August 08, 2011

Judicial Diversity, S&P and BB Amendment

Statement of CFJ Executive Director Curt Levey:

This weekend brought two reminders of the looming battle over a balanced budget amendment: Standard & Poor’s downgrade of the U.S. credit rating and the passing of former Oregon Senator Mark Hatfield.

In announcing the downgrade, S&P cited the weakened “effectiveness, stability, and predictability of American policymaking and political institutions” and the “the difficulties in bridging the gulf between the political parties over fiscal policy.” A balanced budget amendment (BBA) would go a long way to addressing these problems. A constitutional amendment is, by design, far more stable and predictable than legislation. And getting the two-thirds vote in the Senate and House needed to pass a BBA would be a dramatic demonstration of “bridging the gulf between the political parties.”

A BBA is not a perfect solution to our nation’s debt problems. In particular, the amendment must be carefully crafted to address concerns about the role of the courts in enforcement. But what is the alternative? Does anyone seriously believe that legislation alone will get us within a hundred miles of a balanced budget, no less do it in a stable and predictable way?

If today’s obituaries for liberal Republican Senator Mark Hatfield are any indication, he will be remembered for casting the vote which defeated a balanced budget amendment in 1995. The amendment got broad bipartisan support in Congress, breezing to passage in the House by a 300-132 margin, but failing in the Senate by just one vote when Hatfield became the lone Republican to vote no.

Getting a BBA approved by two-thirds of each house is a steep obstacle. But the closeness of the 1995 vote – at a time when concerns about the ballooning national debt had not yet reached today’s levels – reminds us that it’s doable. All Republicans will likely be on board this time. And as a New York Times article noted last week, “for Democrats seeking to redefine themselves as careful fiscal stewards on the cusp of the 2012 campaign, the idea of a balanced budget amendment free of hard-line provisions is not an impossible sell.”

For our discussion of why last week’s debt deal provides an incentive for Congress to pass a BBA, see here.

It’s not often that we cite the New York Times twice in one day, but yesterday’s Times had a balanced article on the diversity of President Obama’s judicial nominees. In it, I touched upon several issues – non-discriminatory methods of achieving diversity, the high proportion of African-American nominees (relative to their proportion in the population and bar), and the mathematical reality that the weights given to race and other selection criteria for nominees can’t add up to more than 100 percent:
“Diversity is a good thing, but how do you achieve it — by quotas?” [Levey] said. “Do you achieve it by lowering your standards? Or do you achieve it by removing any discriminatory barriers that might exist and by casting a wide net?”
“The more you focus on race and gender,” Mr. Levey added, “the less you’re going to focus on other traditional qualifications — that’s simply the math of it.”
Besides, he said, “If you believe in proportionalism, as the Obama administration appears to, given the way they tout these numbers, the other races are, to some degree, getting stiffed.”
In the article, I also commented on Democrats’ allegations that Senate Republicans have orchestrated a slowdown in the confirmation of noncontroversial judicial nominees:
Mr. Levey said that while his group and others had mounted resistance to several Obama nominees, including Goodwin Liu, a nominee to the United States Court of Appeals for the Ninth Circuit who withdrew after a Senate filibuster, there was no overarching campaign to slow the process.
“If there is a plan to delay these noncontroversial nominees, nobody has told me about it,” he said. He instead attributed the pace of confirmations to “the general lack of cooperation on all issues” in Congress.

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