To Filibuster, or nix the Filibuster... (US Senate)

[Asuras]

"Institutionally" conservative seems to equate historically into politically conservative, at least for the time period in question there.  A bit hard to follow...  It seems to me the Republicans being "well represented on the court" means that the Court has also fallen more into their hands.  It isn't as if the justices all retire very soon.

Are you meaning to say, you want the Court politics to resemble election trends over the previous generation?  I suppose you could argue that..  Although technology, some issues, and certainly public usage of ideas can also shift faster than every 20-40 years.  It's kind of a gamble that research in legal history alone would make them capable of identifying when those changes are meaningful, or not.  If they are looking at those factors as important, then I'm not sure they can still be called institutionally conservative in this context.

That is the point. The idea is that if there's a sudden swing in political opinion (as there has been in the last three years) there is at least one part of government that thinks back longer than the most recent catastrophe.

The fact that they happen to be Republicans is just an indication of who has been in the White House for the past few decades. But again, note that three of the Bush-Reagan appointees were moderate-to-liberal - that's because it doesn't reflect just the presidency, it reflects a snapshot of the political conditions that prevailed when they were appointed, because not only did they have to be nominated by the president but also approved by the Senate.

The Supreme Court is only a few people and they can only handle so many cases in a given time.  When they decide what not to take up, the rulings in those cases default to what the lower federal courts already decided.  If the federal courts had not been so conservatively packed in recent years, then it would take the Supreme Court a greater juggling act to actively undo liberal rulings on more of the cases they are asked to hear.

There's no reason that a case has to be heard and decided on in the same term. If lower courts issue so many opinions in violation of precedent that the Supreme Court gets backlogged (which I find hard to believe), then it's the lower court's problem - the Supreme Court can issue certiorari on all of them, and until they decide on the case the lower court's judgment will be suspended.

Moreover, the Supreme Court routinely batches cases on similar topics together, so if a dozen judges separately (for instance) overturn Roe v. Wade, they can all be combined into a single case for the Supreme Court to review.

[kylie]

     Periodic Supreme Court detour...

The idea is that if there's a sudden swing in political opinion (as there has been in the last three years) there is at least one part of government that thinks back longer than the most recent catastrophe.

Whether they are conservative or liberal politically may influence things like whether they actually care to look at the larger history, or the particular circumstances of some cases at all.  It's ultimately a matter of interpretation and sense of social timing.  You mentioned abortion and sodomy -- at least, some big name cases.  If I'm not mistaken, the sodomy case also involved rather brazen invasion of a home.  That is something of a conflating issue. 

          To pick just one counter-example, while the court has allowed Guantanamo prisoners to sue the US, it has refused to take up a torture case "without comment"...  Obama's reticence on the subject of Bush administration roundups aside, I don't see this as a case of the court being especially liberal. http://www.huffingtonpost.com/2009/12/14/supreme-court-rejects-gua_n_391176.html

          In the end, whether you consider those judges conservative or liberal has a something do with your politics.  However, there are also researchers who hold that the Court has been packed with conservatives.  For example:

http://partners.is.asu.edu/~george/vacancy/justices.html

          For the 2006-07 term, 30 cases are identified and Stevens is listed first, having voted in the liberal direction on all but one of those cases. Alito voted in a liberal direction only 2 times, marking him as the most conservative justice for 2006-07, though Thomas, Scalia, and Roberts were right there with three liberal votes out of the 30 cases. The result is an ordering of the justices from most liberal to least liberal (most conservative), Stevens and Ginsburg being the most liberal, with little to distinguish the conservative bloc of four.

          This table [ http://partners.is.asu.edu/~george/vacancy/table_guttman_2006.html ] reveals much about the new dominance of the Court by a conservative majority made up Chief Justice Roberts along with Justices Scalia, Thomas, Alito, and Kennedy. For those thirty cases, nearly three-fourth (22) were decided in a direction that could be defined as more conservative than liberal. While somewhat less cohesive than the most conservative bloc of four, Justices Stevens, Ginsburg, Souter, and Breyer hold down a more liberal position on most of these issues and occasionally muster some victories when Justice Kennedy swings over to their position. Exactly two-thirds of these 30 cases were decided by five-to-four votes and Justice Kennedy was on the winning side in all twenty of them. Indeed, Kennedy was on the winning side in 29 of the 30 cases, some 97%. The Chief Justice was the next most winning member with 83%.

