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THE DIFFERENCE BETWEEN 7 AND 5! We’ve marveled as big scribes fail to explain that ballyhooed Senate agreement: // link // print // previous // next //
WEDNESDAY, MAY 25, 2005

UPDATE--NOW FOR SOMETHING TOTALLY DIFFERENT: Reading Salon, we find that Tim Grieve joins Kevin Drum (see below) in thinking that the sixth and seventh judges in question are Richard Griffin and David McKeague. Meanwhile, the New York Times and the Washington Post seem to suggest that Judges 6 and 7 are Kavanaugh and Haynes (see excerpts below). Is there any such thing as a fact any more? Searching further, we find universal agreement on the basic outline--ten judges were turned down in Bush's first term, three of whom refused renomination. That leaves seven renominations. Who exactly are the seven? Easier asked than answered. Based on a 4/22 WashPost report, it seems that McKeague and Richard Griffin were part of the original seven, along with Brown/Pryor/Owen/Myers/Saad. Kavanaugh and Haynes are first-time nominees. All other conundra remain.

THE DIFFERENCE BETWEEN 7 AND 5: Sometimes we marvel at our press corps—and we’ve marveled this week as they’ve failed to explain the difference between 7 and 5. We refer to the Gang of 14's filibuster agreement, announced on Monday night. Instantly, Kevin Drum raised an obvious question—an obvious question which would have occurred to any sentient human observer:

DRUM (5/23/05): I guess I'm puzzled...[T]he text of the deal only mentions five nominees. The group agreed to invoke cloture for three of the filibustered nominees (Brown, Owen, and Pryor), which means they'll be confirmed, and made "no commitment" on two of the nominees (Myers and Saad), which presumably means at least a few of the Democrats will agree to continue filibustering them and their nominations are dead...

But why aren't Griffin and McKeague mentioned? Presumably, not mentioning them is equivalent to "no commitment," right? So why not say so? What am I missing here?

Duh! “What am I missing here?” Drum asked, acting like a sentient human. Although Drum had the wrong names of the Unmentioned Two, his question would have occurred to anyone who had followed this story. As any such observer would know, we had been talking for the past several months about the seven nominations in question. The text of the deal only mentioned five. So why the jump from 7 to 5? What happened to the two others?

Quick correction: Drum’s question would have occurred to anyone—except to a six- or seven-figure Washington “journalist.” As Monday evening’s interviews unfolded, we saw no one ask the Gang of 14 about the status of The Unmentioned Two. On Tuesday morning, only the New York Times attempted to deal with the mystery. Deep in a lengthy report, Carl Hulse semi-attempted to explain it:

HULSE (5/24/05): Democratic officials said an unwritten aspect of the pact was that two nominees not named in the deal—Brett M. Kavanaugh and William J. Haynes—would not be confirmed and would be turned aside either at the committee level or on the floor.
Yes, that was amazingly vague, but at least Hulse noticed an obvious fact; we’d been talking for months about seven nominees, and the text of the deal mentioned five. But according to Nexis, no other American newspaper mentioned Kavanaugh’s name Tuesday morning. (The AP made a fleeting reference—see below.) In particular, the Washington Post made no attempt to explain the difference between 7 and 5.

And yes, the mystery continues. Right to this moment, we have no earthly clue about the fate of the Unmentioned Two. Last night, confusion reigned all over cable about the fate of the Unmentioned Two—and about the fate of Myers and Saad, for that matter. On Special Report, even the all-stars ranted and raged, completely confused by the terms of the deal. But so what? When members of the Gang of 14 have been interviewed on major “news” programs, your millionaire “journalists” have been too dense to ask the obvious questions. Last night, for example, two of the Gang of 14 sat with Gwen Ifill on The NewsHour. Yes, it’s our very brightest news show; everyone knows they have to pretend this. And here you see the one hapless exchange that may have semi-concerned Drum’s obvious question. Ifill was speaking with Lincoln Chaffee, (R-RI), one of the merry band:

IFILL (5/24/05): But Sen. Chafee, why these three particular nominees? I think most Americans don't know the difference between why these three and not others.

