Things That Were Actually Written By Someone Paid A Large Salary to Write About Politics

Shorter Dana Milbank: Since American political history started in 2013, it is clear that the United States Senate is a much more effective and functional legislative body than the House of Representatives.

Shorter William Jacobson: My only quibble with Milbank’s astute analysis is his claim that Republicans have abused the filibuster. Why, 70% of the Senate’s cloture motions have been filed without Mitch McConnell as minority leader! And almost half of the filibusters of executive branch nominees occurred in the 220 years before Barack Obama took office! Why won’t Milbank accept my bare assertion that by definition only the Democrat Party can abuse the filibuster?

…McCarter has more. And, yes, “Establishmentarians…are against fires and fire hoses alike.” And, even better, “The threat to nominate more Scalias is about as frightening as Iran threatening to cut off its donations to the Jewish National Fund.”

Remember: Bork Wasn’t Filibustered

Johnathan Adler is the latest Republican to threaten to do things that Republicans have already been doing and will continue to do:

On the bright side, the era of super-majority votes for judicial nominees is over, and I look forward to seeing the slate of nominees put forward by the next GOP President nominates. Judge Volokh? Justice Barnett? Hmmmm.

Or here are some even more terrifying possibilities: Judge Owen! Judge Rogers Brown! Justice Altio! Justice Thomas! Without the filubuster, who knows, any of those might have happened!

I actually suspect this represents a pretty widespread belief among Republicans, a variant of point #3 in my explanation of why the Republicans screwed up so badly. While in the real world Obama wouldn’t even consider appointing the left-wing equivalent of Rogers Brown or Alito to any federal court, there really do seem to be Republicans who believe that Republican presidents have countered fire-breathing Democratic radicals like Stephen Breyer and Elena Kagan with quiescent moderates. If you believe this — and I suppose it makes more sense if you evaluate judges according to the baseline of constitutional law in 1905 rather than 2005 — then you might think that Republicans will benefit more from blowing up the filibuster.

I will grant that Barnett would be pretty radical even for a contemporary Republican nominee. But this brings us to another point. No conservative nominee to the Supreme Court has ever been successfully filibustered, including Alito and Thomas (the latter in a Democratic-controlled Senate!) So, first of all, getting Barnett confirmed would require Republican control of the Senate, or he could be defeated by a straight up-or-down vote just like Bork was. And if a Republican White House and Senate want to nominate and confirm Barnett, they’d better hope that 3 or 4 more non-Alito/Thomas vacancies come up before the end of that term, because if they nominate a Supreme Court justice explicitly committed to the proposition that Social Security, Medicare, and most of the rest of the 20th century regulatory state is unconstitutional, that will be the last national election they’ll win for a long time. The idea that the filibuster represents the only political constraint on a president’s Supreme Court nominations is bizarre.

When after all it was you and me

I had just turned four, didn’t speak any English at the time, and my parents didn’t own a TV (although my father went out and rented one from the corner drug store that afternoon). So I don’t have any memory of the event, although I’m told I was on a swing-set on the outskirts of Washington DC when my father came running up and said in Spanish to my grandmother “they’ve killed Kennedy.”

And I suppose “they” did, if one takes a appropriately sociological perspective on the event.

Some thoughts:

(1) For today’s college freshmen, 9/11 is pretty much what the JFK assassination was to me: a historical event that occurred after we were born, but could have just as well happened 50 years before. This is one reason why the concept of the baby boom “generation” is not very useful: for people born toward the end of it, “the Sixties” — which as many people have said began that day — mostly happened for us later, when we saw the decade replayed on TV and in movies and (endlessly) on the radio.

(2) It’s also an endlessly repeated truism that the public’s eventual rejection of the official story told by the Warren Commission reflected a fundamental shift in the America people’s willingness to trust the federal government in particular and authorities in general. I wonder how much actual evidence there is for this claim?

(3) I’ve never waded into the controversy over the assassination itself, so I have no opinion regarding it, but having just watched a couple of documentaries on the subject, I’m reminded of a story about Sir Walter Raleigh. Sir Walter, it’s said, proposed during his imprisonment in the Tower of London to write a history of the world. One day after he began this project, a fight broke out between two workmen in the courtyard below, which resulted in the death of one of them. Sir Walter tried to find out what the fight was about, and found he was unable to do so. Thereupon he abandoned his history.

(4) I will say that the Jim Garrison story ought to shake the faith of those who believe that it’s not possible for literal lunatics to ascend to important public positions inside the iron cage of bureaucracy.

(5) Oswald bought his rifle via mail order for $12.65 ($96.55 in current dollars).

More On Reid’s Triumph

On further reflection, I still see this as a massive win. I’m amused by the Republican counter-threats to nominate…exactly the same kind of judges they’ve been nominating and getting confirmed since the Reagan administration when they’re in charge. I’ll take that risk!

The interesting question, to me, is how the Republicans got rolled so badly. I have three theories:

Short-term thinking

Focusing on potential primarily challengers and unable to think strategically past their immediate goals, Senate Republicans didn’t stop to consider that eliminating the filibuster (potentially for everything) would hurt their long-term interests. If this was true, they got routed both in the short- and long-term, and the behavior of the Republican conference was essentially irrational.

Misunderestimating Harry Reid

Senate Republicans—like many liberals—may have assumed that Reid’s threats were empty. But Reid is sometimes mistaken for a weak leader precisely because like all competent political leaders he doesn’t make broad threats he doesn’t have the votes to back up. When he does make threats the underrated, very savvy Reid is likely to have the support to back it up. If they didn’t grasp this, Republicans found out the hard way.