          Last year's 2007-08 term [ http://partners.is.asu.edu/~george/vacancy/table_guttman_2007.html ] produced modest changes. The Guttman-scaled table of liberal/conservative cases reveals a set of cases almost evenly split in outcome, 14 liberal outcomes and 16 conservative outcomes. This is reflected by Justice Kennedy's score of 50%. One should not interpret these results as reflecting any change in the Court. The conservative group did not somehow become more liberal. These changes reflect the issues brought by the specific set of cases, for the most part providing fewer clear-cut liberal-conservative issues than in 2006-07. Ginsburg remains the most liberal justice, but this time joined by Souter rather than Stevens, who had some interesting alliances with the conservative bloc in Irizarry v. US, Medellin v. Texas, and Crawford v. Marion County Election Board. Thomas came in as the most conservative member of the Court.

http://partners.is.asu.edu/~george/vacancy/index.html

Outcomes on the Court will not change much with Sotomayor's replacement of Souter. The most critical appointment this decade was President Bush's replacement of Justice O'Connor with Samuel Alito, a solid conservative supplanting the pivotal Sandra O'Connor, insuring more frequent conservative outcomes in 5-4 decisions. The pivotal position relinquished by O'Connor passed to Anthony Kennedy, who joined the conservative bloc of Roberts, Scalia, Thomas, and Alito more often than not (15 out of 20 occasions in 2006-07 in which a 5-4 vote divided the conservative bloc from the more liberal bloc of Stevens, Ginsburg, Souter, and Breyer. Click on the Justices link if you wish to see voting data from the Court's 2007-08 term.

Following that, there is a claim that Democrats may have an opportunity to recoup influence.  However, that scenario requires them to both replace both aging liberal judges and some of the conservative ones.  Which brings us back toward the potential impact of the filibuster.  In any case, this contradicts any notion that the Court has become liberal due to Reagan-Bush nominations.

There's no reason that a case has to be heard and decided on in the same term. If lower courts issue so many opinions in violation of precedent that the Supreme Court gets backlogged (which I find hard to believe), then it's the lower court's problem - the Supreme Court can issue certiorari on all of them, and until they decide on the case the lower court's judgment will be suspended.

I suppose they could.  If the situation were that messy, however, I suspect we would also be rushing on to threads about whether to shorten the tenure of Supreme Court justices.  It's not a formal mechanism, but at some point, if the Court misgauges public opinion or the impact of a specific situation too dramatically...  Then more people may demand more accountability from the Court.  At the least, there would be an impact on the next set of nomination hearings.  It could be more.

         Also, not all litigants will have the resources, patience and circumstances to reach the Supreme Court.  That is, if they believe their chances are any better with the ideological mix at the top than in federal Circuits.  Some hot-button, pressing issues rarely come to the Supreme Court because parties are concerned that the Court might shoot them down and set a "higher" precedent for another generation.  (For example, there is some fear that an unsuccessful push on gay marriage now could block anyone else from trying for some years.)  So again, if the federal courts are packed, then the real ability of the Supreme Court per se to respond to legislation is rather limited.  I still think today, both levels of court are packed in the same direction.  It's still a problem, if one relies primarily on the courts for balance.

[RubySlippers]

I fail to see how in my home state (NC), how a democrat appointee by the STATE democratic machine is any different from the slime that gets elected anyway.

NC is a democratic machine (run by the eastern carolina factions) and has been so FOREVER on the state level. We'd still have a bunch of oppourtunistic jerks in congress. (And I forsee the ones in office being there FOREVER now that the arch conservatives have the republican party reigns.. moderate republicans like myself are looked upon as.. deviants by the party officials..)

Its called "checks and balances" that is this gives states a say in Federal policy with the elected House of Representatives being closer to the people acting for them. There is a reason declaring war and making treaties is Senatorial it gives each state votes in such policy. And they can choose to recall Senators that fail to do their jobs when their terms are up. Take the health care debate States rightly feel ignored since they don't appoint half of Congress they are ignored.

[Asuras]

Whether they are conservative or liberal politically may influence things like whether they actually care to look at the larger history, or the particular circumstances of some cases at all.

I'll state my point more clearly:

The Supreme Court is intended to reflect the average political viewpoint of the previous few decades, in order to provide a strong counterbalance against the elected branches of government which are more prone to extremism.

I am not contending that the justices lack ideology, nor that they aren't more conservative than liberal as a whole, and certainly not that they're unbiased, and certainly not that the Reagan-Bush appointments made the court more liberal. I am arguing that the court represents a good average of political ideology over the last few decades - which I think your data supports.

