Fisking Durbin

The members of the United States Senate are all proud of their reputation as "The World's Greatest Deliberative Body", but is it really deserved? I rather suspect not. A comment that was made about a section of Illinois Senator Dick Durbin's speech on the Senate floor made me curious, so I went to take a look at it. The verdict?

Pathetic.

Irrational, illogical, emotional, nonsensical. Is this supposed to somehow pass for informed debate?

I made the point of how interesting it was that while very few lawyers in America belong to the Federalist Society--maybe 1 percent--it turns out that about a third of President Bush's nominees belong to this Federalist Society. I referred to it as the "secret handshake" at the White House and that, if you belong, you have a much better chance to become a judge.

Do you have a much better chance to be nominated by President Bush because you belong to the Federalist Society, or do you belong to the Federalist Society because your conception of the role and responsibility of a judge is similar to that of President Bush? The latter construct strikes me as far more likely, and Durbin seems to be implying the former.

According to their website, the Federalist Society

is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.

How sinister! But that sounds an awful lot like what President Bush is looking for in a judge, doesn't it? Durbin's tossing around "the Federalist Society" as a scary bogeyman. Period. There's nothing rational or intelligent in that comment, it's just fear-mongering and guilt by implication. Unworthy of an intelligent debate.

This curious, semisecret society is so quickly disavowed by its members whenever you ask a public question about it. Yet it appears to be one of the most important things you can add to your resume if you want to be a judge from the Bush administration.

Evidence? Right, he's got none. Correlation does not equal causation. He fails the basic test of logic here.

And Priscilla Owen of Texas--surprise, surprise--is a member and officer of the Federalist Society. I do not think she should be disqualified because of that.

Then why did you bring it up?

There is nothing illegal about it. I do not know what the philosophy is other than what they state on their Web site.

Well, that's pretty clear, isn't it?

It is very conservative. It thinks that liberals are ruining the world. It goes on and on.

On and on. Very scary.

I am not saying that if you belong to that you should not be qualified to serve on the bench. That is not the point. But when I asked someone such as Priscilla Owen, a supreme court justice from Texas whose time must be very precious, why she took the time to join this organization and she cannot or will not answer it, I think it is important.

I voted to confirm the vast majority of President Bush's nominees and a lot of Federalist Society members, so I am not blackballing or disqualifying them.

Then why on earth are you bringing it up? Oh, that's right, as a bogeyman. Carry on...

I think their views are extreme and off base, from my point of view. I think their views are extreme and off base when we look at mainstream America. How can you say, as they do, that the legal profession is strongly dominated by a form of orthodox liberal ideology?

Umm...maybe because you think it to be true? Just guessing...

Look at the 13 Federal courts of appeal and you find 10 of those Federal courts of appeal in America dominated by Republican-appointed judges. Liberal ideology? How can you say the legal profession is strongly dominated by a form of orthodox liberal ideology when seven out of the nine members of the U.S. Supreme Court were appointed by Republican Presidents?

How dishonest is that? Extremely. The question, Mr. Durbin, is not who nominated them, but what sort of behavior they've exhibited. David Souter was nominated by a Republican president. Does anyone consider him a conservative judge? I think not. John Paul Stevens was nominated by that noted right-wing firebrand Gerald Ford. 30 years ago. Do you consider him a conservative?

Senator Leahy asked if we could consider a nominee from Utah, who would have likely won confirmation easily yesterday. Senator Frist refused. He insisted on bringing up this nomination of Priscilla Owen, one of the most controversial judicial nominees in recent memory, someone who has already been rejected by the Senate.

Another lie. Owen hasn't ever been "rejected by the Senate". She's had majority support since her hearing, but a minority has blocked a floor vote. It's pathologically dishonest to say that she's been "rejected by the Senate".

Why would the majority leader flatly refuse every effort to find a way out of this crisis? I don't know. It is possible he is still taking advice from people who should not be trusted for advice. I don't know if the name Manny Miranda rings a bell, but it should.

It sure does. He was the staffer who made public the extent to which the Senate Democrats were doing the bidding of special interest groups, to the degree that they were specifically filibustering Miguel Estrada because he was hispanic. Mr. Miranda did this by exposing memos that Senate Democrats, in electronic terms, left "lying around" in public.

