstruction significant enough in practice to overcome Senatorial reluctance to lose the filibuster, nor do I think it's significant enough in theory, for that matter.
So far. We'll have to just see what comes next.
Monday, June 24, 2013
Very Mildly Cranky Monday Blogging
Ah, Monday Cranky Blogging. It's been a while. I'm not sure why; it's possible it's because the Sunday newspapers are running fewer annoying pieces...and it's possible it's because I'm less willing to read, and thus get annoyed by, the ones most likely to get me upset.
Which gets to a mostly solid Sunday column by the always excellent David Leonhardt about the judicial confirmation battles. Leonhardt looks at the claims and counterclaims about how much obstruction there's been, and concludes that obstruction of circuit court nominees has been about the same during Barack Obama's presidency as it was during the George W. Bush years, but that the obstruction of district court nominees has been worse.
I think that's basically the right story to tell. So why am I a bit cranky?
Leonhardt could have done a bit more about obstruction at the initial nomination stage, but at least he mentioned the "blue slip" problem, and he had limited space to work with, so that's pretty good, actually.
However, the item really is missing anything about partisan context.
The current Congress has had either 55 or 54 Democrats; the 109th Congress, in 2005-2006, had 55 Republicans. That's a dead even tie.
The previous Congress, 2011-2012, had 53 Democrats; the 108th, 2003-2004, had 51 Republicans. So Obama had a slightly better partisan context for his second Congress.
But the Congress they had at the beginning of their first terms were wildly different. For most of the 107th Congress, Democrats held a 51-49 majority; for about five months at the beginning, Republicans had a slim 50-50 majority, with Vice President Dick Cheney breaking the tie and allowing them to organize the body. For Obama, the historic 111th varied between 58, 59, and 60 Democrats -- a lopsided majority, and sometimes a filibuster-proof (sort of) supermajority.
That's a big deal! For one thing -- blocking the president's judicial nominees with a majority is really a much different thing than blocking them with a minority. In general, I don't think presidents are entitled to the people they want on the bench; if they select judges that the majority of the Senate opposes, then that's not really "obstruction" in the same way that using parliamentary procedures to push back a vote or to prevent one altogether is.
The bottom line is that there's no reason to have expected Bush's nominees in 2001-200 to have been as successful as Obama's in 2009-2010, all things being equal -- including out-party opposition.
As I said, overall it's an excellent item. Just excluding this one point makes me, oh, a little cranky.
Which gets to a mostly solid Sunday column by the always excellent David Leonhardt about the judicial confirmation battles. Leonhardt looks at the claims and counterclaims about how much obstruction there's been, and concludes that obstruction of circuit court nominees has been about the same during Barack Obama's presidency as it was during the George W. Bush years, but that the obstruction of district court nominees has been worse.
I think that's basically the right story to tell. So why am I a bit cranky?
Leonhardt could have done a bit more about obstruction at the initial nomination stage, but at least he mentioned the "blue slip" problem, and he had limited space to work with, so that's pretty good, actually.
However, the item really is missing anything about partisan context.
The current Congress has had either 55 or 54 Democrats; the 109th Congress, in 2005-2006, had 55 Republicans. That's a dead even tie.
The previous Congress, 2011-2012, had 53 Democrats; the 108th, 2003-2004, had 51 Republicans. So Obama had a slightly better partisan context for his second Congress.
But the Congress they had at the beginning of their first terms were wildly different. For most of the 107th Congress, Democrats held a 51-49 majority; for about five months at the beginning, Republicans had a slim 50-50 majority, with Vice President Dick Cheney breaking the tie and allowing them to organize the body. For Obama, the historic 111th varied between 58, 59, and 60 Democrats -- a lopsided majority, and sometimes a filibuster-proof (sort of) supermajority.
That's a big deal! For one thing -- blocking the president's judicial nominees with a majority is really a much different thing than blocking them with a minority. In general, I don't think presidents are entitled to the people they want on the bench; if they select judges that the majority of the Senate opposes, then that's not really "obstruction" in the same way that using parliamentary procedures to push back a vote or to prevent one altogether is.
