In the two significant parts of the statement, Obama said:

[O]n Tuesday, I told Senator McConnell that if Republican senators did not release these holds, I would exercise my authority to fill critically-needed positions in the federal government temporarily through the use of recess appointments.  This is a rare but not unprecedented step that many other presidents have taken. Since that meeting, I am gratified that Republican senators have responded by releasing many of these holds and allowing 29 nominees to receive a vote in the Senate.

While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess.  If they do not act, I reserve the right to use my recess appointment authority in the future.

The impact of this move has been interesting.  Many liberals and progressives were excited that nearly half of the nominees Obama called “stalled” were confirmed en masse, while others — most notably labor folks looking for a recess appointment of NLRB nominee Craig Becker — were immediately disappointed that Obama would not be issuing recess appointments before Congress returns from the Presidents’ Day recess.

One of the strongest arguments against the happenings came from Ezra Klein, who views this as a situation in which “the White House promptly shot itself in the foot.”

He wrote:

In describing recess appointments as “a rare but not unprecedented step,” Obama made it harder to actually make any, because he’s defined the procedure — which, unlike the hold, is a defined constitutional power of the president rather than a courtesy observed in the Senate — as an extraordinary last-resort. . . .

. . . As I’ve argued many times before, the relevant differences between the parties aren’t substantive, and so they cannot be solved with substantive concessions. Instead, they’re political, and that means a deal in which Obama gets something he wants but does something to damage his administration’s future effectiveness (and thus its poll numbers) is the sort of deal Republicans are likely to take.

As to the first part of Ezra’s argument, I am in complete agreement. The rhetoric of Obama’s statement balances strong language with language that is far too diplomatic. He says that some holds were intended solely to “frustrate progress,” and that those are “tactics that enrage the American people.” This is strong language. But then, as Ezra writes, he — in an attempt to be diplomatic — incorrectly defines up the recess appointment as a “rare” action that’s not “unprecedented.”  This is damaging and was unneeded — particularly since Obama is choosing to forgo recess appointments at this time.

President Obama delivers the State of the Union Address on January 27, 2010. (Photo from White House Web site.)

But, Ezra’s secondary point is a bit off, in my view. I don’t view this as a “deal.” I view this more as a necessary good-faith restraint by Obama after getting significant — though, as even Obama notes, not sufficient — movement on the nominees whose votes he was seeking. Had Obama made his threat to McConnell, received the 27 nominees into his Administration and followed up today or Monday with recess appointments, this dynamics of the situation would change considerably. Contrary to Ezra, I think it is the recess appointments following this Senate action that would allow for Obama to be more easily framed as “a bare-knuckle partisan.”

At this point, the Senate Republicans have made clear that they are concerned about the Administration — as Ezra puts it — “finding ways to avoid being filibustered.” Obama has made it clear that he views recess appointments as one such option. The set-up is made, and the Administration only needs to point to Senate inaction through the next recess to make its justification to the public for its eventual recess appointments. Or, in the alternative, the Senate Republicans will not hold up Obama’s nominees and the Senate will be able to vote on them.

As much as Ezra wants to pretend that Obama’s Administration is the same as the Bush or Clinton Administrations, the fact remains that it is not. Whether that be a function of Obama’s method of leadership, congressional leadership, the makeup of the Democratic caucus or Republican abuse of the cloture rule, this is the reality in 2010. Moreover, so long as Obama is losing a handful of Democrats — due to illness or actual opposition — on votes like Becker’s (where seven Democrats did not vote for cloture), I think he understandably wants to make sure that he has set up his use of recess appointments as unassailable (though, of course, assailed they will be).

Finally, I’d like to point out another set-up that I see in this discussion of recess appointments. A discussion of the presidential prerogative to make recess appointments involves a rather detailed discussion about the balance of powers between the executive and legislative branches. The recess appointment is a balance on the Senate’s “advice and consent” check on presidential appointments. It, most obviously, has been used by presidents as a way to get past the need to overcome a potential filibuster (or, more rarely, a negative vote on the nominee).

