I guess we can add Sidney Blumenthal to the ever-growing roster of Power Line readers. He took offense at a post we did yesterday that consisted of an email exchange between one of our readers and Blumenthal, to which I added some commentary. At the risk of boring those who remember the original post, I will reproduce it here to give context to Mr. Blumenthal's response:

Former Clinton apparatchik Sidney Blumenthal is better known by the well-earned moniker of Sid Vicious. He now plies his trade in the pages of Britain's far-left Guardian. Sid Vicious addressed the filibuster with his usual subtlety in his May 26 column: "Bush's war comes home." The Guardian subhead reads, "His dream of dominating every government institution in tatters, the US president is already plotting his revenge." Blumenthal even goes so far as to peddle the image of Robert Byrd as a cornpone constitutionalist:

Over the weekend, two elders, Senator Robert Byrd, Democrat of West Virginia, and Senator John Warner, Republican of Virginia, pored over the federalist papers, written by the constitutional framers, to refresh their thinking about the inviolability of the Senate.

I'm getting all misty-eyed, but I don't buy it. Maybe I'm more cynical than Sid Vicious, but I can't find a blessed word in the Federalist Papers that supports the filibuster or the Great Compromise wrought by the cornpone constitutionalist and his soulmate. (Check out this Free Republic thread for more.)

Attorney James Green forwarded us his correspondence with Sid Vicious concerning the column. Green wrote:

I humbly suggest that your facts are quite wrong when you say: "Frist, like most Republicans in favour of the nuclear option, had enthusiastically filibustered against Clinton's court nominees, 65 of which were blocked from 1995-2000." I do not recall how many of Clinton's nominees were bottled up in committee or blue slipped, but I am quite confident that none of them were filibustered. As far as I can tell from my media viewing, no one (other than yourself) suggests otherwise. While a principled case can be made that either way the President's nominations are stifled, it is simply incorrect to say Clinton's nominees were flibustered. Why are you saying this?

Vicious tersely responded:

Frist filibustered Richard Paez.

Well, that's one, but we're not up to the two or more implied by "Clinton's court nominees," let alone the 65 to whom Sid Vicious refers. However, there Vicious stopped. Green wrote back:

I appreciate you responding to my message. I went back to look up the Paez situation but I submit that the statement made in your colunm is still very wrong. On March 8, 2000, Frist was one of 14 senators to vote against a successful cloture. Accordingly, the most that can be said is that Frist voted unsuccessfully to initiate a filibuster, but there was no filibuster. While this may be evidence of Frist's hypocrisy, it does not make your statement true that Clinton nominees (one or more) were in fact filubustered. Additionally, if that is the only example you have, it is also quite untrue to say that "most Republicans who favor the nuclear option" also filibustered Clinton nominees as the 14 Republican senators who voted against the Paez cloture does not get you to "most" of the 50 or so Republicans who now support the nuclear option. I would appreciate hearing your further thoughts. I am not a blogger but rather just a bored lawyer who pays attention to political events. While I am a conservative, I am certainly not above admitting that I am wrong. However, I think that you are quite wrong here and hope that you will not leave our British friends (even those far on the Left) with the wrong impression.

Green observes that, at least insofar as his email exchange goes, Vicious has "understandably fallen silent."

JOHN adds: Sid Vicious' claim that "most Republicans in favour of the nuclear option, had enthusiastically filibustered against Clinton's court nominees, 65 of which were blocked from 1995-2000" isn't just misleading, it's an outright falsehood. The best instance he can come up with for a single example in support of his claim is that of Richard Paez. But while Paez's nomination was admittedly bottled up while the Republicans were in the majority in the Senate, it was not filibustered; the only cloture vote passed easily. On the merits, however, Paez was confirmed by a vote of only 59 to 39, with two Republicans not voting. Which means that the Republicans could have fiilibustered Paez if they had chosen to, but didn't.

It's probably fair to say that no one in the United States takes Sid Blumenthal seriously, but isn't there something contemptible about his publishing this kind of falsehood about his country's government in a foreign newspaper, for a foreign audience that probably has no idea how unreliable he is?

Posted by Scott at 08:11 PM

Earlier today, Blumenthal sent us this email:

I appreciate your attention to my column and the questions raised about President Bush's judicial nomination in the light of the treatment of President Clinton's nominations.

Rather than indulging in vituperative name-calling (Power Line: Close enough for Vicious Work), I would hope that you would bring to your interested readers' attention this statement by Senator Diane Feinstein of California on the subject, provide a link and publish lengthy relevant excerpts. The facts of the matter ought to be the basis for debate, not vilification.

Statement of Senator Dianne Feinstein - Judicial Nominations

Sincerely,

Sidney Blumenthal

Let's pause for just a moment on the "vituperative name-calling," then move on to the merits. This is how Blumenthal began his Guardian column on the filibuster:

President Bush's drive for absolute power has momentarily stalled. In a single coup, he planned to take over all the institutions of government. By crushing the traditions of the Senate he would pack the courts, especially the supreme court, with lockstep ideologues. Sheer force would prevail. But just as his blitzkrieg reached the outskirts of his objective, he was struck by a mutiny.

Talk about vituperation! We are amateurs compared to Blumenthal. For a short course on why Sid is widely known as Sid Vicious, check out this Slate piece by Michael Isikoff, titled, "Insidious Sid: Sid Blumenthal rearranges facts and besmirches the character of his fellow journalists. And he wonders why people dislike him."