From the spring of 2002 until April 2003, Mr. Miranda was working for the chairman of the Senate Judiciary Committee, ORRIN HATCH, and then for majority leader BILL FRIST. Mr. Miranda and other Republican staff hacked into the committee's computers and systematically stole thousands of documents, including confidential memos between Democratic Senators and their staff.

Words have meanings, Senator. "Hacked" does not mean "went into un-protected space on a common network to read un-encrypted, un-protected, un-classified documents."

Senator Hatch asked the Senate Sergeant at Arms to conduct an investigation. Mr. Miranda was forced to resign from the Senate staff in disgrace. The findings of the Sergeant at Arms investigation were referred to the Justice Department, which then assigned a special prosecutor to the case.

Two years later, with the case still unresolved and finished, it appears Mr. Miranda is back. According to news reports, he is now helping to lead the nuclear option fight from outside the Senate. Yesterday, Mr. Miranda sent an e-mail to allies of Senator Frist, demanding, "a straightforward rallying cry: NO DEALS, VOTE PRINCIPLE" and "NO UNPRINCIPLED COMPROMISES."

This is known as an ad hominem attack. Someone I don't like is supporting this idea, so it must be a bad idea. Real elevated debate here.

So here we have a former aide to Senator Frist, a person who, according to the investigation, broke into Senate computers. He is now in charge of rallying the troops on the conservative side. He is the cheerleader for the nuclear option. And he is demanding that Senator Frist and other Republicans break the Senate rules to give extremist judges lifetime appointments.

No one's talking about breaking rules. They're talking about changing them. There is a difference.

There is another thing that should be addressed. Senator Frist has given his word in writing that he will not seek to eliminate the filibuster when it comes to legislation--just judicial nominees, Senator Frist said. But he also said he is leaving the Senate at the end of next year. He has voluntarily, on his own, decided to limit the terms that he would serve. So the next majority leader, Republican or Democrat is not obliged to take any promise Senator Frist might make.

Duh. And your point is?

The truth is, if this Senate, for the first time in history, rejects the principle of extended debate,

I love that. "Extended debate." Yeah, there's a lot of high-minded debate going on. "Oh, no, we aren't trying to keep these majority-supported nominees off the bench, nosiree. We just need to have more time to debate the nominations..."

there is no guarantee that the damage of the nuclear option will not spread.

Unlike much of what he has to say, that's actually true. It's also irrelevant, because even if they don't "reject the principle of extended debate", there's no guarantee that the "damage of the nuclear option" won't spread. (By the way, while I'm here, thank you very little, Senator Lott, for the phrase "nuclear option." It's as if you want to lose...)

Supporters of the nuclear option say they only want to eliminate the filibuster for judicial nominees. It doesn't take much imagination to consider the possibility of a majority leader in the future saying, with gas prices at an all-time high, America just cannot afford an extended debate on an energy bill.

And maybe he'll be right...

If we eliminate extended debate for judges who serve for life, why would we preserve unlimited debate on the nominations of Cabinet Secretaries who leave office with the President who appoints them? Or on laws that can be reversed by the next Congress? The truth is, this line in the sand will disappear with the next wave.

That's what happens when you abuse privileges. They get revoked.

This is not about principle. It is about politics.

I'm shocked - shocked! - to discover politics in the US Senate. Appalling.

But of course you, Senator Durbin, are operating out of principle, not politics, right? This matches what you've said in the past?

"We should meet our responsibility. I think that responsibility requires us to act in a timely fashion on nominees sent before us. ... Vote the person up or down." - 9/28/98

"If, after 150 days languishing on the Executive Calendar that name has not been called for a vote, it should be. Vote the person up or down." - 9/28/98

Oops. I guess not...

Today I am in the minority. You are in the majority. That could change. Every election, the people of this country have the final word on who will be the majority party in the Senate. What has endured throughout all the changes in history from one party to the next is a basic concept and that is, no matter how large your majority, you must respect the minority in the Senate. It is not democracy if you do not respect the minority--it is tyranny.

Democracy means majority rules. Period.

We know that. The Greeks knew that when they invented the term.

Greek demos (people) kratos (rule). Rule (government) by the people. That says nothing about protecting the minority. A Republic protects (at least theoretically) the minority.

And Senator, "respect"ing the minority does not now mean, nor has it ever meant, giving them a permanent veto. You have rights, Senator. You have the right to debate the nomination. You have the right to vote against it in committee. You have the right to vote against it on the floor. You do not have the right to prevent a vote on a majority-supported nominee. You shouldn't, anyway.

