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Today in Obituaries (2004) - Sheikh Zayed bin Sultan Al Nahayan, President of the United Arab Emirates known for his tolerant views on religion and the West; and Theo van Gogh, Dutch filmmaker murdered for his criticism of Islam. |
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Today in Obituaries (2004) - Sheikh Zayed bin Sultan Al Nahayan, President of the United Arab Emirates known for his tolerant views on religion and the West; and Theo van Gogh, Dutch filmmaker murdered for his criticism of Islam. |
Prof. Lawrence Solum has an interesting -- although I believe ultimately incomplete -- post up about "Understanding the Compromise of May 19, 2004."
In it, Solum discusses the agreement reached by President Bush and Senate Democrats on judicial nominations, whereby Senate Democrats will allow votes on 25 "mostly noncontrovesial" judicial nominees and Bush will not use the recess appointment power for the next eight months.
Solum's view, after much good analysis, is:
[N]othing happened yesterday. Or to be more precise, nothing much happened. We simply moved back to Phase 1--the long-run stable pattern given the curren[t] constellation of political forces.
Although from a legal viewpoint this might be so -- in terms of what the federal judiciary looks like. I think what Solum is missing, however, is any fair analysis of the political reasoning behind this decision by the Democrats or President Bush. Solum wrote:
The compromise announced yesterday was simply an announcement by the President and the Democratic Minority that both sides would revert to doing what was in their own perceived long-term interests.
Although this might be true, the political reasons are -- based on Solum's own problems with the increasing politicization of the judicial nomination process -- possibly an attempt at reducing the ability to use the judicial nomination process (and any perception of the Democrats' stalling of it) in the coming campaigns. Although the potential of a Supreme Court appointment will certainly be used by interests (and likely candidates) on both sides, I think this compromise was a conscious attempt on the Democrats' part to halt the Republicans' ability to use the Dems' "veto" against them.
Bush also has much to gain politically from the appearance that he is "working with the Democrats on Capitol Hill." I can already see him using this to show how he is all about compromise and "changing the way things work in Washington."
In other words, although the result might be the same as it was before for the face of the judiciary, the political results could be plenty.
May 19, 2004 08:16 PM | TrackBackI think you're both missing the true significance of the compromise: nothing much may have happened between President Bush and the Senate Democrats, but the Presidency and the Senate also had a showdown and the Senate won. A precedent has been established for future conflicts of this sort between the Senate and the President (regardless of parties involved). Suppose a future Senate majority (or a filibuster-proof minority) decides not to allow a vote on a President's judicial nominee.
If the President responds by making a recess appointment of the blocked nominee, he now knows that the Senate will respond by blocking all judicial nominees... and now that there is a precedent it is unlikely that the President will get out of the confrontation simply by forswearing future use of the recess appointment power.
Posted by: Ravi Nanavati at May 19, 2004 10:31 PMWhat bugs me is the consistent use of the term "veto" to describe what the Senate Minority is doing. It's not a veto -- a veto is when a vote of the entire Senate results in less than 50 votes for the nominee. Then, said nominee goes home and Prez picks a new candidate. THAT's a veto.
This, where nothing happens for months on end and nominee stays in limbo, with no new nominee, and a continually empty bench, is something entirely different. The filibuster should have been abolished once the 17th amendment was passed; the 'special' Senate rules were in place because the Senate was *different* from the House -- until the 17th Amdmt. Now, it's just a smaller version of the House, so it should have the same rules.
Does the "agrement" foreclose the Democratic minority from challenging the constitutional validity of recent "recess" appointments or future "recess" appointments? By this "agreement" is the Democratic minority conceding the validity of the recent "recess" appointments?
Compare the actions of the Democratic minority here with the failure of the Republican majority back in Clinton's second term to accommodate Clinton's judicial nominees who were not controversial. Perhaps the main difference is that Clinton could not run for a third term.
Posted by: Shag from Brookline at May 20, 2004 07:15 AM