Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

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A reader from Texas checks in ...


I have been licensed to practice law in Texas since 1961. During that period we have seen the complete deterioration of the 5th Circuit in New Orleans from a beacon of reason during the civil rights battles (of course it then included more States including Alabama) to the a rubber stamp right-wing caricature of its former stature.

The court is particularly bad in precisely the areas in which Priscilla Owen is awful. Sure she is terrible on abortion issues. I think the other important areas of her reactionary views such as employee rights, civil rights, torts etc. are the ones she will do the most damage on. That is because most of those sorts of cases end at the Circuit Court level. Most abortion issues do make it to the Supreme Court, so the damage she could do on that issue is limited.

Here is my compromise, as much as it pains me: Let Owens go through. It will not make the 5th appreciably worse; the only more retrograde Circuit is the 4th. I know it will further imbalance the 5th and violate the dictum laid down by Sen. Schumer. The way I see it is that the 5th is a lost cause or sacrifice area already and for the foreseeable future. But, the DC Circuit to which Judge Brown has been nominated is both more important and more closely divided. Brown is so far out of the mainstream she almost makes Owens look moderate. Brown must be stopped. As must Myers. We need to preserve the independence of other Circuits such as the 9th and reluctantly let the 5th and 4th go even further, if such is possible, to the dark side. We have to depend on the fact that conflicts between circuits are often taken up by the Supreme Court.

Actually I do not think Frist can win a vote on the nuclear option. When crunch time comes I believe just enough Republicans will decide against violating both the rules of the Senate and permanently weakening the Senate vis a vis the Executive.

I think he may be right on that<$NoAd$> last count.

I mentioned a couple days ago that the chief bad actor in the 2002 New Hampshire phone-jamming scandal, James Tobin, is now going on trial. His attorneys are seeking to throw out his indictment on the theory that there may have been Democrats on the grand jury. And they're also asking the judge to allow expanded voir dire to allow his lawyers to strip the trial jury of any liberal bias.

I'm just looking here at Tobin's lawyers' proposed jury questionnaire. And there are some really entertaining questions, like ...

"8. Are you now or have you ever been a member of a union?

[] YES, I am now [] YES, I was in the past, but am not now [] NO

If YES, what union(s)?"

"9. Are you or have you ever been affiliated with a political party? []YES []NO If YES, what party?"

"18. If you have access to the internet, do you participate in chat rooms? []YES []NO"

"19. Do you read any blogs on the internet? [] YES [] NO If YES, what blogs do you read?"

Another point, for anyone who's actually interested in the constitution, its history and its future, is the degree to which this whole operation is quite clearly being engineered from the White House. This isn't just about the internal workings of the senate. It is also about, indeed principally about, the executive clipping the wings of the Congress, part of the parliamentarization of the American government under the President Bush that we discussed back on November 5th.

It may surprise you to hear that I'm not totally averse to a compromise in the judges/nuclear option situation. Not all of the judges being filibustered, for instance, are equally extreme in their views. So it wouldn't seem a bad deal to me if the senate Democrats were to allow up or down votes on some or even most of the judges in question, if what they got in return was some ironclad guarantee that the Republicans would no longer try to break the rules and abolish the right to filibuster.

Now, how that guarantee could truly be ironclad? I have no idea. But I'm speaking in hypotheticals.

What I don't understand is the logic of the deal that some of the senate moderates seem to have been and perhaps still are considering. The proposal floated yesterday would allow the two most extreme nominees, Owen and Brown, to go through, in addition to three others. On top of that the senate Dems, if I understand this right, would agree, in essence, seldom if ever to join filibusters in exchange for a promise from their counterparts on the other side not to vote to outlaw filibusters.

Now, there are those I've spoken to who see such a deal as worth it because at least it leaves the filibuster intact for the upcoming Supreme Court nominations. But this strikes me as foolish. There are easily enough Republicans to defeat this right now, if this were a secret vote. What we're seeing, however, is the degree of pressure the president, the religious right and Sen. Frist -- who is in hock to the religious right because he wants to be president -- are putting them under.

If the filibuster is 'saved' today at the cost of letting the most constitutionally noxious nominees go through, do we really imagine that the pressure will be any less when we get into a Supreme Court battle? The question answers itself. If they can't withstand the pressure now, they certainly won't be able to withstand it then. So such a deal, as near as I can figure it, would 'save' the filibuster in an entirely meaningless way, a right the minority would continue to hold so long as they agree never to use it.

The situation would be different if the deal did not allow through at least the two most extreme nominees, Owen and Brown. On one level it would be different simply because those two judges' records make them the most important to defeat. On another level, though, it would represent a telling sign. If these Republican moderates were to agree to a deal that nixed these two nominations, that would tell me that they really are willing to hand their leadership (and the Dobsonites) a significant defeat and that they recognize that the power of the filibuster remains intact -- otherwise, why nix the two nominees both sides see as most important.

