(The Return of) Ignatz, by Sam Heldman

Thursday, February 13, 2003

more Estrada
Wow, yesterday was a huge traffic day at Ignatz, about 4 times the norm. Interesting to me is that by far most of it came from links from sites that are not law-centric (though of course I appreciate the links from the law blogs greatly, too); this issue has clearly become an important one even outside the confines of the narrow law-nerd world, which is fantastic. Here are a couple of follow-ups based on emails received overnight:

* I mentioned the filibuster of Abe Fortas as precedent for this action. True, that was a Supreme Court nominee; but no one has yet explained any theory of political, legal, or moral fairness by which it is ok to filibuster a Supreme Court nominee yet is not ok to filibuster a Court of Appeals nominee. And thanks to the blog "the wyeth wire," I now know that the reference to the Fortas filibuster is even more apt; as you can see at this post, the filibuster of Fortas was (just as with Estrada) based on his refusal to provide information to the Senate in considering his nomination!

* One correspondent asked me, point blank, whether I thought that -- aside from being precedented -- filibusters are a fair tool in this sort of thing, or whether all nominees should just receive an up or down vote. Fair question. My answer is that filibusters are a fair tool in this sort of thing, for one and only one reason: that the Rules of the Senate allow them, and have allowed them in the past. The Rules are the rules. That's how we keep things procedurally fair, in law and in politics: by following the rules, doing what the rules allow and not doing what the rules don't allow. (Some rules, of course, can be called "unfair" if they systematically tilt in favor of one set of interests and disadvantage another; but the filibuster rule is viewpoint- and interest-neutral and so can't be criticized on such grounds). If you think that a filibuster is unfair as demonstrated by some neutral philosophical principle because it allows a minority to thwart the wishes of a majority, then I've got two things to say: (a) the Senate (which, by giving two Senators to Mississippi and two to California, for instance, is a departure from plain majoritarianism too) and (b) the President, the Electoral College, and the Supreme Court.

What's less than fair, in my view, is taking advantage of the Rules when they suit you, and then changing them when the shoes are on the other feet -- see, e.g., Senator Hatch's apparent announcement yesterday (reported by Howard Bashman) that, having blocked many of President Clinton's nominees for years and in many cases forever by the traditional blue slip rule, he has now decided that he will now no longer allow Democrats to do the same. Applaud Senator Hatch for being a great hardball player and a zealous partisan advocate, if that's where your bread is buttered, but please let's all drop any talk that he's a man of lovely fair principles.

posted by sam 6:48 AM 0 comments


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