No Panaceas

Friday, February 28, 2003
I'll Spare you the Rodney King Quote: My favorite political quote is by John Dingell (D-MI), who at the time was chair of the House Energy and Commerce committee: "If you let me write procedure and I let you write substance, I'll screw you every time." The Democrats are getting a nice reminder of this with Hatch's chairship of the Senate Judiciary committee. As CQ reports, yesterday's confirmation battles even brought out the ever popular "might makes right" quote.

Thursday, February 27, 2003
More on Reforming Confirmations: I left off the other day suggesting that the Senate should get rid of the filibuster and institute a two-thirds voting requirement for judicial confirmations. (I’m not suggesting abolishing the filibuster altogether, it’s too good of a lecture topic.)

Why the supermajority (two-thirds) voting requirement? Two-thirds of the current Senate is sixty-seven members. So a judicial nominee would require sixty-seven votes to gain confirmation. Why? Moderation. Such a supermajority requirement would force presidents to nominate moderate candidates to the federal bench. Extremist candidates, of either the liberal or conservative persuasion, would be unable to get a two-thirds vote. This would effectively transform the strategic context by forcing presidents to choose candidates attractive, or at least acceptable, to a broad, bipartisan coalition of senators.

But wouldn’t this lead to more obstruction? I don’t think so. Note the other changes: a removal of obstructive devices, including the filibuster, that guarantee each a nominee a floor vote. Without these changes then, sure, a two-thirds requirement would only aggravate the situation.

My solution, of course, will not work perfectly. It is still vulnerable to the irritating ‘stealth’ strategy. There are other good ideas out there. Walter Dellinger suggests a system where each side produces a slate of candidates that are approved together. His basic idea is similar to the one I presented as a way of diffusing the immediate conflict. But I am not sure how his idea would work in the long run. He is vague on specifics, but I think such a plan would require legislation to have any chance of surviving multiple iterations. Mine requires only an initial one-shot agreement to pass a mix of Clinton-Bush nominees, and then some very straightforward rule changes in the Senate.

Dellinger makes another point that I agree with, in part. What I am suggesting would preclude the confirmation of ideologues of the left or right. This is true and it can be a shame. But I do not buy his implication that moderate equates with mediocre. Many fine justices were and are middle-of-the-roaders: Powell, O’Connor, Souter, Harlan II. But then again, Jim Hightower likes to say, “there is nothing in the middle of the road but yellow stripes and dead armadillos.”

Wednesday, February 26, 2003
The Supremes have handed down a couple of notably sensible decisions this week. At a superficial level liberals will like one and the conservatives the other. But in truth I think both sides can take pleasure (or at least not displeasure) in both decisions. This is reflected in the 8-1 votes on both decisions.

In Miller-El v. Cockrell the Court decided that Texas death row inmate Miller-El's request for a federal appeal deserves a more careful review than he received from the 5th circuit. The press will play this up as a big victory for criminal rights liberals, but I read it as a rather narrow decision. The specific circumstances in Miller-El's case show he has a pretty plausible case for appeal consideration. There is a documented history of Dallas prosecutors excluding black jurors as a matter of policy. Combine that history with the preemptory removals of ten out of eleven black jurors in the Miller-El trial, and I think there is enough smoke to warrant a constitutional-based appeal. Miller-El may not ultimately win, indeed he probably will lose, but the question here is how appeals requests get handled given recently passed restrictions on federal judicial review of state-court criminal proceedings. That is, what is the correct implementation of the Antiterrorism and Effective Death Penalty Act of 1996 that, in essence, sought to cut down on the seemingly endless array of appeals that death row inmates pursue? Probably this decision will make it easier for a few death row inmates to get federal appeal. We will see how this is interpreted in the future, but I have trouble believing it will make a difference for many inmates.

The one dissent in this case was by Thomas. He makes an interesting argument. It starts on page 36 here. Note especially his comments after page 42. It's going to be quite interesting to see his vote on Virginia v. Black (cross burning) especially given his outburst during that case's orals.

The other decision was Scheidler v. National Organization for Women, Inc. In this decision an 8-1 court decided that the Rackateer Influenced and Corrupt Organization Act of 1970 (RICO), along with the Hobbs Act of 1946 were inappropriately applied to abortion protesters. The press will spin this as a big victory for the pro-life forces. At one level this is true, but at a more fundamental level I think this is good news for liberals as much as it is for conservatives.

That's because this decision concerns more than just abortion. RICO and Hobbs were originally about organized crime, but creative use in the courts expanded them, espeically RICO, to include a variety of different kinds of protests that disrupted businesses. So, for example, something like the Montgomery bus boycott could very well have fallen under RICO as it was used against Operation Rescue. What about the sit-down strikes? Or many anti-war protests and other types of boycotts. In short just as many, if not more, liberal causes -- including the pro-choice cause -- could have found itself wrecked by an expansive use of RICO. Today's decision appears to scale RICO back towards its original intent.

The dissent in this case is by Stevens and it's interesting, too. You can read it here starting on page 22. Stevens is often characterized as the most liberal member of the Court. I suppose that's generally a reasonable assessment. So it's easy to see his dissent -- which frames this decision as hurting the fight against organized crime -- as merely cover for his true wish -- hurting the pro-life interests. But while Stevens is arguably the Court's most liberal member, he's not nearly as liberal as past justices like Brennan and Marshall.

