Here's What's Left

Whaa?

David Brook's column tomorrow contains a bombshell.  Does anyone have any sense of whether this is true?

Last week, the Senate Democratic leader, Harry Reid, made an offer to head off a nuclear exchange over judicial nominations. Reid offered to allow votes on a few of the judges stuck in limbo if the Republicans would withdraw a few of the others.

But there was another part of the offer that hasn't been publicized. I've been reliably informed that Reid also vowed to prevent a filibuster on the next Supreme Court nominee. Reid said that if liberals tried to filibuster President Bush's pick, he'd come up with five or six Democratic votes to help Republicans close off debate. In other words, barring a scandal or some other exceptional circumstance, Reid would enable Bush's nominee to get a vote and probably be confirmed.

Reid couldn't put this offer in writing because it would outrage liberal interest groups.

Damn straight.  I'd hope that it would outrage a lot more than liberal interest groups. 

I can't imagine that Reid would make such a pledge unless he anticipated that Frist would turn it down.  Brooks might have some bad sources, but if he doesn't, Reid is either a strategic genius or is genuinely afraid of the nuculer option.  We'll see how it plays out.

-- Michael

Pathetic

Our friend Ryan catches the blogger formerly known as Hindrocket (of Powerline fame) in a really egregious, terribly intellectually dishonest, and obviously deliberately deceptive tactic:

Hinderaker was so intent on using this Washington Times article to make Reid look like a moron that accuracy became a minor enemy.[...]

Note the lack of elipses to denote gaps in the original author's words. Due to Bottomrocket's propensity for nimrod-style cutting and pasting, I've provided a corrected version of the blockquote in his post (just to expedite the correction we're not likely to see):

[T]he Senate's top Democrat immediately expressed doubt about the proposal, calling it "a big wet kiss to the far right."

^...

"I don't really like the proposal given, but I'm not going to throw it away," Mr. Reid said. "I'm going to work on it."

^...

In his floor speech, Mr. Reid called Mr. Frist's proposal a "slow-motion nuclear option."

"After 100 hours, the rights of the minority are extinguished," he said, acknowledging that the purpose of the filibusters hasn't been to continue debate on nominees, but simply to stop them.

^...

"I say to everyone within the sound of my voice: 'Test us,' "he said. "Let's see how we can do in the future. I can't say there won't be any filibusters, but I think we're going to have a much better situation."

See those little dotted thingies, John? That's where words used to be. I should also point out that the amount of quotations used from the Washington Times article may be in violation of Fair Use, but that's for another day, LGF & FreeRepublic.

In case it isn't clear from the passage I've quoted, Hindrocket actually left the ellipses out of his quotation of a Washington Times article.  He strung together a bunch of Harry Reid's statements without any indication that they weren't actually strung together in the article.  And then, and this is the best part, Hindrocket says that Reid was "childish and incoherent" and "descended into babble." 

So, let's sum up.  Harry Reid makes a statement.  Washington Times quotes part of the statement in an article.  Hindrocket takes the quotations out of context, makes it look like they were meant to fit together, and then accuses Reid of incoherence.

I don't really know what you need to prove that someone's guilty of libel, but it seems to me that this comes close to the edge.  I do know that

In order for a public official to recover damages for a defamatory falsehood relating to his official conduct, he must prove that the statement was made with actual malice; that is, with knowledge that it was false or with reckless disregard of whether or not it was false.

And accusing a public official of "incoherence" after you've cherry-picked his statements without telling your readers seems to me to approach either "actual malice" or a "reckless disregard" for the truth. 

I suppose I might as well also mention that the whole premise of Hindrocket's post is flawed as I well: he's criticizing Harry Reid for rejecting a compromise that Bill Frist offered on the nuclear option.  But nowhere on Powerline does anyone mention that Bill Frist had rejected a different compromise (one worked out between Reid and Trent Lott, no less) two days before.  Only by omitting that piece of information can Hindrocket say that Frist's efforts were "statesmanlike" and "scrupulously fair," while Reid's response was "childish and incoherent." 

I know I shouldn't be, but I always am: I'm just astonished by this kind of dishonesty.  I really don't know what kind of a person you have to be to intentionally slander the minority leader of the Senate in two dishonest ways in the same short post.  How convinced of your own righteousness do you have to be to exempt yourself from the basic standards of honest discourse?  How, in other words, does Hindrocket deal with his own conscience?  Does he feel justified in his lies?  Is he secretly ashamed of them? 

Obviously, the Powerline boys are really trying to make it big as conservative commentators.  I sure hope they make it, for their own sake.  Because one of these days they're going to get sued for their lies, and they're going to need a good lawyer.

