Here's What's Left

A definitely unconstitutional option

I really hope that this is not what our friends on the right want:

Putting more evangelicals on the court will mean rulings more in tune with the religious convictions of churchgoers, said R. Albert Mohler Jr., president of the Southern Baptist Theological Seminary in Louisville.

"We are not asking for persons merely to be moral," Mohler said. "We want them to be believers in the Lord Jesus Christ."

Unless Rev. Mohler was really quote out of context, that's not just dumb.  It really is unconstitutional. 

Article VI, Clause 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Rev. Mohler seems to want a religious test.  He wants Senators to nominate specifically evangelical Christians.  That's a religious test. 

I hope our friends on the right will see the irony of the fact that they claim that they only want judges who interpret the Constitution, not rewrite it, even while they tell us that they want something different that the Constitution specifically forbids.  I'm not confident they will.

-- Michael

The unconstitutional option?!

Wow, here's a bit of truly crazy wingnuttery I hadn't heard before:

One of the judges who was blocked, former federal judge Charles Pickering of Mississippi, called the tactic unconstitutional and said it should be ended permanently if it is used again.

Pickering said the Constitution requires a simple majority to approve or reject a nominee. Because a filibuster requires 60 votes to overcome, he said it is an unconstitutional barrier.

"The constitutional solution is the only option if there is another filibuster of a judicial nominee," Pickering said. "Why shouldn't the Constitution be followed?"

Kind of disturbing really.  That someone that President Bush would nominate seems not to have read the Constitution. 

Article II, Section 2, Clause 2:

He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for[.]

As you can plainly see, the constitution doesn't specify what kind of advice or consent the Senate is supposed to give judicial nominees.  So Pickering would be wrong even if the following sentence weren't in the Constitution.  Article I, Section 5, Clause 2:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

As we all know, the filibuster is a procedural matter, and the Senate clearly has the right to determine its own rules.  Given that they decided a long time ago that you need 60 votes to end debate, there's nothing unconstitutional about it.

But Pickering's weird fantasy seems to raise some points that are kind of funny if you take them to their logical conclusion.  If the filibuster of judicial nominations is unconstitutional, does that mean that republican members could sue Democratic members; and that a federal judge could order the Senate to change its rules?  Apart from being tremendously activist, wouldn't such a ruling fundamentally damage that most treasured of conservative concepts, the separation of powers?

Also, isn't it a funny irony that a man who Democrats called unfit for the federal bench is actually illustrating how unfit he is while in the process of arguing against the thing that has kept him off the bench.  Kind of a mind-fuck, isn't it? 

-- Michael

UPDATE: Kagro X has not dissimilar, smarter thoughts. 

Constitutional Nuclear

So everyone's writing today about how the republicans are trying to change the phrase "nuclear option" to "constitutional option."  (Armando, Atrios, Josh). It's great that people are talking about it, but seriously, is this the first time people have noticed it?  republicans have been doing it for a while now.  I wrote about it over at Ezra's place on April 3, but only after reading an excellent post (from a week earlier) at The Next Hurrah about it. 

We should have seen it coming, though I certainly agree that if we can make the story in the mainstream media about how conservatives are trying to change something's name again because of polling, that'll be an added bonus.

-- Michael

UPDATE: Ya know, thinking about this issue makes me slightly annoyed.  I have a lot of respect for all of the blogs that I linked to above; and I've never really bought into criticism of them based solely on the fact that they don't link to the little people as much as they should.  But given that more than one person has noticed the Constitutional-Nuclear shift and written about it before (indeed, give that republicans had an article written in the Harvard Law Review telling us why it's a constitutional option), and that only now does Atrios et al pay attention to it because John Marshall decided to write about it -- I don't know.  Somehow that doesn't sit well with me. 

