Fisking Arlen Specter on the "Nuclear Option"
Arlen Specter's comments in The Washington Post today deserve some fisking:
"Both parties are at fault," he said, even scolding Bush for "unheard-of" recess appointments of judges rejected by the Senate. "Each side ratcheted it up, ratcheted it up. . . . So the question is, where do we go from here?"
I don't think this is accurate as a matter of history. Republicans did not demogogue and ultimately defeat a patently qualified sitting D.C. Circuit Court of Appeals judge who had extraordinary academic credentials and scholary achievements, Robert Bork. Republicans did not demogogue (though ultimately unsuccessfully) a sitting D.C. Circuit Court of Appeals judge, Clarence Thomas, on the basis of sexual innuendo from an unstable and uncredible witness, Anita Hill. Republicans have never filibustered nominees for the Courts of Appeals who would otherwise be confirmed easily by majorities of the Senate. Democrats did all of these things, and they did them in the name of abortion "rights." Republicans, meanwhile, nominated and confirmed Sandra Day O'Connor and David Souter, who have, to the surprise of Republicans, been key votes on the pro-abortion side in the important cases that have come down in the past 15 years or so. Can you imagine the Democrats being "surprised" by a nominee of Bill Clinton for the high court who accidentally turns out to be pro-life? The mind boggles.... Democrats just don't nominate people for judgeships who deviate from their party line one iota. That fact by itself shows that Republicans have been more moderate on judges.
And Specter questioned the effort to strip the minority Democrats of filibuster power -- a move known as the "nuclear option." "If you were to flash ahead a hundred years from now, this controversy over judges . . . would not be a major matter in the life of the country," he said. "But minority rights are."
I think Specter is both right and wrong here. I think he's plainly wrong that the judges don't matter in the long term. I cite cases every day in my practice that were handed down decades ago, and some older than that. What judges do is the closest thing we have to laws being etched in stone. Put bluntly, had the Supreme Court acted differently 33 years ago in Roe v. Wade, there would be 40 million or so more living human beings. I have a hard time believing that wasn't a "major matter in the life of the country."
On the other hand, I am sympathetic to Specter's position on the filibuster, from a conservative position. From Edmund Burke on, conservatives have been concerned about "conserving" those traditions that have developed organically over time in our institutions, on the theory that the collective wisdom of the ages is smarter than the particular notions of a given time under the pressures of a momentary dispute. Conservatives have also been concerned at creating institutional structures that hem in the majority, which otherwise, in a pure democracy, could do what it wants, whatever it wants, whenever it wants.
In our own system, we have many such hedges against pure democracy, including the structure of the Senate itself (two Senators from each state, regardless of the size of the state, elected only every six years, with staggered elections of only a third of the Senators in each two year cycle); the judiciary (appointed, not elected, and given lifetime tenure in good behavior); the Electoral College (at least as originally conceived as a buffer between the voter and the ultimate decision on who should be President). One of the minor ways our system has evolved to frustrate the majority is the filibuster. I'm certain that it is being used inappropriately with regard to President Bush's judicial appointments. But I'm equally certain that the concept of the filibuster is probably a good thing in the long term for our society, because it can restrain the majority from doing the Big Bad Thing, whatever that may turn out to be at some unforeseeable point in the future.
Ankle Biting Pundits (fka Crush Kerry blog) and Polipundit are blogging on this topic too and doing their usual great job.
"Both parties are at fault," he said, even scolding Bush for "unheard-of" recess appointments of judges rejected by the Senate. "Each side ratcheted it up, ratcheted it up. . . . So the question is, where do we go from here?"
I don't think this is accurate as a matter of history. Republicans did not demogogue and ultimately defeat a patently qualified sitting D.C. Circuit Court of Appeals judge who had extraordinary academic credentials and scholary achievements, Robert Bork. Republicans did not demogogue (though ultimately unsuccessfully) a sitting D.C. Circuit Court of Appeals judge, Clarence Thomas, on the basis of sexual innuendo from an unstable and uncredible witness, Anita Hill. Republicans have never filibustered nominees for the Courts of Appeals who would otherwise be confirmed easily by majorities of the Senate. Democrats did all of these things, and they did them in the name of abortion "rights." Republicans, meanwhile, nominated and confirmed Sandra Day O'Connor and David Souter, who have, to the surprise of Republicans, been key votes on the pro-abortion side in the important cases that have come down in the past 15 years or so. Can you imagine the Democrats being "surprised" by a nominee of Bill Clinton for the high court who accidentally turns out to be pro-life? The mind boggles.... Democrats just don't nominate people for judgeships who deviate from their party line one iota. That fact by itself shows that Republicans have been more moderate on judges.
And Specter questioned the effort to strip the minority Democrats of filibuster power -- a move known as the "nuclear option." "If you were to flash ahead a hundred years from now, this controversy over judges . . . would not be a major matter in the life of the country," he said. "But minority rights are."
I think Specter is both right and wrong here. I think he's plainly wrong that the judges don't matter in the long term. I cite cases every day in my practice that were handed down decades ago, and some older than that. What judges do is the closest thing we have to laws being etched in stone. Put bluntly, had the Supreme Court acted differently 33 years ago in Roe v. Wade, there would be 40 million or so more living human beings. I have a hard time believing that wasn't a "major matter in the life of the country."
On the other hand, I am sympathetic to Specter's position on the filibuster, from a conservative position. From Edmund Burke on, conservatives have been concerned about "conserving" those traditions that have developed organically over time in our institutions, on the theory that the collective wisdom of the ages is smarter than the particular notions of a given time under the pressures of a momentary dispute. Conservatives have also been concerned at creating institutional structures that hem in the majority, which otherwise, in a pure democracy, could do what it wants, whatever it wants, whenever it wants.
In our own system, we have many such hedges against pure democracy, including the structure of the Senate itself (two Senators from each state, regardless of the size of the state, elected only every six years, with staggered elections of only a third of the Senators in each two year cycle); the judiciary (appointed, not elected, and given lifetime tenure in good behavior); the Electoral College (at least as originally conceived as a buffer between the voter and the ultimate decision on who should be President). One of the minor ways our system has evolved to frustrate the majority is the filibuster. I'm certain that it is being used inappropriately with regard to President Bush's judicial appointments. But I'm equally certain that the concept of the filibuster is probably a good thing in the long term for our society, because it can restrain the majority from doing the Big Bad Thing, whatever that may turn out to be at some unforeseeable point in the future.
Ankle Biting Pundits (fka Crush Kerry blog) and Polipundit are blogging on this topic too and doing their usual great job.
posted by PDB at 10:26 AM
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Hello Friend! I just came across your blog and wanted to
drop you a note telling you how impressed I was with
the information you have posted here.
Keep up the great work, you are providing a great resource on the Internet here!
If you have a moment, please make a visit to my 1st hotel reservations site.
Good luck in your endeavors!
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