-- Michael

Cognitive Dissonance

There was one moment in the press conference last night that the preznit deserves vague credit for.  I wonder how the wingnuts will respond to it?

Q Thank you, sir. Mr. President, recently the head of the Family Research Council said that judicial filibusters are an attack against people of faith. And I wonder whether you believe that, in fact, that is what is nominating [sic] Democrats who oppose your judicial choices? And I wonder what you think generally about the role that faith is playing, how it's being used in our political debates right now?

THE PRESIDENT: I think people are opposing my nominees because they don't like the judicial philosophy of the people I've nominated. Some would like to see judges legislate from the bench. That's not my view of the proper role of a judge.[...]

Q Do you think that's an inappropriate statement? And what I asked is --

THE PRESIDENT: No, I just don't agree with it.

Q You don't agree with it.

THE PRESIDENT: No, I think people oppose my nominees because -- because of judicial philosophy.

Of course, he should have said that it's inappropriate, but I wouldn't expect him to be that honest.  I wonder if Dobson and friends heard that, and, if they heard it, what their reaction will be.  I wonder if they'll somehow try to rationalize their way out of it, and insist that the president was supporting their position.  More likely, it seems to me, is a sort of cognitive dissonance that will only further muddy the issue.  We'll wait and see.

-- Michael

Press conference

There's a reason they don't let him speak on TV much. 

THE PRESIDENT: A free Iraq in the midst of the Middle East is an important part of spreading peace. It's a region of the world where a lot of folks in the past never thought democracy could take hold.

Because he hasn't thought of anything new to say since his last prime time press conference, last April:

Some of the debate really centers around the fact that people don't believe Iraq can be free; that if you're Muslim, or perhaps brown-skinned, you can't be self-governing or free. I'd strongly disagree with that.

Or maybe I have it wrong.  Maybe that's the reason they let him speak on TV at all; he never says anything new.

THE PRESIDENT: On the other hand, the experts tell me that the forecast of economic growth in the coming months looks good. There's more to do to make sure that we don't slip back into slow growth or negative growth. One is to make sure taxes stay low; secondly, is to continue to pursue legal reform. I hope we can get an asbestos reform bill out of both the House and the Senate. There's some positive noises on Capitol Hill as to whether or not we can get an asbestos reform bill. That will be an important reform in order to make sure that our economy continues to grow.

Well, I don't know why he even bother mentioning it.  Everyone knows that the most important thing to do to keep the economy going is to make sure that companies aren't held liable for poisoning their workers.

I think there's another way to help the economy.  In fact, I know there is, I just can't think of it...

THE PRESIDENT:  Final question. Hutch. I don't want to cut into some of these TV shows that are getting ready to air. (Laughter.) For the sake of the economy. (Laughter.)

Oh right.  Asbestos and making sure people watch Desperate Housewives.  Sounds like a stimulus package to me.

Q I wanted to ask you about your ideas on dealing with Social Security solvency problems. As I understand it -- I know you'll tell me if I'm wrong -- the benefits would be equal to what -- at least equal to what they are today, and then any increase in benefits would be indexed according to income, with lower-income people getting bigger increases. Two things on that: Today's benefits probably won't mean much somewhere down the road; and how far are you going to go with this means-based program? Are you talking about --

THE PRESIDENT: Yes, I appreciate that.

Q -- where a rich person, say, Dick Cheney, wouldn't get much out of it?

THE PRESIDENT: Now, wait a minute, don't get personal here, Hutch. You're on national TV; that's a cheap shot.

Dick Cheney's rich!?  You're kidding!  I thought the CEO of Halliburton was paid minimum wage.  Next you'll be telling me that his daughter is a lesbian.

At this point, I'll be willing to make a trade with republicans.  I'll stop demanding that he talk to the press more and be held accountable if they'll just admit that he doesn't have a fucking clue what he's talking about.  Any takers?

-- Michael

Thoughts on the filibuster itself

By now most of the United States knows that the filibuster, in the past, has been used for some really awful things.  Certainly at the top of the list is Strom Thurmond's truly sickening 24 hour filibuster of a civil rights bill in 1957.  Or the successful filibuster of a 1949 civil rights bill.  It wasn't until 1964 that the Senate actually got the two thirds needed at the time to beat the filibuster of Civil Rights legislation (even then, the filibuster went on for 57 days). 

Certainly, the Senate's procedural rules have changed.  In the early 20th century, you needed two thirds of the Senators present to end debate.  It was changed in 1949 to two thirds of all Senators, and then in the 1970s to three fifths of all Senators. 