Also, not all litigants will have the resources, patience and circumstances to reach the Supreme Court.

On issues of serious, national significance, you can find representation with the ACLU, Southern Poverty Law, NAACP, or any of the dozens of groups that rain amicus briefs on the high court. That doesn't apply to all litigants, but in the context of "checks and balances" I think it applies.

That is, if they believe their chances are any better with the ideological mix at the top than in federal Circuits.  Some hot-button, pressing issues rarely come to the Supreme Court because parties are concerned that the Court might shoot them down and set a "higher" precedent for another generation.  (For example, there is some fear that an unsuccessful push on gay marriage now could block anyone else from trying for some years.)  So again, if the federal courts are packed, then the real ability of the Supreme Court per se to respond to legislation is rather limited.

I don't understand how the conclusion follows. If you think that the Supreme Court is packed against you (or for you), then the lower courts matter even less.

[kylie]

The Supreme Court is intended to reflect the average political viewpoint of the previous few decades, in order to provide a strong counterbalance against the elected branches of government which are more prone to extremism.

Where is that written?  My understanding is that the Supreme Court was supposed to protect the ideals of the Constitution, or its own best understanding of how they are to be interpreted.  There may be a less formal convention that they are not expected to outpace social change dramatically, but I don't know of any order that requires them to do precisely the average of only the last few decades.  If the last few decades were always the bar, then they should have shot down the Emancipation Proclamation off the bat.

I am arguing that the court represents a good average of political ideology over the last few decades - which I think your data supports.

That could be true, but I don't see that it is required to do so.  Also, neither the overall trend nor the justification seems to explain when or how the Court might do something relatively new -- and they do from time to time.  Whether it be refusing to discuss torture of prisoners, or supporting pro-civil rights agendas. 

On issues of serious, national significance, you can find representation with the ACLU, Southern Poverty Law, NAACP, or any of the dozens of groups that rain amicus briefs on the high court. That doesn't apply to all litigants, but in the context of "checks and balances" I think it applies.

First, it can be a weakness of government that such groups don't have the resources of official standing on their side in the first place -- compared to say, Homeland Security.  What's serious here depends upon point of view.  By claiming that the system will take up everything "serious," you seem to insinuate that everything it doesn't must not be all that serious. 

          How about a Hawaii teacher who was jailed for almost a year and lost his job because Immigrations (now under Homeland Security's weighty arm) told the media he was being investigated for pedophilia...  They arrested him solely on a Customs charge, and used his association with a young adult immigrant to push the pedophilia charge -- which they brought wildly implausible evidence for and eventually dropped.  Investigators and prosecutors blasted him for being gay and attempted to turn that into an excuse for the pedophilia claim in court.  Lambda Legal would not defend him because although he is bi, it not an issue about gay marriage.  ACLU would speak only for the immigrant.  There was no one to help him elevate the case.  Was it nationally "important"?  To any other gays smeared with one thing while accused of another, yes.  It was certainly a civil rights case with national consequences. 
http://archives.starbulletin.com/2006/05/27/news/story06.html
     (Loren states most of it is misrepresented info, but you can see the public pedo claim.)

I don't understand how the conclusion follows. If you think that the Supreme Court is packed against you (or for you), then the lower courts matter even less.

The lower courts matter because some cases do not have time, resources, or the political climate to get to the Supreme Court at all.   If the initial premise is that the Supreme Court is the great balancer, then again:  That assumes all cases of importance get to them in a timely fashion.  However, some cases simply stop in federal court due to those variables.  Others decide whether to advance by comparing the positions of the Federal Circuits they have already faced and the expected leaning of the Supreme.  It all counts.

[Callie Del Noire]

Well it's a moot point.

The Democrats have lost that 'filadbuster proof' senate.

And I fear that politics-wise we'll just have to agree to disagree Kylie.

[kylie]

And I fear that politics-wise we'll just have to agree to disagree Kylie.

Not completely sure which part you'd like to disagree with... 

          By itself, of course, it's a hard sentence to argue with   ;)

[Callie Del Noire]

You seem to think that the Senate is irredeemably broken and should be abolished. And that the Filabuster is the tactics of the 'losing side'.

I agree they are in need of reform but not total removal.

[kylie]

You seem to think that the Senate is irredeemably broken and should be abolished.

Ummm, where did I say that? 

          The only place I imagine you mistakenly getting that, is perhaps...  Taking my response to the claim that the Supreme Court is always a reliable balancing factor (even without the filibuster), substituting Senate for Supreme Court, and tossing in something I never said about "abolish."  Haven't been there.   Haven't said that.