I see this as a great set-up, should it become necessary, for a discussion of the problem with the filibuster in the legislative realm. Unlike in the nominations realm, there is no balance to offset the filibuster. The House can’t do anything to stop it, nor can the president or the Supreme Court. It is a standalone power that has no offsetting balance. More importantly, it is based only in Senate tradition and not in the constitutional text. If an argument is ever to be made successfully against the filibuster, it seems to me that this framing is the way to do it.

So, as we await movement on Becker, Office of Legal Counsel nominee Dawn Johnsen and many other eminently qualified nominees, and as health-care and climate-change legislation face filibuster-related hurdles, I don’t see Obama’s actions on Thursday as either a “deal” with Senate Republicans or as a necessarily bad move in the course of the Administration.

Then-Senators Joseph Biden and Edward Kennedy at then-Judge David Souter's Supreme Court confirmation hearings in 1990. (Image from UPI.)

It’s fitting, in a way, that a conservative would find a way to view one of President Reagan’s greatest political misfires as an example of one of liberal Senator Edward Kennedy’s political failings.

In today’s New York Times, Sam Tanenhaus, in an awkward conservative-looking-at-a-liberal-trying-to-write-something-nice-ish-but-must-get-in-some-unnecessary-digs piece, denounces as the example of when Edward Kennedy “faltered” politically (beside his 1980 run at the Presidency), his “intemperate denunciation of Judge Robert H. Bork.”

Far from faltering, it is this moment that stands, in retrospect, as one of the saving liberal graces of the 1980s, a moment in which the Reagan Revolution was finally told, in no uncertain terms, that it had its limits.  Here is the key part of the July 1, 1987, floor speech from Kennedy that became known as “Robert Bork’s America” (the full speech can be found below the jump):

Mr. President, I oppose the nomination of Robert Bork to the Supreme Court, and I urge the Senate to reject it.

. . . .

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

Former Judge Bork

Even without Bork’s presence on the Court, time has proven out that this was not some completely irrational rant.  This was a listing of the very real, albeit extreme, outcome of Bork’s previous statements (with the exception of the evolution statement, the genesis of which I am unaware) — and they have proven prescient.  Although Kennedy presented the rhetorical extreme in that summer, the Court since has taken steps in these directions — from placing many restrictions on a woman’s right to an abortion as expressed in Roe v. Wade to ending school busing plans that prevented de facto segregation in America’s city schools.

To see the lengths to which Kennedy’s views were not at all outside the realm of possibility, it is instructive to look at the ways the conservatives on the Court have or would have limited the reach of one of Kennedy’s signature pieces of legislation — the Americans with Disabilities Act.

The doors of the courts have been shut to people with disabilities, as folks like now-Sixth Circuit Judge Jeff Sutton argued that laws like Title I of the Americans with Disabilities Act did not apply to the states, as the Supreme Court ruled in Board of Trustees of the University of Alabama v. Garrett.  Later, in Tennessee v. Lane, a four-justice minority of the Court would have gone so far as to rule that even Due Process concerns of disabled individuals — actual access to the courts — as enunciated by Congress in Title II of the ADA were not a legitimate area for congressional action.

Another Reagan nominee, now-Justice Antonin Scalia, wrote a remarkable dissent in Lane stands as proof that — far from faltering — Senator Ted Kennedy did the nation some of his greatest good when he stood strongest against the conservatives’ judicial plan for America.  Scalia wrote:

And one does not “enforce” the right of access to the courts at issue in this case, see ante, at 19, by requiring that disabled persons be provided access to all of the “services, programs, or activities” furnished or conducted by the State, 42 U.S.C. § 12132. That is simply not what the power to enforce means–or ever meant. The 1860 edition of Noah Webster’s American Dictionary of the English Language, current when the Fourteenth Amendment was adopted, defined “enforce” as: “To put in execution; to cause to take effect; as, to enforce the laws.” Id., at 396. See also J. Worcester, Dictionary of the English Language 484 (1860) (“To put in force; to cause to be applied or executed; as, ‘To enforce a law’ ”). Nothing in §5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or “remedy” conduct that does not itself violate any provision of the Fourteenth Amendment. So-called “prophylactic legislation” is reinforcement rather than enforcement.