The bottom line is that there's no reason to have expected Bush's nominees in 2001-200 to have been as successful as Obama's in 2009-2010, all things being equal -- including out-party opposition.
As I said, overall it's an excellent item. Just excluding this one point makes me, oh, a little cranky.
Tuesday, June 18, 2013
Please, More Reporting Like This (Judges ed.)
Fascinating parenthetical in Emily Heil's story about judicial vacancies:
But what's this about Democratic Senators? We know (or at least we think we know) that Republican Senators have been slow-walking nominations in their states, but the general sense I've had is that the delays in Democratic states have been the administration's fault. Here, it's posed as the fault of Democratic Senators -- at least recently. Is that true?
One way to look at it is that it's fair to blame Obama up to the point that he makes it clear that he's doing whatever he can; that is, if he hasn't been "sufficiently badgering" in public, we know he hasn't done everything he can do. But overall, it's hard to tell! So, good reporting here, but more, please.
Oh - and that "raft" of new names? Seems like we've been hearing that all year, which makes me more inclined to think that the whole paragraph is mainly WH spin. Of course, we eventually did get the three DC Circuit picks, so you never know.
Some vacancies have remained without nominees because home-state senators have yet to make recommendations to the White House to begin with — and in states with two GOP senators, that means they can delay the process there. (However, we hear that President Obama has sufficiently badgered at least Democratic senators to start providing names of judges, and observers are expecting a “raft” of new names from the White House soon.)First, it's good reporting to note the Senate's role in the delays in judicial nominations at the very beginning of the process.
But what's this about Democratic Senators? We know (or at least we think we know) that Republican Senators have been slow-walking nominations in their states, but the general sense I've had is that the delays in Democratic states have been the administration's fault. Here, it's posed as the fault of Democratic Senators -- at least recently. Is that true?
One way to look at it is that it's fair to blame Obama up to the point that he makes it clear that he's doing whatever he can; that is, if he hasn't been "sufficiently badgering" in public, we know he hasn't done everything he can do. But overall, it's hard to tell! So, good reporting here, but more, please.
Oh - and that "raft" of new names? Seems like we've been hearing that all year, which makes me more inclined to think that the whole paragraph is mainly WH spin. Of course, we eventually did get the three DC Circuit picks, so you never know.
Tuesday, June 4, 2013
Assumption GOP Will Blockade DC Circuit Is Probably Wrong
With the three DC Circuit Court of Appeals nominees finally getting named and sent to the Senate today, I'm seeing a lot of liberal pessimism about the next step. Kevin Drum says "We already know that Republicans are going to oppose all three of Obama's nominees...because, based on its caseload, the DC Court is too big and should be pared back by three seats." Matt Yglesias is even more convinced: "Note that precisely because the stakes are high here the odds of Obama succeeding are approximately zero." I know when I write about the possibility of a GOP blockade in these seats, I regularly get comments hitting me for suggesting that such a blockade is only possible, not virtually certain.
I guess we'll see soon enough, but I think this is wrong. For one thing, if Republicans really do choose to explicitly blockade the DC Circuit, it would almost certainly push Democrats over the edge into going nuclear. For another, the Republican record just hasn't been one of blockading Appeals Court nominees. Yes, lots of foot-dragging, and yes, 60 votes are required for all of them, and yes, most draw some opposition...and, yes, a few have been defeated. But that's all. The majority of Barack Obama's appellate nominees have eventually been confirmed -- and that's true whether Republicans had 40 or 41 or 47 or 45 seats in the Senate.
Here's my guess -- not a prediction, but just a guess based on past patterns. We'll continue to hear the insipid rhetoric about "court packing" and how the DC Circuit doesn't need any judges anyway, but that will be mostly just background music for the rubes. One of the picks will get through fairly easily. One will be killed by filibuster. And the third will be a close call, but probably get through, perhaps with a few Republicans voting yes on cloture but against confirmation. Those opposing picks will mainly focus on claims that the nominees are out of the mainstream ideologically, or will allege lack of proper judicial temperament, or some other such reason -- very few Republicans will claim that they are blockading the DC Circuit Court.
It's a guess, not a prediction. But I do think it's more likely all three will be confirmed than that all three will be defeated. Far more likely.
