B After The Fact

Tuesday, May 24, 2005

The Filibuster Compromise

I've written about filibusters a number of times. I stand behind this one, from November, the most , where I point out that we are not a democracy, we are a republic, and filibusters are the way that a minority of states (although not always a minority of the people) avoids being rolled by a majority of the states (states like North Dakota, South Dakota, Wyoming ... 6 senate votes for a combined population less than Queens County, where I live.]

I also said, in that entry that "States Rights Are For Losers." I also wondered if direct election of Senators are such a good thing.


I wrote the earlier portion of this entry a few days ago, and left it off as too depressing to complete. Now, I awake to read that the moderate Senators have manufactured a compromise . Apparently, Frist and Reid have grumbled a lot, but have signed off on it.

On the face of it, the Republicans seem to get most of their bottled up nominees voted on, and presumably approved. The Democrats promise not to filibuster except in "extraordinary" circumstances. "Extraordinary" is one of the great weasel words, but never mind.

I haven't read anything else this morning, and I haven't read the spin yet, so I am writing this outside the echo chamber.

I don't know what this all means: Maybe it means, in no particular order ---

1. Maybe Frist knew that he needed a way down from the tree limb -- he got as caught up in the echo chamber as we do in the blogosphere -- he discovered that the real power sources -- hopefully the great millions of us voters, but more likely the corporations -- did not want to fight this fight at this time. So he told his moderates to go make the deal.

2. Maybe the Republican Senators understood that anything that reduces the Senate to a pure majority vote reduces its power. Don't dismiss the fact that a lot of very conservative Republican Senators felt placed in a difficult dilemma -- the President had argued for reducing the power of the legislature in a democracy, and the President's argument had resonated with a lot of people. The Conservative Senators had no good way of getting out of the box, but they wanted one. Because Rule No 1 in the Senate is maintain and increase your power. It is also Rule No 2 through 1,000,000. Now they can safely vote against the McCain Compromise (or whatever it is called), without worrying that the nuclear option will really come to pass.

3. Majority votes are what the House of Representatives are for. "Judges deserve an up-or-down" vote is wrong. It is not immoral, it is not evil. It is wrong because (a) it is not what the Framers had in mind ("advise" includes the power to bottle up) and (b) mostly, it won't work. It will not make for better judges, only for more consistently ideological ones. It will not increase the legitimacy of the judiciary. It will not increase the legitimacy of the legislature. I still do not have that all reduced to a postage stamp. Fortunately, I don't have to reduce things to postage stamps for a living. Those that do, however, had better get cracking.

4. Hopefully, this will mean that the successor to Rehnquist, and more importantly, the sucessor to O'Connor (if she is the one who is leaving) will be fought over with the old rules. I think the Republicans are going to have the votes anyway. If they don't, and if they decide to employ the nuclear option there, well, at least the public will understand what's going on, and why this issue really is important enough to stop the nation's business over. I don't know what people will think then.

5. Nerd note. I have argued that the modern filibuster issue is based on the imbalance caused when you create an institution based on the power of the state legislatures, and amend the Constitution to call for direct election of Senators, but fail to make the other conforming changes.

Professor Bruce Ackerman argues that the nuclear option problem stems from the failure to make conforming changes when they adopted the 12th Amendment, essentially abolishing the separate election of a Vice President after the Jefferson-Burr debacle. Ackerman argues that the Founders took the role of the Vice President seriously, because they expected him to be the losing Presidential candidate. By amending the Constitution without limiting the Vice President's potential power over the Senate, they inadvertently left a path where the Executive, through the Vice President, can exercise encroaching power over the Congress. This structural glitch had been ignored -- but not by Dick Cheney.

Thursday, May 19, 2005

Lest We Forget -- Never Again

[revised from earlier post]

David Brooks , who I bash on this blog a lot, had a version of the quote below in today's Times, along with his admonition to cool it, professional terrorists know what to do with magazine stories. That is how they come to be professional terrorists. It was ever thus. If it hadn't been Newsweek, it would been something else. Last weekend was just a good time to blow things up and kill people. Americans are the good guys, terrorists are the bad guys.