Strategic judging

I'd like to say a few more words (on top of what I said yesterday) about why I think the right-wing fight over the judiciary is more tactico-political than it is substantive.  Here's my reasoning:

1) If the goal of the right is really to remake the judiciary in their image, you'd think they want to get as many of their judges confirmed as quickly as possible.  That they'd do it stealthily rather than publicly.  Rather than worry about 10 or so judges that Democrats seem intent on not seeing on the bench, why not just withdraw those nominations and nominate only slightly less offensive individuals?

2) I you want to get your people on the bench, why pick nominees who will be intentionally controversial?  Why pick someone like Bill Pryor (who has had a high profile and made a lot of inflammatory public statements) or Janice Rogers Brown (who publicly stated views really are outside the mainstream of American politics)?  I can think of one reason why you'd pick such nominees, and it's not because of their qualifications.  It's to bait the opposition into opposing them, so that you can accuse them of being racists (in Rogers Brown's case) or anti-religion (in Pryor's). 

I think Dems got set up.  And they should have seen it coming.

The goal for some republicans in this case is to demonize and weaken the united opposition as much as it can.  Perhaps the ultimate goal is to get their judges on the bench, but that's far in the future at this point.  The immediate goal is to embarrass the Dems, and the fight over the filibuster was a set-up from the beginning. 

What I'd like to emphasize here is that I'm really not sure anymore that the right cares about overturning Roe, or the gay marriage stuff, or the ten commandments stuff.  Though this has been obvious in the legislative realm for quite some time (there was never the political muscle to pass a marriage amendment, etc.) I didn't doubt their sincerity on judicial nominations.  Now, I'm afraid, I do.

-- Michael

Crusade?

The WaPo carries two columns today about the Christian right.  One, by Colbert King, is a pretty good standard denunciation of the their tactics and their attempts to appropriate for themselves various aspects of American life.  The second, by Paul Gaston, is really interesting, and proposes something I hadn't considered too seriously:

What these self-avowed Christians do not acknowledge -- and what the American public seems little aware of -- is that the war they are waging is actually against other people calling themselves Christians. To simplify: Right-wing and fundamentalist Christians are really at war with left-wing and mainstream Christians. It is a battle over both the meaning and practice of Christianity as well as over the definition and destiny of the republic. Secular humanism is a bogeyman, a smoke screen obscuring the right-wing Christians' struggle for supremacy.

The assault on the judiciary is especially revealing. The vicious attacks on Judge George Greer, the Florida jurist who presided over the Schiavo case, reveal the bizarre nature of right-wing Christian fantasies. A regular recipient of hate mail and threats against his life that required him to walk to court with an armed marshal, Judge Greer is a lifelong Southern Baptist, a regular in church and a conservative Republican. None of those credentials protected him from the assaults of fellow Christians, including messages saying he would go straight to Hell. What he found "exasperating," he told a journalist, "is that my faith is based on forgiveness because that's what God did. . . . When I see people in my faith being extremely judgmental, it's very disconcerting."[...]

The history of a Christian church divided against itself is a long and bloody one. People calling themselves Christians have stood for war and peace, subjugation and brotherhood, communism and capitalism, privilege and equality, enslavement and liberty, imperialism and isolation.

I don't know quite what to say about this, but, unfortunately, to feel compelled to take it seriously.

-- Michael

A possibility

My discovery last night that Clarence Thomas voted with the majority in 2002 to strike down the portion of the Child Pornography Prevention Act that deals with computer-generated representations got me thinking.  Remember that ad from the wingnut group that I brought you the other day? 

American values.  They make our country great.  But some want to take them away.  They want God out of the Pledge of Allegiance. They say child pornography is protected by the Constitution. Who are these people?  Arrogant judges.  Ignoring the Constitution and writing their own laws.  The president believes judges shouldn't impose  political views.  Yet his nominees are blocked by a minority of liberal Senators.  Contact your Senators.  Tell them to support a fair vote on judges.

Apart from the ad being a total lie (of course, no one said that child pornography is protected speech), the dishonesty appears to be compounded by the fact that Clarence Thomas, under the criteria this group is using, would count as one of those "arrogant judges," that, according to the ad, the president opposes.  This despite the fact that Bush has said that Thomas is one of his two favorite justices. 