And what's more...if the Judiciary Committee, Harry Reid, and Barack Obama are aggressive about the schedule, including a replacement if one of the current nominees is defeated by filibuster, then all three seats will be filled during the current Congress.
I guess we'll see soon enough, but I think this is wrong. For one thing, if Republicans really do choose to explicitly blockade the DC Circuit, it would almost certainly push Democrats over the edge into going nuclear. For another, the Republican record just hasn't been one of blockading Appeals Court nominees. Yes, lots of foot-dragging, and yes, 60 votes are required for all of them, and yes, most draw some opposition...and, yes, a few have been defeated. But that's all. The majority of Barack Obama's appellate nominees have eventually been confirmed -- and that's true whether Republicans had 40 or 41 or 47 or 45 seats in the Senate.
Here's my guess -- not a prediction, but just a guess based on past patterns. We'll continue to hear the insipid rhetoric about "court packing" and how the DC Circuit doesn't need any judges anyway, but that will be mostly just background music for the rubes. One of the picks will get through fairly easily. One will be killed by filibuster. And the third will be a close call, but probably get through, perhaps with a few Republicans voting yes on cloture but against confirmation. Those opposing picks will mainly focus on claims that the nominees are out of the mainstream ideologically, or will allege lack of proper judicial temperament, or some other such reason -- very few Republicans will claim that they are blockading the DC Circuit Court.
It's a guess, not a prediction. But I do think it's more likely all three will be confirmed than that all three will be defeated. Far more likely.
And what's more...if the Judiciary Committee, Harry Reid, and Barack Obama are aggressive about the schedule, including a replacement if one of the current nominees is defeated by filibuster, then all three seats will be filled during the current Congress.
Monday, June 3, 2013
Judges, Please
[Updated]
NYT last Monday:
So last Monday we had three apparent finalists and an announcement any minute...and this week, we have four finalists for three spots, with an announcement still any minute.
I might as well toss in this WaPo gem from March 3:
Hey, maybe it really will happen this time! But, you know, as Woody said: fool me once, Dr. Crane.* I'm not from Missouri, but at this point if Obama wants me to believe that these nominations are happening, he'll have to show me.
*Okay: I use that one all the time, but I don't remember which episode it's from. Anyone?
[UPDATE: And now, the latest is that the judges will in fact be named tomorrow. After an emergency meeting of the Plain Blog board of directors, we've decided to go with "my pressure got them to do it" rather than "perhaps I was just whining a lot over nothing." Although I probably should just wait until it really happens to believe it, anyway...]
NYT last Monday:
White House officials declined to say who Mr. Obama’s choices will be ahead of an announcement that could come this week, but leading contenders for the spots appear to include Cornelia T. L. Pillard, a law professor at the Georgetown University Law Center; David C. Frederick, who often represents consumers and investors at the Supreme Court; and Patricia Ann Millett, a veteran appeals lawyer in Washington.NYT today, one week later:
Robert L. Wilkins, a federal district court judge in the District of Columbia, is among those being considered by President Obama to fill one of three vacancies on a key federal court, nominations he could announce as early as this week, according to legal experts.(My emphasis.)
So last Monday we had three apparent finalists and an announcement any minute...and this week, we have four finalists for three spots, with an announcement still any minute.
I might as well toss in this WaPo gem from March 3:
The president has named three dozen judicial candidates since January and is expected to nominate scores more over the next few months, aides said.In which gullible reporters gave Obama credit for renominating judges who the Senate hadn't confirmed last year.
Hey, maybe it really will happen this time! But, you know, as Woody said: fool me once, Dr. Crane.* I'm not from Missouri, but at this point if Obama wants me to believe that these nominations are happening, he'll have to show me.
*Okay: I use that one all the time, but I don't remember which episode it's from. Anyone?
[UPDATE: And now, the latest is that the judges will in fact be named tomorrow. After an emergency meeting of the Plain Blog board of directors, we've decided to go with "my pressure got them to do it" rather than "perhaps I was just whining a lot over nothing." Although I probably should just wait until it really happens to believe it, anyway...]
Wednesday, May 29, 2013
Dear Liar Love Me (Elsewhere...)