Andrew Sullivan posted a larger portion than I am now.

A Sheik gave a sermon a few days ago, televised on Palestinan television. Here is part of what he said:


"With the establishment of the state of Israel, the entire Islamic nation was lost, because Israel is a cancer spreading through the body of the Islamic nation, and because the Jews are a virus resembling AIDS, from which the entire world suffers.
You will find that the Jews were behind all the civil strife in this world. The Jews are behind the suffering of the nations...

"We have ruled the world before, and by Allah, the day will come when we will rule the entire world again. The day will come when we will rule America. The day will come when we will rule Britain and the entire world – except for the Jews. The Jews will not enjoy a life of tranquility under our rule, because they are treacherous by nature, as they have been throughout history. The day will come when everything will be relieved of the Jews - even the stones and trees which were harmed by them. Listen to the Prophet Muhammad, who tells you about the evil end that awaits Jews. The stones and trees will want the Muslims to finish off every Jew."


When people on the left wonder how we few remaining pro-war left-wingers find their sustenance, this is a huge part of it.

Here in the outer-boroughs, I am not alone. With apologies to my friend in Ohio, when you scratch your head and wonder how Bush won Ohio, some of the margin of the vote in Cleveland, driven by this issue, had to factor into it. Despite my own fears and misgivings about Kerry, I felt that as an American citizen, my choice to vote against Bush was clear. I have no regrets. However, anyone who voted for Bush on this single issue, and I know many of them personally -- well, I understand their torment.

In the big cities, even in my place of work, in midtown Manhattan, almost all Jews, I have to pull my punches, although no one who has asked me directly doubts where I stand. We were right to go in, we didn't need the charade of WMDs to add to the obvious reasons, we have to remain there, probably indefinitely.

There is a coherent pro-war left-wing argument. Hillary Clinton is the most high-profile person making the argument, although Senators Schumer and Lieberman are amongst others who make it. Al Gore says it best. If Gore said it more then, he might be President now. Ah well.

It says that the need to fight the war on terrorism abroad need not be a smokescreen used to limit freedom at home. This world view may never get a lot of traction, because it requires, in these highly polarized times, splitting the difference on a lot of issues. But after spending a year or more being disappointed with David Brooks, I am glad that he can make me smile again. :-)

Tuesday, May 10, 2005

Television Man

"Would I do a Partridge Family Reunion?
I'd do a Brady Bunch reunion.
I'd play Cindy Brady.
What do I care?
Just put my pretty little face on the television -
Where it belongs"

-- Danny Bonaduce

"Television Made Me What I Am.
People Like To Put The Television Down but
We Are Still Good Friends.
I'm A Television Man"

-- David Byrne

Your humble scribe has two lines on Law And Order -- Wednesday, May 11, 10 p.m. NBC. I play the building super who lets the cops in.

I don't know if it's any good, or if I'm any good, but I don't care. I'm on the tellie-vision! Again.

Pretty cool.

Sort of a waste of a good Ivy league law degree, but what can I do?

I wouldn't have that Ivy League law degree, except for the television.

In the summer of 1963, 4-years old, new to the neighborhood, absorbing all I could on the television. I turned on Channel 9 -- a station so small at the time it had no network affiliate of any kind. They were running a local show called Operation Alphabet. They wanted to teach the newly-arriving immigrant population how to read. Being newly arrived to my neighborhood. Just wanting to watch more television. That television show taught me how to read and write. That September, I entered kindergarten.

Since I already knew how to read, my father taught me how to add and subtract before the end of the year.

On the following Washington's Birthday -- 1964 -- the New York Daily News ran a special magazine with the biographies of all the American Presidents. I thought everyone knew all about that except for me, so me and my newly-learned reading and numeric skills memorized the magazine.

I learned to read and write from the television, and by the time I got into first grade, thanks to my television knowledge, I knew how to add and subtract, and I knew more American history than almost anyone I met until I got to high school.

