May 27, 2005
Judicial Filibuster: Post Mortem
MP is admittedly still playing catch up, but the explosion of polling on judicial nominees deserves a bit of a follow-up. Viewed side-by-side, the various public polls offered approaches and questions that were as widely divergent as the results. However, they did paint a consistent picture: The majority of Americans were not engaged in the debate and did not have clear, previously formed opinions on the specific conflict. Looking forward, the results also tell us about the underlying attitudes that may ultimately influence debates over the use of the filibuster for future judicial nominations.
The various surveys were very consistent in one sense: The showed most Americans paying little attention to the "nuclear option" debate. Four national polls released in the last two weeks all asked about how closely Americans were following the debate using nearly identical answer categories. Although the questions showed minor variation, all four found few voters paying "very close" attention and majorities saying they followed the debate "not too closely" or "not at all:"
- CBS - May 22-24: How closely would you say you have been following the debate about the filibuster in the Senate -- very closely, somewhat closely, not very closely, or not at all closely? 10% very, 24% somewhat - 66% not very/not at all closely
- Gallup($) - May 20-22: How closely have you been following the news about the use of the filibuster on judicial nominations in the U.S. Senate -- very closely, somewhat closely, not too closely, or not at all? 17% very, 26% somewhat - 57% not too, not at all closely
- Washington Post-ABC - May 18-22 How closely have you been following news about the debate in the U.S. Senate over filibuster rules involving the confirmation of federal judges - very closely, somewhat closely, not too closely or not closely at all? 16% very, 31% somewhat - 53% not too/not at all closely
- Pew - May 11-16: How closely did you follow news about the debate over changing Senate rules to stop the Democrats from using the filibuster against some of President Bush's judicial nominees--very closely, fairly closely, not too closely, or not at all closely? 14% very, 20% fairly, 65% fairly/not at all closely
The CBS poll took this a step further, showing that roughly half of Americans are unsure of what "filibuster" means. When they asked respondents to say in their own words, "what the term filibuster means to you," only 37% "accurately defined it as involving an extended debate or as a procedural move to delay a vote." Another 13% either expressed some awareness that a filibuster involves political speech. Nearly half (46%) could not answer the question at all.
These questions demonstrate the point I made a month ago:
The underlying issue is both complex and remote. Few Americans are well informed about the procedures and rules of the Senate, and few have been following the issue closely...So true "public opinion" with respect to judicial filibusters is largely unformed. When we present questions about judicial nominees in the context of a survey interview, many respondents will form an opinion on the spot. Results will thus be very sensitive to question wording. No single question will capture the whole story, yet every question inevitably "frames" the issue to some degree [emphasis added].
The various pollsters clearly had this challenge in mind when they designed their surveys. Although their questions and results varied widely, their findings reveal some conflicting attitudes at work below the surface. On the one hand, large majorities preferred that the Senate be assertive in its role of scrutinizing judicial appointments, that bi-partisan approval is preferable to narrow party-line votes and that the minority "should be able to block some judges they feel strongly about."
- 74% prefer that "both parties in the Senate should have to agree that a person should be a judge, even if that takes a long time" rather than "whichever party has the most Senators should get to decide whether a person should be a judge, even if the other party disagrees" (17% - CBS).
- 63% believe that confirmation of Federal judges should require "a larger majority of 60 votes" rather than "a majority of 51 votes" (CBS).
- 62% agree that "the minority party ought to be able to block some of the judges they feel strongly about because judges are appointed to the federal courts for life terms" (and 30% disagree - Pew)
- 78% would rather the Senate "take an assertive role in examining each nominee" rather than "give the president's judicial nominees the benefit of the doubt and approve them without a lot of scrutiny" (18% - AP-IPSOS)
- 56% prefer that "the Senate make its own decision about the fitness of each nominee to serve," rather than "generally confirm[ing] the president's judicial nominees as long as they are honest and competent" (34% - NBC/WSJ).
On the other hand, in at least one instance, a majority of Americans also agreed with the Republican argument that Bush should be able to win confirmation of a nominee supported by a majority of the Senators. Specifically, the Pew Research Center found that 53% agree that "the Republicans won the last election so President Bush should be able to appoint anyone he wants to the federal courts if a majority of Senators agree" (43% disagreed). The Pew report noted that 31% of their sample agreed with both the Democratic argument (that Senate minorities "ought to be able to block" some nominees) and the Republican argument (that Bush should be able to appoint those supported by a majority).