At PP today I have an item talking about fact checkers -- and echoing the point from John Sides and Brendan Nyhan that one should be extremely cautious about concluding anything from the ratings that those fact checkers give out.
Yesterday over there I wrote about the coming showdown on judicial nominations.
At Greg's place yesterday, I discussed one of the potentially dangerous consequences of the post-policy GOP: that they may not be able to tend to the policy preferences of their aligned interest groups.
And at Plum Line on Monday I looked at the math for immigration reform in the House.
Yesterday over there I wrote about the coming showdown on judicial nominations.
At Greg's place yesterday, I discussed one of the potentially dangerous consequences of the post-policy GOP: that they may not be able to tend to the policy preferences of their aligned interest groups.
And at Plum Line on Monday I looked at the math for immigration reform in the House.
Tuesday, May 28, 2013
Are Harry Reid's Threats Working?
Item: Sri Srinivasan was confirmed for the DC Circuit Court, the first Obama pick to reach that important bench.
Item: District Judge nominee William Orrick was confirmed 56-41 on May 15 (with two Democrats and one Republican missing the vote); no cloture vote was taken. There was also a minor executive branch confirmation a week before that with a 53-45 vote, also without a cloture vote.
Item: Rob Portman is apparently trying to cut a deal on the Cordray nomination for the Consumer Financial Protection Bureau, one of the "nullification" blockade filibusters. In the Roll Call article, he's supposedly only asking for an Inspector General (something that Democrats would almost certainly be glad to give him), rather than for the restructuring that Republicans have been demanding as the price for letting any nominee through. I agree with David Dayen's skepticism that Republicans really would do that deal, but for whatever it's worth, that's the report.
Put it all together, and do you have evidence that Republicans are actually moving a bit in response to Harry Reid's threats to go nuclear?
To tell the truth...I'm not sure. A Cordray deal the Democrats could live with would be a major GOP loss, but that's pretty much at the rumor stage at best. The two nominations without 60...that's something we've seen in the past, too, and remember that we're talking here about a District Court nominee (where several Republicans have been reluctant to take the filibuster) and another obscure one. The Srinivasan confirmation, and in fact that's one of six appeals court judges confirmed this year against one killed by filibuster, is certainly a positive step, but again it's not as if Republicans have ever blocked absolutely everything, so it's very tricky to know what's a retreat and what's just business as usual.
And certainly there's no shortage of current filibusters and threats of filibusters. It's hardly the case that Republicans have full-out retreated.
As I said earlier today over at PP, we just don't know yet how much of Republican talk about the remaining DC Circuit nominees (assuming that actually happens) is bluff, and how much of it is real. Nor do we know whether nominees for Labor and EPA will get five Republican votes for cloture. My best guess is that one or two of this group -- CFPB, Labor, EPA, DC Circuit -- will be killed by filibuster, and the other four or five will just barely make it...and that this will be just enough to avoid the nukes. But that's a guess!
I know that a lot of liberals believe that Republicans simply will not back down at all. That might be true, but there's just no way to know right now.
Which is why what Reid's been doing -- keeping the threat of majority-imposed reform alive and increasing it as needed -- is the right strategy.
At any rate, I guess we're going to know a lot more in a few weeks.
Item: District Judge nominee William Orrick was confirmed 56-41 on May 15 (with two Democrats and one Republican missing the vote); no cloture vote was taken. There was also a minor executive branch confirmation a week before that with a 53-45 vote, also without a cloture vote.
Item: Rob Portman is apparently trying to cut a deal on the Cordray nomination for the Consumer Financial Protection Bureau, one of the "nullification" blockade filibusters. In the Roll Call article, he's supposedly only asking for an Inspector General (something that Democrats would almost certainly be glad to give him), rather than for the restructuring that Republicans have been demanding as the price for letting any nominee through. I agree with David Dayen's skepticism that Republicans really would do that deal, but for whatever it's worth, that's the report.
Put it all together, and do you have evidence that Republicans are actually moving a bit in response to Harry Reid's threats to go nuclear?
