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   Twenty years after the fall of the Berlin Wall, Gnter Grass still thinks reunification was a bad idea.
 Forty years of writing from Taylor Branch, James Fallows, Katherine Boo, Marjorie Williams, Joshua Micah Marshall, and more.
 With help from Washington, the for-profit college industry is loading up millions of low-income students with debt they'll never pay off.
 The best recent memoir from republican Washington is a hoax. That should tell you something.
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December 8, 2008
A 'HUGE' JUDICIAL OPPORTUNITY.... The results hardly ever generate any attention, but George W. Bush's impact on the federal judiciary has been fairly dramatic. The Washington Post's R. Jeffrey Smith had a front-page item today on the nation's federal appellate courts, where Bush's "appointees and their liberal counterparts are waging often-bitter ideological battles." When Bush took office, seven of the 13 appellate courts had Republican-appointed majorities. Now, that number has increased to 10, with two more where Democratic appointees and GOP appointees are equal. Most importantly, in some circuits, if a randomly-selected three-judge panel includes two or more judges from a Democratic administration, Republican judges will insist that the entire appellate court hear the case (en banc) to ensure a conservative outcome. As one Democratic-appointed judge on the 6th Circuit noted, "Anytime two of us show up on a panel and they don't like it, they yank it." With this in mind, Barack Obama has a unique opportunity to reshape the legal landscape.
Senate Republicans are no doubt aware of this, and will almost certainly rely on every obstructionist tactic they can think of -- and maybe even make up some new ones -- to prevent/delay Obama's judicial nominees. Sen. Jon Kyl of Arizona, the second highest ranking Republican in the chamber, has already publicly vowed to mount judicial filibusters, and his GOP colleagues are on the same page. Remember when Republican senators hyperventilated about "up or down" votes on judges? They don't. Comments
"Most importantly, in some circuits, if a randomly-selected three-judge panel includes two or more judges from a Democratic administration, Republican judges will insist that the entire appellate court hear the case (en banc) to ensure a conservative outcome." Ah, so that's what judicial activism looks like. Posted by: Stacy6 on December 8, 2008 at 11:08 AM | PERMALINKI really hope we dont see bipartisan compromise on this stuff. Im not sure of obama's exact judicial philosophy but i doubt he is a scalian textualist or an originalist. Posted by: TGP on December 8, 2008 at 11:09 AM | PERMALINKIt's worth noting that Obama taught Constitutional law at the University of Chicago from 1992-2004. So, it's a good guess that, at the very least, the judges that he nominates will respect the Constitution. Although, credit given where due, the judge in Kitzmiller v. Dover Area School District- aka the Scopes Panda Trial, where Intelligent Design was rejected as a clear injection of religion into the public schools- was decided by the Hon. John E. Jones III, who was appointed by GWB. -Z Posted by: Zorro on December 8, 2008 at 11:30 AM | PERMALINKScalia is not an originalist or constructionist. If you look you will see there is nothing on corporations in the constitution and at the time corporations existed. If Scalia were an originalist he would toss out any appeal by a company. The reason being that the company does not have standing. Scalia is fake. Posted by: SGeorge on December 8, 2008 at 11:32 AM | PERMALINKIt's time for the Dems to actually show some spine (I know, I know) and force to Repubs to actually fillibuster. Posted by: martin on December 8, 2008 at 11:37 AM | PERMALINKI doubt they could pull it off. They'd need Snowe and her echo from Maine to play along, as well Lugar and Grassley and a couple others who are probably tired of rubber-stamping teh crazy, including Arlen Specter, who apparently is running for re-election (?). And McCain, I suspect, will be wanting to polish his reasonable moderate credentials with his friends in the "Georgetown cocktail circuit", as I think he put it for that five minutes it was convenient. Posted by: Jim on December 8, 2008 at 11:46 AM | PERMALINKThe most vulnerable GOPers are Voinovich and Specter, plus Martinez is retiring. Possibly Voino as well. Burr of NC may also be vulnerable to appeals from Obama to his supporters. Snowe is probably not vulnerable, but might vote for reasonable justices. There are plenty of those around for Obama to pick, at least until we get to 60. McCain is