And that the Filabuster is the tactics of the 'losing side'.

And this time, you're disagreeing?

Personally I think a lot of the folks who are against it now.. (the Democrats) would drop the  demand to do it in if they were no longer in control (cough cough Nancy Pelosi cough cough)

[Callie Del Noire]

I disagree in that it's a totally BAD thing.

And I think that's wrong. (Do I agree with it's use by the republicians of late? No. But then Compromise is a lost word on both sides these days).

I also think getting rid of the court (or any of the fixtures of government) out right is a bad move.

[kylie]

I disagree in that it's a totally BAD thing.   And I think that's wrong. (Do I agree with it's use by the republicians of late? No. But then Compromise is a lost word on both sides these days).

I also think getting rid of the court (or any of the fixtures of government) out right is a bad move.

I'm getting the impression that first, you've concluded that my mind was all made up from the get-go.  Second, you've represented things I would see as modifications as "abolishing" whole parts of the government.  Or if not honestly intending to say that, then you've resorted to some shotgun hyperbole.

          Actually, I hadn't made up my mind completely.  I'm moved by Collins' argument that (at least she implies) giving precedence to state borders and district gerrymandering, regardless of population produces an archaic and unreasonable policy process.  I'm not so sure about Asuras' claim (if I'm pointing the right way on author or intent -- we've gotten long on the details) that the Supreme Court will catch the ball either way.  I can foresee situations where Democrats and others would miss the filibuster on another day.  I can also foresee situations where bad compromises are made, if any.  Policy may be made such that tomorrow isn't so bright anyway.  That kind of denies the whole notion of electing a progressive platform to begin with.  I may lean toward the last couple sentences more than the others, but I'd be interested in hearing more interesting (and other) arguments either way.  Believe it or not, sometimes these threads get opened because people actually want to stir up a few different ideas about whatever is involved in the issue.  Of course, people can simply reply "bad" and insult and "wrong" if they must, but that doesn't add or analyze very much.

I also think getting rid of the court (or any of the fixtures of government) out right is a bad move.

Well, I don't know what to make of using the term "fixture" here.  It's a too-conveniently ambiguous word that could imply anything from founder intent to most anything that [insert favorite leader], just yesterday, declared must be kept.  Whether or not the filibuster -- certainly in its current form -- were to be regarded as "fixed" in place, the fact remains that it's an awfully recent situation. 

          Various rules come and go.  Just a few years ago, the Justice Department was defending torture itself.   As you have pointed out elsewhere, the government is still overlooking or closeting some maneuvers that may well have been treasonous.  Some people would insist the notions of executive privilege or secrecy that are cited in doing so, are based in institutions which are necessary "fixtures" of government.   This is just saying it's a powerful tool and some people have gotten used to it.  No matter how, nor with what outcomes in the present.

[kylie]

          By the way...  For those who may be thinking it's all moot since the Republicans would filibuster any change in the Senate...  It may be quite feasible to modify or do away with the filibuster.  That is precisely because neither the number of votes involved in breaking a filibuster (which have been changed repeatedly -- see previous posts) nor the filibuster itself were part of the original Constitutional design.  Of course that's no decisive argument that they should or should not be changed...  However, the point that it's feasible under government rules may lend some more obvious relevance to the discussion.

http://www.nytimes.com/2009/12/21/opinion/21krugman.html

Remember, the Constitution sets up the Senate as a body with majority — not supermajority — rule. So the rule of 60 can be changed.  A Congressional Research Service report from 2005, when a Republican majority was threatening to abolish the filibuster so it could push through Bush judicial nominees, suggests several ways this could happen — for example, through a majority vote changing Senate rules on the first day of a new session.

[Asuras]

Where is that written?  My understanding is that the Supreme Court was supposed to protect the ideals of the Constitution, or its own best understanding of how they are to be interpreted.

That would be nice, but in practice the room for interpretation is often so broad that it constitutes political decision-making.

There may be a less formal convention that they are not expected to outpace social change dramatically, but I don't know of any order that requires them to do precisely the average of only the last few decades.

It isn't an "order," but it is the practical reality.

If the last few decades were always the bar, then they should have shot down the Emancipation Proclamation off the bat.

I don't know if it was ever challenged before the Supreme Court, but if it was, the main issue wouldn't have been about slavery but about the President's power to confiscate the property of people that the US was at war with. It would have been beyond the powers of the court (i.e., no one would have taken them seriously) if they had said that there was some special right in the constitution to holding slaves even by rebels.

