Democrats: Masters of Obstruction

190 federal nominations (including 23 judges, secretaries of agriculture and veterans affairs, three members of the Federal Reserve, two members of the Council of Economic Advisers and the surgeon general) are sidelined because Senate Democrats won't deal with them. In the past, Bush would take advantage of Senate absences to make recess appointments (for instance, his appointment of John Bolton as ambassador to the UN).

Recess appointments are not new — they are provided for in the constitution whenever both houses are in recess (Article II Section 2) and "intrasession" recess (like holiday breaks) appointments have been upheld by federal courts — although a firm number of days has not been established nor has the Supreme Court ever addressed the issue.

President Washington used the recess clause to appoint South Carolina judge John Rutledge as the second Chief Justice of the United States (replacing John Jay) during a congressional recess in 1795. More recently, President Kennedy appointed Thurgood Marshall (the first African-American to serve on the Supreme Court) during a recess because he feared opposition from Southern senators. President Clinton made 140 recess appointments, including making James Hormel the ambassador to Luxembourg, the nation's first openly gay ambassador.

But Democrats don't want Bush to take advantage of a Senate recess to make such appointments, so they are implementing a new tactic: pro forma sessions (meaning that although there won't be an official recess, there also won't be any formal proceedings):

Sen. Jim Webb (D) of Virginia, the designated presiding officer, called the [otherwise empty] chamber to order. "Under the previous order, the Senate stands in recess until Friday," he said. He banged the gavel, and then he left. It took 22 seconds.

A single Senator, calling an empty chamber into session. Ah, Democrats. Faux politicians holding faux sessions.

This is the first time in history that pro forma sessions have been used to stop recess appointments. In other words, Democrats are implementing a new weapon in their war of obstructionism.

Said Senator Webb:

I'd much rather be doing this than allow the president to skirt the confirmation process in the Senate. This is an exercise in protecting the Constitution and our constitutional process.

Hmmm. As I recall, the constitution calls for the Senate to give "advice and consent", not stonewall for months on end. What constitution does Webb think he's protecting?

Alito Watch

Ankle Biting Pundits analyzed the first two days of the Alito confirmation hearings and has calculated the ratio of each Senator's words to Judge Alito's responses. For instance, today Sen. Lindsey Graham (R-SC) grabbed the cameras by droning out 2,243 words while Alito's responses to her "questions" were comprised of only 287 words, giving a Senator/Alito ratio of 89 to 11 percent. Astounding.

• Bloviating Senators-Statistical Proof Senators In Love With Their Own Voices
• Alito vs. Bloviating Senators, Day 2

Alito Says No to Foreign Law

Judge Alito showed great sense when he told the Democrat Inquisition that the laws governing other countries has no place in our courtrooms:

"I don't think it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution," Judge Alito said in response to questions from Senator Tom Coburn, Republican of Oklahoma, in the third day of the judge's confirmation hearings before the Senate Judiciary Committee.

"I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world," Judge Alito said. "The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time; they wanted them to have the rights of Americans."

I like this answer.

Volokh Analyzes Alito

Professor Eugene Volock asks and answers the question, "What would Samuel Alito's confirmation mean for First Amendment law?". Money quote:

What do we see here in Judge Alito? Not an O'Connor, Scalia or Rehnquist; rather, a judge with his own mix of conservatism, libertarianism and egalitarianism, a cautious jurist who seems likely to move the court toward a slightly more claimant-friendly view of free speech and religious freedom--and a slightly more government-friendly view of the Establishment Clause.

Bloggers Analyzing Alito

Personally, I would rather have seen the president nominate someone that would tear the left apart. A known conservative that is a poster child for the New Republicans. Someone like Judge Janice Rogers Brown. It would have been so entertaining to watch some on the left tiptoe around the fact that she is smart and black and conservative and a woman while others come right out and start throwing out "Oreo" and "Aunt Jemima" slurs.

The damage that the left would have inflicted on itself would have been pleasingly massive.

However, now that we have Alito one thing is clear: Bush learned that pandering to the Democrats has its price: his base. Sure, when we voted for him we knew that he was more moderate than true conservative and that there would be much that we would be unhappy about. But one the subject of SCOTUS he was crystal clear: reject activist judges and appoint constitutionalists.

Miers was an unknown and we deserved better, and so the bickering began. Miers graciously withdrew and the President got another shot. While he didn't pick who I would have picked, at least he did what he said he would do: appoint a constitutionalist that follows the law. As John Hawkings at RWN put it:

When Bush's next originalist nominee, the replacement for "swing vote Sandra," is actually confirmed. You know why that is going to be such a great day? Because that will be when it finally dawns on the Democrats that they've been completely and utterly hosed. Little miss flipping coin, Sandra Day O'Connor, will be gone and in her place will be a rock solid originalist who'll be up there for decades. It'll be enough to bring a smile to a conservative face and a tear to a Democratic eye...

Orin Kerr writing at the Volokh Conspiracy says that has some acquantance with Judge Alito:

First, Judge Alito is not a Scalia clone, contrary to what some news reports have claimed. ...

