Notes on the Nuclear Option -- Part XII

by Kagro X

One last observation on the otherwise-worthless C. Boyden Gray memo:

I mentioned in Part XI that Gray had mischaracterized Prof. Cass Sunstein as a "prominent Democratic strategist," while claiming that Sunstein's op-ed supported his views on the nuclear option. They don't, but I only told part of that particular story last time.

Gray cites the Sunstein, Schkade op-ed "A Bench Tilting Right" to counter the argument that "Democrats have no choice but to resort to extraordinary measures because President Bush's nominees are exceptionally conservative and ideological."

Remarkably, there are no significant differences among the voting records of Reagan, Bush I and Bush II appointees. The three most recent Republican presidents have shown extraordinary consistency in their choices.

And, as I pointed out last time, the prior failure of Democrats to catch on to the fact that trend has a cumulative effect is not convincing as an argument for continued acquiescence.

But there's more to it than that. Consider the limits of Sunstein's conclusion to support Gray's "point," if there was one. Democrats have delayed the votes on 12 Bush II nominees, and say they're exceptionally conservative and ideological. Gray says that Sunstein says that there are no significant differences between Reagan, Bush I and Bush II appointees.

It may be splitting hairs, but there's a difference between nominees and appointees. Appointees have made it to the bench to which they've been nominated. There are hundreds of Bush II appointees, but only 12 remaining nominees.

But even if the semantic differences are accidental, we can't really evaluate the applicability of Sunstein's conclusion to Gray's point without knowing whether the "voting records" of Bush II's nominees are included with those of his appointees. Might it not be the case that Bush II's appointees are no more conservative than those of Reagan or Bush I precisely because the 12 most conservative and ideological are being blocked? Did the voting record of failed Supreme Court nominee Robert Bork count in the figuring of the Reagan legacy? If not, that would certainly account for some of the "consistency." And by the way, what role might the Senate have played -- with its heretofore acknowledged role in accepting or rejecting nominees, through any one of the many procedural tools at its disposal  -- in moderating and adding "consistency" to these choices?

It's also worth considering that the 12 nominations awaiting consideration to the Circuit Courts of Appeals -- the last stop before the Supreme Court -- have between them an average of under seven years on the bench, because four of them have never served a day in their lives. One more, William Pryor, has served only since his recess appointment by George W. Bush in 2004.

In other words, even if Sunstein and Schkade had decided to include Bush II's nominees (not appointees) in their calculations, five of the 12 nominees have no "voting records" to speak of, anyway. How can you tell whether Bush II's nominations have voting records more or less conservative than those of Reagan or Bush I without having a voting record to work with?

Also unanswered at the moment: Among the 12, only three currently serve on the federal bench -- Terrence Boyle (nominated by Reagan), David McKeague (nominated by Bush I) and Pryor (nominated last year by Bush II). A fourth, Henry Saad, was appointed by Bush I to the 6th Circuit, but his nomination was not acted on, and lapsed. So, is Bush II's consistency with Reagan and Bush I (at least among those who have voting records) a function of his temperence, as Gray would have us believe, or of the fact that his pool of nominees draws heavily from Reagan and Bush I appointees who have since established voting records that identify them as considerably more conservative and ideological than we believed last time they were sent up?

Comments

[DemFromCT]

It seems to go without saying that the wingnut nominees who fail (e.g., G. Harrold Carswell by Nixon) would change the tenor of a Presidential record, But i guess you needed to say it, if we're talking about Republicans playing fast and loose with the truth. A Nixon memory moment:

Letters by

EDWARD A. TOMLINSON

Associate Professor, Univeristy of Maryland Law School

Signed by 12 other members of the law school faculty

JOSEPH KRAFT

Washington

J. LAWRENCE SCHULTZ

Editor, Harvard Law Review Cambridge, Masschusetts

The letter was co-signed by 57 of the 70 active Harvard

Law Review Members

8888888888888888888888888

The defense of Judge G. Harrold Carswell’s mediocrity by Senators Hruska and Long on the basis that mediocrity should be represented on the Supreme Court is the most incredible reason I have ever heard for appointment of a man to one of the most important and responsible positions in our society. This is truly a perversion of the idea of democracy, aside from the racist view that Carswell also represents. In any case, the standard of mediocrity has already been heavily represented in President Nixon’s prior appointments, and it is clearly over-represented in Congress.

It appears to me that the crisis in our nation is so great that it is time for us to strive to seek out the best among us for these awesome responsibilities, rather than reaching for the lowest common denominator.

The appointment of Judge Carswell and the defense of mediocrity are insults to the intelligence and patience of the American people.

WARREN M. HERN, M.D.

Washington

[Mike S]

Anybody here from Meteor Blades?

[DHinMI]

Hey, remember a few days ago when you were wondering if the Senate Dems were going to start openly talking about the threat posed by the nuclear option? Well, that nameless Senate Democratic Communications Center has posted a diary at Daily Kos with a letter from Reid pushing back against the nuclear option:

Stand with Senate Democrats against this Republican abuse of power:

http://democrats.senate.gov/filibuster-form.cfm

The nuclear option is a shocking power grab in its own right. More stunning is that President Bush has asked Republican Senators to stake their reputations on and break the rules for such shockingly unqualified judges.

[Kagro X]

Yes, I just saw that!

And still more exciting, the conversation has turned, and a boisterous few are wanting to know why there was no easy way for those who've done some heavy lifting on the nuclear option to actually share that work with the SDCC.

I never had any doubt that Harry Reid knew the nuclear option deserved attention, although I admit I was puzzled as to what they might be waiting for. My real concern was that there was no way to tell the SDCC that they had a target of opportunity in Cornyn, who was already in the news, that could have been used as a springboard to kick off their nuclear option work.