I would never have become a lawyer without that jump.

Television made me what I am.

So I am thrilled to be back on television. If only for a few seconds.

Friday, May 06, 2005

In Defense of FDR and the Liberal Mind Set

Thanks as always to my friend A Red Mind In A Blue State

When I can't think of something to write, he always provides me fodder.

Today Red Mind tees off on FDR .

So I will now take the opportunity to respond.

FDR is the "liberal's darling" because he was the first President to think that Federal power could be used to do -- something, anything -- on behalf of everyday people. To do things that the individual states thought they had the sole right to do (in that way, George W--, despite some of my bile later in this piece, is very much his heir). Because the system was broken. And no one knew how to fix it.

The Republicans did not want to fix it. Some felt -- some Republicans like the Bush/ Walker clan felt -- the system was going fine. The system perpetuated their divine right to allow the few people to pick clean the carcasses of those millions who were not working. The millions were failing, in part, in a system where there was no way for most people to work or to plan their futures. FDR stopped the Bush/ Walkers from foreclosing on everyone. They're getting their revenge now.

FDR's idea was to do something, anything. And a lot of what he did failed. But the notion of doing something, anything, was and remains, the germ of modern liberalism.

The deeper argument that makes FDR a liberal is that he thought it was moral for the government to try to help people in this way. And that deeper argument has a very-strong, very-compelling counter-argument. And I will leave it to those who can articulate it better than I to describe it.

Sufficient to say that the idea that government is there to protect people against larger forces is a tremendously liberal notion.

All the things Red Mind accuses FDR of failing to do in terms of human rights are liberal things. If so called "Red Minds" are in favor of doing those things, then they are not conservative. They are liberals trying to run away from a word they hate. Because the conservative notion, as most liberals understand it, as it manifests itself through time, as it manifests itself today in the Tom Delays, and the Bill Frists, and the Pat Robertsons, and the Jerry Falwells, has always been that this country was formed for the benefit of a certain type of person, and that there are plenty of other countries for other people to do other things.

I agree with Red Mind, by the way, that FDR did not fix the economy. Hitler and Tojo did that. They are the ones who made the modern United States military/ industrial state and its long tail big welfare state possible and necessary. They were the ones who left the world in ruins with only one remaining super-power.

And I agree that FDR's record on minority rights does not stand to modern scrutiny. But that's all changing, so don't worry.

United States progress on minority rights is primarily a function of wanting to put the thumb in the Communist eye. There would be no African-American rights, no woman's rights, no union worker's rights, no Asian-American rights, no handicapped-American rights, no Jewish-American rights, no nothing, at least as we understand those things today, without the Cold War.

Well World War II is over, and the Cold War is over. And what do we have?

PATRIOT Act provisions which will make the next mass-interrment completely legal. Will make it seem like a civic duty.

Republicans push to turn the clock back to 1937. In 1937, admittedly-liberal Supreme Court decisions made by scared Republican justices helped jump-start the economy after the Republicans could not even win an election in the aftermath of the Depression of 1936. More importantly, the commercial decisions of 1937, and the establishment of the governments right to make those decisions, laid the expansion of the interstate commerce down. And it was the expansion of the interstate commerce clause which lead to a lot of the equal rights decisions. So maybe FDR did have something to do with modern rights of minorities, after all. Happily, when the Bush judiciary is done, we will, again, not expect the government to be able to do the very things you are so angry at FDR for not doing.

United States Service Academies with de-facto policies of institutional anti-Semitism.

Republican commentators bashing Laura Bush for having the gall to say something funny about her Lord and Master husband in public (even though George told her to say it).

The right of a handicapped person to live like a brain-dead vegetable for decades on end, no matter what your living will might say, no matter what your husband, or mother, or father or religion might say. Those rights are getting stronger every year.

In that context, not so far from now, FDR will look very much like a liberal darling again.

