Some random thoughts about the “Nuclear Option”:

1. If Frist is successful, the filibuster is dead. Not just for judicial nominations, but for any possible use in the future. If it is “unconstitutional” to use the tactic when debating lifetime appointments, why would it be less so when other legislation requiring a majority vote is debated? Once its use is deemed unconstitutional, it will be impossible to rationalize it in other areas. The only question will be if the Republicans move to abolish it before Social Security privatization comes up for a vote.

2. Of all the arguments made by both sides, easily the most disingenuous has been the argument made by some conservatives that the filibuster is unprecedented in judicial nominations. Besides its use against Abe Fortas in 1968, when an unsuccessful cloture vote doomed that nomination in spite of his support by a plurality in the Senate, the tactic of using extended debate in an attempt to kill judicial nominations supported by a bare majority goes back to 1841, and a full-throated filibuster occurred against the nomination of Stanley Matthews to the high court in 1881 (a compromise was later worked out, and Matthews was eventually confirmed). Prior to Bush’s election, the filibuster had been used, in one form or another, some 17 times in the previous 50 years against judicial nominees, most notably against Fortas, and more recently, against Richard Paez (led by, of all people, Bill Frist) and five other Clinton appellate nominees. And the use of the “blue slip”, while technically not a filibuster, still has the same effect: it’s a parliamentary rule used to ensure that a judicial nominee is supported by a something other than a bare majority.

To argue that those filibusters don’t count because those nominees ultimately were approved, or, in the case of Fortas, because of the unprovable assumption that he wouldn’t have had a majority in his corner, is, to say the least, dishonest. A filibuster is a filibuster, regardless of whether it is ultimately successful. After all, Strom Thurmond had the distinction of the longest filibuster on record, a twenty-four hour speech against the 1957 Civil Rights Act, all to no avail: the measure passed. But since no cloture vote was ever taken, it would be considered by the Orrin Hatchs and Hugh Hewitts of the world as a non-filibuster.

3. The abolition of the filibuster will enable the passage, in the future, of progressive legislation that otherwise would be unimaginable. For example, the Clinton healthcare package, watered down as it was, would have been law today if a straight majority had had the chance to vote on it back in 1994. In fact, President Clinton could probably have proposed a much more generous program, and subsequent Republican Congresses would have been hard-pressed to roll it back later, as Americans came to rely on the new entitlement (which, incidentally, was exactly what Bill Kristol feared, and why he was so active in opposing the Clintons).

It may be a Law of Politics that liberal legislatures can do so much more in a shorter period of time than conservatives. It certainly is true that it is easier to increase the size and powers of government than it is to roll it back. Going back to 1953, Republicans have controlled the White House for 32 of the last 53 years, and have had at least one house of Congress for 18 years. Even when the Democrats controlled Congress, its Southern wing frequently was indistinguishable from the GOP, giving conservatives de facto control on Capital Hill. Yet, during that time, the size and role of the government has increased exponentially, most of the New Deal and Great Society still in place, with the battles taking place at the margins. Civil rights for women and gays has improved immeasurably, abortion and contraception are legal, and the rubric of the safety net has remained in place, all during the Age of Reagan, Nixon and the Bushes, and with liberals, for the most part, out of power. In order to chip away at civil rights or environmental protections, conservatives must do so using liberal rhetoric; the conservative position otherwise would be unpalatable. Since progressive politics has come to mean a more expansive role for the government, its policies are more likely to have a lasting effect.

In short, liberals can afford to lose elections most of the time, since what we accomplish in eight years is more likely to stand than what Republicans can in twelve. Take away the filibuster, and the leftward push will be even more pronounced in the future. Needing only a majority vote, some things that would be otherwise unthinkable, such as massive regulation of the Oil Industry (even nationalization), Universal Health Care, a shifting of the tax burden from the middle class to the super-rich, a repeal of Taft-Hartley, would suddenly be doable. And all it would take would be one good election cycle.

4. There are very few people on either side of this debate who wouldn’t have the opposite opinion if the Democrats controlled the government and the Republicans were the ones trying to use the filibuster.

Kerry's greatest blunder, it turns out, was not appealing to this interest group...yet another popular TV series ends, in spite of my not having seen a single episode. I had also never seen an episode of NYPD Blue, Aly McBeal, and E.R., which come to think of it, is still on the air. On the other hand, I religiously watched shows such as Arrested Development, Bakersfield P.D., Get a Life, and that sitcom with Jay Mohr playing a Hollywood exec a few years back. If I watched FoxNews religiously, I could put Rupert Murdoch into Chapter 11.

Bucs Owner Purchases Man United: This is really a Big Deal accross the Atlantic, although it's hard to see why. Malcolm Glazer has been hot on the trail of the World's Most Popular/Overrated Sports Team for over a year, and has finally closed the deal in spite of some heated opposition from fan's groups. Other than latent anti-Semitism, it's hard to see why his interest would draw such intense antipathy. The guy is loaded*, his NFL team has never lacked for funds, and it's not as if he's going to be moving the team to Norfolk or Swansea as a bargaining ploy to get more luxury boxes built at Old Trafford. It's not as if Donald Sterling had bought the team.