kind of a wild card here. He was in the Gang of 14, but do we really know how his health is? He seemed pretty erratic at times in the campaign. His successor would obviously be a GOP follower, though. Here's where Obama's ability to rally the public will matter. Posted by: Mimikatz on December 8, 2008 at 11:49 AM | PERMALINKThis Republican talk of filibusters is just laughable. It's one thing to hold together 41 out of 49 Republican senators to defend the positions of a Republican president. It's fantastically harder to hold together 41 out of 42 (or maybe even 41) to defy the will of a very popular Democratic president. Snowe, Collins, Specter, Voinovich, Lugar are going to be easy targets for persuasion. You really think they can get 41 votes to filibuster against highly-qualified centrist Democratic nominees to appeals courts ? It's Put Grassley on that list as well. There are going to be important things for the GOP to try to stymie, like health care, stimulus etc., to keep the Dems from appearing too successful and competent. McConnell is weakened and won't get his troops to block everything, not if they want to survive. It should be interesting. Posted by: Mimikatz on December 8, 2008 at 11:53 AM | PERMALINKTime to remind the republicans of the of "nuclear option" Either that or, bring them to a remote island and actually show them what the nuclear option is. Posted by: wbn on December 8, 2008 at 11:55 AM | PERMALINKWe need to stop pretending that the magic number is 40. It's not. It's 60. There are few times when all 100 senators are present, and if you have a Kennedy, Byrd, or Tim Johnson who is unavailable for long periods of time, it becomes easier to prevent the 60 votes needed to kill a filibuster. I would strongly urge Dems to change the rule, such that 40 is the magic number, since senators who are absent don't care whether debate is continued or not. But right now, it's not. Posted by: Danp on December 8, 2008 at 12:04 PM | PERMALINKI find all the GOP talk of filibustering these days a lot of hot air. It's easy to filibuster successfully when you have 49 seats and a President of your party, no matter how unpopular, backing you up. But when you have barely 40 seats, a bunch of Senators up for reelection in 2010 who are scared of losing their seats and a very popular President of the opposing party against you, filibustering becomes very difficult. Frankly, despite Kyl's belligerence, the GOP's going to crack pretty easily on filibusters. (Kyl's an idiot, so I wouldn't take the clown seriously.) I agree, McCain is something of a wildcard. But after his disgrace of a Presidential campaign, I believe he's going to try and repair his "maverick" image as he looks toward his legacy. So he could prove very useful to Obama and the Senate Dems in breaking any GOP roadblocks. Posted by: gf120581 on December 8, 2008 at 12:09 PM | PERMALINKA fascinating subject. I would love to see a rundown of all 13 appellate courts- party breakdown, which districts have special importance for certain types of cases... Anyone have a good link? Posted by: Tim H on December 8, 2008 at 1:22 PM | PERMALINKKill the nuclear option, then insist on REAL filibusters. Think long term. We'll need this filibuster in 20-40 years when the GOP gets it's act together. Posted by: toowearyforoutrage on December 8, 2008 at 3:06 PM | PERMALINKThis is one of the most important issues facing our democracy today. Pat Roberson's and Liberty University "Law" school's main mission is to take control of the judiciary across the country. Bush made a massive effort to get as many republican conservatives installed as he could possibly get away with. This is the wingtard's area to promote their religious goals forcing prayer and creationism into the educational system for a start. Why dems allowed this to happen is beyond me but they did. Now Boehner and co have made up their minds to protest every single democratic appointment to the judiciary no matter the qualifications. Further evidence that bipartisanship is ridiculous with republicans for you're only bipartisan if you agree with them totally. This should be a primary focus of Obama's administration...taking back our DoJ and the Judicial department...in other words, denazifying our government. Posted by: bjobotts on December 8, 2008 at 4:23 PM | PERMALINKBoner's got nuthin' to do with judicial appointments. It's all in the Senate. Posted by: Chas W on December 8, 2008 at 9:20 PM | PERMALINKYeah, they also don't remember the nuclear option. Perhaps they should be reminded. Posted by: Paul Camp on December 8, 2008 at 9:30 PM | PERMALINKPost Jobs on India's No.1 jobsite
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