Second, Judge Alito is one of the most likable people you'll ever meet. He comes off as modest, quiet, and very thoughtful, but he also has a sharp sense of humor. If picked, I think he will be (and should be) a popular choice in the Senate.

Outside the Beltway has some great bio and historical information.

Writing on the Volokh Conspiracy, David Kopel tries to divine what Alito believes the Second Amendment to mean:

Neither case clearly shows Judges Luttig or Alito to support or oppose the Standard Model of the Second Amendment. However, I believe that both opinions suggest that judges Luttig and Alito are, at the least, not hostile to the Second Amendment. Moreover, a generous reading of the Fourteenth Amendment, and a willingness to take Lopez seriously are in themselves good signs for persons who support judicial enforcement of the right to keep and bear arms.

War on Guns posts an excerpt from the Gun Owners of America that indicates that they support Alito.

Ankle Biting Pundits analyzes an Alito dissent and finds the heart of a true conservative:

If all this is just a bunch of legal mumbo-jumbo to you, keep this in mind - Alito's theory of federalism, as set forth in his dissent here, is at the crux of conservative legal philosophy - a respect for federalism and the refusal to legislate from the bench to achieve a desired, or politically popular result. And read carefully - it's not as if Alito is hostile to all federal power (as his detractors will surely claim), given that he claimed here that if Congress made findings that the law affected interstate commerce he may have upheld the law.

Unlike Harriet Miers, there are several other examples - a "paper trail" if you will - of Judge Samuel Alito espousing a conservative legal philosophy that can make us comfortable that Alito will not "grow" on the bench as that term is defined by the MSM - which means "drifting left".

Patterico's Pontifications does a careful analysis of Alito's dissent in Planned Parenthood v. Casey, a case that will be central in the Democrat attack on Alito because he ruled in favor of spousal notification before an abortion. Read it all, but a couple of the money quotes:

Nowhere did Judge Alito call for Roe v. Wade to be overruled. There is nothing inflammatory in his dissenting opinion, at all. It is simply a measured and well-written opinion that shows a careful analysis of precedent and a proper respect for the courts' limited role in our constitutional structure. ...

The bottom line is this: Judge Alito's Casey dissent shows one thing, and one thing only: he is a careful judge and an adherent to the rule of law and a limited role for the courts. It is a dissent of which we can be proud.

As Casey will be central in the liberal's attack strategy, it is important to get the facts. QandO Blog lays it out clearly and simply and throws in a probable search case for good measure. Also, there's more from Clayton Crammer's log.

Ideoblog reviews Alito's cases [HT Volokh] and finds that he is business-friendly and values the free market:

In short, Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He's also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

New World Man analyzes three cases relevant to free speech. Money quote:

While eminent domain, the Commerce Clause and abortion/right to privacy are more in the minds of Court watchers and Senators these days, firm footing on free speech and the rest of the First Amendment is obviously an important trait in the next Associate Justice. Judge Alito appears to be well grounded there.

INDC Journal takes a look at Alito's dissent in Bray v. Marriott, a race discrimination case:

A reasonable person could disagree with Alito's position in Bray regarding what the plaintiff must show in order to defeat a summary judgment in favor of an employer in this specific type of discrimination case, but I do not see how a reasonable person could sum up his position as "Alito would allow race-based discrimination."

Captain's Quarters reminds us that Alito's "go by the law" doesn't always please the right, but definitely approves of the nomination:

Alito, at 55, has the possibility of providing 20-30 years of jurisprudence on the Supreme Court, meaning that he and John Roberts have a real opportunity to turn the court back from its decades-long flirtation with supplanting the Legislature and turning itself into a strange American version of the Iranian Guardian Council. In this nomination, Bush may have hit the home run we wanted with the first nomination. Democrats may well try obstructionism, but they stand to lose the filibuster if they try -- and if John Paul Stevens steps down or dies during the next two years, the path will open up for Janice Rogers Brown to take his place.

Power Line predicts:

We're about to get the fight over Constitutional principles that conservatives have looked forward to for years.

Most humorous post goes to Daimnation!

My goodness, the Americans are actually going to have another debate over whether a nominee to the highest court in the land deserves to be there. Don't they know the enlightened, Canadian way is to leave the decision entirely up to the whims of the Prime Minister?

Right Side of the Rainbow has some amusing reaction from the left. My favorite:

Hey, I don't like it either, but what exactly do we fight on? That he's conservative? That he once applied the "rational basis" test to a decision concerning parental notification? Do you really think that's going to sustain a fillibuster? Come on.

You can't win a war shooting blanks, and that's all we've got right now.

Whaduya know, a rational Moonbat. Somebody better capture it and put it in a cage. Maybe we can breed it and save the species.

Bottom line from all this research is that Alito is clearly a jurist that is intent on enforcing the law, not bending it to meet an ideological agenda. For that reason, I am proud to join the

Update: Reader Bat One points out that Of Arms and the Law has a more extensive post on Alito's Second Amendment rulings than I included in my post called Alito and Guns.

