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Tuesday, May 03, 2005
As a lawyer, I see plenty of arguments that are unmitigated BS. Not simply wrong, not simply unsupported, but completely vacuous and doomed to fail. This is actually not surprising, when you think about the ethical duties of lawyers. We are required to zealously pursue any non-frivolous position on behalf of our client. And "frivolous" does not mean "frivolous" in the sense used by Republican tort reformers, but an argument that is basically precluded by controlling law. Of course, it really doesn't benefit our clients to make bad arguments in most cases (unless the point is to bury the other side in arguments so that they don't effectively respond to the good arguments), but nonetheless, a predictable result of an ethical standard that allows and even requires us to go right up to the line is that some of those arguments are going to be weak-- some are even, despite the ethical boundary, going to be frivolous. (It should be remembered that lawyers are not often disciplined by the State Bar when they do make frivolous arguments.)

In any event, BS arguments have little effect on the legal system. Juries don't believe them, judges don't buy them, and opposing lawyers often spend more time coming up with ways to ridicule them than they do substantively answering them.

However, BS arguments are also made in politics, and these are a very different matter. Arguments are made that would never stand up in court or under serious scrutiny. Distinctions are drawn between completely analogous practices. Practices that are completely different are conflated. History is misrepresented in obvious ways. Statistics are completely misused, and are sometimes made up out of whole cloth. Politicians take positions that are completely opposite to those taken 2 years ago, or are philosophically inconsistent with those taken 5 minutes ago. Matters are asserted to be "principled" that are based on base political calculation.

Of course, none of this is really surprising. Politicians have been accused of dishonesty for almost as long as there have been polticians. However, for anyone paying attention, hearing the same BS over and over again is infuriating.

A nice example of political BS that has driven me crazy over the last few weeks is the filibuster debate. Over on the left, a former law professor of mine argues that the filibuster is completely constitutional, having argued several years back when the Democrats controlled the Senate that it was completely unconstitutional.

But that's child's play compared to the Republicans. Here is a partial list of their BS arguments:

"The filibuster of judges is unprecedented. No judge with majority support in the Senate has ever been filibustered." Justice Abe Fortas was filibustered when he was nominated for the Chief Justice position. While he never had an on-the-record vote with more than 50 senators voting "aye", they wouldn't have filibustered him if they had been able to get a majority to vote "no" on him. Further, and more elementally, there is no defensible distinction between all of the other techniques of blocking nominees ("holds", "blue slips", etc.) and the filibuster, except that the filibustered nominee at least gets a hearing and a vote.

"The judicial filibuster is unconstitutional. The Constitution requires an 'up or down' vote on a judicial nominee." No, it doesn't. The Constitution provides for the Senate to give "advice and consent". First of all, these would-be constitutional textualists have nothing at all to say about "advice"-- no President consults with the opposing party's Senators before nominating, because these nominations are controlled by interest-group poltics (read: groups that care about abortion). Second, the Senate imposes on itself all sorts of requirements for different sorts of consent-- unanimous consent rules, supermajority rules, things that can be done on the request of one Senator, etc. Nobody in the Republican Party ever thought any of this stuff was unconstitutional before they started getting their judges filibustered.

Also, and relatedly, since when is a cloture vote not an "up or down" vote? Republicans are using this formulation because it apparently polls well, but the Democrats are perfectly willing to allow these judges an "up or down" vote, just one that requires a 60 vote majority.

"The Democrats are religious bigots who are opposing nominees because of their sincerely-held religious beliefs." No, they are opposing nominees who they believe will attempt to force their sincerly-held beliefs on the country, or ignore the Constitution or the law when it conflicts with that. This is not an idle concern-- Judge Priscilla Owen, for instance, is extremely anti-abortion and was willing to ignore the language of the Texas parental consent statute in order to prevent someone from having an abortion.

The Democrats, by the way, may not be correct about their inferences with respect to all of the filibustered nominees. Since being recess-appointed to the Eleventh Circuit, for instance, Judge William Pryor seems to have demonstrated independence and is not blindly following his religious convictions. But there is nothing "bigoted" about refusing to confirm someone who believes, for instance, that natural law based on Catholic theology supersedes the Constitution and laws of the United States. Such a hypothetical candidate would not be able to fulfill his or her oath of office.

"The Democrats want nominees who legislate from the bench." So do the Republicans. There is a legitimate debate about to what extent judges should broadly interpret constitutional provisions. Justice Scalia, famously, favors a rather narrow interpretation (though even he will uphold the "living constitution" in certain instances, as when he has taken the position that drug tests and thermal imaging are "searches" under the Fourth Amendment despite the fact that they did not fall within the original understanding of the term). But while you would never know it from the debates on this subject, so does liberal Justice Ruth Ginsburg. In contrast, Bush nominee Justice Janice Rogers Brown has stated explicitly that she rejects judicial restraint and believes in a broad interpretation of the Constitution to serve a conservative property rights agenda.

The language used by politicians on this subject is a vestige of Roe v. Wade, which was a plausibly "activist" decision. But some of the most important recent debates have concerned such things as the Eleventh Amendment and state sovereignty, where conservatives and not liberals are disregarding the plain language of the Constitution.

I don't know if Bill Frist will try the "nuclear option"-- I suspect he doesn't have the votes to do it-- but I do know that the Republicans have not made a single persuasive argument as to why they should get their judges through. And the clear game here is not to defend these nominees on the merits. Having a bad argument on the merits, of course, is often the impetus for making BS arguments, in both the law and politics.

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