Redstate

Clearly, I think we can all agree that 9 Senators voting against a nominee (say, Stephen Breyer) is nothing less than a wonderful example of noble and decent Senators voting their hearts, but 22 Senators voting against a nominee (say, John Roberts) is a horrific example of vile hatred and obscene partisanship!

Any chance we can impeach Bill Clinton over this?!?!?!?

Wasn't Senator Inouye, the one who breached the "Deal" by not voting for cloture for Judge Owens as he promised to?

we will never again see the Republicans giving a pass to some whacko radical leftie like ginsburg again.

But I think you've got the meaning of "kowtow" backwards. "Kowtow" means to defer out of respect (when used positively) or defer in a servile manner (when used negatively). Doesn't really apply here. If anything, these Senators are doing the opposite of kowtowing.

... Bill Clinton's first choice for the first vacancy of his Administration was Bruce Babbitt.  Hatch told Clinton that the GOP would oppose Babbitt, then suggested both Ginsberg and Breyer as nominees the GOP could live with.

'Free pass'?

The ranking GOP member of the Senate Judiciary Committee recommended her!  This per Hatch's autobiography, "Square Peg".

You should take your whining and sniveling to Orrin Hatch.

Is, obviously, the Rehnquist vote.  On both occasions when that came before the Senate - first to be Justice, then to be Chief Justice - Rehnquist received FEWER votes than Roberts.

Basically, the Republicans had the Dems in a tough catch-22 - either vote against and look obstructionist, or vote for and look weak and ineffective.  The Dems took the one halfway intelligent path - they split it down the middle, voting their consciences (supposedly).  Now, they look both brow-furrowing concerned AND reasonable at the same time, and they still have ammo for the next nominee, should he raise more of their ire.

I don't have the link handy, but I suggest that all of you who think there are no intelligent Democrats read Ron Wyden's press release on his "yes" vote.  If that prevails as the Democratic strategy, look out in 2006.

I meant that they were kowtowing to the interest groups. Sorry -- thought that was obvious.

You should take your whining and sniveling to Orrin Hatch.

He has enough already.

for first nomination and I think for elevation to cheif (could be wrong on the latter) and long ago gave up caring about obstructionist label, despite Daschel's new  circumstance.

The best analogy is Clinton-Ginsburg/Breyer since his party was in control of the senate.

I for one  believe that the GOP, after the Bork/Thomas fight and really after Roe, whenit was clear that certain, and now most, judges use a "living document" philosophy to make law, that the GOP should have opposed such judges, even if they lose the vote, to make the point and take it to the people.

Hatch was wrong.

its a protest vote.

should the dems have used the roberts nomination to make a protest vote?

probably not.

but im not sure why anyone is upset with the vote...roberts was going to be confirmed no matter what.

Hatch also told Clinton that there was Democratic opposition to Babbitt, because of decisions he made as interior sec.

Isn't that all the more reason to join a 98-0 (or 99-1, if you count Harry Reid) chorus? Why vote against him? It's a free vote -- he's unbelievably qualified.

Officially.

I never really considered Inouye a serious member of "The Gang of '14' Deal", but his No vote on Roberts confirms that he can't even be considered a tangential member.

Inouye will be the first Gang of 14 member to endores a Filibuster on nominee #2.

Count on it.

Once the Deaniacs and MoveOn.org got control of the DNC, they free passes ended.

No possible way that could happen these days.

The other issue which this gives the GOP is the separation between politics and the law. The can go forward claiming a distinction between the two. The democrats, as a party, cannot.

Roberts entire soliloquy on "modesty" will be the crux of the argument. Either you think the judiciary is just another branch of politicians, albeit unelected, or you think the judiciary has a separate and distinct function from the elected branchs.

Not that there's anything new in those positions. Just that the GOP has a voting record of 30 years to stand on.

yes on all the nominees, only that they wouldn't prevent the vote.  They were still permitted to vote their conscience in the actual vote.  So this isn't a breach of the deal.

There are two things here that should be considered if we're going to be fair about it.

First, Breyer and Ginsberg, while definitely left of center overall, are not OLD WORLD liberal like Marshall and Brennan.  Far from it, and the numbers bear that out.  In fact, for all of his stuff about "Active Liberty" and the like, Breyer has a streak in criminal justice cases that actually tilts him to the conservative side as a percentage of votes cast, and he has been more conservative on criminal process than, say, O'Connor.  So, sure, he's not everyone's ideal justice, but if you're talking about what you can get from a Democratic President, yeah, you'll take him.  That's the debate Democrats have been having now: sure, Roberts is going to be every bit as conservative as Rehnquist, but he's a process-oriented conservative rather than a results-oriented conservative, and that may give them the occasional favorable "stare decisis" result over the years.

