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The Scary Radical Republicans Are Keeping Off the D.C. Circuit

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Earlier this week, the Republican minority in the Senate blocked the nomination of Nina Pillard. The stated reasons included her participation in the litigation of some cases that ultimately ended up in the Supreme Court. And, in fairness, her positions were so radical that they were ultimately adopted by that well-known Trotskyite Chief Justice Comrade William Rehnquist:

It’s hard to imagine evidence of “radicalism” being much more feeble. You don’t exactly have to be Catharine MacKinnon to believe that states denying women the same educational opportunities as men violates the equal protection of the laws guaranteed by the 14th Amendment. Indeed, Pillard’s position won at the Supreme Court 7-1. Similarly, arguing that the FMLA—which passed the Senate 71-27—was applicable against state employers is not exactly revolutionary. The Supreme Court agreed in a 6-3 opinion authored by noted left-wing fanatic William Rehnquist (who also voted with the majority in the VMI case.)

The evidence that Pillard is a radical, in other words, is that she worked to advance views about women’s constitutional rights that have won the support of one of the most conservative Supreme Court justices of the last century. To call this argument “self-refuting” is putting it mildly. And Pillard is considered the most liberal of the D.C. Circuit nominees being filibustered.

Obama is not nominating judges who are the left-wing equivalents of Janice Rogers Brown, and Republicans are still rejecting in principle his right to make any further nominations to the D.C. Circuit. It’s time to blow up the filibuster.

…Amanda has much more on the dangerous subversive Nina Pillard.

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  • joe from Lowell

    But Scott, if Democrats blow up the filibuster, the Republicans could people like Samuel Alito and Clarence Thomas on the Supreme Court. Can you imagine?

    I’m sorry, I’d love to see the filibuster go, but not if it’s going to result in some sort of dystopia where men like that are able to be confirmed to the highest court in the land.

    • somethingblue

      Yeah, it’s too big a gamble. Best to go with a Strongly Worded Letter™. Maybe even a couple.

      • Steve LaBonne

        Put them in the comfy chair!

        • the one true Melvin

          Fetch the Soft Cushion!

    • Joe

      I don’t understand. Wasn’t Alito filibustered? I thought I read it somewhere.

    • Joshua

      Powder kegs aren’t going to dry themselves.

    • Scott Lemieux

      But Scott, if Democrats blow up the filibuster, the Republicans could people like Samuel Alito and Clarence Thomas on the Supreme Court. Can you imagine?

      It’s worse than that! Some utter crackpot who believes that the Constitution contains some kind of free-floating “Cowboy Capitalism” provision could be confirmed to the D.C. Circuit! Thankfully, the beloved Gang of 14 made that kind of thing impossible.

      • efgoldman

        I just still don’t know – does anyone? – whether Harry really has the stones and/or the desire to do it.

        • Scott Lemieux

          Reid isn’t the problem.

  • Kurzleg

    I’ve come around on this question. I do still worry about the very asymmetry you note (“Obama is not nominating judges who are the left-wing equivalents of Janice Rogers Brown”), but I concede that the judicial nominations of Democratic presidents may be unduly influenced by trying to satisfy GOP senators, which by definition limits candidates to centrist or center-right candidates. If we do drop the filibuster, then I hope we’ll see a change in the types of candidates that get nominated.

    • rea

      I do still worry about the very asymmetry you note (“Obama is not nominating judges who are the left-wing equivalents of Janice Rogers Brown”)

      I am not in the least concerned that Obama isn’t nominating insane and stupid people.

      • somethingblue

        What would “the left-wing equivalent of Janice Rogers Brown” even look like? And why would he give up his gig as the present king of France?

    • JKTHs

      There’s also the asymmetry when the opposing party controls the Senate. I’m sure a GOP president could get some semi-crazy judges through a Democratic Senate whereas anybody to the left of Alito proposed by a Democratic president would get shot down in a GOP Senate.

  • DrDick

    I have come to agree with you on the filibuster, but would also add that we need to start nominating much more liberal judges, since the GOP will attempt to block even center right judges nominated by a Democrat. Of course Obama will not do that, since he is pretty much a centrist himself.

    • How is Nina Pillard a “center right” judge choice?

      • joe from Lowell

        Through the Power of Narrative!

      • DrDick

        I did not say she was (though the descriptions I have seen indicate that she is centrist to center left), just that we need even more liberal judges. Also, I only said Obama was a centrist, not center right (I think he is often center right on economic matters, but more liberal on social issues).

  • LeeEsq

    I always considered it fortunate that our reactionaries and the reactionaries in the Muslim world hate each other. Imagine what they could accomplish if they decided that they were more similar than different and decided to work together. You could have whoever is leading the Evangelicals right now team up with Tariq Ramadan.

    • joe from Lowell

      One of the National Review writers published a book suggesting such an alliance about a decade ago.

      • Sly

        Dinesh D’Souza, though he was never an NR writer aside from a few guest pieces.

        The book got him in hot water with wingnuts, but they forgot about it by the time he started pimping his “Obama is a Mau Mau” tripe.