Sunday, May 01, 2005

Gore Pushes Back

"Having gone through that experience, I can tell you --- without any doubt whatsoever -- that if the justics who formed the majority in Bush v Gore had not only all been nominated to the Court by a Republican president, but had also been confirmed by only Republican Senators in party-line votes, America would not have accepted that Court's decision ... "

"The founders gave no role to the House of Representatives in confirming federal judges. If they had believed that a simple majority was all that was needed to safeguard the nation against unwise choices by a partisan president, they might well have given the House as well as the Senate the power to vote on judges"

Al Gore -- April 27, 2005

Al Gore's speech is getting a lot of bravos on the left side of the blogosphere, but his speeches on what it meant to have the President lie to the people about weapons of mass destruction and to understate the abuses of Abu Gharib struck me as better.

Nevertheless, Gore is the only person pointing out, on a consistent basis, that the President wants to be the Emporer, and that the Emporer has no clothes. So if you have 10-15 minutes, you might want to read what he has to say.

Gore is quite good on the history of filibustering Judges in the Senate, drawing on his experience as Vice President [i.e. President of the Senate], Senator, and son of a Senator.

He is also good on the basic danger of making precipitous moves with the history of the Senate just to pass a particular agenda for a particular time. And in the raw politics of just how dangerous the Bush agenda is.

Where I think Gore is on shakier ground, and I think all liberals are, is when they complain about right-wing threats on Federal judges.

Some of the threats are death threats, and those Senators and Representatives making these statements, such as Tom deLay and the other jerk from Texas -- well they're Congressmen, and can hardly be held responsible for the crap that comes out of their mouths. In fact, there are statutes on the books to protect them from their own idiocy.

Other people who have called for violence against judges, and don't have the legal protection that Congressmen get, should be indicted for conspiracy to murder federal officials, and should rot in jail for a long time. These holy rollers say they get their call from God, but it sounds to me that they get the call from the drug lords in Colombia.

However, non-violent threats, such as threats of impeachment, or a cut-off of funds to the judiciary, or even the dissolution of entire courts that don't make the wackos happy -- all examples that Gore cited --- are not just totally constitutional, but seem to be exactly what the Founders had in mind as methods for keeping runaway judges in line. If the Republicans can make it stick -- God bless.

Just because the Democrats were too stupid to use these tools when they ran the place, doesn't mean the tools aren't there to be used.

As for the two quotes I used to start the piece, I strongly agree with Gore's statement about the legitimacy of the judiciary being a factor in the acceptance of the result of Bush v Gore.

As for the second quote about why the Senate, but not the House, gets to select Judges, Gore is right in his conclusion that the selection of judges is not meant to be democratic, but his reasoning, though popular, is wrong.

The reason that the Senate, not the House, gets to select Judges, is not because the Senate is "more deliberative". It is because in the original conception of the Constitution, the Senate was set up to represent the States, not the people.

If a bloc of States object to a judge, or to an entire judicial philosophy, the rest of the government is supposed to take notice. That is the political deal that the Southerners think of as "states rights". That is why Southerners were allowed to gum up the works for 200 years. Jesse Helms would be impossible without his right to filibuster, or threaten to filibuster.

Only twice in the last 200 years has the shoe been on the other foot. In the 1860s, when the Southerners thought that gumming up the works wasn't going to work, they kicked the table over and left. Now, that the Southerners see that the other side will be able to use the same gum they have been using all this time, they want to kick the table over again.

The notion that judges are are a democratic "power to the people" institution is the ill-effect of too much conservative Hollywood influence on the right-wing mind.

Judges are by their nature undemocratic. They are not there to see that the will of the people gets met. They are completely the product of the Constitution, and are there to see that the Constitution gets served.

The biggest mistake that the Democrats are making so far is their failure to remind people that the Constitution says that the Senate's power over judicial appointments is to "advise and consent." It is not to rubber-stamp the President's choice. It is not even, as is now the popular norm, to allow the President the people he wants. It is certainly not to give the nominee an "up-or-down" vote.

It is to "advise and consent." Telling the President that a nominee is too ludicrous to vote on should be part of anyone's definition of "advise".