Second, while there is clearly more than enough kowtowing/appeasing the base among Democrats who voted against an extraordinarily well qualified nominee, I think there is also some room to recognize that there are a few Senators who have a sincere belief that this is a Separation of Powers conflict between the President and the Senate, and that the refusal to answer many of the questions and a refusal to get Solicitors General documents from Bush I--when the White House gave up the arguably more defensible White House counsel documents from Reagan--constitutes a challenge to the Senate.  Everybody knows that the confirmation process is dysfunctional and has been since Fortas, and extremely so since Bork, and so Presidents have gone increasingly far to "confirmation-proof" their candidates, in ways that involved precedent-setting challenges to the Senate's role.  I won't be surprised if there are a few candid institution-minded Republican Senators commenting on this once we're past the second nominee.

I feel the need to re-quote myself one more time:

The bottom line: For a filibuster to happen, 3 of the "moderate" Democrats must choose on their own that a nominee creates an "extraordinary circumstance." Then Sens. Graham and DeWine must agree with those Democrats on their assessment. To be honest, if Sens. DeWine, Graham and 3 of the Democratic moderates agree on a candidate, then they probably wouldn't get voted up by the whole Senate. Thus, the filibuster is dead for this Congress but perserved for the future.

Let me be very clear about my analysis of "The Deal" which was decried from most corners.

Any candidate who has majority support will be confirmed

I stand by that statement.  The worry with JRB is that she might not have majority support.  I believe almost all the other names being thrown around would have majority support unless something unexpected happened.  Thus, Owen, Garza, Luttig, Alito, and Estrada are all confirmable.  The question is whether the President wants to make this a knock-down, drag-out fight.

John Paul Stevens, 1975: 98-0

Sandra Day O'Connor, 1981: 99-0

Antonin Scalia, 1986: 98-0

Anthony Kennedy, 1987: 97-0

Ruth Bader Ginsburg, 1993: 96-3

Stephen Breyer, 1994: 87-9

OK, of all the brilliant minds on this site who can spot the pattern?  Anyone, Bueller?  Bueller?  Bueller?

Fine, I'll let you in... Stevens - Republican appointee, 0 votes against.  O'Connor - Republican appointee, 0 votes against.  Scalia - Republican appointee, 0 votes against.  Kennedy - Republican appointee, 0 votes against.

OK, even somone from this bunch must have caught on by now?

No?  OK - Ginsburg - Democratic appointee, VOTES AGAINST.  Breyer - Democratic appointee, VOTES AGAINST.

Who let the dogs out?

Each of the 14 signatories to the "Deal" promised that they would vote for cloture on the Owens, Brown, and Pryor.

Senator Inouye, as one of the 14 signators was required under the express terms of the agreement to vote for cloture for all three of these nominees (even if he later voted against confirming them) and by not voting for cloture on Owens, he breached the agreement.

Well done c17!  I don't think I've ever seen such a strong rebuttal.

Consider:

Haynesworth 45-55

Carswell 45-51

Bork 42-58

Thomas 52-48

Roberts 78-22

3 rejections, 4 character assasinations and on Roberts nearly twice as many no votes by dems as the total GOP no votes on Clinton's nominees.

woof

c17wife is fully capable of responding in depth to any post that has merit.

That said, her comment was factual and to the point.

I seem to remember Moveon.org expounding the fact that they paid for, and now own, the Democrat Party.

The confirmation of Chief Justice Roberts suggests that twenty-two 'No' votes were bought and paid for by George Soros, Moveon.org and the Hollywood left.

From January 1981 to December 1986. If the libs had had their way Scalia probably never would have made it to a vote, the same dirty tricks they tried to use against Thomas.

Democrats took the Senate again because some of the Republicans who won in 1980 were lesser tier (I think the man Tom Daschle defeated once held a press conference to deny reports that he was the dumbest man in Congress). Ithink of all who won in 1980 only Quayle, d'amato, and our dear Specter were reelected.

But please don't try to make this argument for Ginsberg-she is a good example of an extrem leftie and I would argue that if we get to hang the "ideological" lable on Scalia and Thomas, then it should equally be hung on Ginsberg.

Breyer is actually more conservative than Souter, and he was the swing vote in the ten commandments case split (granted I would hate to be a public official trying to weed my way around those decisions).

Give it up.

To expect a guy to risk  his health on a vote whose outcome was going our way no matter what, is inhumane.

I thought what Republicans demanded were "up-or-down" votes on every judicial nominee.  Turns out, what you really want is just an "up" vote on each of them.

