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Friday, January 27, 2006
Alito, Vote Counts and Filibusters
By Dr. Steven Taylor @ 10:55 am

Via the Denver Post Democrats’ deep divide shows in threat to filibuster over Alito

At least three Democrats - Sens. Ben Nelson, D-Neb., Robert C. Byrd, D-W.Va., and Tim Johnson, D-S.D. - have said they will vote to confirm Alito. Others have said they would not support a filibuster, regardless of how they vote on confirmation.

Now Republicans Chafee, Snowe and Collins may vote against (I have not seen any definitive statements on that count, but I may have missed them) but I would be surprised if they would support a filibuster.

As such, that would put the likely cloture vote count to start at 58, and one would think getting two more wouldn’t be that hard, especially since that despite noise from Kennedy and Kerry, I simply do not see significant momentum for such a move.

Back to Chafee: it seems to me that it could go either way with Chafee in terms of voting for Alito. As has been noted, he has a re-election conundrum to deal with here, so that will come into play. If he feels truly thrreatened in the primary, that might tip the balance in Alito’s favor.

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Thursday, January 26, 2006
By Dr. Steven Taylor @ 2:47 pm

Senator Sessions says he will support Alito

And here I was on pins and needles…

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Tuesday, January 24, 2006
Alito Committee Vote
By Dr. Steven Taylor @ 11:15 am

Via WaPo: Campaign for the Supreme Court - The Politics of the Nomination of Samuel A. Alito Jr.:

Brownback (R)-Yes
Coburn (R)-Yes (updated)
Cornyn (R)-Yes
DeWine (R)-Yes
Durbin (D)-No
Feingold (D)-No
Feinstein (D)-No
Graham (R)-Yes.
Grassley (R)-Yes
Hatch (R)-Yes
Kennedy (D)-No
Kohl (D)-No
Kyl (R)-Yes.
Leahy (D)-No
Schumer (D)-No
Sessions (R)-Yes
Specter (R)-Yes

I don’t know at this point if the lack of a vote for Coburn is a typo, an abstention or what (update-I think he simply hadn’t voted yet).

At any rate: straight party-line.

Update: Senate panel approves Alito for top court.

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Monday, January 23, 2006
The Lousiana “Primary” to Stay Put
By Dr. Steven Taylor @ 8:12 pm

Via the AP: Judge Nixes Move of La. Primary Date

An attempt to move the state’s open primary election for Congress back to October was rejected by a judge who said officials had attempted a “play on words” to get around federal law requiring the election in November.

Under the ruling Monday by U.S. District Judge Frank Polozola, the state will continue to hold primary elections in November, and if no candidate gets more than 50 percent of the vote, runoffs will be held in December.


In a change approved last year, the state Legislature attempted to shift the primary back to October, saying a candidate who got a majority of the vote at that time would not be formally declared the winner until November. But Polozola said that distinction would still violate the federal law.

“I think it would just merely be a play on words,” Polozola said.

First off, the Louisiana “primary” isn’t a primary. I know they call it that, but Louisiana has a two-round system to elect members of Congress with open, self-nominations for all comers to participate in the first round. Given that in the first round (what they call the “primary”) can have multiple Republicans, Democrats, etc. and that the second round can pit Dem v. Dem or Rep v. Rep, it makes absolutely no sense to call this process a “primary,” open or otherwise. It isn’t a nominating process, which is what a primary is by definition-it is a winnowing process that ultimately requires a majority winner.

Second, Polozola is correct-this is just word games. I can’t see this little play on words not contravening Foster v. Love, 522 U. S. 67 (1997)-the case wherein the Supreme Court ordered the change to the date of the first round.

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PoliBlog: A Rough Draft of my Thoughts » The Political Effects of Katrina linked with [...] s. Of course, party-linkages are especially weak in Louisiana, given its electoral system which is even more candidate-centric than the rest of the country. Katrina has taken an already evolving situ [...]
Thursday, January 19, 2006
Counting Alito Votes
By Dr. Steven Taylor @ 7:13 am

Via CBS: Leahy To Reveal Alito Vote

Several Democrats are expected to make their votes public Thursday, including Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee. Last fall, Leahy and two other committee Democrats - Russ Feingold and Herb Kohl, both from Wisconsin - voted to confirm the nomination of Chief Justice John Roberts.

It will be interesting to see how Leahy goes, although at the moment I would guess that he will vote against.

