May 18, 2005


The Filibuster — It’s over

The Republicans have the votes to prevail, if necessary, in a “constitutional option” showdown. The only question is whether Democrats will insist on a showdown. Right now, the odds are about 50-50 that Senators can avert a face-off by (a) agreeing to restore the status quo ante, in which Senators by tradition agreed never to filibuster judicial nominees, (b) Democrats deciding not to filibuster any of the seven pending Bush-administration nominees, saving a filibuster for other nominations or Supreme Court vacancies or (c) having both sides strike a deal in which Republicans withhold use of the constitutional option and therefore take no official position on whether the filibuster is an appropriate political weapon against judicial nominees in exchange for a Democratic promise not to filibuster judges during the remainder of this Congress.

The Donald Enters the Picture

Donald Trump called into the show today, promoting his latest cause. He wants New York to rebuild the World Trade Center Towers, slightly taller than before and a whole lot stronger. He was stunned to find 500 reporters waiting for him outside the Fifth Avenue entrance of Trump Tower, where he announced his plan. He says he has “never seen anything like it” in his long history of making news and generating media interest. New York police recently put the kibosh on a “Freedom Tower” proposal that not only was horrendously ugly, but also was impossibly insecure from a security and structural-integrity standpoint. The withdrawal of the project has become a horrible political embarrassment for New York Mayor Michael Bloomberg and New York Gov. George Pataki, both of who supported the previous monstrosity – with the result that today, nearly four years after the September 11th strikes, ground zero remains a pit. Trump says construction on new towers could begin within 18 months and adds that he would be happy to get involved, but figures the powers that be “have had enough of me for now.” Maybe so: But he’s the right guy to move the project, and this is the right project to advance.

Finally, here are three of my favorite e-mails of the day, and my replies:


I caught your interview with Senator Mitch McConnell this morning on my way to work. I am a democrat who listens to you frequently, finding that you bring more balance to conservative radio than the vast majority of your colleagues. Today's show destroyed my perception of that balance.

After the break with Sen. McConnell, you indicated that only one Clinton nominee failed to receive an up/down vote on the senate floor. While that may be true *of the nominees who made it out of committee*, it is flatly false of the nearly 60 nominees who failed to make it that far. You know this. As a Washington insider, you know intimately of Orrin Hatch's abusive and partisan manipulation of the judiciary committee rules to make committee-level "holds" fairly simple for Clinton nominees and almost impossible for Bush nominees. And yet you discuss the treatment of Clinton nominees with acute selective perception. Your behavior in this regard is contrary to the principles of democracy and reveals a shameful intellectual dishonesty.

Perhaps you fail to discuss this information with your listeners because you have a relativistic view of "fairness". Or perhaps you fear that your audience isn't capable of grasping nuance. Or, then, perhaps you view this conflict as one where the ends justify the means, truth be damned.

The more "news" I read and the more commentary I hear, the more I'm convinced that I would need to commit my days and nights to primary research if I want to approach anything resembling truth. What an untenable situation for a working American; what a miserable state. People trust you to deliver the whole story, including the facts that may undermine your position. When you cripple your opponent’s position by refusing to acknowledge their most compelling points, arguing against that disfigured position is a child's game. I have heard enough from you to appreciate your capabilities. You are compelling.

Now be compelling against the full weight of your opponent’s claims. Arguing against straw men is a silly charade and it's harmful to public debate.


(Name withheld at my discretion)
Seattle, Washington

Dear (Name withheld),

Thanks for the note. As to your central criticism, you ‘misunderestimate’ me. I have gone through these arguments many times before on the air, but I'll be happy to rehearse them for you, especially since you had such kind things to say about the show.

The practice of holding up nominees is, alas, old and tried for both parties. When Bill Clinton left office, the Senate had not acted on 41 of his nominees for the federal bench. Of these, nine had been submitted so late that the FBI had not completed background checks. Others were subject to holds and blue slips. A few were quietly permitted to languish because of bad background reports, and the remainder were the victims of partisan politics, courtesy of Orrin Hatch. The "60" figure knocked around is inaccurate. Of the 41 left in limbo, 17 were appointees to the Circuit Court of Appeals, the level just below Supreme Court.

Now, for perspective: When George HW Bush left office, the Senate Judiciary Committee left 54 district and circuit nominations pending. This includes nine circuit appointees. Of these, about a dozen (Democratic staffers don't have precise figures, so these are ballpark) had been appointed late, some too late to complete the FBI full-field investigations. Others were subject to holds and blue slips. To the best of my knowledge, none ran into the "bad background" category. Either way, Democrats practiced precisely what they are complaining about in Hatch's case, and in slightly higher numbers. You also should know that Bill Clinton renominated a couple of Bush appointees to the district court. George W. Bush renominated two of Clinton's nominees to the circuit court (the higher of the two courts).

Let me repeat what I have said many times on the air: I consider this foot-dragging scummy, and think judges from both parties deserve their day in the court of public opinion. Patrick Leahy and I discussed the matter on the air yesterday. It also explains why I like Bill Frist's proposal: He would make it impossible to bottle up judges in Judiciary. Once the full-field investigation was through, the nominees would be eligible for a vote — and would get one during the president's term in office. In addition, it would standardize past practice: No filibusters. (I distinguish between an announced filibuster designed to prevent a vote, and a cloture vote, which is a device for cutting off debate. No cloture vote ever failed before 2003 — and, as you know, President Johnson withdrew the nomination of Abe Fortas as chief justice not because of Republican filibuster talk, but because Democrats informed him that Fortas didn't have the votes to pass, and begged him to pull the nomination.)

Now, to complete the analysis: Republicans didn't filibuster any Clinton judges. The Senate rejected Ronnie White of Missouri (I think the vote was 52-48) for a circuit court appointment. All others were approved — a couple, after cloture votes. Democrats in effect have killed three Bush nominees already through inaction and political attack. They have demanded at least three more heads — including Priscilla Owen and Janice Rogers Brown — and have targeted several more now pending in Judiciary. This is without precedent. You can look it up.

In any event, I didn't recite this entire litany today because I have done so twice this week already, and fitted most of the information into my interview yesterday with Leahy. I'm sorry you missed it. The finicky journalist in me refused to say Clinton had gotten votes on each and every circuit court nominee, which is why I tossed in the somewhat odd qualifier, "sort of" in making the point. I obviously knew about the foot-dragging in Judiciary. Now, you know what both sides know: Hatch wasn't the first to practice the trick — and unless something changes soon, he won't be the last.


Tony Snow

And this:


You have become a mean and ugly since you have been back and all the women in the beauty shop that I own want you off and today I said okay.
Good-bye Tony, hello music.

(Name also withheld at the host’s discretion).

Dear (Name withheld),

Thanks for the e-mail. I am terribly sorry to hear that I have lost listeners, especially since I do my best not to be ugly and mean. Let me know where you think I'm going wrong: I'm not interested in becoming another ranter; instead, I'm looking for ways to have fun with politics, invite people from all political persuasions (which is why I had Patrick Leahy on yesterday), and make the show as user-friendly as possible.

Believe it or not, I read all e-mails, and take criticism seriously. After all, that's the only way to get better.

Again, thanks. I hope I can earn my way back into your good graces (and that of the other women in the beauty shop).


Tony Snow

And finally this, from faithful listener, Dr. Thomas Schear:


You are so interesting today, as always. Could you be boring about 10 minutes each morning so I can take my dog for a walk?


No. The dog can wait.



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