But I suppose my question is this: if the filibuster has been used for such truly awful purposes in the past, and it has been basically kept around, what justification do republicans have for trying to get rid of it now? 

They claim the filibustering of judicial nominees is unprecedented (even though it isn't), but I'm sure Sen. Robert LaFollette's attempt in 1917 to filibuster a bill in support of WWI was also unprecedented at the time.  In fact, at some point in the country's history, filibustering civil rights legislation was unprecedented.  Before John Quincy Adams' first filibuster in 1828, the filibuster itself was unprecedented. 

All of which is to say that the argument from precedent doesn't mean anything.  Indeed, the argument about the merit of the filibuster itself seems to me to be obviously and solely partisan-ly based.  If you're in the majority right now, you're against it.  If you're in the minority, you're for it.  All I'm saying here is that republican claims that they have some sort of reasoning behind their partisan power grab are false and hypocritical. 

The more I think about it, the more I wish that Dems hadn't been drawn into a fight over the filibuster itself.  Arguing about it is like arguing about any procedural rule: needing a two-thirds majority to over-ride a presidential veto, etc.  Procedural rules can be used for good or for evil, as, indeed, can any process for making any decision at all (pace some conservatives, popular majorities don't always make the right decisions -- anyone that supported either George W. Bush in 2000 or John Kerry in 2004 must admit that; and that's pretty much the entire American political spectrum).  The debate always should have been about the nominees themselves, and that's all.

-- Michael

ugh

In what is otherwise a too poorly written piece to merit a serious response, Rich Lowry comes awfully close to a line:

Somewhere, the late Democratic Senator James Eastland deserves an apology. Not because the Mississippi segregationist's substantive views look any less odious than they did 40 years ago. But because the same progressives who once excoriated the obstructionist tactics he used to block civil-rights bills in the 1960s have come, with the fullness of time, to see the wisdom of his procedural ways.

Eastland, were he still alive, would nod his head as liberals make the Senate filibuster sound like America's last bulwark against tyranny, and as they conduct a flirtation with states' rights. Eastland might be bewildered, but relieved that, at long last, his party was breaking his way.

Oh, how times change. Democratic Rep. John Lewis is a heroic emblem of the civil-rights movement. He was beaten with other marchers in Selma, Ala., in 1965, spurring passage of a federal civil-rights law that year premised on the notion that Washington couldn't trust states like Alabama to protect its citizens. But during the fight over whether the federal government should act to ensure that Terri Schiavo's right to due process was being honored, Lewis was on the floor of the House pleading, "Where is the respect tonight for states' rights that we said we hold so dear?" Where, indeed?

Saying that the Civil Rights Act was premised on "on the notion that Washington couldn't trust states like Alabama to protect its citizens" is, of course, wrong, because it was actually premised on the notion that African-Americans have civil rights.  But what might be more offensive is implying that Lewis is a hypocrite for issuing a statement that is meant to call out republican hypocrisy.  (I'm sure Lewis was never one to go around saying that he held states rights that dear); that as well as the implication that a family trying to decide what to do about a relative in a vegetative state is comparable to the civil rights movement. 

More offensive still, is juxtaposing Lewis' history with Eastland's history.  As if to say, 'in 1965 John Lewis was a civil rights activist; today he's a Democratic obstructionist.  Ya know who else is obstructionist?  A RACIST!'

That, combined with Lowry's ability to criticize Democrats for something that hasn't happened yet

When No Child Left Behind comes up for renewal, it might be ripe for a filibuster

must make this a truly hacktackular column, even by his standards.

-- Michael

Has been

Bob Dole's op-ed piece in the NYTimes is a astonishingly dishonest.  It reads like a typical republican hatchet job, and is remarkable, I suppose, for that reason alone.  Dole has assumed the role of senior statesman, and one wouldn't expect him to be so shrill so ungracefully.  I'll just point out the obvious stuff.  I'm sure there's more.

This tradition has a bipartisan pedigree. When I was the Senate Republican leader, President Bill Clinton nominated two judges to the federal bench - H. Lee Sarokin and Rosemary Barkett - whose records, especially in criminal law, were particularly troubling to me and my Republican colleagues. Despite my misgivings, both received an up-or-down vote on the Senate floor and were confirmed. In fact, joined by 32 other Republicans, I voted to end debate on the nomination of Judge Sarokin. Then, in the very next roll call, I exercised my constitutional duty to offer "advice and consent" by voting against his nomination.

When I was a leader in the Senate, a judicial filibuster was not part of my procedural playbook. Asking a senator to filibuster a judicial nomination was considered an abrogation of some 200 years of Senate tradition.

