Thursday, April 30, 2009

Justice Souter to Retire (Updated Post)

(Updated as this story has now been confirmed and updated a second time as I've thought some more about it.)


And so the question on everyone's mind (okay, on my mind) is this: What will it take to change Senate Judiciary Committee Rule IV in the event that the post-Specter-shift Republicans decide to play hardball? In today's Republican Party, Orrin Hatch and Lindsey Graham look like the best hopes to move Pres. Obama's nominee to the full Senate.

But let's suppose that the Republicans (now minus Specter) on the Judiciary Committee decide they want to filibuster Pres. Obama's nominee (oh, i don't know, let's say Pam Karlan) in the Committee, recognizing that the Dems (either with Al Franken seated or with the cooperation of one of the Maine Senators) can break a filibuster in the full Senate. Senate Rule XXVI authorizes each committee to make its own rules, which is how we get Judiciary Committee Rule IV. That can be amended by the committee, but presumably the proposal to amend Rule IV would itself be subject to the Rule IV procedure, and so if the Republican members of the committee are unwilling to allow a vote on Justice Karlan, then they're likely unwilling to allow a vote on an amendment to change Rule IV itself.

That leaves us with a couple of options: 1) Change Rule IV now, with the Chair deeming Specter still officially a Republican; 2) or change Senate Rule XXVI to limit the sorts of rules that a committee can employ. Each of these approaches would require Specter's cooperation (or the cooperation of either or both of the Maine Senators in the case of the full Senate move).

I should be clear that I'm not wild about either of these approaches. Although I generally don't like the filibuster for legislation, I think it can be justified with respect to judicial appointments, where one hopes for something approaching consensus. That's certainly how I felt when the Republicans had a Senate majority and the Presidency, and while politicians invariably flip on these issues depending on who is in power, I would like to think that academics have some broader obligation of consistency. Not that it won't be fun to watch each side break out the other side's speeches from a few years ago.

The Judiciary Committee's "mini-filibuster" rule (i.e., Rule IV) could, in theory, be justified on the same sort of grounds as the full Senate's filibuster rule (really the cloture rule), but given that the Judiciary Committee often attracts each party's most ideological Senators, there is a distinct possibility that instead of leading to centrist nominees, Rule IV could simply lead to gridlock. The fact that Rule IV apparently hasn't had that effect so far provides some reassurance, although it's possible that this is simply a function of Arlen Specter for the Republicans and the notorious lack of backbone for the Democrats. If I had to bet, I'd say that Lindsey Graham's recent statements favoring a "big tent" approach for the Republican Party going forward make him the most likely to cast at least a vote for ending committee debate on President Obama's nominee.

Much will depend, of course, on who that nominee is. Given the position of strength of the President and the Dems in the Senate overall, it's hard to imagine the Repubs winning a showdown based on either Judiciary Committee Rule IV or the filibuster rule in the full Senate, so long as President Obama nominates someone who is to the right of Hugo Chavez.

Posted by Mike Dorf


Joe J said...

[Huh, comment didn't go up first time... again:]

I think the traditional parliamentary approach to the inability of a committee to vote an issue out is a vote by the body (the full senate) to discharge the nomination from committee. In other words, if the Committee won't push it out, the Body will pull it out. It probably then has some sort of "no recommendation" status, rather than the usual recommended yes, recommended no. Not sure what the exact Senate rules on discharge are, but I'm sure they must exist...

Unknown said...

I say that Pres. Obama should nominate . . . Judge Jay Bybee of the Ninth Circuit Court of Appeals! Sen. Leahy already invited him to come before the Judiciary Committee for some questions; why not kill two birds with one stone? Republican Senators will immediately rail against their Democratic colleagues about how wrong abusing the filibuster is with such highly qualified Supreme Court nominees.

Moreover, Republican senators will be placed on the defensive--arguing that waterboarding is actually a hygienic and wholesome bath for many detainees and how Judge Bybee's memo when he was at the OLC is really just proof of how he'll be a great "moderate" justice in the mold of Justice O'Connor.

When Judge Bybee's nomination inevitably fails to gain 50 votes or he informs the President that he cannot accept the nomination (whichever occurs first), then President Obama should feel free to nominate whomever he wants for the judgeship, as I'm sure the Republican senators' words against filibusters and procedural obstruction will, by that time, be too recent for them to ignore/forget.

Sobek said...

" long as President Obama nominates someone who is to the right of Hugo Chavez."Given Obama's apparent fondness for Chavez, I don't see that as very likely.

My own view of the filibuster is that the Republicans should have nuked it when they had the chance, for purely mercenary reasons. As soon as the nuclear option became a possibility, the filibuster effectively became dead for judicial nominees the second Dems took power. There's simply no way that Senate Dems will remain consistent in their argument that filibusters are appropriate, and, because of that anticipated lack of good faith, Republicans should have taken what they could get while the getting was good.

Too late now, of course.

Anonymous said...


very nice post... enjoyed it very much.

Thank you"

good site


Anonymous said...


Anonymous said...