So far on the Democratic side we have announced “no” votes from Max Baucus, Barbara Mikulski and Edward Kennedy, and the lone Democratic “yes” from Ben Nelson.

ne the “undecided” front:

Alito met Wednesday with several Democratic senators, including Baucus, Bill Nelson of Florida and Ron Wyden of Oregon. He is meeting Thursday with Sen. Tom Carper of Delaware and new Sen. Bob Menendez of New Jersey. All those senators except Baucus are undecided on Alito’s nomination.

Alito will also meet with Republicans John Sununu of New Hampshire and John Warner of Virginia on Thursday. Sununu is undecided, while Warner expects to vote for Alito’s confirmation.

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Wednesday, January 18, 2006
SCOTUS Punts in Ayotte
By Dr. Steven Taylor @ 11:55 am

Via the AP: Supreme Court Affirms N.H. Abortion Law

The Supreme Court steered clear of a major ruling on abortion Wednesday, instead giving New Hampshire a chance to save its parental notification law.

Justices, in a rare unanimous abortion ruling, agreed that the New Hampshire law could make it too hard for some ill minors to get an abortion, but at the same time they were hesitant about stepping in to fix the 2003 statute. They told a lower court to reconsider whether the entire law is unconstitutional.

To be honest, from the story I couldn’t tell you if this is good, bad, or indifferent ruling, but it is amusing to me the degree to which the Court often punts on controversial rulings, which really undercuts the argument that Justices are out to tyrannizes the population.

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First Democrat for Alito
By Dr. Steven Taylor @ 6:04 am

Via Reuters: Senate Democrat backs Alito for US Supreme Court

Ben Nelson of Nebraska, a moderate voice in the U.S. Congress, on Tuesday became the first Senate Democrat to announce his support for conservative Supreme Court nominee Samuel Alito, who is expected to be confirmed later this month by the full Republican-led Senate.

“I have decided to vote in favor of Judge Samuel Alito,” Nelson said in a statement issued by his office.

I expect the majority of the the Democrats to vote against, but figure there will be at least 10 who vote in favor of the nominee. That is a raw guess, and not predicated on looking at the roster of Democrats.

The Roberts vote was 78-22, and since Alito is considered more conservative, and because it seems to be the case that there are more political points to be scored with one’s supporters to vote “no” if one is a Democrat, then I would expect maybe the high 60s for Alito and the low-to-mid 30s for against.

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Tuesday, January 17, 2006
Alito Vote Put Off Until Next Week
By Dr. Steven Taylor @ 7:57 am

Via Reuters: Democrats force delay on high court nominee vote

Democrats on Monday forced a one-week delay on a vote by the Senate Judiciary Committee on Supreme Court nominee Samuel Alito, but the 55-year-old conservative was still expected to be confirmed by the full Republican-led Senate.


Judiciary Committee Chairman Arlen Specter wanted his panel, which held a confirmation hearing on Alito last week, to vote on Tuesday on whether to urge the full Senate to confirm Alito, a federal appeals judge the past 15 years.

But aides to the Pennsylvania Republican announced in a brief statement that Democrats said they would invoke their right to require a one-week delay if the committee met on Tuesday on Alito.

So the committee will vote instead on January 24, with the Senate beginning debate on the nominee by the next day, according to the statement.

These kinds of delays always strike me as petty, but such are the ways of the Senate.

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Monday, January 16, 2006
Analyzing the Alito Transcripts
By Dr. Steven Taylor @ 9:34 am

WaPo gets out the ol’ “search” function in Word and give us some counts: I, I, Sir: The Alito Hearings, Annotated.

Here’s shocker:

But one thing united lawmakers on both sides: reverence for the first person. Republicans used the “I” word 1,180 times. Democrats used it 1,123 times. Combined, they used it well more than the nominee, who said “I” 1,907 times.

Generically I find much of the commentary on the contents of the hearing to be somewhat vacuous-insofar as everyone seems shocked, shocked!! that Alito was cautious and that the Senators were egotistical.

Given that the purpose of the hearings for the nominee is to say as little as possible and emerge confirmable, and the goal for the Senators is to score political points, can any other outcome be expected?

Basic conditions and the incentive structures that they create shape behavior. How hard is this to understand?

