(The Return of) Ignatz, by Sam Heldman

Friday, March 28, 2003

A little more on Owen
Prof. Hasen, at "Election Law," has a post about a potential filibuster of the Owen nomination, picking up on my post earlier in which I had connected the Estrada filibuster and the Owen re-nomination. In case I wasn't clear enough before, I will say the following things directly:
(1) My opposition to Owen is not rooted in the procedural point that this is a re-nomination. I have been strongly against her nomination since I first learned about her record, many months ago.
(2) I agree with Prof. Hasen (at least with what I understand him to be saying) that ideological opposition is sufficient grounds for a filibuster, without the necessity of any further justification in procedural points (such as "her nomination was already voted down once" or "he (Estrada) didn't answer enough questions".) In fact, my opposition to both of those nominees is rooted in ideology, and in my beliefs and expectations as to how their ideology (as I infer it to be) is likely to be manifested on the bench. I think that this is perfectly legitimate. I think that much Republican opposition to Clinton judicial nominees was procedurally legitimate, too; I just think that the Republicans' ideology was wrong then, and is wrong now. "Wrong", in this sense, means a lot of things, and I recognize that it is a matter of belief, value, and opinion rather than fact.
(3) I recognize, but do not like, the fact that many Senators feel that the institutional traditions of the Senate, and their own relationships with their constituents, make it easier for them to justify opposition to a nominee if they can portray it as being based on something other than ideology. I wish that the dominant style of political discourse was one that allowed, and even rewarded, the no-nonsense invocation of explicitly ideological factors as the main reason for opposing judicial nominations that deserve opposition. But we're not there yet.
(4) I also recognize that some Senators have so internalized this institutional pressure to base their positions on procedural factors, rather than pure ideology, that those Senators actually believe that their opposition is based on procedural factors. So, I don't lambaste Senators who adopt those rationales; and so (for instance) I won't spend any energy telling any Democratic Senator that it is illegitimate to oppose Owen on the grounds that she's already been rejected once. This "second bite at the apple" factor may seem like a big deal to some Democratic Senators, and may even be enough to sway some moderate Republican Senators -- and if that's what floats their boats given their knowledge of the Senate's history and traditions, I have no factual or legal basis to tell them they're wrong for feeling that way.
(5) My own feeling is that whatever the Rules allow Senators to do in supporting or opposing judicial nominees, is fair; and when I say "Rules" with a capital "R", I mean the Senate Rules and Committee Rules, not just the arcane unwritten and unclear and malleable protocols of Senatorial dancing. So, if there's nothing that says that the Senate won't consider a nominee that it's already rejected once, then I myself have no procedural objection to it. Similarly, there's nothing that says a filibuster is illegitimate; so it's legitimate. What's not fair game is Senator Hatch's proclivity for literally breaking or changing the Rules when it suits his purposes. See my earlier post today, linking to a statement by Senator Leahy pointing out another exercise of this proclivity.
(6) I've said it before, and I'll say it again: judging is not all politics, not even mostly politics. But judicial selection is all politics, pure and simple.

It occurs to me now that nobody was wondering what I thought about these points. But one good thing about having a blog is that writing these things down can clarify in my own mind what I think. So now we know.

UPDATE: (7) So why did I make the connection, in the first place, between the unprecedented nature of the renomination on the one hand, and the Estrada filibuster on the other? Because it irks me greatly when my opponents say "the thing you're doing is unprecedented and therefore bad" while trying to do unprecedented things themselves. It would irk me greatly even if they were correct that my thing -- the Estrada filibuster -- was unprecedented; then we would have hypocrisy on their part as to the importance of whether something is unprecedented. It irks me even more when they are factually wrong in their charge that my thing is unprecedented. I am, by the way, not thinking of any blogger on my list as my opponent in this; as far as I can tell, the bloggers on my list don't use lame arguments like the ones I'm criticizing.

posted by sam 8:27 PM 0 comments


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