Nuclear Option: Janice Rogers Brown

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Outside the Beltway notes that Senate Republicans will indeed change filibustering rules for presidential nominations that have made it past a committee vote. They've targeted Judge Janice Rogers Brown. Two moral issues are raised by this. First, if Republicans chose Judge Brown as the first to do this with simply because she's a black woman, as a number of liberals are claiming, is that immoral? Second, is the removal of this rule a bad idea, as even a number of conservatives have argued?

One of the commenters at Outside the Beltway says it's not a coincidence that Republicans have picked a black woman as their first example. The point is that it's illegitimate to focus on her race or sex at all. I'm not for absolute color-blindness to begin with, since it ignores genuine social realities. Still, some might say that Republicans who do believe in pretending there aren't any racial realities with moral consequences are being inconsistent in singling out a black woman as the first judge to push through in this way, assuming they did pick her for this reason, as I think is likely.

One thing this objection fails to acknowledge is that the Democrats' filibusters seem suspicious. Did they do it because she is a black woman conservative? They say not, but most of the nominees they filibustered were either women or minorities, and she as a black woman was one of the most viciously opposed. I wonder if the percentage was as high among people they didn't single out for a filibuster as among those they did of those who were both strongly conservative and either women or minorities. The percentage among those they filibustered is so ridiculously high that it's hard not to suspect deliberately singling out of judges on those grounds. If Republicans, realizing that, want to correct for what they (not completely unreasonably) conclude to be racist resistance to these people (not attitudinal racism but institutional racism, just to be clear), why is it then a problem for them to make a deliberate start with someone who is both black and a woman?

What's also notable is that those who didn't fall into the category of being strongly conservative and either a minority or a woman were profoundly religious, and the rhetoric against them was much like that against John Ashcroft at his hearing, which I think was nothing short of bigotry. The sort of thing said about him assumed someone with a moral view can't carry out laws that are different from that view while also assuming that someone with a moral view that comes from religion is illegitimate when compared with someone whose moral views come from mere moral intuition or societal convention, which are equally unsupported by argument.

The Democratic response to this claim of bias against those with deeply-held religious conviction is to point out that many of the Democrats supporting the filibuster are themselves committed Catholics, but the point is not whether there's anti-Catholic or anti-religious bias. It's that those whose political views happen to be informed by their moral views that their religion supports are being singled out by those who aren't willing to acknowledge that everyone has moral views and seeks laws on that basis (something Senate Democrats want to insist on when responding to Republican values talk after the election but seem to want to ignore when it comes to judicial nominees whose values come from religion).

Now I don't really like impugning anyone's motives, but the numbers have seemed awfully suspicious. I don't have them at hand, so if anyone does and I'm not remembering correctly please let me know. Either way, the Republicans have viewed the numbers as confirming this view, and the question is about whether they are illegitimately using Brown's race and sex for a political statement. If their motivation is to correct for opposition to her partly based on her race and sex, as a number of them have said, and they're telling the truth about their motivations, then the worst that could be said of them is that their claims are at odds with the facts or that they're unfairly portraying the Democrats' motives, and even that assumes a number things I won't assume about them. The charge that it's about an illegitimate focus on race just seems wrong.

Well, so much for the objection that she's been singled out for being a black woman. What about the procedural issue? I used to hate the filibuster. I thought it was just a waste of time, and I think the way it's often been used really shows the pettiness of those using it. Senators have read from phone books. Robert Byrd has read from his own book on the history of the filibuster while filibustering something. Day-and-night filibuster marathons just seem to me to be a waste of time, when there's got to be some way for them to work out a system to decide if they'll have enough votes to vote without spending days talking about irrelevant things or having each senator repeat the same things the previous one rambled on and on about.

Still, I see some purpose for allowing the minority party to have some bargaining tool when they've got 40% of the votes, which is still a minority but nothing to sneeze at. They represent a good portion of the country and should have some tool for resisting the majority's agenda on the things they're really willing to dig in their heels on. When Republicans have tried to remove the filibuster wholesale, they've been doing something that might end up truly counterproductive when they end up out of power again, and a number of conservatives have warned them. I don't think a filibuster to stop a presidential nomination that's been approved by committee is even morally defensible, though, so I don't mind if they remove the filibuster for just this situation, as long as it's only going to happen with things where a constitutional argument can be made for abandoning the process.

For the record, Joe Biden, in explaining his vote regarding Condoleeza Rice, gave reasons not to oppose a presidential nominee because of mere disagreement with the nominees' views, as is the case with these nominations (at least the official reasons, ignoring the race and sex issues above). He said he interpreted the Constitution that way but respected those who didn't. I think his view is right, and I think he's too unwilling to call his colleagues on their views that he clearly thinks the Constitution won't support. He even bends over backwards not to step on their toes when asserting his view. But if he's right, and I think he is, it's wrong even to vote against a candidate for these reasons, never mind to filibuster a nomination that made it out of committee without even allowing a vote whether to confirm. That's why I'm not worried to see the filibuster go for this one procedural issue.