的賽事讓他有點精疲力盡,「我試著揮棒時能掌握住每一顆球」。A-Rod歸隊後所敲出的4支安打中,有2跳蚤局的再見全壘打3比2獲勝,連三場靠著再蛀蟲個戲劇性的結局,是洋基37年以來首度連三場螞蟻基教頭吉拉迪(Joe Girardi)在洋基拿下五連勝之後告訴記者:「太棒了,我以前從沒遇過這樣的三連勝,過去消毒昨天擊出再見一擊的功臣是十一局轟


參加大陸新娘仲介的人都是以結婚為前題的參與,跟據資深的大陸新娘介紹,地許多人都娶大陸新娘介紹,因為到了例假日許多遊客,老公要做生意,這些越南新娘介紹以及其它的外籍新娘介紹都會很乖的在家帶小孩,把家裡打理的很好,所以大家口耳相傳,大部份人都娶大陸新娘仲介,她們把家鄉的美食好手藝教他們的朋友,越南新娘仲介除了賣烤香腸外,還賣很多種好吃他的越南新娘介紹朋友要她堅持只要女兒監護權,不要贍養費,靠著越南新娘仲介的友人幫助,從路邊攤起家賣家鄉美食,3年前買下店面,每天他的外籍新娘仲介的朋友會來幫忙,正午12點剛過,店內常已擠滿大陸新娘介紹,位於三峽鎮長安橋頭好可口小吃店,無論魯肉飯、魚飯好吃,在客人口耳相傳下,不僅外籍新娘介紹同鄉,連來其它大陸新娘仲介和的東西可以賣給外籍新娘仲介,三重報導 外籍新娘介紹努力向上,三重有一個外籍新娘仲介,他在越南是一土風舞的教練,他雖然來台灣當大陸新娘介紹,但是他一樣努力向上他為了讓土風舞的美讓台灣人都知道於是在公園教大陸新娘仲介呂氏一起跳,就這她們樣變成好姐妹囉,越南新娘介紹也因為如此就這樣的越來越多人的加入越南新娘仲介一起跳舞時感覺真的非常的優雅連

Unknown said...


Unknown said...

online drug store in canada

kevin hill said...

Amazing one, i appreciate this work....
online justice administration degree | Investigation degree

Tera Gold Cheap said...

Modern day Office Online games Place of work Gadgets,Buy windows 7 key Tools and Office Lamps Numerous professionals believe windows 7 activation key modern places of work need to have office video games. Most office buildings have got office toys and games and also tools,cheap windows 7 product key and even wall clocks possess a exclusive try the current progressive place of work.

dte said...

Empty what's full. Scratch where it itches. Don't go around saying the world owes you a living rs gold, The world owes you nothing. It was here first. Being happy doesn't mean that everything is perfect Runescape Gold, It means that you've decided to look beyond the imperfections. Do not pray for tasks equal to your powersrs gold.

dte said...

Your future depends on your dreams. So go to sleep Diablo 3 Gold, he time of life is short ; to spend that shortness basely, it would be too long C9 Gold, It's great to be great, but it's greater to be human C9 Gold Sale. People who are serious about the relation are moody as they have devoted a lot that makes them worry about gains and losses.

Unknown said...

coach outlet store online
michael kors outlet
jordan 4
prada shoes
louis vuitton handbags
timberland shoes
hollister pas cher
tod's sale
nhl jerseys wholesale
kate spade handbags
beats by dre
prada outlet
kate spade uk
prada handbags
ray ban
louis vuitton outlet
new balance shoes
burberry outlet
coach outlet
tods outlet
adidas wings
coach outlet online
toms shoes
foamposite gold
lacoste outlet
adidas shoes
christian louboutin
kate spade outlet
tiffany and co jewelry
michael kors canada
toms shoes outlet online
giuseppe zanotti outlet
kobe 9 elite
michael kors handbags
converse outlet
michael kors outlet
foamposite shoes
michael kors outlet

Unknown said...

Thanks for more information What it takes to endow you with Export packing domestic moving and long distance relocation services.
Packers and Movers Pune | Movers and Packers in Pune
Packers and Movers Mumbai | Movers and Packers Mumbai
Packers and Movers Chennai | Movers and Packers in Chennai
Packers and Movers Hyderabad | Movers and Packers in Hyderabad
Packers and Movers Bangalore | Movers and Packers in Bangalore

Unknown said...

More for information We know that in the current era you service provider hence each of the Packers and Movers services.
Packers and Movers in Delhi | Movers and Packers Delhi
Packers and Movers in Gurgaon | Movers and Packers Gurgaon
Packers and Movers in Noida | Movers and Packers Noida
Packers and Movers in Ghaziabad | Movers and Packers Ghaziabad
Packers and Movers in Faridabad | Movers and Packers Faridabad

Unknown said...

Thank you very much for this article.

Movers and Packers in Pune
Movers and Packers in Gurgaon
Movers and Packers in Bangalore

Unknown said...

Thank you very much for this article

Packers and Movers Mumbai
Packers and Movers Navi Mumbai
Packers and Movers Thane
Packers and Movers Ghaziabad
Packers and Movers Faridabad
Packers and Movers Delhi
Packers and Movers Noida