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Friday, May 20, 2011

Balkinizing the Liu Filibuster

There is a nice discussion going at Balkinization about the successful "filibuster" of Goodwin Liu's nomination to the Ninth Circuit, among Jason Mazzone, Sandy Levinson, and Jack Balkin. Worth a read.

Posted by Howard Wasserman on May 20, 2011 at 08:47 AM in Current Affairs, Howard Wasserman, Law and Politics | Permalink


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I was about to write a snarky response and escalate into a big back and forth about judicial nominations like the ones you and I engaged in seven or eight years ago, but, in thinking about your response, I decided that (both of our tones aside) I agree with everything you said. There is no objective "context" to the nomination fight, only contested narratives. Any even-handed assessment of the politics of judicial nominations has to acknowledge that the other side disagrees not only about judicial philosophy and the merits of particular nominees but also about then relevant factual frame. I also think that you and I, for the most part, agree on the filibuster: it is not unconstitutional, but is always unseemly, usually unwise, and often counter-productive. So, peace.

As for cynic, thanks for the "most partisan you've ever seen" award. In today's media climate, with the stiff competition, I'm honored to even be considered. I'm not going to argue point-by-point, but you spin a counter-narrative that drops in lots of true facts that don't counter the thrust of my argument. Yes, President Bush nominated three circuit court judges as sops to Democrats, but more than two-thirds of his other nominees were further to the right than any of Obama's nominees (save perhaps Liu) have been to the left. Yes, Bill Clinton won only 43% of the vote, but he won a substantial plurality and by all polls would have won a substantial majority in a two way race, whereas Bush lost the popular vote soundly and wasn't even the choice of a plurality of Floridians (as it is quite clear that the accidental votesnfor Buchanan in Palm Beach County were well more than his "plurality"). I could go on. Moreover, my point was not that the Democrats had a right to filibuster and that the Republicans didn't, only that the Democrats genuinely believed that the federal courts were under siege by a President who hadn't gotten a mandate for the kind of change he was proposing. If the Republicans actually believed their rhetoric about our "socialist" President and the "dangerous" "radical" Goodwin Liu and read the 2010 elections as a repudiation of any mandate Obama had, then, the situations were parallel. Forgive me if I am skeptical.

Posted by: Andrew Siegel | May 21, 2011 10:07:47 AM

Andrew - That selective reading is about as partisan as anything I've seen, from either side, on the judicial confirmation wars. Yes, it ALL started with GW Bush. I'm not saying it's the opposite, but c'mon, didn't the Clinton-Helms-Hatch games, or the Bork and Thomas history, leave any mark with you?

Start with your "courts made Bush prez." Grant that Bush v. Gore was awful, but that still doesn't make the causation, because I have never seen anyone make a plausible case for Gore's path to the White House, absent the entire SCOTUS involvement. If it went to Florida legislature, or to the US Congress, you could say that body stole the election, or whatever. But what was going to get Gore there? Seriously, anyone who uses that phrase should be obliged to map it out.

Next, Bush's shakier hold, as a minority-popular-vote prez, obliged him to govern differently. I saw that a lot in early 2001. Didn't see it so much when Clinton won with 43% in a 3-way. Convenient.

Next, Bush sent up the most partisan nominees, etc. Yeah, like when he renominated Roger Gregory, Clinton's recess appointment, to the 4th Circuit. And he elevated Barrington Parker, a Clinton District Court nominee, to the 2d Circuit. Both in the first round. Did he nominate others who were conservatives? Yes, like John Roberts, who'd been left hanging after his Bush 41 nomination (no, wait - it all started in 2001, so I must be imagining it). Or Estrada, who the Democrats targeted not just for being conservative, but specifically for being a Hispanic conservative.

Don't get me wrong, I'm not shilling for the Republicans, whose votes against Kagan and Sotomayor were wrong, and whose blue slips against Clinton nominees were wrong, and so on. I'm not buying their one-sided view. But yours is equally laughable. Sorry to be blunt, but facts are facts.

As for Liu, I don't think he should have been blocked as part of the tit-for-tat. But I can't say I'm impressed by his shoddy attacks on Roberts and Alito. His hit piece on Roberts was downright dishonest, and I haven't seen a single person defend it (because it's indefensible). All I see are claims that lying isn't enough to disqualify him. Sorry, I'm not sold. Send me a progressive genius who did not misrepresent in his efforts to help his side in attacking Roberts, and we can talk.

Posted by: just a cynic | May 20, 2011 5:20:20 PM

Andrew -- With all due respect, I'm pretty confident that I am as aware of, and sensitive to, the relevant "full context" as you are, though I see and would describe that context differently. In any event, and for what it's worth, in my world, Senators may, but pretty-much-never should, "filibuster" a President's nominees (and there was nothing about the elections of either President Bush or President Obama that warrants a departure from this rule).

Posted by: Rick Garnett | May 20, 2011 3:12:57 PM


President Bush lost the popular vote, won the Presidency through the actions of the courts, then sent up a slate of extraordinarily partisan nominees, the kind of slate you would have expected if he had won 57% of the vote in an election that turned on social issues. The Democratic Senators then chose to use a dubious but in-their-minds constitutional tactic in response.

President Obama won an easy majority of the popular vote and has sent up a slate of bland, mainstream nominees. The Republican Senators have nonetheless chosen to use a tactic that they have previously claimed to be unconstitutional whenever they thought there was a political upside to such a move.

You can think (like Sandy Levinson or John Adler) that the whole system is broken or (like me) that the Republican Senators made a mean-spirited and substantively silly decision that they were nonetheless perfectly permitted to make, but, either way, you have to take the full context into account before assuming that the two situations are analogous.

Posted by: Andrew Siegel | May 20, 2011 9:44:48 AM

Howard, the discussion is, I agree, interesting though, from my perspective, there's a bit of unreality attached to what seems to be the participants' premise that the unfortunate business of filibustering (sort of) court-of-appeals nominees is primarily or only a Republican, "stir up the base" strategy; it's more accurate, I think, to regard the practice as a Democratic, "stir up the base" strategy. (Ask Miguel Estrada, etc.) I don't recall (I could be mis-remembering) much outrage on the law-prof-blogs about the efforts to block many of President Bush's conservative nominees. And while I agree entirely that Prof. Liu's views (including the ones that I think are misguided) are within the "mainstream" (whatever that means) of progressive law professors (and, more to the point, consonant with the President's own views), I also think that his shameful testimony against then-Judge Alito makes it hard (for me, anyway) for me to muster much outrage about the breakdown, in this case, of the Gang of 14 deal.

Posted by: Rick Garnett | May 20, 2011 9:06:17 AM

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