I just hope they don't try making it a general practice to remove the filibuster at every turn, because they're not going to last in the majority very long if they assume their power will last forever and then force everything they want through without allowing the opposition party some ability to affect the final outcome. One of the reasons Democrats are not in power in Congress is because some people did exactly that in the courts and to some degree in the Congress through the 80s and early 90s, and voters got sick of it. Republicans should beware of doing the same thing.

6 Comments

Just because Republicans say that race _ought_ not to be a factor, doesn't mean they have to pretend that it _is_ not a factor. Clearly there are political implications of having the party that claims to be the special protector and helper of blacks and women working so hard to prevent the advancement of a black woman.

As to the possibility that some day the Republicans will be in the minority and the fillibuster will have been weakened by their actions: I used to worry about this. And then I reaslized that the Democrats wouldn't hesitate for a moment to change the fillibuster rules if they thought they would benefit from it. And since the MSM would be behind them, there would be no potential of much public backlash. The only reason the fillibuster has survived is because it often helps the majority party to pretend to want to pass legislation that they don't really want to pass.

Just because Republicans say that race _ought_ not to be a factor, doesn't mean they have to pretend that it _is_ not a factor.

Treating a morally significant factor as if it ought not to be a factor is indeed pretending it's not a morally legitimate factor.

then I reaslized that the Democrats wouldn't hesitate for a moment to change the fillibuster rules if they thought they would benefit from it.

How is this not two wrongs being used to try to make a right?

It is within the Senate's constitutional powers to at any time change the rules that govern their own body as pertains to cloture. The "nuclear option" is very much a legal and constitutional one. The "filibuster" was never intended by our founders and has been amended several times over the years by the majority. Robert Byrd has even attempted the nuclear option on three separate occasions himself. There is nothing sacred in this tactic.

Janice Rogers Brown is on the California Supreme Court. When she was reelected, she got 75% of the vote. How can the chronic liar party portray her as an "extremist?"

Why does it seem that all of the intelligent blacks and hispanics are Republicans?

Doc: I don't think there is still a msm...

Wait until the liars filibuster Miguel Estrada. #1 in your class at Harvard Law, only the kkk could hate him. The msm road kill will really look stupid.

Do the liars really believe that all hispanics who are Catholic cannot be judges? Legal Partial Birth Abortion is a litmus test?

What is wrong with Arlen Specter and John McCain? They think the liars are still a party. They think that the msm will think they are "cool." Absolutely pathetic.

I agree that there shouldn't be anything sacred about the filibuster. I think it's well within the rights of those leading the Senate to do something like that. I'm just not sure it's wise, given that Republicans will at some point be in the minority again. The American electorate tends to swing away from those throwing their weight around, which is one reason Republicans have been winning now. If the Republican leadership continues to act the way it has, that loss of control will come sooner. This very move is one element of that, and they may be setting themselves up for the loss of the filibuster as a bargaining tool.

It's actually irrelevant whether Democrats have tried the same thing. The point is that it might not be a good idea to remove the only way the minority has any power at all. Only a complete partisan who thinks the Democrats are never right on anything, while Republicans are right simply for being Republicans (an absolutely indefensible view) should say that it's bad for Democrats to have some ability to protest the actions of the Republican majority that they consider most objectionable.

JoeS, Democrats have no monopoly on lying. Republicans lie through their teeth in a fairly obvious way as often as Democrats do.

The reason it seems to a partisan Republican that all the smart Hispanics and blacks are Republicans is because they agree with you, and you wrongly think it takes agreeing with you to be smart. You just show your bias in saying that. Speaking of bias, why don't you say in addition that all white people who are smart are Republicans? Is it an assumption that there aren't many smart Hispanics and blacks? It certainly has the implication that there are very few smart blacks, since there are very few black Republicans.

Do the liars really believe that all hispanics who are Catholic cannot be judges? Legal Partial Birth Abortion is a litmus test?

I don't think they have anything against those who want to limit partial birth abortion. Look at the judges again. All of them have much stronger views on limiting abortion than just wanting partial birth abortion restricted.

As for the bias issue, I really don't believe any one of them thinks Catholic Hispanics can't be judges. I do wonder if there's a bias, but it's certainly not conscious. They see conservative minorities as radical merely because of an assumption about what minorities should think. I think that's a racist assumption, but I don't think it's one they're even aware of. As a result, they don't believe they have anything against conservative Hispanics.

What is wrong with Arlen Specter and John McCain? They think the liars are still a party. They think that the msm will think they are "cool." Absolutely pathetic.

I'd reverse the charge. I think it's absolutely pathetic that anyone would willingly refuse to think about what value there might be in working to win support for legislation that comes from those supported by those who might otherwise vote for someone else. I think it's absolutely pathetic that anyone would think a Republican gain in numbers in government is any indication that the other party is permanently crippled. I think it's absolutely pathetic that anyone wouldn't realize that this kind of extreme rhetoric is going to be the very cause of the Democratic retaking of the American government.

I don't normally call the views of my commenters pathetic, but when someone speaks so nastily of the unproved and speculative motivations of government officials, who as far as I can tell have good intentions, well, I can think of worse things to call it than pathetic. This isn't a site for that sort of thing.

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