Delusion

Some Senate Republicans may have convinced themselves that liberals will be more ruthless in their use the filibuster than conservatives. That is quite clearly false. The filibuster has almost always favored opponents of social reform, and since progressives generally want to do things and conservatives generally want to stop things this will almost certainly be true going forward. But never underestimate someone’s ability to stop believing their own guff.

I’m guessing #2 is the most common reason, but who knows?

…and one more thing: many thanks to the Republican primary voters of Delaware, Missouri, Indiana, and Nevada. May more and more states learn from your fine example of Tea Party principle!

…steadfast foe of the filibuster Hendrik Hertzberg has more.

Detonation

The filibuster for circuit and district court nominees and executive branch appointments is gone. Never thought I’d see the day, and this will almost certainly be the most important vote of Obama’s second term. Luckily, 1)the GOP seems to have the same evaluation of Reid as the typical liberal blog commenter, and 2)they’re both wrong.

More later today. Meanwhile, surely someone has the chops to do a good photoshop of Dick Smothers in Casino…

As you hear the reactions, remember the the GOP’s opposition to majority rule in the Senate is a matter of Deep Principle.

The Perpetual Cycle of Wingnuttery Continues

Earlier in the month we discussed the phenomenon of Republican judges citing each other’s dicta as if they constituted some kind of meaningful precedent. Well, this winger chain mail now has another signatory — Justice Antonin Scalia:

What makes Owen’s opinion remarkable, however, is her justification for the conclusion that temporarily preventing the law from going into effect would constitute “irreparable harm” to the state of Texas. Circuit Court judges are bound by Supreme Court precedent; they cannot create new legal standards on their own. But as one lawblogger notes, the basis for Owen’s conclusion would be embarrassingly feeble if there was any evidence that she was capable of embarrassment. The following is a comprehensive list of the precedents cited by Owen to justify her conclusion:

• A bare assertion from a 1977 solo opinion—not speaking for the court—by then-Associate Justice Rehnquist that “[i]t also seems to me that any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” (“It seems”—well, I’m convinced!)
• A solo opinion—again, not speaking for the Court—by Chief Justice Roberts citing the Rehnqiuist opinion without any further defense.
• That’s it.

This precedential basis would need a lot more heft to merit being called “threadbare.” And it’s even worse than it appears at first glance. First of all, Rehnquist’s opinion applied to a case where the at least the statute had already gone into effect, making the argument of “irreparable harm” to the state even weaker as applied to the Texas abortion case, where it had not. And second, there’s a reason that this dictum has never appeared in an actual Supreme Court majority opinion—it doesn’t make any sense. If this “principle” were taken seriously, states would have an unlimited right to enforce unconstitutional laws for as long as the legal challenges take to wend their way through the courts, irrespective of the harm caused to those who rights were violated. This simply cannot be right.

How does Scalia’s counter to Breyer—typically long on belligerence and short on logic—reply to these obvious objections? Why, by merely citing the Rehnquist and Roberts opinions again. So now, the next time a hack Republican judge wants to make a politically expedient decision to deny or vacate an injunction preventing the enforcement of potentially unconstitutional legislation, he or she can now cite four precedents endorsing the same erroneous tautology without any attempt to defend it. It’s a nice con if you can pull it off.

So now we have four judges (or six, if you count Thomas and Alito, who joined Scalia’s opinion) who have endorsed the same silly theory, without anybody bothering to actually defend it. Perhaps there’s an Infinite Jest problem, in that they can’t find a clerk who can write the second sentence without dying of laughter. Between this and Shelby County, I think we need a fancy Latin term for this form of legal argument — stare circulus jerkus?

Of course, for Scalia this kind of thing is old hat. As his opinion this week inadvertently reminds us, it was his stay opinion in Bush v. Gore that made the partisan subtext of the final opinion just text.

Blow It Up, Harry!

Could this really be happening?

Senate Democrats are on the verge of moving to eliminate the use of the filibuster against most presidential nominees, aides and senior party leaders said Wednesday, a move that would deprive Republicans of their ability to block President Obama’s picks for cabinet posts and the federal judiciary and further erode what little bipartisanship still exists in the Senate.

Senator Harry Reid of Nevada, the majority leader, is poised to move forward on Thursday with a vote on what is known on Capitol Hill as the “nuclear option,” several Democrats said. Mr. Reid and the senators who have been the most vocal on stopping the Republican blockade of White House nominees are now confident they have the votes to make the change.

I would think that the Republicans would try to peel off some marginal Dems by letting at least one nominee to the D.C. Circuit through, but there’s also the possibility that Republicans have just completely lost any capacity for strategic thought, or may have convinced themselves that the filibuster doesn’t massively favor reactionary interests.

The Beneficence of David French

A couple of Thursday links…

• Thers does a great job of pointing out the authoritarianism lurking beneath David French’s act of charity. But I think there’s a lot more going on here. Or, rather, much less going on here. In other words, this seems to be merely a new way of saying the same old thing wingnuts like to say. That is that since poverty is a problem that won’t be solved with a quick, easy fix (in many cases) that we shouldn’t do anything at all to try and fix it. I mean, really, if David French can’t adopt you and give you gruel when you’re being good, is it really wise to help you at all? David French thinks “no.” So, really, I think this goes beyond authoritarianism and well into sociopathy.

• GoldieBlox is a company that is encouraging building and engineering play in girls. Neat! But it’s not all good news. A lot commenters have decided that because some of the pieces-parts are pink and there’s ribbon involved that it’s time to scrap the whole thing and also why do we have to worry about this stuff anyway omg can’t we just let girls be girls? Seriously, don’t read the comments if your sanity–or what’s left of it– is something you value.

I lose my temper…