Such grandstanding is really hard to stomach.  Ne'er does Dole mention that more than 40 of Clinton's nominees never even made to the floor because they remained bottled up in the judiciary committee. 

This 60-vote standard for judicial nominees has the effect of arrogating power from the president to the Senate. Future presidents must now ask themselves whether their judicial nominees can secure the supermajority needed to break a potential filibuster. Political considerations will now become even more central to the judicial selection process. Is this what the framers intended?

As if political considerations aren't already central to Bush's judicial nominations?

Shut up.  There is no 60-vote standard.  Extremist nominees, in the minority as they are, will get filibustered.  Others don't.  Don't pretend like there's a new standard.  There isn't.  You're lying. 

It really is sad to see republicans lying with such clear consciences, and to see that their lies don't even work.  Only 26% of Americans think the federal judiciary is too liberal.  You sold your soul for nothing, Bob.  Kind of pathetic, isn't it.

-- Michael

More no compromise

You've really gotta hand it to Harry Reid.  He's really playing his cards right in the nucular option stand off.  That, combined with Bill Frist really playing his cards wrong, leaves us in a pretty good strategic position.  Here's what I see:

1) Good move on Reid's part to switch the focus from bringing the Senate to a halt in retaliation to trying to introduce positive legislation.  Take a look at the list if you haven't.  It's got some goodies, and making republicans oppose that stuff would be popular is great. 

The worst republicans can say about putting these items on the agenda is that it goes against traditional Senate rules.  And they can't really say that, because they will have just done the same thing if they invoke the nucular option

2) Though I think the idea of a compromise is a terrible one, it's good have some media coverage of it; because

3) Bill Frist has rejected the possibility of a compromise. 

Now Frist looks unreasonable.  It looks like Reid came to the table, tried to work things out in good faith, but Frist is being stubborn and partisan (more so after appearing on "Justice" Sunday this weekend).  Indeed, people like me, Ezra, and Shakespeare's Sister all reacted negatively to the idea of a compromise.  So it even looks, actually, like that Reid is going against one part of his own party towards the middle in looking for a compromise.  He comes out of this situation looking reasonable. 

Indeed, Karl Rove, adding his voice doesn't help either, and Sen. Schumer played it exactly how he should have:

Karl Rove, Bush's deputy chief of staff, in an interview published today in USA Today, rejected a compromise with Senate Democrats on judicial nominees.

Democratic Senator Charles Schumer of New York, called it "disconcerting and surprising'' to see an aide to Bush tell the Senate how to conduct business.

"Senator Reid has said publicly that the president told him that the White House would stay out of this,'' Schumer, a member of the Judiciary Committee, said on the Senate floor today.  "It's clearly not the case.''

Yo, republicans... whatever happened to your precious separation of powers?

Frist has been outflanked; even conservatives must realize that he's made bad strategic moves here.  One conservative blogger is already calling for him to step down.  So now he's being attacked from both the left and right.

And if the nuclear option fails, which it's looking like it will right now, Frist might loose some support of the far right.  And that would sink any presidential ambitions he might have.

I don't know, it wouldn't surprise me if this gets nastier before it goes away, but right now I'm tentatively optimistic

-- Michael

No compromise

Ezra says something very similar to what I want to say:

So Trent Lott and Ben Nelson are pushing a compromise that would bring four of the blocked nominees to the floor, kill three of them, and end the Republican effort to kill the filibuster. But according to the new WaPo/ABC News poll, only 26% support "changing the Senate's rules to make it easier for Republicans to confirm Bush's nominees", while 66% oppose it. That's quite a majority firmly in opposition, and it includes almost half the Republicans surveyed. More interesting, from the perspective of who'd win a media war over the issue, is this question: "The Senate has confirmed 35 federal appeals court judges nominated by Bush, while Senate Democrats have blocked 10 others. Do you think the Senate Democrats are right or wrong to block those nominations?" 48% think the Democrats are right, 36% think them wrong. And that's a much softer numerical comparison than the one Reid uses (I think he's got a 195-10 number, or something similar).

So why compromise? Numbers like this ensure that Frist simply won't have the votes.

But I'd add a few things.  The first is that the fact that anyone in the GOP, much less Trent Lott (a proponet of the "nuclear option" who apparently invented the term), is willing to compromise is a sign of their weakness. 

The second is that while it's great for political use, the WaPo poll seems suspicious to me, if for no other reason than because so much in this depends on how the question is asked.  Republicans, after all having been throwing around this talking point for a while now:

Eighty-two percent of voters agree that "if a nominee for any federal judgeship is well-qualified, he or she deserves an up or down vote on the floor of the Senate.