Your attempts to still paint Democrats as extremists for having less-than-half of them voting against your nominee, while never attempting a filibuster, are sad.  Roberts won with a support of the majority of Democrats, despite a thinner judicial record than anyone since Thomas (and for a loftier post).  Stop positioning, and be glad you got your man.

i believe one of these guys went to prison after

being defeated and one was a confirmed racist so

i think both their defeats were warrented. if anyone remembers please let me know, i just know neither one was a glorious candidate but  i was pretty young when these nominations took place.

roberts getting  22 votes from dems is  actually pretty good in today`s political climate.the next one will be a battle because the dems need to bloody bush.

What was Souter's count in '90?  I would say that Anita Hill skewed Thomas' numbers--but Souter I think got a much better ride and that was from a Dem. Senate--but did he get more than 78 votes?

I just found it--it was 90-9 after a "difficult" confirmation process. Of course he had to more or less say he was going to morph into a liberal, but still.  90 votes.

I would class even Ginsburg as "far left". A far Leftist, judicially, would be someone who reads entitlement rights into the Constitution and would rule that the government MUST provide health care social security etc. to everyone on consstitutional grounds-- in effect ururping even the taxing authority of the legislature.

In this country the far left has been frozen out of power for so long that many people are not aware of what it looks like, except in its more juvenile manifestations at protest marches.

When?  Please provide a citation.

Some fine Senators, among them a few faves: Coats, Coverdell (RIP), Nickles.

July 29th, 1994

NAY

Burns

Coats

Coverdell

Helms

Lott

Lugar

Murkowski

Nickles

Smith

I had no recollection of the issue the drove much of the opposition to Breyer. Lott cited ethical concerns, quoting....get this...a New York Times editorial to buttress his anti-Breyer vote (from The Congressional Record, page S10099):

The New York Times, in its lead editorial of June 26, 1994, just this week, starts out with a headline: `A Cloud on the Breyer Nomination.'

The New York Times editorial said:

Eager for swift confirmation of the Supreme Court nominee Stephen Breyer, Senators of both parties are rushing to a floor vote without fully investigating significant ethical issues connected to the nominee's investments. This irresponsible failure by the Senate leaves Judge Breyer with a cloud still hanging over his nomination.

Judge Breyer, who is Chief Judge of the U.S. Court of Appeals in Boston, answered the Senate Judiciary Committee's questions for 3 days and won unanimous clearance for a floor vote scheduled for tomorrow. But the committee failed to fully explore the judge's participation in pollution cases, despite his investment in a Lloyd's of London venture that heavily insured asbestos and toxic pollution risks in this country.

At issue is Judge Breyer's compliance with the Federal recusal statute, which requires judges and justices to disqualify themselves when their impartiality `might reasonably be questioned.'

I have made not even a cursory read of the record, but it appears the votes against Breyer were not based on his ideology, but on his fitness to serve, i.e., his judgment and ethics.

No one that I see questioned either in the case of Chief Justice Roberts.

Quoted in the post above. Lugar, an avatar of probity, opposed Breyer.

In this piece, he's lumped together with the difficult cases: "Some of the successful nominees have been confirmed with difficulty. They include William Rehnquist, when nominated as associate justice in 1971 and as chief justice in 1986; Clarence Thomas in 1991; and--with somewhat less difficulty--David Souter in 1990. In each instance, the nominee's apparent conservatism aroused opposition from liberal senators and interest groups."

http://www.cqpress.com/incontext/SupremeCourt/the_selection.htm

Although Inouye was in Japan, his absent vote on the cloture motion made no difference. For the confirmation vote, he made a deal with Stevens, who supported Owen but merely voted "present" to balance out Inouye's desired "nay" vote. I see no evidence Inouye breached the agreement, and more to the point I doubt you'll find any Republican Senator who agrees with your exotic interpretation of the above events.

Your grasp of statistics is terrible.

behind the word "kowtow." It comes from the Chinese word "koutou," which includes the characters "kou" (to knock) and "tou" (head). It's not surprising that these characters were included: when people kowtowed to the emperor, they bowed so low that their heads actually knocked gently against the ground.

Babs, Chuck, Hillary, get up. You're ruining your makeup.

Souter "had to more or less say he was going to morph into a liberal" to be confirmed.  That's what I'd like to see evidence of.

Yes, the questioning on him was tough, because his record was so thin, and Democrats wanted to know why Sununu was such a strong backer.  

At least according to this account.  If he was well enough to travel to a foreign country, then he was well enough to uphold his end of the bargain which was to vote for cloture on Owen.