Breaking News: Mieis Withdraws

Harriet Miers withdrew her nomination to be a Supreme Court justice Thursday in the face of stiff opposition and mounting criticism about her qualifications.

President Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down. He blamed her withdrawal on calls in the Senate for the release of internal White House documents that the administration has insisted were protected by executive privilege.

Another SCOTUS Nominee

RedState.org reports that "the reality of the situation has been conveyed to the President" and the White House is looking for another nominee on the QT.

Burton Appointed to Circuit Court

Remember this guy?

Flashback to the aftermath of the presidential election in Florida. This was Judge Charles Burton, the chairman of the Palm Beach County Canvassing Board and a life-long Democrat, who was seen on millions of television screens day after day as he and his cohorts tried to divine a voter's intent from examining hanging chads, dimpled chads and random dents and scratches on punch cards.

At the time I figured Burton for a partisan Democrat, attempting to discover Gore votes where none really existed. I wasn't alone.

Then I watched the Gore lawyers challenge the Bush win in Judge N. Sanders Sauls court. (I was lucky in that I was at home and was able to watch the entire trial.) Judge Sauls was impressive. David Boies (lead attorney for Gore) was slimy. Barry Richard (lead attorney for Bush, I think) was forgettable.

But when Judge Burton testified, he left a memory that will never fade. He was honest and sincere. I could see the doubts that assailed the man, doubts about the process and the results. I empathized with him, understanding what a difficult ordeal the recount process, how exhausting to have had so much responsibility — a responsibility to truth and justice that he undertook willingly and with great seriousness. He took pains to try and make everyone understand the truth of the matter.

At that moment I came to believe that he was a man with high ethical values and a dogged determination to find the truth. I even found an email address for him and sent him a message, thanking him for his efforts, a Republican to a trusted Democrat.

Therefore, I am pleased to see that Gov. Jeb Bush has appointed Judge Burton to the Circuit Court bench:

Burton moves into a new spot on the Fifteenth Judicial Circuit, one of 55 judicial positions created statewide during the 2005 legislative session, Bush spokeswoman Deena Reppen said. Burton will assume his new position Nov. 1, Kroll said.

Burton spent 11 years as a prosecutor in State Attorney Barry Krischer's office, leaving for a five-year stint as a civil attorney before returning as a prosecutor and eventually heading up the Crimes Against Children unit. He has been a county judge since May 2000.

Congratulations, Judge Burton.

Quote of the Day

On the Miers nomination:

When homosexual Republicans begin sniping at a GOP president from his right, might that be an indication that something is askew with his presidency?

From Right Side of the Rainbow, who also points to an (as yet) unpublished article by George Wills (posted by Southern Appeal) which contains this bit of wisdom:

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court’s tasks. The president’s ‘‘argument’’ for her amounts to: Trust me.

Update: George Will's column is up at Townhall.com. Another fav quote:

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to insure a considered response from him, he had been told in advance he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, ``I agree.'' Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, ``I do.''

Bush Blows Opportunity

With Republicans in control of the House, Senate, White House and the majority of govenorships Bush continues to make unnecessary concessions to Democrats. Is the man that ousted the Taliban and freed a nation so afraid of confrontation that he won't nominate a known conservative to the most important judicial post in the land?

Don't get me wrong, I'm tickled pink that Bush didn't nominate gun-grabbin' Gonzalez, but to pass over great picks like Priscilla Owen and (my fav) Janice Rogers Brown? And talking about gun-grabbers, does anyone know anything about Miers' stance on the Second Amendment? The War on Guns notes that Miers speaks supportively of Project Safe Neighborhoods. That's a strike against her right there.

I thought I voted for a conservative — twice. President Bush has demonstrated that he is on the liberal end of that label — twice.

Let's see how the 'sphere is reacting:

• Will Bunch Blog details Miers' involvement with past Bush potential scandals: his National Guard Service and some Texas Lottery Commission shenanigans:

  This all could be interesting fodder for a Miers confirmation hearing this fall. But Bush apparently went for Miers' top two credentials:

  Loyalty...and a little inside information.

  [HT to Just a Bump in the Beltway]
• Instapundit is "underwhelmed" and QandO Blog agrees:

  So far as I can tell, Miers' qualifications include a tolerable resume and a fierce loyalty to President Bush. And in an administration predicated on loyalty and cronyism, that's all it takes.

• The Volokh Conspiracy has mixed feelings:

  But my initial reaction is that it's unfortunate (but not surprising) that for both Supreme Court nominations, the president has chosen well-connected insiders with ties to the executive branch, rather than individuals who are more likely to bring a more "independent" perspective to issues of government and especially presidential power. And appointing his "personal lawyer" from Texas seems very Lyndon Johnsonish, and is hardly likely to repel recent charges of Bush Administration cronyism. On the other hand, I'm please that Miers is (a) not from an elite law school; (b) not a federal judge; and (c) spent the vast majority of her career outside the beltway. All good things to bring new perspectives to the Court, and, in the case of (b), break a silly tradition [that Justices MUST be from the federal bench] that has evolved.