That number clearly was based on the presupposition that everyone agrees what "well-qualified" means; it might also mean that people are a little confused about what a filibuster is.  But given that the question in the current poll is worded like this:

Would you support or oppose changing Senate rules to make it easier for the [r]epublicans to confirm Bush's judicial nominees?

I'm a little suspicious that people understand the question they were answering.  In fact, I've suggested before emphasizing the "rule change" aspect of what republicans are trying to do. 

It seems to me that a better number, actually, is this one:

Overall, do you think the federal judges in this country are (too liberal), (too conservative) or about right?

Too liberal: 26

Too Conservative: 18

About right: 52

No opinion: 4

This is excellent news.  To me it indicates that, despite the GOP's intense, vitriolic, longstanding and widespread flogging of the issue, there isn't much support to radically change the federal judiary.  It also shows that the Dems don't really have to do a lot of justifying themselves as long as they can show that it's the other side who have the really radical agenda in this case.  Something like this: hey, it's the republicans who really want to change things; we're just trying to make sure that judges follow the law.

Finally and relatedly, I'd like to put in another plug for the way that I really think this debate should be handled: on the merits of the nominees.  We should make Janice Rogers Brown a poster girl for conservative activism and Bill Pryor a nutcase who wants who doesn't care about Violence Against Women.

-- Michael

"Independent and public-spirited men"

The inability of our friends on the right to muster a coherent argument against judicial filibusters astonishes me.  Here's Chuck Colson:

Over two hundred years ago, a man who wrote under the name of Publius was hunched over his desk one evening. He was attempting to convince New Yorkers to ratify the proposed United States Constitution. After a moment of thought, he dipped his quill into the ink and wrote the following: The President “is to nominate, and by and with the advice and consent of the Senate, to appoint . . . judges of the Supreme Court.”

Publius, of course, was the pen name used by three of our nation’s founders when they wrote the eighty-five newspaper essays now known as the FEDERALIST PAPERS. Among the authors was Alexander Hamilton, who wrote essay number 76, from which I just quoted. These fading words on a yellowed document reveal that what a handful of U.S. senators are doing today is a constitutional travesty.[...]

The Constitution could not be clearer. The nomination is made by the president alone. The Senate is to give its advice and consent—not demand ideological purity. Alexander Hamilton explained the intent in his essay number 76. “It is not likely,” he wrote, “that [the Senate’s] sanction would often be refused where there were not special and strong reasons for the refusal.”

Why Colson would choose to quote this passage, of all passages in Federalist 76 is really beyond my comprehension.  It actually supports the Dems!  Hamilton was right.  The Senate's sanction has not often been refused.  The Senate has confirmed 95% of Bush's nominees.  In the extra 5% there are, indeed, "special and strong reasons for the refusal."

The advice and consent clause, Hamilton continued, was intended to provide a check upon a president who would, say, appoint his brother, or engage in favoritism, or reward family connections or personal benefactors—nothing more.

And why Colson would misconstrue what Hamilton says when his readers can just click the link and read it for themselves is similarly beyond me:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing.

There's none of Colson's "nothing more" in Hamilton; Hamilton actually provides more examples (no "unfit characters" or appointments "from a view to popularity") than Colson.  It sounds from Hamilton's tone ("the possibility of rejection would be a strong motive to care in proposing") as though Hamilton wants the president to propose nominees while considering the fact that they have to be confirmed by the Senate, and presumably have a reasonably universal appeal as nominees. 

So our friends on the right aren't able to successfully argue about the constitutionality of filibusters; nor are they successfully able to argue from historical precedent.   It's kind of sad, actually; but now you also understand why they resort to the "Democrats hate people of faith" trope.  They don't have any good arguments. 

Reading Federal 76, I find some other passages that seem to be relevant to today's debate.   I'll leave it to your imagination how they apply.  Well, mostly to your imagination:

To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views.  This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory.  It has been found to exist in the most corrupt periods of the most corrupt governments. The venalty of the British House of Commons has been long a topic of accusation against that body, in the country to which they belong as well as in this; and it cannot be doubted that the charge is, to a considerable extent, well founded. But it is as little to be doubted, that there is always a large proportion of the body, which consists of independent and public-spirited men, who have an influential weight in the councils of the nation.

Independent and public-spirited men.  Like Rick Santorum. 

Though it might therefore be allowable to suppose that
the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable.

Alexander Hamilton had clearly never met Karl Rove.

-- Michael