. . . .

Requiring access for disabled persons to all public buildings cannot remotely be considered a means of “enforcing” the Fourteenth Amendment. The considerations of long accepted practice and of policy that sanctioned such distortion of language where state racial discrimination is at issue do not apply in this field of social policy far removed from the principal object of the Civil War Amendments.

This cramped view of the Fourteenth Amendment was, of course, was one of Kennedy’s fears for a Supreme Court on which Bork sat, and keeping Bork off the Court was one of the few clear liberal victories of the time.  Tanenhaus is engaging in some misguided revising of history — in the context of his essay about Kennedy’s liberalism — by pretending otherwise.  Stopping Bork’s nomination was an essential step in liberals’ efforts at slowing the conservatives’ project to install a far-Right Court.

Senator Kennedy’s opposition to Robert Bork may have been used by conservatives — and liberals — as an excuse for the further politicization of the nomination process “up to the present day,” as Tanenhaus writes.  Kennedy’s words struck, they stung and they were harsh — but they were not made without legitimate concern.  Bork — as his writings before and since illustrate — was an extreme choice, and Kennedy explained why.

For all the things it might have been, stopping the Bork nomination was not an example of Kennedy’s political skills faltering in pursuit of liberalism.  If anything, it was an example of when he most successfully used all the political tools at his disposal — no matter how sharp (or blunt) their edges — to advance the cause of liberalism.

* * * * *

Sen. Edward Kennedy, on the floor of the U.S. Senate, July 1, 1987:

Mr. President, I oppose the nomination of Robert Bork to the Supreme Court, and I urge the Senate to reject it.

In the Watergate scandal of 1973, two distinguished Republicans — Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus — put integrity and the Constitution ahead of loyalty to a corrupt President. They refused to do Richard Nixon’s dirty work, and they refused to obey his order to fire Special Prosecutor Archibald Cox. The deed devolved on Solicitor General Robert Bork, who executed the unconscionable assignment that has become one of the darkest chapters for the rule of law in American history.

That act — later ruled illegal by a Federal court — is sufficient, by itself, to disqualify Mr. Bork from this new position to which he has been nominated. The man who fired Archibald Cox does not deserve to sit on the Supreme Court of the United States.

Mr. Bork should also be rejected by the Senate because he stands for an extremist view of the Constitution and the role of the Supreme Court that would have placed him outside the mainstream of American constitutional jurisprudence in the 1960s, let alone the 1980s. He opposed the Public Accommodations Civil Rights Act of 1964. He opposed the one-man one-vote decision of the Supreme Court the same year. He has said that the First Amendment applies only to political speech, not literature or works of art or scientific expression.

Under the twin pressures of academic rejection and the prospect of Senate rejection, Mr. Bork subsequently retracted the most neanderthal of these views on civil rights and the first amendment. But his mind-set is no less ominous today.

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be.

The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our President. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice.

Sen. McConnell

From CBS’ Jill Jackson:

Senate Republican Leader Mitch McConnell says committee would have to review 76 cases per day to be ready for Sotomayor hearing July 13.

Well, then. Sounds overwhelming, right?  Not really, considering the number of staff that have been brought on by the Republicans.  You’ve got — at least — Orin Kerr helping Sen. Cornyn, the Republicans’ anti-gay chief counsel brought on by Sen. Sessions and the four attorneys brought on to help the Republicans on the committee specifically for the nomination.  That’s less than 13 cases a day — and that’s assuming, probably incorrectly, that those are the only people helping go through the cases.