CHAFEE: Well, it's a warm-up for the Supreme Court. I mean, I think we all recognize that. I think the two sides are jockeying in anticipation of a vacancy on the Supreme Court which are where all the issues ultimately end up.

We think Ifill’s question was rendered in English, and it vaguely seemed that it might semi-touch on Drum’s completely obvious question. Result? Chafee’s answer was completely unresponsive—and Ifill didn’t come back for more. Ifill staged a full-scale interview with Chafee and fellow gang-banger Ben Nelson. But she never asked about Kavanaugh and Haynes—never asked Drum’s obvious question. To all appearances, it never crossed her mind to inquire about the difference between 7 and 5. To all appearances, she didn’t notice the fact that 2 of the 7 had gone unmentioned in the text of the ballyhooed deal.

Meanwhile, can anyone begin to explain the nature of this ballyhooed agreement? Forget about the Unmentioned Two; can anyone being to explain the status of Myers and Saad? For the past 36 hours, nothing else has been discussed—and no one has the slightest idea what the agreement means. Clearly, Owen, Brown and Pryor will get up-or-down votes; the 7 Dems have agreed not to filibuster in these three cases. But does anybody understand what has been agreed about Myers and Saad? Does anybody know how the status of Myers/Saad differs from that of Kavanaugh/Haynes? In its hapless coverage this morning, the Washington Pots presents this puzzler, penned by reporter Charles Babington:

BABINGTON (5/25/05): The pact specifically promised to drop long-standing Democratic filibusters of Owen and two other appellate nominees strongly opposed by liberals: Janice Rogers Brown of California and William H. Pryor Jr. of Alabama. Their confirmation votes are likely next month, Senate aides said. The agreement said there would be no commitment to allow votes on two other nominees, William G. Myers III and Henry Saad.

Beyond those provisions, however, the agreement is rife with ambiguity and with bipartisan understandings built around mutual trust rather than clear-cut legalisms, a number of senators said.

Beyond those provisions, the agreement is murky? Does anyone know what Babington means when he says “there would be no commitment to allow votes on two other nominees, William G. Myers III and Henry Saad?” We’ll admit it—we don’t have the slightest idea what that murky construction might mean. Later, in his closing paragraph, Babington provided a bit of semi-clarity:
BABINGTON: Senators differed on the likely fate of Myers, an Idahoan. Frist's staff said Senate leaders will seek a vote on the appellate court nominee, presumably triggering a Democratic filibuster that would kill his chances. The filibuster would not violate the two-page agreement, Senate aides said, but it might cause some Americans to wonder why Democrats were using the delaying tactic so soon after the heralded announcement. "The American people are going to be smart enough to realize what's going on here," said Reid spokesman Jim Manley.
This seems to mean that Myers and Saad will be filibustered; the 7 Dems will so proceed, and the 7 Reps won’t respond with the nuclear option. But what’s the agreement on Kavanaugh and Haynes? Babington makes no attempt to say. And, as far as we have seen, no one has bothered to ask.

No, brilliant Ifill didn’t ask. Neither have her broadcasting colleagues, as they chat with the Gang of 14. Moments after the deal was announced, Drum asked the world’s most obvious question. Two days later, his question still hasn’t been answered—and to all appearances, your millionaire “journalists” haven’t bothered to ask. Result? Chaos reigns all over cable as pundits try to decipher this deal. It took Kevin Drum about ten seconds to note the difference between 7 and 5. Last night, Ifill blathered with the Gang of 14, and failed to notice the Difference of 2. Sometimes we simply sit and marvel at the way this strange group does its business.

DON’T ASK, DON’T TELL: On Monday’s extra hour of Hardball (9 PM Eastern), Chris Matthews chatted with Gang of 14 member Lindsey Graham (R-SC). Instantly, Graham offered a pregnant remark—a grabber, a hint of real news:

MATTHEWS (5/23/05): OK. Instead of blowing up the Senate, what`s the deal?