Moreover you're forgetting the reason why Inouye signed the agreement.  Without seven Democrats agreeing to vote for cloture, there would not have been seven Republicans agreeing not to get rid of the judicial filibuster which would have enabled Senate Republicans to exercise the Byrd option.  If Inouye could not fulfill his responsibilities, he shouldn't have signed the "Deal" which would have freed up one of the seven Republicans (e.g. Warner, Graham) not to sign onto it which would have given them enough votes to break the judicial filibuster.

Considering that Republicans had to toss three good judicial nominees under the bus in the name of this "Deal," all seven Democratic signatories had a duty to render specific performance of the express condition of that agreement.

I know that Haynesworth did not go to prison. He was a very distinquished jurist from my home state of SC who had been a politician in the era of segregation, but, like Robert Byrd, Hollings, and many democrat party heroes, was no longer a proponent of same, and most certainly his judicial decisions did not reflect any racist ideology.

I'll check on Carswell.

The racist label was usued then, much as today, to discredit judges that won't legislate from the bench in favor of racist liberal preferences.  

I agree that getting 22 democrats to do the right thing is a feat of Olympic proportions.

And when it comes to an express condition of an agreement, requiring specific performance is the normal rather than an "exotic" interpretation.

If Inouye could not perform, he should not have agreed to be the seventh Democratic signatory.  Of course we all know that without seven Democrats signing, there probably would not have been seven Republicans signing the "Deal" which was exactly the number needed to prevent Republicans from ending the judicial filibuster which also would have meant that several other judicial nominees with majority support wouldn't have been tossed under the bus as part of the "Deal."

Guess I was misinformed then, sorry.

But anyway, how is he supposed to vote from Japan?  Was he supposed to make a 12 hour flight to show up for a vote  whose outcome was clear?

If it were close, and his absence caused a filibuster to succeed, you'd have a case for his breaking the agreement.  But being a nit about this is just pointless, and against the Senate tradition of comity.

That tradition is why many of those in the agreement made the agreement, after all.  So you're completely wasting your breath screeching about this.

55 Republicans minus 6 = only 49 votes to invoke the nuclear option, one short.

45 Democrats (44 + Jeffords) minus 6 = only 39 votes against cloture, one short.

I interpet this, from the same source:

"In contrast, David Souter's testimony avoided raising concerns about his views and reassured many senators that he was not strongly conservative; as a result, his confirmation was assured."

be considered when interpreting the US constitution and US law is extremist to me.

That is the beauty of a nice subjective word like extremist, while I like and agree with the judicial philosophy of Thomas and Scalia, I view the Ginsbergs as extreme.

Although I will state that I don't think Ginsberg was unfit to be on the SCOTUS, but I reserve the right to find her position on the extreme left, and will only note that there could be some more extreme.

on the inappropriateness of reliance on foreign law in constitutional rulings. Of course, its wrong.

But activist judges don't now need nor never have needed foreign law references to issue abominable and unsupportable decisions.

I fear the focus on this boutique minutia of the far left oligarchists may leave many assuming that so long as their decisions don't mention foriegn law that they must be ok.

I would quibble on Ginsburg. I do deem any judge that does not follow originalism to be un-qualified, but they usually couch their testimony in vague enough terms.

Bork is great on this in "The Tempting..."

Common Law, which is what our system of judicial precedent is based upon, IS capable of looking to other common law countries' precedents for interpreting "source law," that is, original intent.

I wouldn't say that this is the case, generally speaking, in interpreting the US Constitution, but as far as all lower laws go, Ginsberg's opinion is not quite as "extreme" as you might think.   (of course, I believe that this is one of the major flaws in precedent-made law, but hey, it's the system we have)

A longer historical view would lead to a different - and more favorable or at least more tolerant - conclusion regarding Democratic oppposition, I think. 20% of all nominees to the Court have been rejected, and there have been many Senate no votes on explicitly political grounds.    It is part of Senate tradition to disapprove of Presidential court picks, and to base that disapproval on political issues, be it views on labor and business or stances toward certain treaties, or whatever else happens to be the hot issues of the day.  

It's predictable that the party in power will attempt to claim the neutral high ground, even if their arguments seem self-serving after the fact (I imagine that if you look at the motivations of Radical Republicans vis-a-vis Johnson, they were framed in terms that are at least neutralism analogues, for example). And it's part of the current political strategy of the GOP to construct constitutional law as something above interest group politics. Fair enough. But it's odd to say that we're now "starting down a dangerous road."  We've been on that road for a long time, and in a sense it is part of the constitutional design.

Shame on the President for illegally withholding documents that Roberts authored.  Shame on Democrats for ignoring Roberts evasive answers.  Shame on Pat Cleary for excluding the Senate's vote on Clarence Thomas - 52 to 48.

Shame.