*In the interest of full disclosure, Mr. Glazer is indirectly a client of mine, through his ownership of commercial property giant General Growth Properties, whose interests I represent before the local bankruptcy court.

What do liberals believe, Eric Alterman asks. Perhaps the best definition I can come up with is---a liberal believes that a person has an inherent right to believe that evolution is “just a theory”, that homosexuality is a lifestyle choice deserving of legalized discrimination, that AIDS can be transmitted by tears and sweat, that using birth control is a mortal sin condemning its practitioner to eternal damnation, that moral absolutes contained in the Bible should be the unquestioned dogma of our society, instead of the “secular humanism” practiced by the cabal of feminists, teachers, activist judges, liberal journalists, and pro-Arabists in the State Department that really runs things in America...but that it’s not a good idea to let people who believe in those things to be in charge of reforming Social Security, fighting terrorism, or for that matter, anything to do with operating heavy machinery.

The much-hyped Huffington Post kicked off this morning, so if you want to read what Mike Nichols' or Ellen Degeneres' publicists are thinking, check out the blog. It's being edited by local wunderkind Andrew Breitbart, who was Matt Drudge's Hollywood presence (although that didn't stop him from some pretty good reporting of the Tsunami last year).

UPDATE: Well, at least one critic disapproves, although it reads like one of those interminable Pauline Kael "reviews" of a Clint Eastwood movie, where it was clear that it was written well before she saw the film....

Wigan 3, Reading 1: The ancestral home of Smythe's World (mother's side), known more for its rugby team, its supporting role in a George Orwell book, and as the hometown for 90's one-shot group The Verve, qualified for the English Premier League on the last day of the season, where they get to match-up next year with Arsenal, Man United and Chelsea. One of the cooler things about soccer leagues in Europe is the system of relegation and promotion, where the three or four worst teams get dumped into the minors, while the top teams in the lower division get bumped up. It certainly leads to greater accountability for team management; a Donald Sterling-type owner, who profits no matter how bad his team is, would be next-to-impossible overseas.

I've thought it odd that the Bush Administration hasn't been as obsessed about the Oil-for-Food "scandal" as their cheerleaders in the blogosphere. You'd think anything that shows the U.N. in a bad light would be like manna from heaven for these guys, but it turns out, they may have had reason not to dwell on corruption in someone else's backyard. The Justice Department has opened an investigation into the even more questionable activities of the Development Fund for Iraq, where hundreds of millions of dollars are unaccounted for under American supervision.

When you can't even count on the character of Nancy Grace, what is our legal system coming to?

Desperate Housewife? Laura Bush lied !!!

I don't care how reactionary this makes me sound, this billboard sickens me. As a lifelong Angeleno, I have been more than willing to accept, even laugh at, jokes and ridicule about my city. But for some media conglomerate, in a desperate reach for ratings, to link Los Angeles with a corrupt pseudo-democracy, ruled by a one-party oligarchy in thrall to oil companies, kleptocrats, and the scions of a few elite families, a government possessed of not a shred of human decency, backward and intolerant to the core, paying only lip service to civil liberties and due process, and utterly contemptuous of the rights of minorities, in total betrayal of its own honorable revolutionary past, is, to me, vile and repugnant.

It almost makes me wish someone would put up a billboard linking Los Angeles to Mexico....

Prof. Warren informs us of a cute little valentine Congress included in the "reform" act it just passed, a 30% increase in the filing fee for debtors. Ostensibly to finance the appointment of 28 new judges to the Bankruptcy Court, which will be all-the-more necessary to deal with what the bill's sponsors promised would be a steep decline in filings under the new law, the professor points out that the math just doesn't add up.

Although she sees the surplus from the fee hike going into general revenues, acting as a hidden "tax increase" upon the segment of the population most vulnerable, there is another explanation as to how the money will be spent. In the past, filing fees have gone up in direct correlation with the increase in the minimum assessment paid out in what are called "no asset" cases to the Chapter 7 Trustee, the court-appointed administrator who oversees the debtor's estate in every filing. The Trustee makes money off the big estates that he liquidates on behalf of creditors, for which he receives a pre-set percentage, but his office keeps afloat on what he earns from the "no asset" cases, which constitute the overwhelming majority (say, at least 80% of the cases assigned to him). When there are a lot of estates to administer, that assessment is a steady source of income, and if it's too low, the ability of the Trustee to go after estates with larger assets suffers.

Bankruptcies, of course, are likely going to go down, at least initially, when the act goes into effect in five and a half months. In addition, asset cases will become a rarity under the new law, since debtors with substantial assets free and clear of liens will be forced (along with everyone else whose income exceeds the local average) into Chapter 13, where creditors are repaid through a court-approved plan, or even into the more expensive (and complicated) Chapter 11.
So why the increase? Clearly, Chapter 7 Trustees will continue to play a vital role in the new system; I suspect that the U.S. Trustee will be forced to rely on them to bring many of the motions called for under the new law, including those that seek to convert or dismiss many of the cases that have now been defined as having been filed in "bad faith". But with fewer filings, those administrators will have less money to work with, while incurring exponentially higher costs. In fact, it is precisely this additional paperwork that will make bankruptcy law even more lucrative for its practitioners.

