Osler's Razor

.
I rate the President's rhetoric (and the Politifact article) somewhere between false and misleading.

A Few Thoughts (PART I):

1. IMPORTANT GENERAL POINT. The partisanship surrounding judicial appointments is absolutely horrible and destructive--and it happens on both sides and it has gone on for a long, long time. As a guy who cut his teeth on the Bork Judiciary hearings (the first time I ever watched a confirmation from gavel to gavel), I have to smile when Dems start talking about the GOP as rotten and partisan. And, of course, Bork was just the beginning. There are myriad famous examples of Dem obstruction since then. Serious Problem for BOTH SIDES.

2. I like President Obama as a person and respect him as a president. I have a long litany of things I like about him that I literally recite often to help me remember that he is doing his best and what he believes is good for America--even though sometimes we disagree.

Having said that, President Obama can be petty and thin-skinned and partisan and has a tendency to over-politicize nearly every major issue (which is the number one reason WHY he does not get much accomplished legislatively). And another thing that makes me smile is when this very partisan and political president accuses politicians on the other side of the aisle of being political and partisan. #PotToKettle

2. The Constitution favors the Executive over the Legislative in terms of appointing judges. Congress hates this, but they have to get over it. Senator Obama, for example, was not very good about accepting this fact. But the Senate needs to defer in most cases to the President on these matters--if things are going to run smoother. Having said that, Presidents need to do more to grease the skids in terms of respect and advice and consent. It will take a gracious and farsighted president to end this long-running and escalating feud.
 

There is a certain ebb and flow to the nastiness of American politics. WF, as you have taught me (along with IPLawGuy), some past eras make today's rhetoric look tame. BUT, there were other times where leaders worked primarily in the national, rather than partisan, interests. We should aspire to that, regardless of whether or not this has been the worst it has ever been.
 

I rate the President's rhetoric (and the Politifact article) somewhere between false and misleading.

A Few Thoughts (PART I):

4. The concentration on the word "packing" seems like just another cheep trick to reduce this argument to something digestible in a Jon Stewart-sized world. If you read Grassley's statement--and if you read some of the expert commentary on this issue--the GOP argument is not ridiculous (relative to general political argument in Washington).

Sure, you can disagree with it--but dismissing it as ridiculous and silly as the President likes to do only further exacerbates the crisis of communication among our leaders.

Embedded in the Politifact story (three clicks down) is a short and digestible summary of the GOP position:

"The Republicans’ arguments

"A spokeswoman for Grassley argued that, "just as FDR did, Obama is trying to influence the courts because neither president liked being overturned. The president and Senate Democrats have made that clear in their comments."

"Republican lawmakers make two main arguments.

"• The court is under-worked, so Obama is trying to fill unneeded seats with Democrats. "It is evident that the D.C. Circuit is the least busy court" in the nation, Grassley said at the May 16 hearing. "In fact, it ranks last or almost last in nearly every category that measures the workload of the courts."

"In fact, Grassley has introduced the Court Efficiency Act of 2013, which would, among other things, reduce the number of D.C. Circuit judges from 11 to eight.

"Grassley’s proposal is "understandable," said Ilya Shapiro, a legal scholar at the libertarian Cato Institute. "The court isn’t overworked, the openings are there because of filibusters of Bush nominees, and Obama’s had five years to nominate people and hasn’t," he said. "There are lots of overworked courts out there to which these three slots could go, but he wouldn’t be making it if Obama weren’t making his political play."

"• Senate Democrats are threatening a structural change that would affect judicial nominations. In the Senate, a single lawmaker can hold up Senate business unless supporters can muster a 60-vote majority. Over the years, due to actions by senators from both parties, such blocking tactics have become increasingly common.

"Frustrated by this trend, recent Senate majorities from both parties have considered invoking the "nuclear option" -- a procedural move that would allow a minority blockage to be overcome with just 51 votes.

"In 2005, a bipartisan group of 14 senators successfully headed off a Republican attempt to invoke the nuclear option by pledging not to support judicial filibusters. Now, the tables have turned: Senate Majority Leader Harry Reid, D-Nev. has threatened the nuclear option to combat Republican opposition to Obama’s nominees."

5. This is politics as usual--and attempting to depict the other side as engaging in egregious and/or ridiculous behavior is ALSO POLITICS AS USUAL.

6. I am a bit long here (way long here), but I also have plenty of thoughts on the use of this word "packing" in this context. In short, while I don't find the phrase particularly apt, I deem it well within the bounds of historical-politcal rhetoric. I will spare you my long discussion of why (unless somebody requests it).
 

To Mark:

I am for the change you seek. But the change is going to have to come from the top. And we have had a series of presidents who have come to town promising a new tone. I think they have been fairly sincere in what they thought they could accomplish. Thus far, sadly, they have failed utterly. It is all easier said than done.
 

WF, I think there is a huge difference between what FDR tried to do-- enlarge the size of the Supreme Court-- and the unremarkable (and Constitutionally required) act of nominating judges for open slots.


 

Mark:

I agree with you that there is a big difference between what the President is doing and what FDR tried to do (although we should note that FDR's "court-packing plan" also was perfectly Constitutional and required the approval of Congress). As I say, if pressed, I will certainly argue that the analogy is not so categorically irreconcilable to render it useless and/or irrelevant for the purposes of this argument. As I say, it may not be the most illuminating device--but it is not completely out of order either.