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Sunday, January 15, 2006
Althouse and the “Glum Democrats”
By Dr. Steven Taylor @ 3:51 pm

Ann Althouse comments on the NYT piece that has worked out to be a big focus here at PoliBlog today (here and here).

She makes several of the same points as did I: the solution for the Democrats is winning elections, and that there has been far too much attention paid to the crying business:

We’ll never hear the end of the wife’s crying. It’s becoming mythic. If only that hadn’t happened, we could have gotten some footing out of Kennedy badgering him about the alumni club. But the crying resonated because we experienced the questions as unfair and because we too were exasperated by what we could see was political posturing.

We hear a lot about the crying, but there is at least as much talk about how long the Senators spoke. They seemed to be making political speeches, which really was consistent with their own bad decision to portray judging as a political enterprise.

Emphasis hers.

The whole post is worth a read.

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More on the Politics of Judicial Nominations
By Dr. Steven Taylor @ 3:06 pm

From the same article as referenced in my previous post there is a discussion (and a graphic) about the fact that a majority of current federal judges, and overwhelming majority on SCOTUS, have been appointed by Republican Presidents:

Mr. Bush has now appointed one-quarter of the federal appeals court judges, and, assuming that Judge Alito is confirmed - the Judiciary Committee vote is expected to occur in the next 10 days - will have put two self-described conservatives on a Supreme Court that has only two members appointed by a Democratic president.

There is also the following chart:

However, none of this should be considered a major shock, given the fact that the GOP has been more successful at electing Presidents over the period under consideration. (The data from the chart in question comes from the web site of the Alliance for Justice, and this table).

First off, one would expect more recent Presidents to have the highest number of appointees. And, indeed, the President with the most appointees is President Clinton, whose appointments make up 39.1% of the federal bench. President Bush is second with 25.5%. Given age and such, one would expect that the most recent two-term president would have the highest number of appointees. One would expect that by the end of Bush’s 2 terms, that we would have numbers similar to Clinton’s.

Second, 90% of the federal judiciary as per the chart, have been appointed since the Reagan administration (there are still 25 Carter appointees, 4 Ford, 4 Nixon and 1 from Johnson on the bench). Given that from 1981-onward, there have been four full terms served by Republicans (plus the first year of W’s 2nd term) and two terms for a Democrat, the fact that Republicans have filled 55ish% of the federal judiciary isn’t all that surprising, and indeed hardly qualifies as a failure for Democrats.

The solution to influence the bench is clear: the Democrats need a two-term President to follow Bush.

In regards to the Supreme Court, we know that 7 of 9 are Republican nominees. The presidencies of relevance for the current Court are Ford to Bush. Of that period of time we have 6 terms (counting Ford’s partial term and Bush’s partial term to date) for Republicans and 3 terms for Democrats. So, controlling 67% of the terms during the period in question, the Republicans control 78% of the seats. Given the small sample size in question (9 seats) this does not strike me as especially out of sync. And, when one considers that in terms of ideological predilections that two of the Republicans (Stephens and Souter) tend to the liberal side of the equation, we see an ideological split that is roughly 5-4. Again, this is hardly a situation that could be considered failure from the Democratic POV (if we are being objective, that is). And along those lines I would again point to the analysis of Charles Franklin on Alito’s likely effect on the Court.

I would make a couple of final points:

  • As Stephens and Souter (or even Anthony Kennedy, or going back in time, Earl Warren) demonstrate, we really don’t know how a justices will behave over time-although I will grant that Alito seems to have a very clear record that would indicate his likely behavior in the future.
  • Even though Republicans have had the lion’s share of influence over the court, there is a feeling amongst conservatives that the courts are too liberal, and seemingly a feeling among liberals that the current judicial regime should be protected. If these things are both true, it may mean that, for whatever reason, Republican appointees aren’t as conservative as Democrats fear or as the Republicans Presidents who appointment them think they are.
  • Following on that last point: conservative justices are quite prone to respecting precedence and also less prone to being activists-as such, conservative judges may not be as “dangerous” as liberals think that they are.
  • Of course, much of the partisan and ideological hand-wringing may be the result of just counting to keep score without really analyzing what is going on.
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PoliBlog: A Rough Draft of my Thoughts » Althouse and the “Glum Democrats” linked with [...] se comments on the NYT piece that has worked out to be a big focus here at PoliBlog today (here and here). She makes several of the same points as did I: the solution for the Democrats is winning ele [...]
Alito, Parties and the Judiciary
By Dr. Steven Taylor @ 9:05 am

Via the NYT comes a piece (Glum Democrats Can’t See Halting Bush on Courts) which describes the Democrats’ frustration with Alito in specific and the Republican influence over the judiciary in general.

