Republicans in Kansas are using that very technique in attacking the Kansas Supreme Court, made up incidentally, of mostly republicans, for demanding that the public schools be funded in a "suitable" manner, in contradiction to the state legislatures' desire to cut school funding.

Otherwise, I like your suggestions, but I think it is pretty naive to believe that the media can be "educated" by the blogosphere although that doesn't mean we shouldn't try.

Peter Daou has explained the "triangle" (blogs, media and political establishment) and why the blogs alone cannot ever be very successful. 

 

 

I seem to remember that  despite overwhelming public opposition to impeachment the Republicans (particularly the dominant far-right went ahead). Those proceedings served POSITIVE right-wing goals despite the actual loss in impeachment and despite sailing against the current. It DID weaken Clinton and paralyze him during the second term. And it did establish in the public mind that the Republicans hold fast to their beliefs. But the Dem elected officials who have shown us all that "backbone" is not in the Democratic lexicon will give us one more large dose of "pollwatching" politics. It wouldn't be admirable if it worked; but with all the evidence that it doesn't it makes the Dems pathetic.

"A filibuster that fails is worse than no filibuster at all. "

Why is that?

This is just another case of Democrats lacking the strategic and tactical chops needed to sell ideas to Americans.  It takes years of preperation to create an "issue" out of a topic as dry as judicial nominations.  The RNC has done it beautifully, of course, by pounding away for decades at the practical consequences of judicial rulings while packaging the occasional liberal overreach or judicial excess as red meat for the base.  As a result of the RNC's hard work, conservative Republicans now say: "there they go again," each time they about some liberal judge attacking Christianity or letting a rapist go free.  Believe it or not, the wingnut reaction is not instinctive.  We're talking learned behavior here, and the RNC does the teaching.

Now we hear that Democratic leaders are "depressed" that Americans don't care about judicial nominations.  Idiots.  Generating outrage over a candidate like Alito is not about speeches on the Senate floor or persuasive legal analysis from celebrity law professors.  It's about hard work -- from the moment George W. Bush took office to the moment Rehquist died.  It's about creating an atmosphere that is ripe for outrage.  It is about setting the stage, years in advance...

What would the RNC have done if they had been forced to deal with President Gore's liberal Supreme Court nominee?  It would start and end with a coordinated attack on the ludicrous nomination process.  After all, who says the nominee should be allowed to dodge questions?  Where did that right come from?  How are Senators supposed to represent the American people if the nominee won't explain their views on the issues of the day?  The GOP spin would have been: Senate tradition is dead...Americans need answers...a refusal to answer is, itself, an outrage.  Now answer or face a fillibuster.

Having established that Americans need answers, GOP senators would grandstand, scream, and yell about the nominee's lack of forthrightness.  Meanwhile, the corporate media would ignore history and begin to ask: is silence acceptable?  After all, what judicial nominee doesn't know how they feel about abortion?  Even if they don't know the facts of a case, why can't a nominee tell the Senate if she agrees with the reasoning of an established case?  Isn't the Democratic argument of "this is how we've always done it" kind of pathetic, given how silly and transparent the whole thing is?  Isn't it fair to say that a nominee who refuses to answer has something to hide?

By the time the hearings were over, the public would be disgusted with the whole affair.  The GOP grandstanding would get heavy media airplay because there's a genuine issue here: is it really okay for nominees to pretend they have no opinion on major legal issues?  If you wait just a second, Wolf Blitzer will ask someone from the Heritage Foundation what he thinks...

Unfortunately, the DNC doesn't hire RNC strategists.  The default strategy for Democrats is always: what do we always do?  Ideas like attacking the nomination process itself are shouted down by mealy-mouthed wimps like Kerry and Biden who want to maintain decor and precedent because it makes them feel special belonging to an "august body" such as the U.S. Senate (that's why they went to prep school, after all).  Unlike John McCain, the "dignified" members of our party don't know how to shut up and get in line when it comes time to fight dirty.

Bottom line: Democrats don't know how to make a power grab.  They have no idea just how little Americans care about precedent - how easy it is to attack 50 years of tradition and say the old way is stupid.  Hell, 30% of Americans don't know who Dick Cheney is.  If these people chose the bold route once...just once...we'd be living in a different country.

Is it too much to expect a little leadership from our depressed Democratic senators?  Couldn't the Democratic leadership in and outside the Senate actually lead?  Why cave so early as Feinstein did?  Couldn't they help educate the public as to what is at stake here?

A filibuster that fails is worse than no filibuster at all.

