(The Return of) Ignatz, by Sam Heldman

Saturday, March 29, 2003

Owen, Estrada, and precedent
Just in time to let me beat a dead horse a little bit more, comes Byron York in the National Review, offering a perfect example of the hypocrisy that I discussed in the post immediately below. York says disapprovingly that the filibuster of Estrada is "unprecedented", and then says in the same post that Democrats are wrong to object to the renomination Owen on procedural grounds, because (he says) "that argument has no actual merit — measures that die in one Congress have often found life in a later Congress after a change in party control." (Link to the irksome York thanks to Hasen and Bashman).

Come now. If the filibuster of Estrada can be called "unprecedented" in any sense, it is a sense in which the universe of relevant precedent is limited to the prior nominations of appellate court nominees, and nothing else -- a universe not including prior Supreme Court nominations (see filibuster of Fortas) and not including other sorts of Senatorial business (see countless filibusters of legislative matters in the last 200 years). So, that must the universe of precedent to which York is appealing. But then, fooling only those who aren't paying attention, he swiftly and silently shifts to a different universe of precedent in order to justify the renomination of Owen: to a much larger universe that includes not only judicial nominations (his old narrow universe, that includes no precedent for this renomination) but every sort of "measure" that the Senate considers. Irksome. Beyond irksome: BAD. Bad York. You're in time out, until you can say that you're sorry. (See also Prof. Hasen's post pointing out that York is further ridiculous in suggesting that Democrats should cave on judicial nominations because of war in Iraq.)

posted by sam 6:14 AM 0 comments


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