• Ankle Biting Pundits gets it exactly right:

  Here's another question - when Miers comes under the inevitable attack by the left, why should conservatives go to the mat for her? What has she ever done to convince us she'd be in the mold of a Scalia or Thomas? Is Harriet Miers why the base was out knocking on doors and making phone calls? I don't think so. To use a phrase, conservatives really have no "skin" in this game, and quite frankly many likely wouldn't be disappointed if she's rejected, which will at least give the President a chance to nominate someone that could fire up conservatives.

• Ditto from Betsy's Page:

  The reports are that senators on both sides of the aisle. Well, if that is the criteria on which she was chosen, that is very disappointing. That is not a position of leadership, but of bowing to pressure.

• Confirm Them isn't thrilled and posts Meirs' political contributions which go to both sides of the fence (let's hope she does better with her decisions).
• Outside the Beltway:

  While President Bush is not playing from a position of commanding strength, to say the least, at the moment, virtual surrender to the Democrats on something this important is hardly necessary.

• PoliPundit is "not thrilled".
• Captain's Quarters is mystified:

  Miers may make a great stealth candidate, but right now she looks more like a political ploy. Color me disappointed in the first blush.

• Angry Clam posting at Patterico's Pontifications pulls no punches:

  You know, just when I thought that the worst possible move that the Bush Administration could make would be to nominate Alberto Gonzales, he goes and shows me up.

• Right Wing News says this is the "worst decision of Bush's entire presidency":

  To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection. ...

  You want a candidate who has "Souter" written all over her? You want a candidate who can't be trusted to overturn Roe v. Wade? Well, her name is Harriet Miers.

• Power Line is disappointed:

  Regardless of what the Democrats do, many Republicans will have misgivings about this nomination. "Stealth" nominees have not turned out well for Republicans.

  PAUL concurs: This nominee is a two-fer -- she would not have been selected but for her gender, and she would not have been selected but for her status as a Bush crony. So instead of a 50-year old conservative experienced jurist we get a 60-year old with no judicial experience who may or may not be conservative.

• Confederate Yankee is unimpressed.
• Mary Katherine Ham:

  Bill Kristol was just on Fox, saying, "it's hard to see this as anything but a flinch from a fight."

  He added that it sends a very bad signal for Bush to pass over distinguished conservative women with strong records who have been fighting for constitutionalism for years for someone with no record. I agree.

  [HT to Club for Growth Blog]
• Right Side of the Rainbow is taking a "wait and see" approach, but:

  What is it professionally that qualifies Harriet Miers for a seat on the U.S. Supreme Court? Is this A) an affirmative action hire, or B) another instance of Bush Administration cronyism or C) both A & B?

• Balloon Juice says the pick doesn't make sense.
• Michelle Malkin is "utterly underwhelmed" and has a blogosphere roundup.

Last Friday, Right Wing News polled 14 bloggers about the upcoming nomination. It is interesting that five of them specifically mentioned Miers as the choice "you really hope Bush doesn't pick". So 1 out of 3 bloggers specifically rejected Miers before she was even nominated!

Blue State Conservative is "having a hard time finding a blogger happy with Bush choice." Ditto!

Time to write my Senator, for all the good it will do. Although I have hope, encouraged by a post from SCOTUSblog:

I have no view on whether she should be confirmed (it's simply too early to say), but will go out on a limb and predict that she will be rejected by the Senate. In my view, Justice O'Connor will still be sitting on the Court on January 1, 2006.

Roberts Vote Headed for Senate

Roberts has been voted out of the Senate Judiciary Committee 13 to 5 and his nomination is headed for a full Senate vote on Monday.

All ten Republicans voted to confirm as did three of the eight Democrats.

This'll all be over on Monday when Roberts is confirmed.

Of course, Ann Coulter continues to say that Roberts is a bad choice, especially for Chief Justice. She thinks Bush should have put Antonin Scalia in that spot. I have to agree just on general terms: a known conservative in that spot is far better than taking a risk on an unknown. But Ann has an even better reason:

But most important, if Bush had nominated Scalia, liberals would have responded with their usual understated screams of genocide, and Bush could have nominated absolutely anyone to fill Justice O'Connor's seat. He also could have cut taxes, invaded Syria, and bombed North Korea and Cuba just for laughs. He could even have done something totally nuts, like enforce the immigration laws

Dems to Use Katrina Against Roberts

In the whirlwind of politication of Hurricane Katrina, I find this the most stunning of all:

Senate Democrats said yesterday that they will invoke the vast disparities in income and living conditions laid bare by the Hurricane Katrina disaster to sharpen their questioning of Supreme Court nominee John G. Roberts Jr. at his confirmation hearings next week. ...

''We have made very important progress over the period of the last 50 years in knocking down walls of discrimination so that people can participate and be a part of a changed America," said Kennedy, a senior member of the Senate Judiciary Committee. ''And he's going to be asked to explain some of his advice that would have, I think, undermined that progress in important ways."

Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, said he, too, will pursue questions raised by Katrina in the Roberts hearings. In addition, civil rights leaders whom Democrats have called to appear at the hearings said they also intend to refer to the scenes from the hurricane-ravaged region.

Bringing Decorum to Confirmation Hearings

Something to consider as we prepare for the Roberts debate:

In July 1993, as the Senate Judiciary Committee was considering the nomination of current Supreme Court Justice Ruth Bader Ginsburg, the panel's chairman laid out ground rules to ensure decorum and an honest discussion.

The chairman said the hearings should not be a "dramatic spectacle" or "a trial." As far as asking about how the Clinton nominee would rule on certain cases, the chairman said, "the public is best served by questions that initiate a dialogue with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference ... between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee's independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a justice."

The man who set the ground rules for the Ginsburg hearings was Democratic Sen. Joe Biden.

If those rules were good enough in 1993, why should they be changed now, a dozen years later?

Precisely.

Civil Rights Group to Attack Black Judge in Ads

Under the agreement that put off the filibuster confrontation, Janice Rogers Brown will be the second of Bush's previously-filibustered judicial nominees to receive an up-or-down vote. But the Leadership Conference on Civil Rights is planning an attack ad designed to convince senators to vote against her:

The ad says Brown "threatens to turn back the rights we've fought so hard to protect ... health and safety, equality, Social Security."

The commercial will air in Rhode Island, Nebraska, Maine and the D.C. area.

You know we've come a long way when civil rights groups are attacking an African-American success story like Brown, the daughter of share croppers who rose to the California Supreme Court.

Blogosphere Filibuster Roundup

The unhappy:

• Bill Hobbs will not vote for Frist in 2008.
• The Spoons Experience calls it a Filibuster Deal for Dummies
• Beldar also thinks it isn't exactly a win-win:

  And in exchange for giving their promise to violate their constitutional duty — their clear, written, unequivocal promise to guarantee that the Senate as a whole defaults on its constitutional duty — these seven senators got exactly nothing.

• Right Justified says, "The party of the majority has basically bent over to the minority."
• Blogging for Bryant observes:

  This "deal" just shows how a united Democrat minority can win a major victory over a fragmented Republican majority and it should be a lesson to Tennessee Republicans as to why we need to send a principled conservative to the U.S. Senate -- not a RINO.

• Captain's Quarters says welcome to Versailles:

  In the meantime, the GOP centrists will have explicitly endorsed the use of the filibuster in dealing with interbranch transactions, against the model of equality among the branches, while the Democrat centrists have betrayed the notion that ideology had nothing to do with their obstructionism.

• TeamGOP is doubtful:

  The fourteen all agreed to vote for cloture to end filibusters and allow up-or-down votes on three of President Bush's ten stalled judicial nominees. The others will remain indefinitely stalled. That’s 30% and this is a good deal?

• Lifelike Pundits slams McCain:

  This is naked media whoring. McCain, so high no himself, sealed his doom in the Republican primary for 2008 with this deal.

  I will join any republican effort to ensure his loss in 2008.

• Physics Geek minces no words:

  The Republicans, fresh-faced and spirited after their gains during the last two election cycles, decided to pork themselves in their collective asses by capitulating to the Democrats on the issue of judicial filibusters. Worse still, all of us have to live with the image of John McCain puffing himself up for the all but certain photo opportunities with Katie Couric et al.

• What Can Brown Do For You? predicts:

  We'll see this whole thing again when Bush appoints a Supreme Court Justice. The Democrats promised not to filibuster except in "extraordinary" circumstances. To them, Bush appointing a Justice will be "extraordinary."

• Don't Let Me Stop You hits the nail on the head:

  In the name of civility in the Senate, the "moderate" Senators have abandoned principle and countenanced continued politcization of the judicial confirmation process. This will not restore civility. It will only encourage more of the same from the Left.

• PoliPundit says not much of anything was resolved:

  Other than the fact the GOP still is years away from having the kind of political ruthlessness for which the Democrats have been known since “Landslide” Lyndon Johnson’s Senate career. {sigh} And the fact that 15 percent of the Democratic caucus is not willing to filibuster three soon-to-be-lifetime judges about whom NARAL, Moveon.org, and the Sierra Club have gastrointestinal disturbances.

• Power Line says it is hard to overstate what a disaster this is for the Republican Party

  I heard Senator Graham claim that he still has the right to vote to change the rules if the Democrats abuse filibusters. But, in light of the language of the deal, this statement appears to be disingenuous. Graham doesn't get that right (which he probably doesn't want anyway) until the next Congress. The Democrats get to skate past their latest defeat at the polls and hope for better things in 2006.

• Patterico's Pontifications predicts filibusters for the first two Supreme Court nominees:

  The balance of power will not change in the slightest. And it gives them an inexpensive way to “prove” that they “really mean” they will filibuster only in “extraordinary circumstances.”

