Blue Slips, Judicial Nominations, and poor Democratic tactics

Sounds familiar, doesn’t it? :slight_smile:

Actually, it’s more “What deflation? Don’t you believe in science, or does your hatred just run too deep? BTW, please note who was the MVP last season, and why.”

The rest of the league is jealous as hell and will believe any sort of nonsense that supports their jealousy.

The bigger question here, as is usual today, is that one party sees their goal as the good of the nation, and one sees their goal as making the other guys mad. It isn’t football, where one team winning means the other team losing, but a process where we all win if we cut the childish crap and collaborate.

Do you think the appointments and associated actions are analogous to cheating? I’m not a sports guy but my understanding is that deflating the ball was bona fide cheating - investigated and punished by the league. Do you consider the judicial appointments the same way?

The only reason the appointments are able to go through on a party line vote is because Reid changed the Senate rules. Changing the blue slip tradition is simply a difference in degree.

Well I think it would depend on who you asked. Like the Patriots fans, the Republicans don’t think it was unfair at all. The senate Democrats think otherwise, and put out a report to try to convince the American population of their point of view. Apparently to you it wasn’t convincing. But to other independent voters, who knows?

I sort of get the tortured point the OP is making. But I think the core ridiculousness of the report is that every one of the report’s authors voted for the nuclear option to eliminate the filibuster on judicial nominees in order to speed confirmation of Obama’s judges. Now, when unqualified judges are confirmed without an ability to filibuster them, it’s a crisis. Maybe you should not have voted to eliminate the filibuster at all.

But it is shocking how terrible some of Trump’s nominees have been. That is a legitimate gripe.

Not speed. Make possible, in the face of reflexive obstructionism by a party of oppositionism rather than public service, uninterested even in sincere hearings. That’s who created the problem, not “both sides”.

And that is facilitated by the problem his party created. Please also note the near-complete lack of any of its members voting against any of these clowns.

My understanding of the nominees was that they have mostly been of high caliber, especially at the circuit court level. District court level is more mixed, likely because of the focus on circuit courts and greater deference to patronage or home state senators. So while people like Mathew Petersen are a super dud, there’s also this:

Granting Petersen, Brett Talley, and Jeffrey Mateer, do you think the rate of duds selected is in greater proportion than in prior administrations?

It wasn’t really to speed them up, it was that they were being entirely blocked.

In any case, sure the dems dropped the filibuster on judges in order to get anyone at all appointed to vacant benches. The Republicans dropped the filibuster for SCOTUS. Do you think that the republicans would not have nuked the lower filibuster as well?

The number of “duds” selected is largely unknowable, but the Trump administration has advanced more ABA “not qualified” nominees than previous administrations. A Washington Post article from December 2017 has a breakdown.

The article points out that most administrations would get the ABA rating prior to advancing the nomination, but I guess the Trump doesn’t need any of that “vetting” nonsense.

Didn’t McConnell, or Grassley or someone announce last year that they were scrapping any reliance on ABA qualification assessments?

I think that article may have been written by Donald Trump while he was in a limo outside of Reason’s office.

”Except for the terrible ones, are they all good?” Give me a break.

Amy Coney Barrett (7th Circuit) - contradictory views on whether Catholic judges should rule on death penalty cases.

Stephanos Bibas (3rd Circuit) - as a professor advocated electric shocks as punishment.

Allison Eid (10th Circuit) - spent a lot of time as the sole dissenter on the Colorado Supreme Court due to conservatives views.

But reading Reason, these are the smartest, most capable, best looking, richest, and most study judges ever. And they married super hot spouses, too.

Provocative, to be sure. But before I wade into all of this, a point of clarity? Are you advancing a political argument, or gloating?

Depends on if your goal is the long-term betterment of the country or the immediate tactical advantage of just your party - if you see the other guys as colleagues with differing priorities but whose goals are also the long-term betterment of the country, or actually and simply as an enemy to be defeated and gloated over.

It’s easy to tell by switching the names and checking your attitude about it; give it a try and let us know.