Those two facts would be the tangible proof that the filibuster still exists and that a significant number of Republicans recognize its existence and are willing to sustain it. That would mean far more than any words on paper or handshakes.

(Such an arrangement would also spawn a civil war among Republicans.)

So all of that is my thinking on why it might be good on substance and on politics -- depending of course on the precise particulars of the deal -- to give the Republican moderates a few judges now in exchange for putting to rest this plan to break the senate rules with false claims of the filibuster's unconstituionality. But any agreement that concedes on the present nominees in exchange for kicking the can down the road till the next fight on which the stakes will be even higher is just stupid.

If the filibuster is dead, far better as a matter of principle, honesty and politics to find out now, in advance of the next fight, than pretend otherwise.

The truth is that I think this whole debate is really hypothetical or moot. They've decided to break the rules with their false claim of unconstitutionality. And if that's true then Democrats should confront the situation at that level, without fear of doing so, without fear of 'losing' in the narrow sense of the term. It's just about the rump caucus of Republican moderates and whether they want to join their colleagues in their rule-breaking.

Late Update: This is one of those cases where I wish TPMCafe were already up and running (in case you're wondering, the site will launch before the end of the month) because the comments I'm getting in on this post are fascinating and have already led me to, at least partly, reconsider my position.

Many readers argue that the sort of 'compromise' I suggest still wouldn't be worth it because it would further confirm the Democrats' reputation -- both to themselves and to the electorate -- as weak, as trimmers who won't take a stand on a point of principle. In this sense, conceding anything would grant a measure of legitimacy to what is plainly an illegitimate action, one demonstrably based on false claims. I think that's a solid point. Over the last four years the Republican party has resorted with increasing frequency to tactics that at a minimum break long settled norms of our politics and in more than a few cases violate the law itself.

My openness to such a compromise is based on the belief that the sort of compromise I sketched out could well be the final straw that blows a big part of the Republican coalition apart. If the Republicans, either as a whole or because of a few defectors, let the filibuster stand, the Dobsonites will simply go nuts, though I admit in one sense of the word that may seem redundant. So I don't think Frist can or will compromise in this case because it's not as though there's any principles here save his own advancement that he cares about. And he doesn't think he advances any further without James Dobson pulling his strings.

And, as long as we're on the topic, have you ever seen Dobson and Frist talk simultaneously?

Did Rick Santorum really just say that?

Late Update: It seems he really did. Amazing.

Said Santorum: What the Democrats are doing is "the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.' This is no more the rule of the senate than it was the rule of the senate before not to filibuster."

For all the constitutional mischief they're in the midst of making, we should probably thank the 50+ senate Republicans for giving us an extended moment to see so clearly just who they really are.

Remember that this entire political uproar is supposedly about originalism, the need for judges who will interpret the law and the constitution not according to our personal wishes or the political needs of the moment, but according to its original and long-settled meaning. That is, we're told, their aim. And yet to accomplish this they are quite happy to use a demonstrably bogus interpretation of the constitution to overturn two centuries of settled understanding of what the document means and requires.

Before everyone's eyes, everything about the constitution is subservient to their need for power.

Their very victory, should it come to that, is their badge of hypocrisy. Their arguments are all at war with themselves. But they don't care. This is just about perpetuating their own power by any means necessary, using narrow majorities to lock in their power for the long haul.

As we wait on the sidelines for the seemingly inevitable chain reaction to take place on the senate floor, it is worth observing and considering the fact that every Republican senator certainly knows that the proposition they're about to attest to is quite simply a lie. Perhaps they have so twisted their reasoning as to imagine it is a noble lie. But it's a lie nonetheless.

What do I mean?

Whether you call it the 'nuclear option', the 'constitutional option' or whatever other phrase the GOP word-wizards come up with, what "it" actually is is this: the Republican caucus, along with the President of the Senate, Dick Cheney, will find that filibustering judicial nominations is in fact in violation of the constitution.

(Just to be crystal clear, what the senate is about to do is not changing their rules. They are about to find that their existing rules are unconstitutional, thus getting around the established procedures by which senate rules can be changed.)

Their reasoning will be that the federal constitution requires that the president makes such nominations "by and with the Advice and Consent of the Senate" and that that means an up or down vote by the full senate.

Nobody believes that.

Not Dick Cheney, not any member of the Republican Senate caucus.

For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head. You don't even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate.

Quite simply, the senate is empowered by the constitution to enact its own rules.

You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.

For all the chaos and storm caused by this debate, and all that is likely to follow it, don't forget that the all of this will be done by fifty Republican senators quite knowingly invoking a demonstrably false claim of constitutionality to achieve something they couldn't manage by following the rules.

This is about power; and, to them, the rules quite simply mean nothing.