• Blogger News Network has a much darker view:

  I do not believe this was a matter of giving in to one side or the other, but rather a broader look at a much larger problem. Our representatives within the legislature no longer have our best interests at heart. To capitalize on the current box office blockbuster, they have joined “the dark side the force.” But is this revelation really anything new?

• Right Minded scolds:

  Don't Republicans ever learn? It's foolish to let Democrats, who advance their agenda only by distorting facts and redefining words, to decide the meaning of "extraordinary circumstances." To them, any nominee to the right of David Souter could be construed as "extraordinary."

• South End Grounds lists several problems with the compromise, then observes:

  I had occassion to work with several legislators of a similar mind. They find out in due course that no matter how nice you are to a donkey, they're liable to kick you in the butt if the mood suits them. The sooner that happens to these "moderates," the better.

  Is it any wonder that history is not replete with great moderates?

• Chris Roach points out:

  The Senate compromise is weak. It's true no one really cares about this issue other than the respective party's bases, but you'd be surprised how many average-Joe Republicans you meet that voted for Bush primarily because of the importance of judicial appointments. This issue frequently tipped the balance, in spite of their misgivings. For this reason, I think Republicans should've made the Democrats go to the mat on this one, staying up all night, and looking like mean-spirited ideologues.

• Fishkite is disappointed:

  It is disappointing that the Democrats will continue to obstruct several of Bush’s current and future judicial nominees, but at least we’re getting three more on the bench.

The pleased:

• Say Anything says to look at the big picture:

  I think this compromise was a smart move. Those who wanted the nuclear option used now are playing the short game while congressional Republicans are playing the long one.

• The Blue State Conservative says that this is just one step in a war that the GOP is winning:

  Overall, if you are a GOPer there isn't much to celebrate at this point, but the Democrats are in retreat on this issue. They aren't running for the hills, but they've had to take a step back on this issue and exposed that their philibusters weren't based on an "extreme circumstance" now that a judge like Owen (philibustered for four years) will get a vote today.

• Lean Left has a rather nice reasoned post:

  This is also a good day for the independence of the Senate. If the filibuster had gone through, it would have been another step to replacing debate and conscience with party discipline and that, in turn, would have helped turn the Senate into a smaller version of the House – where individual members are pretty much powerless and the Majority Leader controls all. That is not good for the country, so it is good that that step has been, at least delayed.

• BuzzMachine thinks political war has been averted:

  I call avoiding stupidity victory, myself. I call moderation virtue.

• The Moderate Voice lives up to its name:

  Whether this holds up or not, and whether it's a political cure or merely a political medicine that shoves the cancer into remission, it signifies one thing: the political center was NOT dead in the Senate and held just enough to keep the Senate the kind of institution it has been for years: one where parties will have to give and take a little to get things, not just get into a steamroller, aim the machine and drive over their foes.

The ambivilant:

• Appalachian Gun Trash jokes that politicians are not normal people:

  So, we shouldn't be surprised when they display amazingly stupid, irritating, and abnormal behavior. They are not normal!

The Roundups:

• Michelle Malkin has a great graphic plus some links.
• Coyote Gulch
• Right Wing News has a post and goes on with reactions from the blogosphere Left .
• Blogging for Bryant.

Seven RINOs to Ruin the Party

Seven "Republicans" abandoned their party in a "compromise" that is no compromise.

The Republicans pledged not to support Majority Leader Bill Frist in his effort to implement the constitutional option in return for up-and-down votes on just three of Bush's nominees to the U.S. Circuit Courts of Appeals:

• Texas Supreme Court Justice Priscilla Owen
• California Supreme Court Justice Janice Rogers Brown
• Former Alabama Attorney General William Pryor

Note that this does not mean that the filibuster issue won't come up again. In fact, it certainly will — and soon — as the "deal" explicitly states that filibusters can be used in "extraordinary circumstances". Can you say "Rehnquist's retirement in 2005"?

So what was really won or lost? The Republicans have given the minority party the ability to stop the nomination process of any candidate for any post. The Democrats have given away an up-or-down vote on only three candidates, which would certainly have happened if the "deal" had not be struck. In other words, they have lost nothing.

By not supporting the party, the majority leader, and the president at this time, the RINO Seven will make filibustering any candidate for any post in the future easier. They have handed the Democrats an incredible victory, validating the ridiculous liberal rhetoric surrounding this issue in the eyes of the American voting public. They have reduced the party of majority to the party of appeasers [i.e., RINO = French].

Of course, McCain [one of the turncoats] has just about guaranteed that Frist will not make a viable presidential candidate in 2008, thus eliminating a potentially powerful opponent.

The RINO Seven consist of the usual suspects:

• Mike DeWine of Ohio
• Susan Collins of Maine
• Lindsey Graham of South Carolina
• Lincoln Chaffee of Rhode Island
• John McCain of Arizona
• John W. Warner of Virginia
• Olympia J. Snowe of Maine

Again, rules restricting filibusters are not uncommon. Just consider these items that are among the hundreds that are filibuster-proof:

• The Pentagon's 2006 Base Realignment and Closure plan, which proposes closing 180 sites.
• The pending Central American Free Trade Agreement.
• President Bush's proposed $70 billion in tax cuts and $35 billion in mandatory spending cuts, protected by budget reconciliation.
• Drilling in the Arctic Regional Wildlife Refuge. The years-long effort by Republicans to pass this legislation may finally succeed this year, because this time it is protected from filibuster as part of the budget reconciliation.