All of which makes me wonder about the good faith of the people behind the "confirm the president's judges no matter how crazy they are" movement. 

I always assumed that they genuinely wanted the president's nominees to go through.  That they really wanted a bunch of scary-ass, New-Deal-hating robber barons on the courts.  Clarence Thomas has always been one of the right's judicial poster boys, and I would have thought that they'd want a bunch of Thomas clones on appeals courts all around the country. 

Now, though, I'm wondering whether I didn't give them too much credit.  I'm starting to wonder if they didn't just want to pick a fight with the Dems; if the whole thing isn't just one big strategic ploy to ensure a showdown over judges and give the Dems some bad publicity.  Given the contradictory presentation on the "child pornography as free speech" thing, it can't be that they really care about the issue at all.  The claims are so weirdly dishonest and contradictory that it's hard to imagine that they've really thought about it at all.

Is it possible the whole judicial nominees issue is that just an excuse to beat up on Dems?

-- Michael

Thinking honestly about judging

I've been looking high and low for an honest republican talking about judicial matters.  Today, in the person of Charles Krauthammer (yeah, it surprised me too), we have the beginnings of an honest discussion.  It doesn't take long to figure out why such honesty is all too rare. 

Let's start with the stuff that he genuinely deserves credit for:

DeLay is threatening judges involved in that case with unspecified retribution. He said that Supreme Court Justice Anthony Kennedy should be held "accountable" for using international law in deciding a recent (death penalty) case. He wants congressional hearings to reinterpret the "good behavior" clause of lifetime judicial tenure to make good behavior mean not what it has meant for two centuries -- honesty and propriety -- but good constitutional behavior. Do we really want Congress deciding that?

DeLay is wrong about the Schiavo case. I think the law was a bad law, but the trial judge applied it properly. I think the judge assessed the medical evidence incorrectly, but that is a matter of interpretation, not of judicial impropriety or denial of due process. There is nothing here with which to threaten this judge or the judicial system.

But at least DeLay was coherent. Sen. John Cornyn (R-Tex.) wandered somewhere off the Pacific Coast Highway when, on the Senate floor, he suggested a connection between "some recent episodes of courthouse violence" and judicial activism -- as if courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism. Even worse was a Washington meeting of over-the-top activists led by Phyllis Schlafly that issued a manifesto for the restoration of God to our constitutional system.

Fine, I say.  Now that we've gotten all the looney tune stuff out of the way, let's have a real discussion.  Krauthammer then lays some more groundwork:

Let us have a bit of sanity here. One of the glories of American democracy is the independence of the judiciary. The deference and reverence it enjoys are priceless assets. The Supreme Court is the only institution that could have ended the Bush-Gore fiasco of 2000 with the immediacy, finality and, yes, legitimacy that it did.

Nuclear option considerations

Will we see a nuclear option soon? Seems like things aren't falling into place like the admin would like them to.  Even though the Judiciary Committee sent Patricia Owens and Janice Rogers Brown back to the full Senate yesterday, the leaking of a bad poll isn't a good sign:

These officials, speaking on condition of anonymity, said a recent survey taken for Senate Republicans showed 37 percent support for the GOP plan to deny Democrats the ability to filibuster judicial nominees, while 51 percent oppose.

Meanwhile the Bolton fiasco doesn't show any sign of abating: Bush indicating his strong support of Bolton the day before it will be revealed in the Post that the professionally reasonable Colin Powell isn't a Bolton fan.  Suddenly Bush's nominees don't look quite so qualified after all. 

I don't know; they'll do it if they think they have the votes.  But it doesn't look good for them right now.

-- Michael

What not to say

Not to pick on Sen. Leahy, but I think this kind of stuff is why we appear to be losing the judicial nominees war for the moment:

In a statement today explaining his opposition to Owen, Sen. Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, said her record "shows her to be an ends-oriented activist judge" whose rulings often have "favored the interests of big business over ordinary people." Leahy said he was concerned by "Justice Owen's extremism even among a conservative Supreme Court of Texas."