What’s more, let’s keep in mind that only 6 of the cases in which she has participated have been accepted for review by the Supreme Court.  And two of those were affirmed.  Are the Judiciary Committee’s Republicans really going to need a significant amount of time to review the many unanimous panel decisions on which Sotomayor sat and did not write and in which there was no en banc or Supreme Court review?  I don’t think so.

Finally, I’d be willing to bet that the Republicans started reviewing her opinions the day Justice Souter announced he was retiring, if not before.  I doubt the 76 number would even hold up to honest scrutiny.

This is a non-argument — like most arguments against Judge Sotomayor’s speedy confirmation — and it should be treated as such.

[UPDATE: Additionally, as @delrayser points out, many of the cases McConnell is talking about were decided before Sotomayor was elevated and, thus, have been looked at before.]

No matter how much one may disagree with the Gay Alliance or the policies they are advocating, no matter how repugnant one may find homosexuality, the manner of expressing this opposition should be intellectual. At this university we are dedicated to persuasion by reason, not by brute force.

Intimidation of those courageous enough to express their views, violence directed against unpopular associations, midnight criminal assaults on private residences — these speak for themselves. The entire university community should be angry, and disgusted, that this kind of action has occurred at Princeton.

But a negative response to the violence is not enough. A positive response — a university-wide support for the right to dissent on any issue — is necessary. It is precisely such extreme situations which measure the willingness of this community to encourage bold new ideas by tolerating dissent.

For me, this is a nice insight into her likely views on LGBT equality, the value of dissent, and the aims of the First Amendment.  For those on the Sotomayor attack, this is but one more piece of evidence of her empathy (read as a bad thing).

And if you must read Taylor’s inane piece, please follow-up with Adam Serwer response at TAPPED.

The New York Times, with the grateful permission of the Berkeley La Raza Law Journal, has republished the now-infamous “Latina judging” speech given by Judge Sonia Sotomayor in 2001.  Everyone should read it, because — far from making me fear that Obama has nominated a “racist,” as others have conveniently and simplistically called her — it makes me thrilled with the prospect that such a person could soon be ascending to be an associate justice of the Supreme Court.

Just a flavor:

America has a deeply confused image of itself that is in perpetual tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race and color-blind way that ignore these very differences that in other contexts we laud.

As with the issues America faced when choosing whether to vote to make a black man President of the United States, the nomination of Sonia Sotomayor will force America and, more importantly, the U.S. Senate to face questions of whether they want, or will vote, to have, for the first time, the perspective of a person who is both non-white and non-male on our highest court.  Moreover, the question is whether we want such a person, when she is freely and openly willing to admit and head-on address the differences in perspective that brings — as opposed to others who pretend, a la Stephen Colbert, not to see any such differences.

Later in the speech, Sotomayor said:

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

This, I posit, is one of the best explications of the “empathy” sought by Obama that has been so incoherently derided by his conservative opposition.  It is not, as they suggest, a preference based on familiarity with those “like” but instead an admission of the limits of each of our own experiences and a willingness to look outside that to understand those “unlike” us.

After reading this speech in its entirety, it’s all the more easy to understand why President Obama was, apparently, so blown away by Judge Sotomayor when meeting with her and why he nominated her to the Supreme Court on Tuesday.  It also is all the more apparent that, while Sotomayor is willing — eager even — to engage in a real dialogue about the impact of diverse viewpoints in judging, others’ simplistic denunciations do not deserve the attention or credence they are being given.

[UPDATE: One conservative did read the full speech -- and concludes he was "wrong about Sotomayor speech."

Michael Medved, however, misstated another part of her speech on MSNBC's The Ed Show, saying that she had said there "are physiological differences" between people of different genders or races.  She did not say that at all.  She actually said:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

Big difference, and Ed Schultz let him get away with it.]