This beast could have been dead and buried today. Instead, the liberal propagandists will continue to spin the facts. We could have returned to the Democrats being the party of obstructionism, a role that sealed Daschle's fate last election, as they attempted to stop any legislation from moving through the Senate. Instead, they can beat their breast in the throes of righteous victimization.

I am disgusted by McCain's perfidy. I am disappointed in Frist's inability to effectively lead his party.

Frist Orders Cots for Senators in All-nighter

The president renewed his call for up or down vote for judicial nominees:

"My job is to pick people who will interpret the Constitution, not use the bench from which to write laws," Bush said from the White House. "And I expect them to get an up or down vote, that's what I expect. And I think the American people expect that as well - people ought to have a fair hearing and they ought to get an up or down vote on the floor."

Senate Majority Leader Dr. Frist is applying pressure, ordering cots brought in to the Capitol as he scheduled an all-night debate on the rights of a minority party to filibuster judicial nominations:

Cots are pictured set up in the Strom Thurmond room in the U.S. Capitol in Washington, May 23, 2005. Cots were brought into the Capitol Monday as Senate Majority Leader Bill Frist (R-Tn) scheduled an all-night session stretching into Tuesday to dramatize the debate over President Bush's judicial nominees and the filibusters that Democrats have used to block votes on 10 of them. As the U.S. Senate battle over judges and procedural rules intensifies, almost everything under the Capitol dome, from presidential nominees to major legislation, is in danger of getting caught in the cross-fire. Photo by Micah Walter/Reuters

Democrat Senators previously rejected Frist's offer of 100 hours of debate on each judicial nomination. Following the all-night session, there will be a vote tomorrow on a cloture motion which will end the filibuster on Texas Supreme Court Justice Priscilla Owen followed by an up-or-down vote. If it comes to that, Owen will in all probability be confirmed.

But if Frist loses the cloture motion, he will invoke a vote on changing the rules to effectively eliminate filibusters on judicial nominations by requiring only 51 votes to end a filibuster — but only on nominations. Filibusters on legislation would remain unaffected.

This is a vital point that is often missed in the debate over filibusters. Filibusters on legislation can be overcome with negotiation, the give-and-take that greases the wheels of Congress (and sometimes leads to excessive pork). But filibusters on judicial nominees are a horse of a different color:

For Frist and Reid, the filibuster debate presents special challenges. It involves no crop supports, high-tech tax credits or other perks they typically can bestow or withhold at crunch time to persuade vacillating colleagues. With a hallowed Senate tradition at stake, lawmakers are threatening to vote their consciences, making them poor candidates for logrolling.

As Sen. Charles E. Grassley (R-Iowa) points out, filibustering legislation is one thing -- the contents can be tweaked and moved around until enough senators are satisfied. In this case, the filibuster's target is a person nominated to the federal bench, and "you can't cut off a left arm and put on a new left arm," he said.

So everything centers on the results of tomorrow's cloture motion. MSNBC projects three scenarios:

• Five Democratic senators vote for cloture, cutting off debate, as part of a deal in which Frist agrees to not seek the filibuster rule change. The debate on Owen ends and the Senate votes to confirm her. Two other Bush judicial nominees are quietly jettisoned. Both parties claim victory.
• Of the Democrats, only Sen. Ben Nelson, D- Neb. votes for cloture. Needing 60 votes, the cloture motion fails on a vote of 56 to 44. Frist then seeks the filibuster rule change and wins on a vote of 51 to 49. The Senate then votes on Owen's nomination and those of Janice Rogers Brown and William Pryor. Reid reacts by using procedural tactics to bring most Senate business to a halt.
• Of the Democrats, only Nelson votes for cloture. The cloture motion fails on a vote of 56 to 44. Frist seeks the filibuster rule change, but loses on a vote of 51 to 49. Democrats rejoice.

Remember the pre-buttals that Democrats ran before the president's last couple of State of the Union addresses? This is no different as Senator Reid will deliver a 90-second nationally telivised bit of super-spin, sponsored by the far-left Alliance for Justice:

Unfortunately, some Senate Republicans are trying to give President Bush power no president has ever had -- the ability to personally hand out lifetime jobs to judges -- including the Supreme Court, without consensus from the other party.

This abuse of power is not what our founders intended. It's wrong for one political party -- be it Republicans today or Democrats tomorrow -- to have total control over who sits on our high courts and rules on our most basic rights.

(One will remember that the Alliance for misJustice was one of the driving forces behind the attacks on Bork and Thomas.)

I don't remember anywhere in the Constitution that calls for advise and consent by the opposing party. In fact, our first president was opposed to the idea of any political parties.

