Category Archives: Courts

David Brooks Wrong on Reid’s Deal for Frist

Let’s Make a Deal,” by David Brooks, New York Times, 1 May 2005,

David Brooks describes a deal Democrat Minority Leader Harry Reid supposedly gave Republican Majority Leader Bill First

Last week, the Senate Democratic leader, Harry Reid, made an offer to head off a nuclear exchange over judicial nominations. Reid offered to allow votes on a few of the judges stuck in limbo if the Republicans would withdraw a few of the others.

But there was another part of the offer that hasn’t been publicized. I’ve been reliably informed that Reid also vowed to prevent a filibuster on the next Supreme Court nominee. Reid said that if liberals tried to filibuster President Bush’s pick, he’d come up with five or six Democratic votes to help Republicans close off debate. In other words, barring a scandal or some other exceptional circumstance, Reid would enable Bush’s nominee to get a vote and probably be confirmed.

Good deal? Brooks seems to think so

But Frist should have grabbed Reid’s offer. He should have done it, first, because while the air is thick with confident predictions about what will happen if the nuclear trigger is pulled, nobody really knows. There is a very good chance that as the battle escalates, passions will surge, the tattered fabric of professionalism will dissolve, and public revulsion for both parties will explode.

If you are leading one of the greatest democratic institutions in history, it’s irresponsible to lead it into this bloody unknown if a deal on the table will give you much of what you want. As one senator who supports changing the filibuster rules says, “Is this what you want on your obit?”

Judicial filibusters are new. My former Senator, Tom Daschle, basically invented them. There is no reason for Frist to allow the minority party this new weapon.

I recognize this fight started out with how Daschle was stressing the personal and professional lives of some Bush appointees for political gain. A native of Sioux Falls, because he cared about his family more than Tom’s games, left the process early. Doubtless countless more good men will never get a vote, because the Senate Opposition’s slow torture was oto much for them. However, there is a larger principal involved.

This is a fight to reclaim the last branch of government from “liberals.” This is an attempt by a fourth generation political movement to cement its hold on power. As Ma Jones and dKos reported, by 2009 all but 2 of the 13 federal district courts could have Republican majorities. This goal is too important and too central to the Conservative cause to risk one more election cycle than need be.

Now let’s look at Brooks’ other reason

Second, Frist should have grabbed this offer because it’s time for senators to re-establish the principle that they, not the outside interest groups, run the Senate. Right now, most senators want to avoid a meltdown. It’s the outside interest groups that are goading them into the fight.

Of course the groups want a fight. The activists get up every morning hoping to change the judiciary, dreaming of total victory. Of course they’re willing to sacrifice everything else for that cause. But senators are supposed to know that serving the interest groups is not the same as serving the people: it is serving a passionate but unrepresentative minority of the people. At some point, leaders are supposed to stand up to maximalists, even the ones they mostly agree with.

David Brooks is either a fellow traveler or behind-the-times. Brooks’ assertion that the Senate should not be factional rejects the reality of fourth generation politics. It also rejects the logic behind the federalists papers. The Constitution was actually designed for factional politics more than for partisan politics.

David Brooks, a columnist for the New York Times, should know this.

Update: Apparently I’m psychic. Completely by coincidence, this entry channeled a Matt Margolis post at Blogs for Bush.

DailyKos on the War for the Courts

The Making of the Corporate Judiciary: How big business is quietly funding a judicial revolution in the nation’s courts,” by Michael Scherer, Mother Jones, November/December 2003, (from Daily Kos).

Mike at dKos linkes to an old Mother Jones story on judges. It’s over-the-top, but it understores the structural change the Republicans are going for

Years of delaying President Clinton’s nominees to these same courts left the Bush administration, and the business community, with a golden opportunity: All but two of the nation’s 13 federal circuits — evenly divided between Democratic and Republican appointees under Clinton — could have Republican majorities by the next election. “With this four-year crop, it’s really going to be a different judiciary than it is now,” says Eldie Acheson, who led judge selection for Clinton’s Justice Department.

The stated goal of many of these business groups is not a modest one: to chip away at more than 60 years of legal history, dismantle federal social services, and effectively erase the policies of the Franklin Roosevelt era. “We’ve been living since the New Deal with an essentially unconstitutional government,” says Roger Pilon, director of the Center for Constitutional Studies at the Cato Institute. The new generation of young conservative and libertarian lawyers being elevated to federal courts, he adds, “are not afraid to say that.”

Why are the circuit courts important? Because it is where almost all rulings are made.

Big money, however, cares a great deal about who sits on the nation’s 13 federal circuit courts. “There is the hope on the part of the business community that their rulings will be more friendly,” says Paul DeCamp, a Republican corporate lawyer who counts two nominees as personal friends. “The Supreme Court can’t decide every case.” In fact, circuit courts are the final venue for 99 percent of federal cases and most regulatory challenges.

The filibuster fight is actually a fight for the future of the courts. The Democrats are losing. They know it.