Redstate

Lets say that the republicans leave the filibuster in place so that they could use it once the democrats regain control of the senate and control the presidency.  What reason do we have to think that democrats would refrain from eliminating the filibuster in the face of republican opposition?  There is no way to make an agreement binding on future versions of the senate.  THe only reason to not use the constitutional option is because the political price would be too high.  

There's no reason for Dems not to eliminate the filibuster - in fact, I would expect them to do so.  

But the question I would ask if you're evaluating this on purely tactical terms is: isn't it wiser to wait until they actually filibuster a Supreme Court nominee?  Wouldn't the price to pay at that juncture be much less, assuming it was a consensus nominee?

The filibuster threat allows Democrats to bring immense public focus on the nominee. The MSM is, of course, very sympathetic to the Democrats and accept the allegations they make at face value. The Republicans only win the public battle when what the Democrats are doing is painfully obvious. I really doubt that Justice Thomas would be confirmed in the current climate.

Right now, I think the Democratic obstructionism is in fact painfully obvious to most of the public (the dKos crowd excepted). They have been unable to successfully tag any of the crop of nominees with anything terribly bad. Even Nat Hentoff had a column pointing out Democratic hypocrisy over Judge Janice Rogers Brown. Winning this fight right now will make the next fight over Supreme Court nominees much easier, I think.

I agree that Justice Thomas would not be confirmed in the current climate. I'd say the Democrat obstructionism is painfully obvious to the Republican base, and only known generally in the populace as a whole (most of whom, I believe, don't care).

The problem I would pose to you is this: do you think it is more likely that the nominees to the Supreme Court we will see over the next decade will be ones who conservatives or liberals will seek to block?  And if so, are you comfortable removing the ability to even call on conservative Republicans to threaten to block a bad nominee?

I just think that a nominee who resembles Al Gonzales (from an R term) or Ruth Bader Ginsburg (from a D term) is more likely than a nominee who resembles Justice Thomas.

Hardly an exact science, of course. My feeling (and I generally believe that Republicans overestimate our public support) is that this time, we actually have the winning side of this argument. Frist's compromise forced Reid to acknowledge that this wasn't about debate but strictly about allowing the minority to block nominees. The public, I think, is mostly willing to accept an argument in favor of "majority rule".

As for giving up the ability to obstruct future Democratic appointees, I'm ok with that. Frankly, as a lawyer, I would rather judges with actual, predictable, defensible positions rather than what we have now. The opinions by the "swing" justices generally seem to create more questions than they answer, and do a bad job at setting forth clear, articulable rules which can be easily followed in analagous circumstances.

My first preference would be a majority of Scalias and Thomases. My second preference would be a majority of Thurgood Marshalls. The muddle we have right now is my last preference.

And anyway, I was never comfortable with what we were doing to Clinton's judges, and that was even more defensible than what the Democrats are doing now, since we were in the majority.

I just don't see the Supreme Court as equating to the other appointees.  I understand why you see it otherwise, but I care a lot less about getting Pryor, Brown, and Owen confirmed than at least having the threat of blocking a radical pro-Roe Supreme Court nominee.

What "we" did to Clinton's Supreme Court nominees, of course, was roll over and play dead.

and indeed, it is really the only serious argument advanced against the recourse to the constitutional/nuclear option.  

Nevertheless, I wonder what the Senate leadership could offer to a handful of democrats in order to secure votes in favour of floor votes for the president's nominees.  I suppose that I simply do not see there being much willingness on the part of enough Democrats to budge on this issue; the combination of fealty to the democratic base, threats from the Dem leadership, and ideological commitment to the ends liberals attain by means of the courts seem to leave little room for movement of the sort acceptable to our side.

Additionally, I have to wonder what we could do in order to make an end-run around this little controversy.  Elect a 60-Republican majority?  I'd be happy to be proven wrong, but I have to say: Never. Going. To. Happen.  Not in a nation as polarized as ours now is.  And in the end, would not these factors leave us with little or no hope of ever restraining the excesses of the courts and the threat they increasingly pose to our form of representative government?  An indefinite future of Breyers and Souters?

A couple of points.. First, there is a fair amount of public attention being paid to this issue right now. Whether we win or lose will affect public opinion. A large segment of the population tends to go along with a winner, period. So winning this fight, having brought it thus far, is important in its own right.

As for fears of a "radical pro-Roe" nominee, first I think a pro-Roe nominee is a pro-Roe nominee. The appointment of David Souter did not push back on Roe at all, and Justices like Souter are what we'll wind up with if compromise becomes the order of the day, in any administration. Souter, of course, was in the majority in Lawrence.