But the spin doesn't stop there — Senator Pork Byrd is astounding in his hypocrisy:

I'm deeply, deeply troubled, I'm almost sick about it," the 87-year-old Byrd, now in his 53rd year in Congress, said of the Republican effort to end filibusters for judicial nominations.

"I implore, I beseech, I importune, I beg the Senate to consider how posterity will view such an occurrence," Byrd said, his voice quavering.

"My heart is sad that it would even come to a moment such as this. Sad, sad, sad, sad it is."

No mention, of course, is the fact that Senator Byrd was behind attempts to change the Senate rules in 1977, 1979, 1980 and 1987 (and the 1980 attempt even involved executive branch nominations). His statements in 1979 were explicit when he argued that "the first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time." Mr. Byrd then declared his belief in "upholding the power and right of a majority of the Senate to change the rules of the Senate at the beginning of a new Congress."

What has changed since 1979? Just the majority party.

Now looking at the spin from the press:

From MSNBC:

At stake: Bush's ability to steer the courts in a more conservative direction. ...

If Democrats lose the ability to filibuster, the Republican president would have nearly free rein to fill the vacancy on the court because of the GOP majority in the Senate.

From the Associated Press:

But the stakes were far broader than that, with Republicans seeking to strip Democrats of their right to filibuster nominees to the appeals court and Supreme Court. ...

Senate rules have long permitted opponents to filibuster judicial nominees, a parliamentary technique that can only be blocked by a 60-vote majority. Frist and Republicans have said they intend to supersede that rule, by majority vote.

Amazingly, no — astoundingly — Reuters has the most "fair and balanced" account and even includes this little tidbit of unspun truth:

Filibusters, or the threat of them, are routinely used to derail or force compromise on legislation. Yet they rarely figured in consideration of judicial nominees until Bush took office in January 2001.

A rare kudos to Reuters.

One more point: limitations on filibusters is far from unusual. The Christian Science Monitor lists several examples, saying:

Restrictions on the use of filibusters are already in place on a host of matters, from budgets to resolutions granting war powers to the president.

The more research I have done on this subject the more I am convinced that changing the rules and forcing a vote is the right thing to do. Which is why I signed Senator Allen's petition and ask that you do as well.

Frist's First Challenge

President Bush is going to resubmit 20 judicial candidates that the Senate has failed to act on, setting up a confrontation that will set the tone of politics for the next four years. Liberals, of course, are crying foul, even after the beating they took in the last election. Indications are that the obstructionism will continue.

But Sen. Harry Reid, the incoming Senate minority leader, has assumed a defiant posture on the issue of judicial nominees. He has emphasized that while the Senate refused to vote on some nominees, it approved the vast majority of those who received votes.

"During the four years that President Bush has been president, we've approved 207 federal judges and turned down 10," the Nevada Democrat told NBC this month. "The president should be happy with what he's gotten, 207-10. That's a pretty good record for him."

Reid threatened to find ways to "screw things up" if Republicans resorted to the "nuclear option", that of getting a simple majority vote to affirm that filibusters violate the constitutional duty of the Senate to provide advice and consent to presidents on judicial nominations.

Sen. Charles E. Schumer, New York Democrat, said any attempt to stop Democratic filibusters "would make the Senate look like a banana republic" and "cause us to try to shut it down in every way." Specifically, he has threatened to block the president's plans to simplify the tax code and partially privatize Social Security.

But Senate Majority Leader Bill Frist last month called the use of filibusters against judicial nominees a "formula for tyranny by the minority." The Tennessee Republican added: "One way or another, the filibuster of judicial nominees must end."

Arlen Specter, as expected, is unhappy about the president's decision, although he promised to do his best to get the nominations confirmed:

But the most notable reaction came from Senator Arlen Specter of Pennsylvania, a Republican who is expected to become the chairman of the Judiciary Committee. Mr. Specter, who was re-elected in November and seems to have survived a challenge from some conservative Republicans who had opposed his ascension to the chairmanship, suggested that he was also troubled by Mr. Bush's announcement.

"It has been my hope that we might be able to approach this whole issue with some cooler perspective," he said in an interview. "I would have preferred to have some time in the 109th Congress to improve the climate to avoid judicial gridlock and future filibusters."

Among the names the president will send up will be:

• William J. Haynes IV, the Pentagon's general counsel
• Priscilla R. Owen of Texas
• William H. Pryor Jr. of Alabama
• Janice Rogers Brown of California

Dems Continue Minority-Party Obstructionism

Frist is (finally) considering changing the rules for Senate procedures on judicial nominations:

Senate Democratic leadership aides have warned that if Republicans stripped senators of the power to filibuster judges, it would lead to a freeze in bipartisan relations that they compare to a nuclear winter. They say that Democrats would bring the chamber to a standstill in retaliation, but Republican proponents note that Democrats have, for the most part, done so already.

The evolution of Frist’s position seems prompted by the realization that Democrats will continue to filibuster judicial nominees and by growing pressure from conservative groups.

It won't happen until Fall -- at the earliest.