I don't agree with that.  Fighting the good fight and losing is better than not fighting at all.  Shrinking away from every fight that we might lose makes Dems look craven, IMO.

 

You shouldn't demand that a nominee commit him- or herself to making a particular decision once he or she is on the court, but there's nothing wrong with getting a nominee to discuss his or her thoughts in depth on important legal issues.

The nomination process really is silly.  There are two types of appeals -- a trial de novo or an appeal on the record.  De novo involves a re-examination of all the facts of a case.  That takes some work and a nominee might not be expected to review all the details and explain whether or not they agree with the Supreme Court's factual findings in a previous case.

In an appeal on the record, however, the Court assumes that all the facts on the record are true.  The argument is purely legal: given these established facts, what is the proper application of the law?  

Why in God's name can't a nominee examine a prior Supreme Court "appeal on the record" and tell the Senate whether they agree with the reasoning the Court applied to the established facts?  Like the Court, they can assume the facts in the record are true and focus on the legal reasoning behind the decision.  Stating that they agree/disagree with the reasoning would have no impact on future cases...which will always feature different facts.  No two cases ever have the same facts, after all.  

The same goes for facial challenges to a given statute.  Why can't a nominee look at the Court's constitutional analysis of an old statute and say whether they agree or disagree with the Court's reasoning?  Saying that the same exact wording of the same exact statute might come before them again doesn't hold water.  

The current system involves Senators throwing hypothetical situations at the nominee in an effort to devine some sort of opinion from the nominee's evasive response.  Stupid.

Part of being a good Supreme Court nominee should involve a familiarity with the facts of major cases and an ability to explain whether or not they agree with the reasoning of a specific case.  Again, the case they'd be talking about would be in the past.  Those specific facts would never come before the court again.  Stating agreement/disagreement with the prior holding would have no impact on new cases which feature new and different facts.  

What makes the whole thing so pathetic is that first year law students break down the reasoning of major cases every goddmamn day in the country.  It's not rocket science.  The fact that Supreme Court nominees refuse to do so in front of the Senate is just about the stupidest tradition I've ever heard.  

If Democratic politicians had balls or brains, they would attacked the process long ago.  Unfortunately, they've left the job to the RNC, who will no doubt knock this issue out of the park the next time a Democratic president chooses a nominee.

I think the loss partly just shows what we're up against. You guys can complain about their spinelessness, but the Democrats seem to have tried something closer to what you're asking than you think. They decided they couldn't defeat Alito, but they could use the nomination to start compaigning.

They didn't try a fillibuster route, and I'm one who doubts it would have helped. (It would not have succeeded, it would not have enunciated principles further, it would been labeled as obstructionist and thus distract from the issues, and anyway we can't fillibuster all the wingnuts Bush could replace him with for three years.) But they did try both for unity and visibility. And what happened? When the spoke up, the press mocked them for long questions. When they finished speaking, the press mocked them for losing.

It's fine to second guess tactics, just as we can argue over how Kerry should have best responded to the Swifties, and maybe we'd be right, and maybe not. But can't we stop internalizing the right wing's own image of us, just as we appear to have internalized their image of Kerry and Gore, stop mocking our own cause, and starting fighting back for real? I'm way, way to the left of the DLC types, but I hate agonizing over tactics to the point of overlooking the big picture.

A very big part of the Democrat's problem in the Senate is that we play by different rules than do the Republicans. Our Democratic "leaders" have the strange idea that their primary job is to play well with others. They see their institution as a gentleman's club where raised voices, sharp disagreements, and failure to go along are just not done. By contrast, the Republicans have political goals and they never lose track of those goals. They certainly don't allow any considerations of the feelings of Democrats to interfere. Possibly the worst of all the Democrats is Diane Feinstein, who seems to have no bed rock beliefs or goals, beyond maintaining really, really good relations with her Republican colleagues.

Then there is Hillary Clinton, forever seeking a better way to pass as a conservative. Is Hillary the Michael Jackson of the Senate??

Here's why can filibuster work, win or lose:

The only way an ethics-and-reform message coming from the Democrats will ever stick is if the Democrats show visibly and symbolically that there are some morals they will not abandon. Many, many people care a lot more about that than they do about abortion. The bread-and-butter issues with Alito are far more important than the specifics of abortion case law, but there's no way voters will connect to them intellectually - law is not a hobby for most of them. We need to get voters' gut on this, and to do that we need the bully pulpit for a little while.