Thus, not surprisingly, when polls showed widely divergent findings when they tried to put it all together and ask for opinions about the "filibuster" controversy. While the results that follow are all over the map, several patterns seem evident. First, when pollsters offer more information about the filibuster debate in their question, the percentage that cannot answer tends to be lower. Second, most of the "informed" questions show more support for the idea of preserving the filibuster than ending it. However, in reading these results, we need to keep in mind that they tell us much less about the pre-existing positions of the respondents than about they way respondents react to the information carried by the questions themselves:
CBS (May 22-24): Do you think filibusters are mostly good because they allow the minority party in the Senate to express its views and even block legislation or nominees, or do you think filibusters are mostly bad, because they can obstruct the proposals of the majority party in the Senate? 34% mostly good, 34% mostly bad, 3% varies, 29% not sure/don't know
Qunnipiac (May 18-23)- As you may know, a filibuster can be used to prevent a vote on judicial nominations in the Senate. Which comes closer to your point of view? A) The filibuster should be used to keep unfit judges off the bench. or B) The filibuster should not be used, because nominees deserve a vote by the full Senate. 55% used, 36% not used
Washington Post-ABC (May 18-22) As you may know, the president nominates federal judges and the Senate votes whether to confirm them. A Senate rule called a filibuster allows a minority of senators to block a final vote on a judicial appointment even if a majority of senators supports the nominee. (Republicans want to eliminate the filibuster rule for judges, saying it's unfair that a minority can block a vote by the full Senate.) (Democrats want to keep the filibuster rule for judges, saying the minority needs a way to block nominees that they strongly oppose.) What about you: Do you prefer to (eliminate) the filibuster rule, or to (keep) the filibuster rule for judicial nominees? 43% eliminate filibuster, 40% keep filibuster, 17% not sure
Gallup($) (May 20-22): As you may know, President Bush has nominated some people as federal judges who have not yet been confirmed by the Senate. The Democrats in the Senate have used a filibuster to prevent those nominees from being confirmed. In response, the Republicans in the Senate are trying to change the rules to prevent the use of filibusters on judicial nominations so that all are subject to an up-or-down vote. Which comes closest to your view -- [ROTATED:] you want to see the filibuster rule preserved and you do not want those judicial nominees confirmed, you want to see the filibuster rule preserved, but you would like to see the Senate have an up-or-down vote on those nominees, or you want to see the filibuster rules changed so that those judicial nominees are subject to an up-or-down vote? 19% preserve filibuster do not vote, 34% preserve filibuster but vote, 35% change rules, 12% unsure.
Pew (May 11-16) Do you favor or oppose changing the rules of the Senate to stop the use of filibusters against judicial nominees? 28% favor, 37% oppose, 35% don't know.
Time/SRBI (May 10-12): Some Republicans in the Senate want to eliminate the ability of Democrats to use the filibuster, or extended debate, to block the Senate from voting on some of President Bush's judicial nominees. Do you think the Republicans should or should not be able to eliminate the filibuster in this case? 28% should, 59% should not, 14% unsure
Of course, the compromise agreed to earlier this week makes much of this moot, at least for now. But various commentators -- Rutgers professor Ross K. Baker, Mickey Kaus and others -- argue that the deal effectively "kicks the can down the road," delaying the fight over the filibuster until some future Supreme Court nomination. What do these results tell us about the role public opinion might play in some future fight over ending the filibuster?
This may be the "Democratic pollster" in me talking, but a delay in the narrow debate over whether to end the judicial filibuster tends to serve the Democratic position. Two reasons: First, a higher profile debate over a Supreme Court nomination might better engage public opinion, especially on the notion of giving minority parties the ability to scrutinize and block appointments they feel strongly about. Second, by agreeing to confirm more controversial nominees this time, the compromise weakens the Republican argument that Democrats have unfairly blocked their nominees.
Of course, as Kaus points out, if Bush nominates Owen, Brown or Pryor to the Supreme Court, all bets are off.
[6/2 - corrected references to Washington Post-ABC polls]
On that last point: Might that depend in part on the extent to which the Democrats defeat the Republicans in the fight to frame the issue? In other words, for public opinion to solidify along the lines that you describe, wouldn't the public debate need to end up looking something like the pollsters' questions?