And anyway, if we do lose the next presidential election and have to face Democratic judicial nominees, having radicals appointed would bring a great deal of clarity to the following elections. I really believe the clarity on judicial appointments was a major factor in our taking such strong control of the Senate in the recent elections.

Yes, we mucked up badly with Clinton's Supreme Court nominees, as we often did in dealing with Clinton. He out-politicked us on a lot of issues. We frequently came out both losing AND looking like petty partisans. But we're improving. Frist is looking like an embattled middle-of-the road kind of guy. The negative chatter about him among conservatives increases his status with the MSM. If we stick to our guns, we can win this. If we decide to save our ammo, we won't actually have any when the next fight comes, I think.

By the way, Augustine, you got a big mention over at Centerfield today. They're convinced you are a Republican Senate staffer.

I agree completely that the winner will not regret this fight at all, and that there won't be serious negative ramifications for the GOP because of this step at the ballot box.  My earlier point was just that we have to evaluate what "winning" in the short term means when you translate it to the long term.

However, I respectfully disagree with both your views regarding Frist (I certainly don't have this opinion of him because of the MSM), and your views about not saving up ammo for the bigger fight.  I could easily see the Republican base being quite happy with the outcome in the short term for this fight, but more than a little upset when a terrible nominee is rammed through (by either Rs or Ds) for the Supreme Court.

Thanks for the Centerfield link, I hadn't seen it.

The bludgeon of "Democrats are obstructionists" has worked very well for the Republicans in the last 2 Senatorial elections. Could this be why Frist hasn't triggered the nuke yet?

The mileage we have gotten out of this, I think, has reached its limit, but there may be a push to have this issue around for 2006.

Watched the Ice Bowl with Pops.  Can name the starters for most teams going back decades.

So, we see eye-to-eye on sports too, eh?

Can get together on Week 2 and cheer.

I always felt that the Dalls Cowboys were indeed the root of a growing and menacing evil empire sprouting out of Texas.

Now that it's out in the open, it's only a matter of time until it is revealed that Troy Akman is actually an off planet alien terrorist hell bent on converting the American football watcher into a beer drinking, boob watching Neanderthal only interested in getting into his car to go get more and more beer and boobs, all the while burning up petro and inflating the price.

Oh yes, it was only a matter of time...

If you don't mind an unsophisticated, outside-the-beltway, down-home view, I think this is the last Democratic stronghold and we need to attack it with everything we've got.  You must understand -- without SCOTUS, the Democratic party is bereft of power and ideas. Without SCOTUS, their initiatives, policies, and the entire laundry list of Utopian, left-wing nostrums goes down the toilet.  Without SCOTUS, the MSM will seem as so many sounding cymblas, signifying nothing.  That's why the entire left-wing establishment is going to the mat on this one.  

Basically, the only way to implment much of their agenda now is through judicial fiat.  Let's just see how long they can withstand a truly conservative court.  

How long?  My guess is, not long.

The Supreme Court is quite middle-of-the-road. (Most of its appointees are from GOP presidents after all!) If the Dems think they can use it to enact socialized medicine, restore the estate tax, or to pull the troops out of Iraq, they are more deluded than I would have thought, and I say let them waste their time with that futile effort rather than trying to win back a majority.

They make rulings that are more activist and more left-of-center than the general population.  Specifically, they have defended the 20% of the country who support abortion-on-demand against the other supermajority who think that some or many restrictions should be placed on the practice.  They also overruled the death penalty a while back and have started undermining it piece by piece in recent rulings while over 65% of the country still supports it.

The Republicans may have appointed 7 of the SCs, but one is a straight liberal and two lean left on most issues that come in front of them.  Maybe it was negotiating with the Dem Senate or not knowing their views, but the SC is to the left of the Senate, the House, and the Presidency.

they would also rule against a suit to allow Texas to secede, despite the fact that would greatly please me.  Popularity is only one yardstick to measure by.

Troy is only okay.  It is the sainted Roger, the only Republican whom I can take, that is the true Cowboy.  And it just kills me he is a Republican...

... they will rule to expel Los Angeles and New York City from the Union, greatly pleasing most of the rest of the country.  

Popularity is exactly the problem with SCOTUS.  Too many of its' members want to be popular with the New York Times, regardless of how much they have to shred the Constitution to do it.

No, the death penalty for convicted killers and a "pardon" for millions of innocent children is not popularity and it's not unconstitutional. It's common sense and it's what's right.