GRAHAM: The deal is that five nominees who have been filibustered will get an up-or-down vote and some will be confirmed and some won`t. The dirty little secret is that there have been some of these nominees that will not get Republican votes. But we got so wrapped around the axle, we could never get to that bottom line. So five people who have been treated pretty poorly are going to be treated better. And we making a commitment, the 14 of us, to go forward, trying to avoid filibusters.

Huh! Graham seemed to say that, as part of the agreement, some of Bush’s nominees will get voted down in one of those famous up-or-down votes. But remember, he was speaking to a consummate halfwit—MSNBC’s Chris Matthews. When Matthews asked a pointless follow-up question, Graham tried to cue him again:
MATTHEWS: If I were President Bush, I`d say, "I have got seven nominees up there on the Hill. Two of them are dead now. You`re only going to consider five. I also am not sure you`re going to actually vote on my Supreme Court nominees down the road because Democrats might say `extraordinary circumstances.` So I could get hurt here."

GRAHAM: Well, President Bush`s nominees, most of them are going to go through. There will be at least one in the group that probably will fail in a bipartisan fashion. But every president faces that.

Wouldn’t anyone with an ounce of sense follow up on Graham’s grabber? But Matthews moved to a typical “cable news” question—a question about “the polling.” He didn’t ask who “will probably fail”—and we’ve seen no one in the mainstream “press corps” mention this comment by Graham since then. For example, did Ifill ask Chafee or Nelson last night? We’re not sure. Does the pope worship Druids?

For the record, Matthews has been in extra-special High Clown Mode for the past two nights. During Monday’s regular, 7 PM hour, he broke off live coverage of The Agreement so he could run extended footage of himself being parodied on Saturday Night Live. (Earlier, he had wasted time showing footage of Warren Beatty mentioning Hardball in a speech.) His interview with Graham came about 90 minutes later; despite the extra time to “think,” he still showed no sign of having noticed the difference between 7 and 5. And when Graham tossed him a “dirty little secret” (two times!), the dumb-as-a-box-of-rocks self-promoter simply stared off into air. Last night’s interviews were especially clownish, as he rattled on and on—and on and on—about nominations he thinks will be made, and about issues that everyone agreed were not central. Go ahead—read the full transcripts from the past two nights, and marvel at the intellectual functioning of your millionaire “press corps.”

WHO IS JANICE ROGERS BROWN: This morning, the Post does run an interesting editorial about Owen/Brown/Pryor—the three nominees who will get confirmed. The editors hope that Brown will go down. They offer this intriguing summary:

WASHINGTON POST EDITORIAL (5/25/05): Justice Brown, meanwhile, is one of the most overtly ideological nominees of either party in many years. In speeches she has openly yearned for the "Lochner era," a period in the early decades of the 20th century during which the Supreme Court invalidated various regulatory actions in the name of a supposed right of free contract. This is one of the most discredited periods of the court's history, a time when the courts wrote libertarian economic theory into the Constitution. And her speeches are not merely playful musings, for Justice Brown's work on the court in California reflects the same nostalgia. For years, Republicans have railed against "judicial activism." If that term has any meaning, it certainly describes Justice Brown's adventurous approach to economic liberties.
Interesting. We’d never heard of the “Lochner era,” and we’d never heard of it for a good reason—we read the Post and the New York Times every day. As we’ve told you again and again, if you want to get occasional information about the day’s main events, you have to turn to these papers’ editorials. According to Nexis, the word “Lochner” has appeared in no other Post discussion of Brown over the past six months, and it has appeared in the Times only once—as part of a 7700-word magazine piece by Jeffrey Rosen, a superlative piece about legal issues raised by these nominations. (Needless to say, Rosen’s lengthy report produced no discussion in the paper’s news pages, or anywhere else in the mainstream press.) As they’ve shown us again in the past few days, your celebrity “news orgs” avoid information the way hypochondriacs flee from the plague. What did Graham mean? They don’t care! What about Kavanaugh and Haynes? They don’t ask! What is Brown’s record? You can go fly your kite! The most obvious questions don’t enter their minds, and their intellectual superiors on the web insist they represent the current state pf perfection. Try to believe—just try to believe—that this is the current state of “the rational animal,” the self-pimping race which has sung its own praises since the very dawn of the west. Try to believe that this represents “the current state of the art in human perfectibility”—and that incomparable observers get soundly scolded for pointing this amazing fact out.