    • Sockie the Sock Puppet

      Grover Norquist is doing his best.

      • Schadenboner

        I’m no fan of Norquist but it’s rather nasty to declare that his (muslim) wife is an Islamist.

        • FMguru

          It’s a good thing he didn’t say that, then.

          Norquist spent a big chunk of the 1990s trying to bring American Moslems into the GOP, especially in Michigan. Something happened in the early 2000s that kind of put a stop to that, I can’t remember what.

          • Schadenboner

            Which explains the use of “is doing his best” rather than “was doing his best” how, exactly?

    • Box of Hair

      They actually do team up internationally to scuttle protections for women, children and gay people, whom they hate more than they hate each other. First, let’s oppress all the less-thans, THEN let’s have a holy war to see which group of old men gets to be at the top of that oppression pyramid.

  • GoDeep

    A number of GOP senators are transparent abt the fact that they have nothing against the political views of the nominees, its just that they are philosophically opposed to a Democratic POTUS’ nominees ever making it to the court.

    In that light, its time to scrap the filibuster & throw down. They want to invoke the nuclear option? They’ve got it. Congress’ approval ratings are at 9% & GOP approval ratings are at historic lows. Americans may not understand much abt public policy, but they understand that the GOP is obstructionist & carrying out the nuclear threat would only make them appear more so–heading into an election year. The filibuster is fundamentally incompatible w/ parliamentary style of governance.

    • postmodulator

      It cracks me up — in a gallows humor way — that historians mostly agree that the liberum veto led to the literal destruction of the old Polish Commonwealth, and nobody seems to think it’s weird that we have that too.

      • Walt

        I think of this pretty often, but it’s a pretty obscure historical fact.

      • Manta

        From the link: “Political scientist Dalibor Roháč noted that the “principle of liberum veto played an important role in [the] emergence of the unique Polish form of constitutionalism” and acted as a significant constraint on the powers of the monarch by making the “rule of law, religious tolerance and limited constitutional government … the norm in Poland in times when the rest of Europe was being devastated by religious hatred and despotism.” It was seen as one of the key principles of the Commonwealth political system and culture, the Golden Liberty.”

        Interesting read: thanks for the link.

        • GoDeep

          Yeah, had never heard of it either. Thanks!

  • Tom Servo

    Damn. So does he need another nominee? Does Neal Katyal want to go to the DC Circuit?

  • Glenn

    Not that her vote is dispositive, but I’d like to know how Kelly Ayotte justifies her vote to filibuster Pillard.

    • NonyNony

      Because eventually she has to run in a GOP primary? I think that’s how she justifies every vote she takes.

  • Joe

    In recent years, Republican presidents have — on balance — been more concerned with ideological picks on the courts while Democrats used their limited resources differently. Obama years back specifically noted he was less concerned about using the courts to promote policy. He’s also overall a centrist and his picks are of that caliber — generally centrist liberals.

    The overreaching on the DC Circuit (the real reason is they don’t want him to fill in vacancies there — they ultimately admit that) is an opportunity. At least for executive nominations, the filibuster can not continue like this. If you can’t play with something right, sorry, you ruin it.

  • Joshua

    Republicans are also openly taunting Democrats about the filibuster, threatening them with Scalia 2.0 under President Cruz or whomever. Do Democrats understand that Republicans are going to blow it up in that situation?

    The filibuster is simply not compatible with an ideologically divided Congress. We can have one or the other, not both.

    • Joe

      If President Cruz is in power, we will have a lot to worry about. Anyway, Dems would allow Scalia 2.0 in such a case most likely. The only possibility is if Ginsburg or maybe Breyer was being replaced. Even then — Thomas replaced Marshall.

      I’ll believe a filibuster on either side of a Supreme Court justice (that sorta happened with Fortas — at the end of LBJ’s term … when there was actually a real reason for concern other than ideology… so forty or so years back) when I see it.

    • Tom Servo

      You kidding? We’d be lucky to get Scalia 2.0 under a Cruz Administration. More likely Bork 2.0. E.g. even Scalia, in his most recent interview at least, with New York magazine, said that the Fourteenth Amendment covers sex discrimination. Which surprised me to read because I thought he’d said the opposite before. Anyway, the people who said there was no daylight between Scalia and Bork were full of shit.

      Speaking of Bork, I grumble every time I read a purple Kennedy opinion but then I remember what could have been. There may come a day, perhaps under President Cruz, where a Scalia 2.0 is the Kennedy to Cruz’s Bork 2.0. And that’s not a pleasant thought.

  • Epicurus

    The GOP has taken an obscure parliamentary rule and turned it in to a big stick. I think the proper approach is to “go nuclear” (and I am well aware that Harry Reid needs at least 50 votes to do so) and worry about the potential consequences of a Republican takeover of the Senate when and if that arises. In the meantime, take away the chokehold that the minority now has on ANY nominations. Unfortunately, we need to get the Manchins and Landrieus to understand exactly which party they were elected to serve. The rules of the Senate can be changed anytime, anywhere, provided you have the votes.

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