Tuesday, February 25, 2003
Our tit for your tat: I have been meaning to get back to the issue of Estrada and judicial confirmations. On February 13, I said that both the Republicans and the Democrats are in a “a tit-for-tat partisan death spiral.” Much of this is manifested in the struggle over blue-slips, and part of it is reflected in the filibuster against Estrada. If the Democrats succeed in blocking Estrada then the problem will likely only get worse.

The Republicans say, “Look at the Democrats. They are filibustering Estrada and when they held the Senate they obstructed dozens of Bush nominees.” The Democrats say, “No, no. The Republicans started this. They blocked dozens of Clinton nominees after they took over the Senate in 1995.” The Republicans say, “No, you guys started it with that crass smear of Bork." "No," the Dems reply, "What about that partisan attempt to impeach Douglas." "That was because of Carsworth and Haynswell, or maybe it was Wellworth and Carshayn.” “No, no,” the Democrats reply, “It really started with Abe…”

In other words, it sounds a lot like a senatorial version of the Hatfields and McCoys, only less polite.

To be fair, it is not all simple partisan feuding. I think the feuding is part of it, a much bigger part than either side cares to admit, but just part of it. Much of the genesis, and the fuel, comes from genuine ideological differences. Throw in a bit of electioneering and you have confirmation gridlock.

In a truly ideal world, a group of moderate senators would broker a compromise, one that allows for a full discussion of differences on each nominee and then an up or down vote. I am not necessarily talking about axing the filibuster – more on that later – but I am talking about getting rid of blue-slip rejections and other methods for bottling up nominees in committee.

This isn’t going to happen. It won’t happen because the Senate no longer has the type of senators willing and able to broker such a deal. (Plus we don’t have a president willing and able to participate in such a deal.) Senators such as Rudman (R-NH) and Nunn (D-GA), the type of senators I have in mind, left the Senate a while ago, in large part because the body had become so inhospitable to moderation and compromise.

But if it happened, what might a compromise look like? For starters both sides should give up something important. The Democrats should get, say, a dozen of the blocked Clinton nominees re-nominated by Bush and confirmed by the Senate. Ron White would be a good place to start. Then, the Democrats should agree to let Estrada and a comparable list of Bush nominees go without opposition. These actions alone might restore some semblance of sensible deliberation.

Real permanent change requires altering the institution, an even tougher task given senator and committee unwillingness to yield power. But this would entail the Senate changing its rules to require that all presidential judicial nominees receive a hearing on the floor. The Judiciary committee still gets to hold hearings and can make recommendations, but it is given a strict time limit to release the nomination and limits are put on ‘holds’ and other means of delay.

I think the above would help, even without getting rid of the filibuster, but here is one last recommendation: Abolish the filibuster for judicial confirmations and make all judicial confirmations contingent on a 2/3ds vote of the full chamber. I’ll explain why later.

Monday, February 24, 2003
It's Spring Training time, hand me that hypo: The recent death of Oriole's pitcher Steve Bechler reinvigorated the debate on performance-enhancing drugs in baseball. Maybe ephedra killed Bechler, maybe it didn't, but there is pretty good evidence that the use of ephedra, anabolic steroids, and amphetamines is widespread in baseball. Remember this SI article?

At one level it's easy to say, so what? If players are foolish enough to endanger themselves using dangerous drugs then let them face the eventual consequences. But what bothers me about performance-enhancing drug use in sports -- as starkly contrasted to the use of drugs that don't enhance performance, like marijuana -- is that players who don't want to use these drugs feel pressured to do it. To me there is a difference between someone who wants to get an advantage by cheating, and someone who finds it necessary to cheat just to stay even with the cheaters.

Here's the strategic situation: Suppose you have two minor-league players, Frank and Jerry. They play the same position, they are the same age, they have virtually the same skill levels, and both are vying for the same coveted spot with the same Major League team. Without artificial enhancement both players have equal chance of making it to the Big Show. Frank, being Frank, blithely decides to take anabolic steroids. Jerry doesn't. Frank's power numbers shoot up, and next season he's playing in places like Yankee Stadium. Jerry stays in the minors and spends the rest of his pro career busing to places like Bluefield, WV.

But let's back up. Jerry knows that Frank might cheat. Given Frank's big mouth maybe Jerry knows that Frank is cheating. Knowing further that Frank's promotion to the Bigs spells doom for Jerry's career, Jerry makes a little trip to Tijuana. So both end up using steroids and are back in the same even position they were before, only with potentially horrible health consequences.

This looks a lot like a prisoner's dilemma. Of course, in reality the strategic situation involves more players. At any one time there are hundreds of, say, middle-infielders vying for a few dozen Major League middle-infield slots. The same basic logic holds, it's just an n-player p.d. game rather than a 2-player p.d. game. You look across the minors and you see lots of players who were a lot like you suddenly get better, and you realize that if you are going to just stay even in the arms and power race, then you have to take drugs, too.

Many prisoner's dilemmas are solvable. The players' union, not MLB, but the players' union should push for banning stuff like ephedra, and it ought to push for an aggressive, comprehensive program that tests for performance-enhancing drugs like ephedra and anabolic steroids, and it ought to push for genuinely tough sanctions for players who are caught using. In a world of increasingly sophisticated designer drugs, such a solution will not be perfectly effective, there are always going to be some cheaters. But if a player genuinely wants to pump poisonous crap into his body, then that's his problem. What bothers me is the thinking, "I don't want to do steroids, but if I don't take them then I'll be at a disadvantage to someone who does." An honest player shouldn't feel compelled to stick a needle of poison in his butt.