I come from the Democratic side of the aisle. I understand if you are going to put a person on the bench, 9 times out of 10 you should look for a person who is going to try to be moderate and mainstream.

So 10% wacko extremists is just A-OK, huh?

What I found is that 10 times out of 10, with very few exceptions, that is exactly what we have ended up with.

How can you not laugh at that? 10 out of 10 means 100%. Very few exceptions means NOT 100%. He's contradicting himself in 9 words.

So when we find, among 218 nominees, 10 who fall into this extreme category, when we say they have gone too far, when we say to the President: You may have 95 percent, but for this other 4 or 5 percent the answer is no--I think we are doing what the Constitution asks us to do: advise and consent.

But wait a minute - you just said that 10% extremists was OK, and now 4-5% is too much?

But the President, of course, says no. I want them all. No dissent, no disagreement--I want every single judge. Strike "advise and consent" and put "consent" in there.

Utterly incoherent. The "advise" stage is past. It's time to either "consent" or "not consent". The President has made his nominations. What is the Senate going to advise him on? Either consent or don't, but do one or the other.

That is what this President wants. Maybe that is what every President wanted.

You think? Maybe? Do you think that possibly this President has done what every President has done, nominated judges because he wanted those judges on the court?

But the Congress and Senate in particular in the past have told those Presidents: No. We have the right to ask these questions and to demand the answers.

Absolutely. That's the "consent" part of "advise and consent".

And if we find a nominee wanting, we have the right to reject them,

Right. No one has denied that, that I'm aware of. Ever.

either by extended debate and filibuster or by the majority vote that ultimately that candidate would face if a motion for cloture prevailed.

That's where you're wrong. Extended debate isn't a rejection - it's a minoritarian tactic to prevent a vote on a candidate with majority support.

So in this case, they have decided that rather than hold these nominees to the same standard, they will change the rules of the Senate.

What same standard is that? The standard that a judicial nominee with the support of a majority of Senators gets confirmed?

That is what the nuclear option is about, changing the rules in the middle of the game,

Who changed the rules in the middle of the game first? You did, Senator, by invoking a filibuster to prevent a vote on a judicial nominee with majority support. For the first time. The Democrats changed the de facto rules of the game. The "nuclear" (I prefer "constitutional") option does nothing but restore the rules.

diminishing the constitutional principle of checks and balances,

That is staggering in its intellectual dishonesty. The constitutional principle of checks and balances holds that the President nominates judges, and the Senate confirms them. The rule change does nothing to alter that check and balance.

reducing the power of the Senate against the power of the White House and the Presidency,

Again, it's not the Presidency that's gaining power here at the expense of the Senate; it's the Senate majority at the expense of the Senate minority. Were the Senate minority not abusing the power that it has, there'd be no need for the rule change. Play with fire, get burned - don't whine about it.

and saying to this President: You may make lifetime appointments of judges without holding them to the same standards that every President's nominees have been held to.

Oh, are they going to be confirmed without the consent of a majority of US Senators?

No, I didn't think so.

Some time next week--and I pray to God it does not happen--Vice President Cheney may take that chair, preside over the Senate, and with just a few words sweep away 200 years of tradition. It is an act of arrogance to think that any person would do that without reflecting on the history of this body and its traditions.

Who wrote this drivel, Senator? It's not an "act of arrogance" to "think that any person would do that". You obviously think that it would be an "act of arrogance" to actually make that ruling, but that's not what you said.

And I'm sure that Cheney, as well as all of the Republican Senators, have "reflect[ed] on the history of this body and its traditions." If a half dozen Democrats would do that as well, and let the nominees have up-or-down votes, as you yourself have said in the past is the Senate's responsibility, there'd be no need for that "act of arrogance."

I sincerely hope that six Republican Senators will show the courage to speak out for the value of our Constitution and the tradition of the Senate.

Article I, section 5: "Each House may determine the Rules of its Proceedings"
Article II, section 2: "The President...shall have Power...by and with the Advice and Consent of the Senate, shall appoint ...Judges of the supreme Court, and all other Officers of the United State"
What does more harm to the "value of our Constitution", the Senate changing their own rules, or a minority of Senators preventing a vote on a judicial nominee?



There's more, but it's just tough sledding to get through. "World's greatest deliberative body"? Not when Dick Durbin's speaking...