A few things strikes me from the piece. The first is about Alito and the surprise by the Democrats over their inability to defeat the nomination:

In interviews, Democrats said the lesson of the Alito hearings was that this White House could put on the bench almost any qualified candidate, even one whom Democrats consider to be ideologically out of step with the country.

That conclusion amounts to a repudiation of a central part of a strategy Senate Democrats settled on years ago in a private retreat where they discussed how to fight a Bush White House effort to recast the judiciary: to argue against otherwise qualified candidates by saying they would take the courts too far to the right.

Even though Democrats thought from the beginning that they had little hope of defeating the nomination, they were dismayed that a nominee with such clear conservative views - in particular a written record of opposition to abortion rights - appeared to be stirring little opposition.

First off, barring a filibuster, the ability of the Democrats to defeat a nominee under the current conditions is hardly surprising: there is a Republican President and a Republican Senate. Barring something that would create a rift amongst Republicans in the Senate, one should expect that the nominee would succeed.

In all fairness, Senator Schumer understands this:

“You either need a Democratic president, a Democratic Senate or moderate Republicans who will break ranks when it’s a conservative nominee,” Mr. Schumer said. “We don’t have any of those three. The only tool we have is the filibuster, which is a very difficult tool to use, and with only 45 Democrats, it’s harder than it was last term.”

Ditto, Representative Rahm Emanuel:

“George Bush won the election,” said Representative Rahm Emanuel, an Illinois Democrat. “If you don’t like it, you better win elections.”

Indeed, one would think it would behoove the Democrats to use the judiciary as a campaign issue going forward, something the Republicans have effectively done in recent years.

Second, there is a self-contradictory argument being made by the Democrats interviewed in the piece. They state that it is blatantly obvious that Alito was too conservative and out of the mainstream, but that they were unable to make it clear that he is too conservative and out of the mainstream. That is to say, it seemed as if the Democratic leadership thought it obvious that Alito was “out of the mainstream” but then thought that the reason that they failed to stop Alito was that they didn’t do a good job of sharing the obvious with the public.

“You’re trying to convince the American people that this man is not on your side,” said Dale Bumpers, a former Democratic senator from Arkansas. “Obviously, we didn’t do a very good job. Or I’d put it this way: Alito and Roberts did a good enough job that the Democrats couldn’t make that case.”

This reminds me of the 2002 mid-terms (and, to some degree 2004) where many Democrats thought that had they gotten their message out, they would have won, without considering that perhaps their message needed review and revision.

Indeed, the following quote underscore the notion that the failure to defeat Alito in the committee was a question of presentation:

“Had she not cried, we would have won that day,” said one Senate strategist involved in the hearings, who did not want to be quoted by name discussing the Democrats’ problems. “It got front-page attention. It was on every local news show.”

To think that the tears were the key is simply self-delusion.

Perhaps Alito isn’t as far out of the mainstream as Schumer likes to say. And if he is, Schumer and company may only have themselves to blame that no one took their warnings seriously, because, on balance, it has been Senator Schumer’s habit to declare all of Bush’s high profile nominees to be “out of the mainstream”-there is a sense of “crying mainstream” here, if anything.

Part of the anti-Alito argument has been that he is far, far, far too conservative and that such a fact ought to be obvious. However, again, the best the Democrats seem to be able to muster was the degree to which Alito should have been linked to CAP and whether or not he acted properly vis-a-vis the Vanguard Group.

Those are hardly proof of much of anything.

In regards to abortion, the problem for the Democrats was 1) we expect evasive answers on those questions, and 2) the idea that a Republican nominee might indeed be pro-life is hardly a shocker. Further, Alito’s record is hardly one of a crusade against abortion, and the testimony from his peers indicated that such a crusade was unlikely to start should Alito be placed upon the Court.

Indeed, the main pro-abortion groups are in such a habit of declaring every Republican nominee to be the vote that overturn Roe, that I don’t think most people really pay attention to their pronouncements. Even David Souter was painted as such. Again, we have some “crying wolf” going on here.

More later.