Posted by: Paul Brewer | May 28, 2005 10:42:33 AM
Paul, might depend? :-)
I would say that 90% of any political battle depends on how an issue gets framed. They say politics is war by other means, and choosing favorable terrain is a big part of military strategy.
Here is how I expect the battle to play out. The Democrats will want to keep the focus on the process-- that they have a right to block the nominee if they feel strongly about it, that this right has always existed, and that it is healthy to have checks and balances.
If the Republicans choose to, or are forced to, engage those arguments (saying there is no such right to block judges who have majority support, that denying judgeships over political philosophy is unprecedented, and that needing a Senate majority is a check and balance already, and that the people elected a Republican majority for a reason) then the battle will be on the Democrats' turf and they will likely prevail.
If, however, the focus is on the nominee, what his or her record is, what his qualifications are, his life story, about if it is fair to deny this person a vote, and the debate is personalized, then the battle will be on the Republicans' turf and they will likely prevail.
I think this is why Mark and Mickey Kaus are incorrect in thinking it worked to the Democrats' advantage to kick the can down the road. When the battle was over Circuit Court judges, it was easy to keep the focus on the process, because Americans simply were not going to take the time to get to know the nominees-- there are too many, and they are not for the top court. For the Supreme Court, however, it is very likely that Americans will take the time to get to know the nominee. There will be profiles in papers, in news magazines, in People magazine, on TV. It won't be automatic that the debate will be personalized, and it won't be automatic that the public will embrace the nominee once it is personalized (they turned cold on Bork), but the odds are favorable in that direction.
Posted by: Gerry | Jun 1, 2005 6:49:30 AM
Gerry--kicking the can down the road was good for the Democrats simply because if they refused to compromise, Frist very likely had the votes to implement the nuclear option. This way, at the very least, the Democrats get to block two judges, and there is always the chance that something will happen before the next *balance-of-power-on-the-Court-shifting* Supreme Court vacancy turns up (replacing Renhquist won't shift the balance). For example, the Deocorats might gain seats in the 2006 election--or even before that, a Republican senator from a state controlled by a Democratic governor might die....
Of course the converse could also happen--the Republicans could gain a seat or two-- but once Frist had established the precedent that 50 votes plus Cheney could break a tie, it would be hopeless for the Demcorats to try to block any plausible Bush nomineee no matter what happened. (Even GOP senators who had originally opposed the option would treat it as a precedent once it had been sucessfully invoked.)
That is why the only real options for the Democrats were either to reach the compromise they did or else to simply deliberately not get the votes for cloture (without cloture, there could be no precedent-setting ruling on the nuclear option). Either way they would be kicking the can down the road but at least this way they get to (a) defeat two nominations and (b) more important, get the Republican base angry with the Republican leadership over the alleged "sell-out"...
Posted by: David T | Jun 1, 2005 9:54:06 PM
You make some good points, David. However...
"This way, at the very least, the Democrats get to block two judges"
They get to block two judges for the time being, until the deal falls apart. Two judges who likely would not have come up for a vote before then anyway.
Posted by: Gerry | Jun 1, 2005 10:10:04 PM
As Duke Professor of Law Erwin Chemerinsky said on the Hugh Hewitt radio program: We will never know if Frist had the votes.
The deal is evidence to me that neither side knew how the vote would come down. This made the deal more palatable to people like DeWine and Graham. McCain was always looking for a deal because he certainly didn't want to vote on the Constitutional Option. Many conservatives hold the filibuster near and dear. In fact, The Hill reported that internal Republican polling showed that support among Republicans for the Constitutional Option was weak. That tells me Frist probably didn't have the votes, and a good number of Republican Senators are happy they didn't have to pick a side on the record.
Who wanted to be on the losing side of that vote? If Frist didn't pull it off, then he and the Republicans look terrible. If Reid couldn't successfully block it, then he would be stuck leading the Democrats down the road of petty procedural obstruction as he threatened to do.
That's why I think the deal was a brilliant political move for the Republicans. Sure, the can was kicked down the road; however, 3 of the most right-wing judges that the Democrats have spent 4 years villifying will soon be on the bench in exchange for a couple of no-names.
The deal will break down eventually and we will be at a stalemate once again. However, having approved the three most conservative judges possible (if you believe the Democratic rhetoric), the Republicans have taken some ground, while losing relatively little (especially with their own constituents - forget the screaching from the talking heads in the blogosphere for a moment).
Posted by: Rick Brady | Jun 2, 2005 12:12:43 PM
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