To tell the truth...I'm not sure. A Cordray deal the Democrats could live with would be a major GOP loss, but that's pretty much at the rumor stage at best. The two nominations without 60...that's something we've seen in the past, too, and remember that we're talking here about a District Court nominee (where several Republicans have been reluctant to take the filibuster) and another obscure one. The Srinivasan confirmation, and in fact that's one of six appeals court judges confirmed this year against one killed by filibuster, is certainly a positive step, but again it's not as if Republicans have ever blocked absolutely everything, so it's very tricky to know what's a retreat and what's just business as usual.
And certainly there's no shortage of current filibusters and threats of filibusters. It's hardly the case that Republicans have full-out retreated.
As I said earlier today over at PP, we just don't know yet how much of Republican talk about the remaining DC Circuit nominees (assuming that actually happens) is bluff, and how much of it is real. Nor do we know whether nominees for Labor and EPA will get five Republican votes for cloture. My best guess is that one or two of this group -- CFPB, Labor, EPA, DC Circuit -- will be killed by filibuster, and the other four or five will just barely make it...and that this will be just enough to avoid the nukes. But that's a guess!
I know that a lot of liberals believe that Republicans simply will not back down at all. That might be true, but there's just no way to know right now.
Which is why what Reid's been doing -- keeping the threat of majority-imposed reform alive and increasing it as needed -- is the right strategy.
At any rate, I guess we're going to know a lot more in a few weeks.
Saturday, May 25, 2013
What Mattered This Week?
There's a new judge on the DC Circuit, the first one nominated by Barack Obama. That's going to matter. I'll add that the developments over nominations and Senate reform matter more generally, although it's still too early to know how they will turn out.
I'm inclined to think that the McCain/Cruz feud won't turn out to matter much. I certainly don't think it matters whether or not Congress goes to a formal conference committee on the budget.
That's what I have. What about you? What do you think mattered this week?
I'm inclined to think that the McCain/Cruz feud won't turn out to matter much. I certainly don't think it matters whether or not Congress goes to a formal conference committee on the budget.
That's what I have. What about you? What do you think mattered this week?
Thursday, May 23, 2013
Sri Srinivasan Confirmed
Sri Srinivasan was confirmed unanimously this afternoon, 97-0, for a position on the DC Circuit Court of Appeals. He was originally nominated on June 11, 2012 for a position vacant since November 1, 2008.
So there's one obvious point, and one huge question.
The point: yes, it's absolutely ridiculous that a unanimous pick took eleven months. The only somewhat reasonable part of the delay was in the run-up to the 2012 election; it's traditional for the out-party to drag their feet to prevent confirmations just before an election, even though Republicans in this case push that to (and beyond) reasonable limits. But there was a lame duck session; they could have taken care of unopposed nominations then. Or in February, March, or April.
The question: having given up on Srinivasan, will Republicans now blockade the remaining three vacancies on the DC Circuit Court, perhaps on the bogus pretext that those judges aren't actually needed? If so, that's something that's almost certainly worth going nuclear over. It's certainly possible, however, that they're only going to target those they consider "extremists" -- and that those will be a small minority of all nominees. Surely that's what Mitch McConnell and the Republicans would claim as the July showdown over obstruction gets closer. But as of now, we don't really know the answer.
And for that, yes, it would help if there actually were nominees for those three vacancies.
So there's one obvious point, and one huge question.
The point: yes, it's absolutely ridiculous that a unanimous pick took eleven months. The only somewhat reasonable part of the delay was in the run-up to the 2012 election; it's traditional for the out-party to drag their feet to prevent confirmations just before an election, even though Republicans in this case push that to (and beyond) reasonable limits. But there was a lame duck session; they could have taken care of unopposed nominations then. Or in February, March, or April.
The question: having given up on Srinivasan, will Republicans now blockade the remaining three vacancies on the DC Circuit Court, perhaps on the bogus pretext that those judges aren't actually needed? If so, that's something that's almost certainly worth going nuclear over. It's certainly possible, however, that they're only going to target those they consider "extremists" -- and that those will be a small minority of all nominees. Surely that's what Mitch McConnell and the Republicans would claim as the July showdown over obstruction gets closer. But as of now, we don't really know the answer.
And for that, yes, it would help if there actually were nominees for those three vacancies.
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