That could be true, but I don't see that it is required to do so. Also, neither the overall trend nor the justification seems to explain when or how the Court might do something relatively new -- and they do from time to time.  Whether it be refusing to discuss torture of prisoners, or supporting pro-civil rights agendas.

Generally, when they do something "new" they're doing something that the people that appointed them would have wanted them to do. There may not have been the political opportunity to do it when they were appointed but it is a pretty clear reflection of the prevailing ideology of the institutions that appointed the court - it's not incidental that Brown v. Board and Roe v. Wade happened after years of liberal appointments.

And sometimes if they do something "new" it's because the issue has only just appeared before the court - there weren't many prisoners in Guantanamo until 2001.

Lambda Legal would not defend him because although he is bi, it not an issue about gay marriage.  ACLU would speak only for the immigrant.  There was no one to help him elevate the case.  Was it nationally "important"?  To any other gays smeared with one thing while accused of another, yes.  It was certainly a civil rights case with national consequences.

You're saying that gays around the country were seriously concerned about this case, but at the same time they wouldn't bother to get their legal defense groups involved? That seems like strong evidence that they weren't seriously concerned.

[kylie]

         Asuras, I'm kinda wishing we could have a talk without me feeling like your politics is close to a wholesale celebration of fait accomplis.  To me, the point of any involvement in politics is not to align oneself with what "must" happen anyway.  I'm really not ultimately concerned with exactly when or whether something is to be called the "right side of history" by everyone or even a majority.  I don't believe you can always convince everyone, nor always in a timely fashion. 

         I do think that often enough, it's worth trying to convince a few more people.  If that doesn't make the difference -- or perhaps, when the system is actually chopped up by borders or procedures that actually overrule the majority opinion anyway (think, the Senate):  Then, in either case, I would not assume a logic that implies whatever the system is more likely to decide must be the best thing to argue for.  If no one argues because everyone assumes it's decided, then that is a self-fulfilling prophecy.  Which in turn suggests that what you were really hoping for to begin with was more the status quo in terms of power distribution. 

          Now, of course you may insinuate that it's necessary to follow the system (any system) or the trends (no matter what parties think) if you want.  I won't subscribe to the notion that outcomes were inevitable in the way that philosophy suggests.  I might say it was due to problematic choices by some people (and I'll look for which ones under which conditions).  Or, I might say it was bad education/leadership by a few with too many means.  Then, I'll look at the means and how they were gained.  Thus, what about the filibuster, which seems to be a glaring (though certainly not the only) roadblock to Democrats doing what they were elected to do.

[kylie]

That would be nice, but in practice the room for interpretation is often so broad that it constitutes political decision-making.

There is no such thing as practice without some interpretation leading it.  Everyone who swears to uphold the Constitution is responsible to decide for themselves what in the world it should mean, here and now.

I don't know if [the abolition of slavery] was ever challenged before the Supreme Court, but if it was, the main issue wouldn't have been about slavery but about the President's power to confiscate the property of people that the US was at war with. It would have been beyond the powers of the court (i.e., no one would have taken them seriously) if they had said that there was some special right in the constitution to holding slaves even by rebels.

Well, then there are situations such as the Court ruling in favor of the Cherokee in 1831 and against their removal from Georgia.  Andrew Jackson pushed them out anyway.  I don't know offhand how many people agreed with the Court or with Jackson (and in Georgia, nationally, etc.).  Obama doesn't agree with the Court on campaign finance, either.  So I'm inclined to say, one might better take up Supreme Court tenure as another possible reform -- but in another thread.

Lambda Legal would not defend him because although he is bi, it not an issue about gay marriage.  ACLU would speak only for the immigrant.  There was no one to help him elevate the case.  Was it nationally "important"?  To any other gays smeared with one thing while accused of another, yes.  It was certainly a civil rights case with national consequences.

You're saying that gays around the country were seriously concerned about this case, but at the same time they wouldn't bother to get their legal defense groups involved? That seems like strong evidence that they weren't seriously concerned.

I said (see the quote), for other gays in similar circumstances.  I also said that Lambda was not interested in the case partly because they did not feel it could link directly to a positive issue of law regarding gay marriage per se.  They actually said, until we win on gay marriage, your case is up to Congress.  Which should bring us back toward the filibuster itself.

[Trieste]

Yes, stay on topic, please. The last three posts (and possibly more) have been a different issue entirely.