Leahy charged that Bush's choice of Brown was "another divisive, ideologically driven nomination" and that her "extreme record has earned her the opposition of African-American leaders, law professors, and newspapers around the country." Leahy said the Congressional Black Caucus and leading civil rights groups oppose Brown's nomination.

"On issue after issue -- the protection of the elderly, workers, and consumers, equal protection, the takings clause, privacy rights, free speech, civil liberties, remedies, the use of peremptory challenges, and many more -- Justice Brown has inserted her radical views into her judicial opinions," Leahy said.

Two things:

1) The issue of race shouldn't be brought up at all in public statements of this kind.  republicans accuse Dems of racism without any evidence, but any kind of discussion of the issue is a win for them.  The better thing to do is to have African-Americans speak out themselves about this stuff.  Where's Barack Obama?

2) The stuff about the radical views is OK, but no one knows what the fuck the "takings clause" is, Pat.  Let's make it clear for people: I know I've said all this before, but Janice Rogers Brown thinks that Congress doesn't have the power to to help people.  Her public statements seem to indicate that she wants to strike down the New Deal.  She all but called FDR a socialist.  She wants to take the country's laws back to how they were in the Great Depression.  Is that the kind of judge we want?

Let's not be afraid to call 'em like we see 'em folks.  None of this namby-pamby "outside the mainstream" stuff. 

This is a fight we're going to lose unless we start doing a better job exposing these nominees for who they are.

-- Michael

Not just a river in Egypt

One of the most interesting things about the Tom DeLay scandal has been the fact that DeLay (among others) has steadfastly maintained that the he's done nothing wrong, that it's just the "leftist groups" out to get him; this despite the painfully obvious fact that many republicans (WSJ, Shays, Santorum) have either questioned his innocence or turned on him outright.

The same appears to be happening with the Bolton nomination.

I would really hate to be an honest republican right now; you really risk the wrath of the Editors of the National Review:

Ohio Republican Sen. George Voinovich rolled like a marble yesterday. After an hour of ranting by Senate Foreign Relations Committee Democrats about the nomination of John Bolton as United Nations ambassador, Voinovich pronounced himself in need of more information about Bolton before he could vote, even though he didn't attend either of the hearings related to the nomination last week and even though the committee has conducted extensive interviews about the (minor) controversies swirling around Bolton. If Voinovich still hasn't gotten a chance to read the transcripts — we know how busy he is — he should check out the committee's website at http://foreign.senate.gov/. Democrats figured if they did enough caterwauling yesterday and threw out enough new dirt on Bolton — including a decade-old charge from a woman who founded the Dallas chapter of "Mothers Against Bush" — maybe a Republican would roll. Voinovich obliged.

Or Emmett Tyrrell:

When a United States senator publicly declaims, as Ohio's Sen. George V. Voinovich did this week, that he is suffering pangs of conscience, my question to him is, have you considered that it might be acid reflux? Consult your physician, Sen. Voinovich. If your problem really is a problem of conscience, consult your psychiatrist.

Both of these sources seem to be seeking to scare Voinovich into submission on Bolton's nomination, even while trying to publicly save face for Bolton himself.  Indeed, neither source mentions that Sen. Chafee (R-R.I.) is hinting that he'll withdraw his support from Bolton.  And only the National Review addresses Chuck Hagel's (R-Neb.) qualms (dismissively):

That some Republicans are willing to take at face value the Democrats' personal attacks on Bolton is shameful. Sen. Chuck Hagel (R., Furrowed Brow) pronounces himself troubled by the allegations. But he supported John McCain for president in 2000 — since when is a docile temperament his test of whether someone can be an important public servant? Hagel is a fairly reliable conservative vote on routine matters. It's just when the chips are down that you can't count on him.