There are 59 Democrats and likely a 60th in the form of Al Franken, to vote for cloture.  In addition to them, Republican Senators Bennett (Utah), Cochran, Collins, Gregg, Hatch, Lugar and Snowe voted for Judge Sonia Sotomayor’s confirmation for the Second Circuit Court of Appeals.  It is easy to see, at the least, Senators Collins, Gregg, Hatch, Lugar and Snowe continuing to support — or at least not oppose cloture for — her nomination.

That’s 65.

In the coming weeks, in other words, this is all about optics and posturing — not the eventual outcome.  The Republicans have some tough decisions to make in the coming days, and it’s likely, given the past months, that they actually will choose several different directions, depending on which party-leader-of-the-hour speaks up at which moment this week.

Judge Sonia Sotomayor

The face of change.

Well, Jeffrey Rosen, here goes.

[UPDATE: Here's a nearly 11-year-old Slate piece by Jacob Weisberg talking about, shockingly, Republicans' concerns about then-District Court Judge Sotomayor's appellate nomination -- because of the prospect of her later being named to the Supreme Court. (via none other than Article III Groupie by was of alter ego David Lat)

The White House talking points, from TPM, include the fact that:

If confirmed for the Supreme Court, Judge Sotomayor would bring more federal judicial experience to the Supreme Court than any justice in 100 years, and more overall judicial experience than anyone confirmed for the Court in the past 70 years. She has been a big-city prosecutor and a corporate litigator, a federal trial judge on the U.S. District Court, and an appellate judge on the Second Circuit Court of Appeals.]

As Senator Barack Obama made it clear to an Illinois audience after the Alito appointment, “If we don’t win elections, you are not going to get the judges you want.”

The post by William Smith responded to a recent speech by Steve Schmidt, a Republican campaign consultant who advised Sen. John McCain’s presidential campaign. Speaking in Washington to the Log Cabin Republicans, a gay rights group, Schmidt had urged Republicans to support same-sex marriage.

“I wonder if next week Schmidt will take his close minded stump speech to a NAMBLA meeting. For those unfamiliar with NAMBLA, the acronym is for North American Man Boy Love Association,” Smith responded on wsmith.org in a post dated April 20.

Remarkable.

As smart Republicans like Schmidt talk about opening the Republican Party’s doors to those other than social conservatives, the far-Right base has just been promoted to lead up opposition to President Obama’s Supreme Court nominee.

As Toobin writes, quoting the Chief:

“When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.”

Chief Justice Roberts came into the conservative movement, as so many did, in the early days of the Reagan Revolution.  Young conservatives were brought in, and brought up, in the early ’80s, and the dividends of that work continued to pay off a quarter-century later, as Roberts and Justice Alito ascended to the Supreme Court.

Now is the time for progressives to begin that ascendency.  As with the Federalist Society, the American Constitution Society is an organization dedicated to helping progress its constitutional values.  The constitutional values as seen by ACS are different than — and sometimes opposed to — the values advanced by the Federalists.

But, as we see President Obama consider his first Supreme Court nominee, elections do matter.  Now, is our time to reclaim the constitutional values advanced at our best times by the Supreme Court.  The distinction between the values the Chief expressed and the values that I see as representing our core constitutional values is perhaps summed up best by the mission of ACS itself:

The American Constitution Society for Law and Policy (ACS) promotes the vitality of the U.S. Constitution and the fundamental values it expresses: individual rights and liberties, genuine equality, access to justice, democracy and the rule of law. These abiding principles are reflected in the vision of the Constitution’s framers and the wisdom of forward-looking leaders who have shaped our law throughout American history. As a result of their efforts, the Constitution has retained its authority and relevance for each new generation.

In recent years, an activist conservative legal movement has gained influence – eroding these enduring values and presenting the law as a series of sterile abstractions. This new orthodoxy, which threatens to dominate our courts and our laws, does a grave injustice to the American vision.

Now is the chance for President Obama, in big ways and in small, to begin to diminish and then, hopefully, turn around that sterile orthodoxy advanced by Chief Justice Roberts.