Category Legal Policy

Republicans Shouldn’t Overuse the FIlibuster on Judicial Nominees

Danny Vinik Leave a comment

I’m in transit today so this is just a quick post. Back with more tomorrow.

Senate Majority Leader Harry Reid (D-Nv.) will bring up the nomination of Patricia Millet to the D.C. Circuit Court this week. Millet is one of three nominations that Reid plans to bring up for a vote in the next few weeks. The D.C. District Court clearly is a Republican stalwart and has been one of the best ways for conservatives to derail the Obama administration’s legislative agenda as it has jurisdiction over many federal laws (environmental regulations, labor conflicts, etc.). Republicans are eager to keep it that way, but Obama’s three nominees of the court would swing it in the Democrats favor. That’s set up another possible filibuster battle with Reid potentially using the nuclear option to change the Senate rules on judicial nominees (as he threatened to do this past summer before Republicans caved) and force the candidates through. So, should Republicans filibuster?

The answer is found in a Jonathan Bernstein post from this afternoon. Here’s a part of it:

 In my view, large, intense minorities should have an opportunity to block lifetime appointments. As a practical matter, however, they’re only going to be able to keep that opportunity if they use it sparingly. Arbitrary declarations by the minority that appointments to regular vacancies are “court packing,” backed by partisan filibusters, are exactly the kind of thing that will lead to the demise of any minority influence whatsoever.

Republicans are jeopardizing the ability of the minority party to influence federal appointments. The filibuster exists here for a reason. But that reason is not so that a party can block all judicial nominees in order to arbitrarily keep control over it. If Republicans have a serious issue with a candidate, a filibuster is understandable. But blocking three candidates all at once? That’s not.

Republicans should tread even more carefully here, because it’s very unclear if they can take back the Senate next year. If not, that means they have a number of years of dealing with federal nominees as the minority party. If they force Reid to use the nuclear option now, Democrats will easily push through their candidates for the next three years. Republicans will lose their most powerful tool with many years left in the Obama presidency. They may think that Reid will back down and withdraw the nominees, but I find that unlikely. The majority leader showed no willingness to give an inch during the shutdown fight and I expect that to continue here. Republicans are taking a risk if they do choose to filibuster. It’s not a risk that they should take.

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Should the Supreme Court be Televised?

Danny Vinik Leave a comment

Kevin Drum wrote a post yesterday on the Supreme Court that I don’t totally agree with. He takes offense to Justice Antonin Scalia’s “arrogance” when he says”:

I’m against it because I do not believe […] that the purpose of televising our hearings would be to educate the American people. That’s not what it would end up doing. If I really thought it would educate the American people, I would be all for it. If the American people sat down and watched our proceedings gavel to gavel […] they would be educated. But they wouldn’t see all of that.

Your outfit would carry it all, to be sure, but what most of the American people would see would be 30-second, 15-second takeouts from our argument, and those takeouts would not be characteristic of what we do. They would be uncharacteristic.

But now what we see is an article in a newspaper that’s out of context with what you say is — (Bolding Drum’s)

That’s fine, but people read that and they say, well it’s an article in the newspaper, and the guy may be lying, or he may be misinformed. But somehow when you see it live, an excerpt pulled out of an entire — when you see it live, it has a much greater impact. No, I am sure it will miseducate the American people, not educate.

Drum has issue with Scalia’s disregard for the American public’s capacity to learn from the Supreme Court being televised. He admits that of course the media will take the most controversial snippets and the American public will just see small parts of it, but concludes:

So what? Nobody thinks that’s a good reason to limit access to any other branch of government. Politics is a messy game. It’s often unfair. That’s life, and in a democracy the public should get to see it unfold regardless of whether you think they’re smart enough to appreciate it.

I’m not sure I agree with this. The Supreme Court has to be as far above politics as we can make it. Over the past few decades, it has become more and more partisan, which is not good for the American people. We need justices who are  free to judge cases purely on the law, not play politics. At the Supreme Court level, justices cannot escape politics but putting them on TV would just exacerbate the problem.

It seems the same as the Federal Reserve Board meetings. These institutions make decisions that are extremely important to the country and we must protect them from politics in any way we can. One of those ways is keeping them off TV.