Tuesday, July 05, 2005

There's Room for Middle Ground Here...

So says a reader and anonymous poster below. I agree. Be sure to tell the Democrats that.

They are not interested in a Justice who is a moderate. They want a leftist, and they are under the impression that the rest of America doesn't see through the bunk. The Democrats on the Judiciary Committee will bombard the nominee with repeated questions about whether Roe v. Wade is the settled law of the land, how the nominee would rule on an abortion case, whether the Constitution is a "living document"--none of which is an appropriate question, as they imply political matters and matters upon which a justice may eventually rule. And good jurists don't comment on matters which may eventually come before them. And in this atmosphere, I would not be thoroughly surprised if the Democrats, Schumer and Kennedy in particular, raised the validity of Bush v. Gore, or even questions about the political views of various justices (guess which ones) who still sit on the Court. The age of shame is gone.

And if Justice O'Connor was put up today she would likely be filibustered. She may have had a known pro-choice tilt, but when nominated by Ronald Reagan, she had what appeared to be fairly conservative southwestern credentials. And the praise which the Dems shower upon her is complete hogwash. They care for her not a drop more than the nominee they are about to abuse and smear. They're just glad to have her gone and it doesn't help them to waste their bile on an outgoing justice and a truly fine person.

And with respect to Bush's falling poll numbers, Anonymous may want to check the facts. Before engaging in a satisfying guffaw, ask Stanley Greenberg just how happy he is with his own party's numbers, compared to those of the Republicans.

4 Comments:

Anonymous Anonymous said...

Here is Bush's current job approval trend:
http://www.pollingreport.com/BushJob.htm

He hasn't seen majority approval since St. Patrick's day.

Finally, the democrats aren't gonna be doing anything different or special in the upcoming confirmation hearings. At least nothing more partisan than either party has experienced or participated in, in the past.

Obviously there will be Dems who fight tooth and nail, no matter who is nominated; only because this is a chance for them to step into the spotlight and make a name for themselves. Much akin to the many Republicans who jumped in front of the cameras during the Terri Schivo ordeal. But that doesn't mean that anyone on the left of the spectrum will be deaf to a rationale candidate.

pollingreport.com also shows that a majority of Americans believe that Pres. Bush should nominate a barrister that Democrats can agree on. This being the central premise of the agreement by the band of 14: compromise.

Why fear the filibuster? It's been a procedural tool used for 100 years, but both sides of the political spectrum. Republicans clearly have the upper-hand, why fault the Democrats for fighting for what they believe in by using the only tool available to them? From an originalist perspective, isn't this exactly what the framers had in mind?

8:38 PM  
Blogger Gary Gross said...

First of all, the polls Anon cited are skewed by oversampling Dems & undersampling Independents & Republicans. In those circumstances, I'd find it remarkable to find the President with a 50+ percent JA rating.

Secondly, the Dems really aren't relevant to the process in that they can't get away with a filibuster because the minute a filibuster starts is the minute that Mike DeWine, John Warner & Lindsey Graham tell Sen. Frist that they'll vote for the Constitutional Option. This trio are all on record as saying that being a conservative isn't an 'extraordinary circumstance' that allows for the filibustering of judicial nominees.

If there's just a tough fight on the Senate floor over the nominee, the President gets his way. If the Dems from the 'Gang of 14' keep their word, they'll break ranks with their colleagues & vote for cloture, in which case the President gets his SC Justice. If the Dems filibuster, the Constitutional Option is invoked & ratified & President Bush gets his SC Justice.

Finally, the filibuster has never been used to defeat a Supreme Court nominee that has majority support. The only time it's been used on a Supreme Court justice was in 1968 when LBJ nominated Abe Fortas to be the Chief Justice. He was filibustered by both Democratic & Republican senators because he has serious ethical problems. Within 4 days, LBJ withdrew his nomination of Fortas & the filibuster ended.

As for the originalist point, Ann Althouse has uncovered documentation that the Founding Fathers voted 3 times on whether they should put into the Constitution a provision for Advice & Consent that would require a two thirds majority to DEFEAT a nominee. Ultimately, they didn't but that's how much deference they gave to the Executive Branch.

Also, Alexander Hamilton noted in Federalist No. 66, "[i]t will be the office of the president to nominate, & with the advice & consent of the senate to appoint. There will, of course, be no exertion of choice on the part of the senate. They may defeat one choice of the executive...but they cannot themselves choose, they can only ratify or reject the choice, of the president."

Hamilton explained why this was important in Federalist No. 76, where he wrote that "one man of discernment is better fitted to analyze & estimate the peculiar qualities adopted to particular offices than a body of men...A single well-directed man by a single understanding, cannot be distracted & warped by that diversity of views, feelings & interests, which frequently distract & warp the resolutions of a collective body."

I think that identifies what the original intent of the Founding Fathers was.

12:05 AM  
Anonymous Anonymous said...

You are right, the Dems really have very little say here. The Gang of 14 will essentially force a vote on any rationale candidate; however, that doesn't mean that any candidate that Bush put forth will have majority support. The way rhetoric is flying right now, Alberto Gonzalez might not get complete Republican support upon nomination. The question is whether Bush will appoint a candidate who will be divisive or consensus. That's really an issue of political capital.

I love that you quote the Federalist papers. I think they an important tool to understand what our forefathers intended our constitution to represent. That doesn't mean that a strict originalist interpretation is the best, clearest, or most efficient modality by which to base one determination of constitutionality. It is, however, very helpful.

Also, where did you find the information regarding party sampling? I was of the impression that the pollingreport was a metacompliation of various trustworthy polls. If each of these polls undersamples R&Is, I'd definately like to know. It'd make the information gathered much more reliable. Thanks for taking the time to discuss, I can always appreciate rational conversation.

Finally, I believe that Fortas actually did have majority support (but barely) prior to the filibuster, but becuase of delays by Johnson and conflicts of interest, support waned and the votes necessary for cloture faded. Thus, Johnson withdrew. Either way, it doesn't make sense to filibuster when there is a minority in favor becuase you aren't really accomplishing anything.

1:58 AM  
Blogger Gary Gross said...

Starting with the last point first, Fortas had majority support initially. After all, he was already an associate Justice & was being nominated to be the next Chief Justice. Fortas' support started dissipating when his ethical liabilities surfaced.

As for Alberto Gonzales not getting majority support, I don't think it'll come to that. I'd doubt that he'll be nominated, mainly because he doesn't have a paper trail of decisions to review. In that sense, he's similar to David Souter, who's been a disaster. For those that think the President, more accurately that 'the architect' wants a Hispanic nominated in this slot, that still points away from Gonzalez because President Bush could still nominate Justice Garza, who's Hispanic, has a solid record as a conservative & who's got a lengthy paper trail.

Most likely, though, I think either John Roberts or J. Michael Luttig will be the first nominee. Both are strong conservatives with a solid paper trail as proof. Also, RedState.org is reporting that VP Cheney is impressed with Mr. Roberts, which is important.

4:35 AM  

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