The point was to acknowledge that there have been duds, but given the volume a certain amount is more par for the course than an outlier. If there are 100 nominees and 1 of them is poor or sub par, I’d say that’s not a big deal and a pretty good track record. Acknowledging that one is fair. If two are bad, same calculus. If like, 20% or more are bad, then that’s more significant. Kind of like when hiring for any job, there’s no guarantee the person will be good, and it’s assumed that even with lots of interviews and vetting some stinkers will get through. If my success rate on hiring is greater than 60% positive hires, I consider that pretty good. The confirmation process should be more rigorous than a job interview of course, so I’d hope that number is higher. The question is, what is a regular level of poor nominees and does Trump’s nominees exceed that level?

You seem to be saying that yes, in fact Trump’s nominees exceed the regular level of badness.

Not that I put a lot of stock into the ABA ratings, but all three of the ones you identified were rated as Well Qualified by the ABA. For Barrett, it seems her Catholicism or more specifically the small sect she seems to subscribe to is the most objectionable thing about her. It’s a little off putting personally, but I don’t see it as a problem in her role as a judge. People are able to set aside their personal beliefs when evaluating the law. As a clerk for the DC circuit, and later a SCOTUS clerk for Scalia, then a professor of law, I’d say she is qualified. Do you disagree?

Bibas - yeah the electric shock thing is not great, especially so recently. A long career as a litigator, circuit court clerk, and SCOTUS clerk under Kennedy, and a law professor - I’d say he’s also qualified. Given he distanced himself from the electric shock comments that were in a paper he co-authored, is that enough to say his other experience is sufficient to overcome the deficit? Or would you say that authorship of that paper should be disqualifying?

For Eid - she has a similar pedigree with clerkships, this time for Thomas. She has the added qualification as a state supreme court judge as you note. I don’t think dissents should be disqualifying, even ideological ones. I read a brief summary of some of her dissents and I don’t agree with her position in all of them, but I do in others. That she would dissent where her judicial philosophy would lead her to a different conclusion is a feature not a bug.

I appreciate opposition to these nominees based on differences in judicial philosophy, etc. I don’t think that makes them terrible judges, however. I disagree most of the time with Ginsburg, but I recognize she is a brilliant jurist. On the other side, Kennedy and Alito have voted my preferred way in many cases, but I don’t think they are very good jurists. I would probably be opposed to most nominees from a Democratic president, but that’s an ideological opposition.

So are these three, and potentially others terrible because they are unqualified bad jurists with poor qualifications, or do you think they are terrible because you disagree with their judicial philosophy, or something else?

Maybe you can start with a handful of examples of bad nominations by Obama, Bush or Clinton (your choice). Then we can compare whether the number of duds is going up.

Wait - you don’t generally like their grading system, but if it shows I’m wrong, you’re going to embrace it? Further, despite those ratings, you acknowledge that maybe some of the judges that were highly rated have their problems?

And let’s keep in mind that the reason I commented on a few of those nominees is that you posted a link that essentially called them (and others) the best possible nominees evah! If devotees of the Federalist Society call these the cream of the crop of nominees, what does that say about the average nominee?

I’m looking at the whole package.

It says they’re not as devoted to an idiosyncratic, anachronistic ideologueism above the rule of law and justice. It says that group and its followers have lost sight of the intended independent role of the judiciary. Their reasons for that are best explained by themselves.

Say it with me:

Because libruls!

We’d have to come up with a determination on what constitutes a dud. Someone like Harriet Myers was terrible, but so was Stephen Six. I’d say Myers was way worse than Six, but they were both duds to me. This is an article from the NY Times in 2011:

Given that Obama participated in the pre-nomination vetting, he didn’t officially nominate those with poor ratings. I think it’s a legit criticism that the Trump Administration has chosen not to participate in the ABA vetting process. Even if the ABA are biased, I do like consistency and comparability. This is continuing the practice that started under Bush 43.

No - I don’t think your assessment of whether you think a nominee is terrible can be shown to be wrong. You evaluate based on your own subjective criteria. I was under the impression that you did value the ABA ratings so I was trying to utilize a criteria you agreed with. If not, that’s fine. I don’t think the ABA ratings are totally wrong, or totally right. I think in general they are probably closer to middle of the road then partisan as a whole, and probably include some partisan outliers.

I don’t think they are the very best the nation has to offer, but I do think they are solid picks with whose judicial philosophy I tend to agree with. I think the charge of a nominee being unqualified is wholly different from one that criticizes their judicial philosophy. I was under the impression you were leveling the former rather than the latter.