And oh yes—they simply refuse to tell you the facts about the recent history of judicial nominations. For that, sadly, you have to come here. Part 3 of that tale lies below.

EXIT OKRENT—Part 3 tomorrow.

Special report—A passion for up-or-down votes!

PART 3—BLUE CLIPS FOR BLACK GUYS: Yep—George Allen was really starting to feel it on Tuesday morning’s Imus program. After all, you know the passion Republicans feel for those key up-or-down votes! Allen, a GOP senator from Virginia, started to glory-day, yelp and holler as he explained this republic’s inspiring approach to these crucial matters:

ALLEN (5/24/05): I really don’t think that it’s any tough deal to ask a senator to get out of their seat, stand up, show some backbone and spine, get off their haunches and vote yes or vote no on a judicial nomination and then explain to their constituents in their home states why they voted the way they did, and that’s what the senators are supposed to do. There was never any rule of a 60-seat majority, or a 60-vote majority for nomination or confirmation of judges. It was a mere majority. What is trying to be done is to restore the approach that was taken for 214 years of this republic.
It sounded great—but Allen’s memory was failing. In fact, that wasn’t “the approach” “for eight years of this republic” when Bill Clinton sat in the White House, and Allen knows this perfectly well (and he knows that Imus’ listeners don’t). For example, no one “voted yes or no” on Jim Lyons, then explained to their constituents why they voted the way they did (see THE DAILY HOWLER, 5/24/05). And no one voted yes or no on John Tait when he was nominated in Idaho (see THE DAILY HOWLER, 5/23/05). Indeed, when Lyons was denied his up-or-down vote in 1999, the Rocky Mountain News explained the “approach” that actually obtained at the time in this republic. “There were, at last report, 35 nominees slowly turning in the wind at the Senate Judiciary Committee,” the candid paper correctly noted, “and most of them are likely to hang in that position until after the 2000 election. The Republicans hope to win the presidency as well as keep control of the Senate next year, enabling them to install an entirely different slate of judges.” That was the actual approach in this republic, and Allen was misleading Imus’ audience—with the compliance of a cowering press corps, a press corps that hasn’t bothered explaining the facts of our shared recent past. In the past month, Republicans have been free to prate and posture about their passion for up-or-down votes because the wide swath of the mainstream press has let them dissemble this way.

It wasn’t always quite this hard to get information on this topic. Let’s go back to November 1997, for example; how were nominations being handled back then? In Texas, some people were actually told. In the Fort Worth Star-Telegram, Washington bureau chief Ron Hutcheson discussed a local case:

HUTCHESON (11/29/97): Fort Worth lawyer Michael Schattman refuses to go quietly, but his nomination as a federal judge is as dead as the dry fall leaves. Sen. Phil Gramm of Texas killed it with a single check mark on a blue piece of paper.

The Senate is an odd place sometimes, and the story of Schattman's aborted nomination is another example of how the institution's traditions often depart from traditional textbook explanations of how Congress works.

For that matter, “the story of Schattman’s aborted nomination” was also a good example of the way the Senate’s traditions depart from the things George Allen tells voters. In fact, Schattman was another Clinton nominee who never got that up-or-down vote—the vote for which the modern Republican has such an unbridled passion. Instead, Schattman got “blue-slipped” by Texas senator Phil Gramm. Hutcheson explain how that works:
HUTCHESON (continuing directly): In theory, a senator opposed to a nomination would present his complaints at a confirmation hearing. The pros and cons of the nominee would be debated in public and decided by a public vote.

It doesn't always work that way, and it certainly didn't work that way for Schattman. That's because judicial nominees, as well as nominations for U.S. attorneys and federal marshals, flow through the Senate Judiciary Committee.