Thus, the seemingly ludicrous fee increase is being promoted to finance some of the chaos that will ensue at the end of the year, when the new law goes into effect. The Trustees are going to see their minimum assessments increased, the court administration will see an increase in its funding, and judges will receive a reduction in their workload, thanks to the appointment of the 28 new judges. And of course, lawyers like myself are going to do quite well under the new law. The only people who lose are going to be the poor suckers who are forced to resort to the bankruptcy courts for relief from their debts. But then again, that's the whole point, isn't it?

The War on Terror: How we lost.

In the movie Saving Private Ryan, Steven Spielberg creates a scene where the mother of the title character gets the horrible news about her other sons by showing a convoy of automobiles converging on her house, each carrying a representative of the military who will inform her that her children have died in the service of their country. According to the LA Times, such a scene was an anachronism: the military didn't start that practice until Vietnam, for the most part sending telegrams in earlier wars. The entire procedure of notifying the next of kin is quite moving, with the military assuming a responsibility for the lives of its own that one wishes the rest of the government would emulate.

Pajama Party: Perhaps I'm missing something, but this sounds like it might be a pretty good idea. In the tradition of United Artists Films, a number of uberbloggers have decided to pool their resources and create the New Media version of U.S. Steel, a conglomerate that will do to blogs what AOL did to the Internet, transforming Our Thing from a hobbyist's playground into a grand entrepreneurial venture. The idea is to aggregate the muscle of some of the more popular websites into something more attractive for big-time advertisers, creating an economy of scale that would allow smaller sites affiliated with the big boys (such as the site you're reading) to wet their beaks, as it were. In addition, they hope to create a blogger "news service" that would provide better access to a wider range of websites, particularly overseas. In short, a mighty ambitious calling.

I have no idea whether these people will ultimately make a fortune, but I'm pretty certain that a business along these lines will inevitably succeed. Someone will eventually bring together the independent blogger and corporate advertiser, and it makes sense that the first people willing to travel into this brave new world are proprietors of websites that already reach hundreds of thousands of readers. The fact that many of them are conservatives (but not all; one of the prime movers is an editor at The Nation) has no relevance; who even knows what politics the creators of E-Bay or Amazon have. This isn't a liberal or conservative idea; it's the future.

Noel Gallagher?
Bono, on Coldplay lead singer Chris Martin:

When told recently that Martin would eventually like to take U2's place, Bono seemed flattered. "Well, they may be the ones to do it," he said. "They have the legs to go a long way if they keep their concentration. Chris is a songwriter in the high British line of Paul McCartney and Ray Davies and Noel Gallagher.

I assume the Gallagher reference is Bono's little joke, like a baseball manager saying that "Milton Bradley is in the high line of great power hitters, of Henry Aaron and Ted Williams and Willie Aikens."

Anyways, what is with Robert Hilburn's obsession with British rock groups? At least three times a year, the LA Times rock critic will hype some Brit (ie., The Jesus and Mary Chain, Blur, Prodigy, Coldplay, etc.) as being the next Great White Hope, the group or singer that will reestablish British hegemony over the pop music scene in America, and end the collective slump that nation has had since the mid-80's. It's become as boring as his biannual column debating which '70's icon belongs in the Rock and Roll Hall of Fame, and, surprise, surprise, the predicted British Invasion never seems to take root much beyond the teenagers of Pacific Palisades or Rolling Hills Estates. Hilburn reminds me of the old farts in my youth who used to predict that rock 'n roll was just a passing fad, and that Big Bands were going to make a comeback, sure enough. Just give it a rest.

Blair Lied.

Something to think about when the "nuclear option" gets debated: more than half the members of the U.S. Senate won election to that body by margins greater than twenty percent of the vote, and most of the Senators who won by less than ten percent were Republicans.

Usually an overlooked tournament staffed by NHL underachievers and foreign "stars" not good enough to play in the league, the Hockey World Championships begin Saturday in Vienna with an unusually deep pool of talent. For the couple of dozen hockey fans still left, it will present a unique opportunity to watch some of the stars we knew and loved back when they still played the sport in North America.

Sith Happens: Silent Bob loves Revenge of the Sith !!

Frumpishly cute actress Maggie Gyllenhaal* is one of the select cabal of celebrities hired to blog on the upcoming Arianna Huffington website, and she's already proven her New Media bona fides by making an asinine remark about America's "responsibility" for 9/11. I can't defend the substance of her remark, which is tantamount to saying that the victims of any warcrime bear some responsibilty for their injury. What I admire, though, is the fact that when the s*** hit the fan, she didn't back down, or claim that she was misquoted, or in any way avoid responsibility for the tenor of her remarks. If she's willing to piss off a large chunk of the population by speaking her mind, and not have her site run by her publicist, the way most celebrity blogs have been, her blog might actually be worth reading.

*Class of '95, Harvard-Westlake