Hypocrisy-a-Go-Go

It’s nice when Mark Hyman as much as admits that he doesn’t have a leg to stand on when making his argument. Of course, he never says so in so many words, but when he relies on name calling and obvious hypocrisy to make his points, it’s a tacit admission that he’s out of ammo.

A case in point is his recent commentary on Senator Barbara Boxer’s idea that a supermajority of 60 votes to confirm presidential judicial appointments.

First, Hyman relies on the favorite argumentative tool of the truly desperate: name calling. Although it’s not material to the topic at hand, Hyman makes a point of saying that Boxer floated this idea at “a rally of the I-hate-America-group MoveOn.Org.” Why is MoveOn.org a hate group? Hyman never says. Apparently it’s simply because they dare to support political policies with which he disagrees. With characteristic hubris, Hyman suggests that anyone who disagrees with his ideas must hate America; notice that the unstated premise here is that Hyman’s ideas ARE America. To oppose one is to oppose the other.

Then we have a straightforward misstatement of facts. Chastising Boxer for needing a “remedial” course on the Constitution, Hyman makes a claim that suggests it is he, not Boxer, who needs to go to legislative summer school. According to Hyman, in the Constitution, “Article II provides that the president requires a simple majority approval of the Senate to make appointments.”

Not true. Article II, among other things, says that 2/3 “supermajority” is needed to ratify treaties. It then says that the Senate must approve executive appointments. Here’s the relevant excerpt:

Clause 2: [The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

You can look for the part that says a simple majority is needed for approval all you want. You won’t find it. Hyman is flat wrong. It is true that the traditional practice has been to approve such appointments with a simple majority, but that’s because the Senate itself has decided this. The Constitution lays out a number of times when a two-thirds majority is required by the Constitution. When the Constitution doesn’t spell out a certain restriction, it is left to the Senate to make its own rules. If the Senate wants to, it can require a 60 vote majority for approval of executive appointments. Whether it should or not is another matter entirely, but contrary to Hyman’s specific claim, it would not require a Constitutional amendment. I’m sure he “regrets the error.”

Hyman also doesn’t mention that Boxer isn’t the only one in the Senate proposing changes in the rules regarding judicial appointments. Hyman lambasts Boxer for her seemingly radical idea, but the fact is that with the filibuster, it already effectively requires 60 Senators to ensure appointment of a nominee. Boxer’s proposal simply would spell out what’s already the unstated status quo. Meanwhile, Senator Bill Frist is attempting to actually change the rules of the Senate substantively. Precisely because of the threat of filibuster, Frist has floated the idea of changing longstanding Senate rules so that a simple majority rather than the traditional supermajority of 60 would be needed to end debate (i.e, to stop a filibuster). He suggests this only in the particular case of judicial nominees. Gosh, I wonder why?

Republicans have also championed the wonders of the supermajority in the past in a number of contexts, most notably in the effort to insulate the wealthy from changes in the tax code that would require them to contribute to the wellbeing of the nation in an equitable way.

There’s no shortage of hypocrisy involved in this issue. Democrats in the Senate are using the rules to influence the choice of judicial nominees to the extent possible for a minority. The Republicans used the rules to keep Clinton nominees from receiving an up or down vote as well (although they often used much more secretive Senate rules to table nominations; at least the filibuster tactic is out there in the open). Whenever the one party is in power, they accuse the other of being “obstructionist.”

Republicans defend their actions in the past primarily by appealing to the bogeyman of “activist judges.” But “activist” is an epithet that’s entirely in the eye of the beholder. Republicans want conservative judges on the bench who will be likely to rule in ways to change public policy in ways they approve of (the most obvious example being Roe v.Wade). This is no less “judicial activism” than judges that rule that same-sex unions are Constitutional. “Activism” is simply a label that’s applied to judicial decisions that interpret the law in ways those using the term disagree with.

I’ve stated my view on this topic before. Although a progressive, I believe the judiciary, with its lifetime appointments, is far too important to be used crassly as a political tool (something both Democrats and Republicans have been guilty of). I would feel far more comfortable, for example, with a Supreme Court that accurately reflected a range of judicial approaches to interpreting the law. While a court of nine progressive-minded judges would be preferable (to me) to nine Scalias, the optimal state of affairs would be have judges on the court who are not ideologues, or if they are, are equally distributed across the political spectrum.

Given that the overwhelming number of Bush appointments have been passed, it seems that the best solution to the problem is for the administration to simply nominate judges that at least a handful of Democrats could support. By taking a more mature and ethical approach to judicial nominations, the posturing of Boxer and Frist become a non-issue. But given that despite his record low approval ratings, Bush still seems to labor under the impression that he has a “mandate” that’s given him “political capital,” the odds of this administration taking a more responsible approach to its most high-profile nominations are slim indeed.

And that’s The Counterpoint.