By tradition, the committee asks both senators from a nominee's home state to approve or reject the president's choice. The committee sends the screening senators a blue sheet of paper listing the nominee. The senator can check one of two boxes: approval or rejection. For all practical purposes, a check in the rejection box dooms the nomination. No other explanation is needed.

The veto power is extended to senators irrespective of their party affiliations.

“The veto power is extended to senators irrespective of their party affiliations,” Hutcheson wrote—describing a procedure then in effect, a procedure abandoned by the GOP when George Bush found his way to the White House. We’ll discuss that in more detail tomorrow, but for today, let’s recall the way Republican senators used “blue slips” to kill up-or-down votes. In the case of Schattman, here’s the way two GOP senators failed to “get out of their seat, stand up, show some backbone and spine, get off their haunches and vote yes or vote no on a judicial nomination:”
HUTCHESON: Gramm, who did not object to Schattman's nomination when it was first submitted in late 1995, filed his negative blue slip early this year. The state's other Republican senator, Kay Bailey Hutchison, joined him in opposing the appointment.

Both senators had hoped to avoid a public fight, which, after all, is what the blue-slip process is all about. Hutchison has steadfastly refused to list her objections to Schattman.

"She remains opposed to the nomination. She doesn't believe it serves any purpose to discuss why Mr. Schattman is not going to be a federal judge," spokesman Eric Ruff explained.

How weird! Everything Allen swears by now was ducked in the case of Schattman! Did Senator Hutchison “explain to constituents in her home state why she voted the way she did,” as Allen described to the rubes Tuesday morning? Hay-yul, no! Instead, the sweet-talking solon deep-sixed Schattman, then blew off Hutcheson’s questions. And yes, that is actually the way this procedure worked as dozens of Clinton nominees were denied their up-or-down vote. Despite Allen’s world-class dissembling, that’s the actual “approach that was taken for 214 years of this republic”—or at least for a significant recent period.

And then, there were those blue slips for black guys. In August 2000, USA Today’s Joan Biskupic looked back on the high rejection rates of Clinton’s minority judicial nominees. “The Senate's most conservative members consistently have played a leading role in blocking minority nominees,” she wrote. “Hatch, Ashcroft and other key Republicans reject any suggestion that race is a factor.” Did black (and brown) guys get their up-or-down votes? Despite the things you hear on Imus, not on this planet, they didn’t. As a matter of fact, in December 2000, just before leaving office, Clinton finally appointed Roger Gregory to be the first black judge on the U.S. Court of Appeals for the Fourth Circuit (Richmond). And guess what? He had to name Gregory to a “recess appointment” because all his Fourth Circuit nominations had been “blue-slipped” for the prior five years! Up-or-down votes had not been forthcoming. Neil Lewis reviewed the play-by-play in the New York Times:

LEWIS (12/28/00): "I have tried for five years to put an African-American on the Fourth Circuit—for five years," Mr. Clinton said as he presented Mr. Gregory before reporters. "I think it is most unfortunate that it has not been done, and I just determined to do it. It's just time to do it."

Elaine Jones, the director of the NAACP Legal Defense and Educational Fund Inc. said Mr. Clinton had been unable to name a black to the Fourth Circuit because "the senior senator from North Carolina, Mr. Helms, has seen to it that the nominations languish." Ms. Jones said that "he has used his blue slip to block all black nominees," a reference to the blue piece of paper used by senators to put a hold on nominations.

Mr. Clinton had previously nominated three other black lawyers to fill the vacancy on the Fourth Circuit, including a sitting federal trial judge.

But then, as Biskupic had reported in August, Clinton’s black and brown nominees had been met with a shower of blue slips. Enrique Morenos? Blue-slipped in Texas (Gramm and Hutchison doing the honors). Jorge Rangel? Blue-slipped there too. Richard Paez? Blue-slipped in Alabama (four years). And then, of course, there was Ronnie White. Eventually, White got his up-or-down vote—but he’d been blue-slipped for several years. In June 1999, Deirdre Shesgreen reviewed the case, then two years old, in the St. Louis Post-Dispatch. It was another inspiring example of the GOP’s passion for those sacred up-or-down votes:
SHESGREEN (6/24/99): Two years ago, President Bill Clinton nominated Ronnie White to be a federal judge in St. Louis.