On to the merits. When we left off, our reader had pointed out that Blumenthal had offered only the example of Richard Paez, which was insufficient to support his claim that "most Republicans" filibustered "Clinton's court nominees, 65 of which were blocked..." Blumenthal's email makes no response to this obviously vital point. Our reader went on to point out that even Richard Paez was not fiilibustered by the Republicans; I added that based on the roll call, the Republicans evidently could have filibustered Paez, but chose not to do so. Blumenthal's email makes no response to these points.

Instead, he simply refers us to a political speech by Dianne Feinstein that sums up the Democratic Party's talking points on the issue. Feinstein argues that any nominee who doesn't receive a vote is "filibustered," and therefore, the Republicans "filibustered" various Clinton nominees. This is simply wrong.

There are various ways in which a President's nominees can be blocked. Most commonly, the Senate majority can bottle them up in committee. This happened to a number of Clinton's nominees, just as it happened to some of President Reagan's, the first President Bush's, and George W. Bush's during the time the Democrats controlled the Senate. Bottling up nominees in this way may or may not be a good thing, but it isn't a filibuster.

There is also a tradition in the Senate that federal judicial nominees are vetted by the Senators from the state where the judges will sit. If a Senator disapproves of a nominee or potential nominee, he has historically had the privilege of "blue slipping" that nominee. Again, you may or may not approve of this Senate tradition--I don't--but it is not a filibuster.

Finally, the Senate's rules allow even a single Senator to block action on the floor for some period of time. Again, whether you like this rule or not--I don't--it isn't a filibuster.

Dianne Feinstein misrepresents the facts by conflating all of the above rules and practices under the rubric of "filibuster." This is wrong: a filibuster occurs when a bill or nominee has passed to the Senate floor, and a minority of Senators, numbering 41 or more since the rule was last amended in the late 1960s, refuses to permit cloture so as to allow a vote on the bill or the nominee to go forward. Feinstein offers not a single example where any judicial nominee of Bill Clinton's was ever filibustered, contrary to Blumenthal's extravagant claim.

If you doubt that I have correctly described the universal use of the term "filibuster," ask yourself this question: Isn't it true that everyone (including every Democratic Senator) understood that the Constitutional option advocated by the Majority Leader would change Senate rules so as to abolish the filibuster for judicial nominees? Yes, that is obviously true. But would the Constitutional option have made any change in the "blue slip" custom? None. Would it have changed the rule that allows a single Senator to derail proceedings, at least temporarily? No. And, most important, would it have changed the ability of the Senate majority to bottle up nominations in committee? Not a bit.

These differences are fundamental and important. Whether you like the practice of holding nominees up in committee or not--I don't--the Senate majority has the Constitutional right and power, under the advice and consent clause, to defeat Presidential nominees. A Senate minority has no such Constitutional power. There is no 60-vote requirement to confirm a judge in the Constitution. That is a difference so fundamental that to conflate the two practices under the heading of "filibuster" is not only contrary to the universal use of the term, it is Constitutionally ridiculous.

And, finally, this point: let's take Dianne Feinstein and Sidney Blumenthal at their word. Let's agree with them that all of these practices are equally bad. Let's stipulate that no nominee should be "blue slipped," that no single Senator should be able to hold up proceedings on the floor, that the minority should not be able to filibuster, and the majority should not be able to stall nominations in committee. The principle we've now agreed on is that every judicial nominee should receive an up or down vote on the Senate floor--which is exactly the compromise that Bill Frist proposed. No more nominees stalled in committee, no more nominees filibustered on the floor. Fair enough, but the Democrats wouldn't agree. Why? Because they want to preserve their ability to block Republican nominees both when they are in the majority, and when they are in the minority. The hypocrisy of Dianne Feinstein, Sidney Blumenthal, and the Democratic Party on this issue is breathtaking.

So, to wrap up: Sidney Blumenthal was unable to respond to our emailer's questions or to the facts I presented. He offered neither a single fact nor any argument in his own defense. What he wrote in the Guardian was untrue. It will be interesting to see whether a correction will be forthcoming.

UPDATE: Poor Sidney strikes out. Blumenthal was unable to defend his attack on the Republicans in the Senate, and unable to respond with a single fact or a single argument to our deconstruction of his position. Instead, he sent the following email:

Dear John Hinderaker

Perhaps your readers would like to see in easy table form exactly the means by which President Clinton's judicial nominees were blocked.

http://uggabugga.blogspot.com/2005/06/feinstein-in-tabular-form-apparently.html

I am sure you will post this so that your readers can judge for themselves the facts of the matter.

Sidney Blumenthal

Yes, Sidney, we acknowledged that both Republicans and Democrats have, in the past, blocked judicial nominees. Your chart simply summarizes the information in Feinstein's speech, which we have already responded to above, and adds nothing to the argument. The chart is also misleading to the extent that it fails to reflect the historic practices of both parties.

We pointed out above that the Democrats' current blocking of judicial nominees through the filibuster, in effect requiring a super-majority for confirmation, is unprecedented. Your response to our point? You didn't make one, and your chart confirms that the Republicans did not flibuster a single judicial nominee during the Clinton administration. You earlier claimed that the Republicans filibustered Richard Paez. We explained why that allegation was incorrect. Your response? You didn't make one.

We pointed out that there is a vital Constitutional difference between the blocking of a nominee by a Senate majority and the blocking of a nominee by a Senate minority via filibuster. Your response? You didn't make one.

We noted that the Republicans have proposed a compromise pursuant to which ALL nominees would receive a vote, regardless of who controls the Senate, but the Democrats refused to go along because they want to preserve the ability to block nominees whether they are in the majority or the minority. Your response? You didn't make one.

Your position is untenable, and your chart doesn't address any fact at issue. If you have anything to say that in any way refutes the points we've made, let's hear it. So far, you've come up with nothing.

Posted by John at 09:56 PM  |    |