If the Dems filibustered, they would have 2-3 weeks of nonstop press coverage to say loudly and clearly exactly what's wrong with Sam Alito, and why it's so wrong that their morality simply cannot let things move forward. Yes, the Republicans will unleash the dogs of hell on them, but if they stick to their message throughout the attack, the symbolism of sticking to your guns will be even stronger. We stand for the little guy, win or lose.

Because the Republican Party is trying to push the dual message that Democrats are Obstructionists and that Democrats are the Party of No Ideas. Really flip sides of the same coin. A filibuster that goes up in smoke on the first day just reinforces their message. The only worse thing than being an Obstructionist is being a miserably Failed Obstructionist.

If you have 41 votes and know it, and are willing to risk having filibusters on judicial nominations ruled out of order by a simple majority vote (Frist's Nuclear Option), then go for it. If not, not.

We don't have the votes and we don't want the Republicans to get a cheap shot at gutting the filibuster altogether, something they are clearly prepared to do.

"If the Dems filibustered, they would have 2-3 weeks of nonstop press coverage to say loudly and clearly exactly what's wrong with Sam Alito"

They would be lucky to get 2 to 3 hours. Correct me if I am wrong but I believe a motion for cloture is always in order, the Republicans can simply stop all debate at will as long as the Democrats can't get 41 votes to block cloture.

People seem to have gotten "Mr Smith goes to Washington" confused with reality here. Republicans could and would cut off debate at the moment of their own choosing, one that would maximize "obstruction" while minimizing the amount of substance directed at Alito's record. They are salivating at the possibilities of an abortive filibuster.

Permit me to point out that nobody gets a free pass in politics (well maybe Alito) but whatever the Dems do, the Republicans do have a response. If you are a party that fights (they are) then you do that even when the opposition has the upper hand, the moral high ground, etc. If you wait for the perfect moment to fight, you will find even then the Repubs have a response, and you might find you have not honed your battle skills. There are worse things than being obstructionist; being collaborationist is worse, far worse. Of course one must be mindful of the public but with even stodgy newspapers showing more grit in opposing Alito, there really is nothing to lose except possibly the habit of accommodation.

At what point do Senators feel it is no longer incumbent upon them to represent the views of their core constituents on a matter of paramount importance to these constituents?  How unprepared, unfocused, and inept do they have to be before we can say that they failed us not because they fought the good fight and lost but because they did not fight at all? 

Blogs are useful but they are still in their infancy.  They can discuss, suggest, explain but they can not pose questions directly to a judicial nominee.  Even the mass media can not convey a message albeit with all their attendant bias and spin if their is no message.

Why is it considered unremarkable that Senators many of whom are lawyers and deal on a daily basis with the law and the crafting of law are incapable of asking a clear question on a matter of law?  Alito had practice sessions in how to answer and not answer questions.  What prevented Democratic Senators to practice asking questions and dealing with nonanswers before a few former prosecutors and Constitutional lawyers?  Surely after the Roberts hearings the weakness of their previous approach had to be obvious even to them.

As for the importance of the Alito nomination, I can fault the media but did I hear a single Democratic Senator say that this decision was perhaps the most important and fraught with long term consequences of any that he/she would make in their career?  If Senators think that the Alito nomination is important but not that important, what are the rest of us to think?  When Roe v. Wade was mentioned, it could have and should have been followed immediately by some statement that affirmed its meaning: A woman's right to control her own body is one of the most fundamental rights I know and I will accept no compromise on it.  Similarly, with Presidential powers and judicial access:  I stand for the rights of individual Americans and I will stand against the powers of a dictatorial President and an exclusionary judiciary.  I heard none of this and it should have been emphasized and repeated at every opportunity. 

The fault in the Alito hearings lay with the Senators and it was not in the stars but in themselves.  We may elect them but they do not serve us.  It raises the question if they do not stand for us here, where will they stand for us?

As was Harry Blackmun. And Ike and Nixon never understood what hit them.

I don't know if you have ever been on a jury. I was on a minor domestic violance case and due to strict rules ended up convicting the guy. Now if his wife had just shut up and he had not tried to testify in his own defense he would have gotten off. Because no reasonable person would have considered the minor level of violence he exercised vs the provocation a crime. But given the actual state of the law and our instructions we had no choice but to declare him guilty. Juries and judges work within strict limits and I look at Alito and I look at Janice Rodgers Brown

http://www.usdoj.gov/olp/brown.htm (official DOJ source) and I see a right-wing guy working from within the law and a right-wing loon. Others may have a different view, but the combination of Roberts and Alito leaves me a lot more comfortable than the combination of any two other proposed justices.