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PoliBlog: A Rough Draft of my Thoughts » Althouse and the “Glum Democrats” linked with [...] ents on theNYT piecethat has worked out to be a big focus here at PoliBlog today (here and here). She makes several of the same points as did I: the solution for the Democrats is winning elections, a [...]
PoliBlog: A Rough Draft of my Thoughts » More on the Politics of Judicial Nominations linked with [...] nations By Dr. Steven Taylor @ 3:06 pm From the same article as referenced in my previous post there is a discussion (and a graphic) about the fact that a majority of current federal judge [...]
Saturday, January 14, 2006
The Continuing Alito Wars
By Dr. Steven Taylor @ 11:56 am

Watching the two sides (made of various related actors and groups) is both fascinating and disheartening to watch (via the NYT: Wider Fight Is Seen as Alito Victory Appears Secured). On one level, it makes sense, as it is about building support with one’s base and trying to make political inroads into those whose partisan identification wavers election-to-election. As such, it is to be expected in a democracy in an era of mass media, and especially one with an entrenched two party system.

On the other, it is disheartening for two reasons. One, it underscores the degree to which politics is dominated by image, not substance (as is, unfortunately, so much of life).

More frustrating, however, is the fact that is seems so many people live wholly enclosed in their own worlds, unable to see out and incapable of having a true cross-dialogue.

The entire process of “debate” over these nominations is moving in a direction in which I do not think it will be possible to muster the types of votes we used to get (the high 90s for a nominee). There is more political hay to be made from voting against, even when the nominee is going to win and is clearly qualified.

I say that apart from any consideration of the current nominee. The fact of the matter is, given the importance of interest groups and “playing to the base,” a script has developed over time wherein it really doesn’t matter what the facts are, the attacks are going to be pretty much the same. Every nominee by a Republican president is going to be accused of being the vote that will lead to back-alley abortions and will have the specter of the clothes-hanger evoked. That’s just the way it goes.

Further, in terms of commercials and the hearings, we are going to get some attempt to take some item from the past and try to make it the Rosetta Stone that decodes all we need to know about the candidates . In this case it was the whole CAP business, and to a lesser degree the Vanguard Group business. Both of those items, no doubt, will be flogged by various groups via commercials and such until the day that the vote takes place.

The issue of executive power was a legitimate one, and one that I was interested in. I was less persuaded than some as to the dire nature of some of Alito’s work in the Reagan administration, but still thought it was a worthy area of inquiry, even if the process of questioning is such that real answers are rather unlikely to emerge.

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Friday, January 13, 2006
CAP, Kennedy and Satire
By Dr. Steven Taylor @ 4:21 pm

According to ABC News correspondent Jake Tapper on his blog DownAndDirty, the article from the CAP publication Prospect that Senator Kennedy tried to use to obtain a “gotcha” moment with Judge Alito was a piece of satire:

The 1983 essay “In Defense of Elitism” by Harry Crocker III included this line, read dramatically by Kennedy: “People nowadays just don’t seem to know their place. Everywhere one turns blacks and hispanics are demanding jobs simply because they’re black and hispanic…”

The essay may not have been funny, D’Souza acknowledges, but Kennedy read from it as if it had been serious instead of an attempt at humor.

Too funny.

Also of note:

Moreover, despite Alito’s job application, D’Souza says there was no actual “membership” in CAP; there were financial supporters and people who subscribed to Prospect, but no official organization per se.

Sounds like Alito was basically resume-padding.

h/t: Andrew Sullivan, who wasn’t especially impressed with Senator Kennedy’s performance, shall we say.

For that matter, neither was the Economist:

TED KENNEDY is deeply troubled by the ethics of the Supreme Court nominee. Between 2001 and 2006, Samuel Alito, who is currently an appeals court judge, accepted $7,684,423 in “donations” from special interests who perhaps wanted the law tweaked in their favour. That included $28,000 from defence contractors, $42,200 from drug firms and a whopping $745,373 from lawyers and law firms.

No, wait. Those are Senator Kennedy’s conflicts of interest—or, rather, a brief excerpt from a long list compiled by the Centre for Responsive Politics. The lapse for which the senator berated Mr Alito was considerably less clear-cut.

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Tell Me Something I Didn’t Already Know
By Dr. Steven Taylor @ 1:52 pm

Via Reuters: Specter says will vote for Alito to high court.

I am far more interested in how Leahy, Kohl and Feingold will vote, given that they gave Roberts the thumbs up.

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