A Missouri Supreme Court judge, White survived an FBI background check and got a favorable vote from the Senate Judiciary Committee. But he is no closer to the federal bench today than he was in June 1997.

His name is languishing in the Senate along with those of 44 other judicial nominees
who have been caught in a political cross fire between the White House and Republican leaders.

Although the congressional session is more than half over, the committee has held only one hearing, an even slower pace than last year. The panel is scheduled to vote on some nominations today, but White's is not one of them and no other hearings have been scheduled.

"Ronnie White is being held like all the others," said Rep. Bill Clay, D-St. Louis, who suggested White's name to Clinton. White could not be reached for comment.

Later, Ashcroft told the Post-Dispatch that “he did not use the prerogatives of Senate power—blue slips and holds—to stop Judge White last year.” The paper said it took Ashcroft at his word. And who knows—maybe he even was telling the truth! After all, Ashcroft had shown his devotion to up-or-down votes back in 1995. William Freivogel told the inspiring tale in the Post-Dispatch:
FREIVOGEL (6/2/95): Sen. John Ashcroft, R-Mo., killed the expected judicial nomination of a Jefferson City lawyer by complaining to the White House about a 12-year-old legal quarrel he had with the Democratic attorney, a White House official says.

Ashcroft's objection led President Bill Clinton to pass over Alex Bartlett, the 57-year-old Jefferson City lawyer who had once been on the verge of nomination for a federal judgeship in the Western District of Missouri.

The White House official, who asked not to be identified, said administration officials had tried to talk Ashcroft out of his objection.

The administration felt it had to bow to the so-called "negative blue slip" that Ashcroft placed in opposition to Bartlett's nomination. "With a negative blue slip, he's not going to get a hearing," said the official.

Ashcroft, of course, had excellent reasons for denying Bartlett his up-or-down vote. In January 2001, Shesgreen reviewed the matter in the Post-Dispatch:
SHESGREEN (1/11/01): Abner Mikva, who was serving as Clinton's White House counsel when Bartlett was up for the judgeship, said he called Ashcroft to find out why he had objected.

"He said it was a personal thing," recalled Mikva, who is a former judge and now a law professor at the University of Chicago. "I said 'Are you concerned about his qualifications?' And he said 'No, I just don't like him.'"

Oh. Of course, this was Mikva’s account of the matter. A more inspiring general account was obtained years earlier from one of Ashcroft’s top aides. Tim Poor, in the Post-Dispatch:
POOR (11/2/97): In his quest to prevent "judicial activists" from reaching the federal bench, Sen. John Ashcroft isn't just bucking the Democratic White House, but members of his own party as well.

Ashcroft, R-Mo., and a few like-minded colleagues haven't relied on votes and floor debates to achieve their goals, in part because Republican leaders have not permitted them. Instead, those opposing nominations have used arcane procedures that allow a single senator to secretly block action by the judiciary committee or the full Senate.

"We're making business as usual impossible," says Steve Hilton, a spokesman for Ashcroft.

Inspiring stuff! Today, Allen hollers and glory-days about the wonders of up-or-down votes. But your recent history is actually quite different. With so many solons dissembling so grandly, why won’t big newspapers tell it?

In closing, let’s get back to those blue slips for black guys, the ones that Helms, for one, dished out. Did Clinton’s picks get the slip due to race? For ourselves, we wouldn’t assume that. It’s entirely possible that some of these nominees seemed more liberal than some others, the ones who did get votes. But when you hear current pleasing tales about this republic’s great traditions and precedents, you and your neighbors are being deceived. Despite this, your big newspapers have stared into air, and your big cable hosts refuse to confront yelping dissemblers with actual facts. The stories we’ve been presenting this week represent your real recent history. This history is becoming lost, stolen and strayed as Allen yelps and glory-days—and as your big newspapers cower.

TOMORROW: Why don’t Senators Boxer and Feinstein hand Rogers Brown a big blue slip?