But an argument of historical semantics really takes away from the point on which I think we agree: the executive and legislative need to fix what has become an institutional impasse. There are some real arguments and dilemmas herein that offer a far better opportunity for people of good will to move forward.
 

Yes, there are " are some real arguments and dilemmas herein that offer a far better opportunity for people of good will to move forward," and that's what bugs me about this kind of hyperbole and hyper-critical focus on the president doing what he is supposed to do-- fill vacancies. There are real, substantive things the administration is doing wrong, as Ron Fournier details in the article I linked to above. As the party out of power, Republicans are making a mistake by trying to oppose everything all the time, or something close to it. Constant yelling just becomes background noise, and robs the party not in power of the ability to really draw attention to what matters.
 

Mark,

You invoke history--but you seem to want history to start with today on this subject with no context. I am sorry, but it doesn't get to work that way. The President has made serious mistakes. The Democrats have made serious mistakes (as have the Republicans) over decades. Those are all part of the record, our collective memory, and they inform the present.

The President does not get to reset the argument simply because he has temporarily and cynically maneuvered himself into a superior political position for the moment. No one deserves that kind of historical amnesia--and certainly this president in particular does not.

What the President is attempting to do in this particular situation does not further our shared goals.
 

As for Ron Fournier, his piece from yesterday that hit directly on this subject is a must read: http://www.nationaljournal.com/how-congress-and-the-white-house-eviscerate-the-judiciary-20130604

I don't agree with him on every conclusion, but he gets to every one of them in a fair-minded, fact-based way. All the way with Ron Fournier!
 

WF-- wait... how is simply nominating people for vacant judgeships such a cynical and underhanded thing to do?
 

WF-- wait... how is simply nominating people for vacant judgeships such a cynical and underhanded thing to do?

What the President is doing is underhanded because it is, in truth, not "simple" at all. Again, this action does not happen in an historical vacuum. And this move is, in fact, a skillfully calculated public relations campaign, creating the impression that the President is perfectly reasonable and his opponents are "simply" ridiculous and silly partisans.

It is underhanded because it creates an easily digestible (but misleading) narrative for casual observers.

I could ask you: what is wrong with Congress exercising its constitutional right to adjust the size of the DC Circuit, in this time of scarcity, to a number more efficient and economical?

In a vacuum: nothing. It actually sounds like a great idea. But we can both agree that it is much more a matter of politics than it is of political economy. What I cannot understand is why we can't both agree that this little comedy that the President is playing with the press is also a matter of politics and a distraction and something that does not help us get where we want to go.
 

My memory is that the phrase "court packing" originated with a journalist, during the Grant administration. Nonetheless, if the question is, "Which presidents have tried to place people on courts that shared their ideological / political view?" The political science answer is, "Every one of them, so far as we are aware."
 

I don't like it when Waco Farmer and Osler fight. I like it when they hug.
 

Let's all meet at Scruff's & hug it out.
 

I have thoroughly enjoyed this point counterpoint discussion, especially since neither Farmer nor Osler has called the other an ignorant slut yet ( for those Razorites who thing Tina Fay was a charter cast member of SNL, excuse the reference.

To the substance of the matter: the tools of technology and communication have taken the historically tools of partisanship front and center onto our smart phones and desktops, complete with media scorekeepers. The effect of that is the partisanship which has always been with us can no longer be parlayed into a hard earned back room deal in the national interest, because the scorekeepers are outside the door, fanning the fiery passions of Rush and Hannity's legions on one hand and Move On and the Times editorial page on the other, precluding a deal.

I love the press--best thing about the Bill of Rights as far as democracy is concerned, but the tools of the trade today call for a new attitude toward partisanship and what it means, if we're going to lift ourselves out of it.
 

Thank you AWF and Mark for the 'front row' seat - very informative and entertaining. so much so that I 'super-sized' my popcorn and diet soda, heeped on extra melted butter, went sparringly on the 'sea salt', sat back and smiled. . .
 

So many issues today can be approached with your head or your heart and often it leaves one conflicted. I think that we have another example in this conversation.
Mark feels the injustice in this country and WF sees the costs of providing the same. Facts are found that appeal to our mind and stories of those harmed are told that appeal to our hearts.

Today is it fair that illegal immigrants receive health care when legal workers may not receive free care? But is legislation that threatens exportation when the illegal worker goes to the hospital for needed care the moral solution?

Decisions affecting food stamps, health care, jobs, regulation, government secrecy, security,free speech, freedom for whom, etc will be guide by both historically and fiscally responsible facts. The actions to be taken also have human consequences.
I am proud of Mark for relying on his heart as much of his mind when he advocates. Sometimes, WC does too.

 

I believe AWF's heart is 'pierced' by the biblical sword as often as Mark's.

Emotions swirling in our heads only become true 'passions' when we willing 'run' into the 'Lion's Den' seeking the fulcrum of knowledge's balance.

Birth placed the reins of our lives into another's hands, coming of age, or - all to often - circumstance eventually places them in our own.

Besides tax dollars extracted, what ownership is 'ours' of the public programs we seek sustained and administered equally?

Lest we judge before we account for our (and for those we influence) contributions and sacrifices before we recline at table seeking to be served.

Bounty needs to be gathered before it can be distributed. What offering do we arrive with?