Okay… I understand the politics behind the nominations being held up (from both sides), but does anyone out there really think that killing the filibuster is really the solution?
I don’t know about anyone else, but it really scares me.
The fillibuster is queer anyways, people vote for representatives to make laws and appoint judges, etc… if they elect enough representatives to put conservative judges in place, then isn’t it thier wishes being carried out? It would be equally as stupid for a minority of conservatives stand in the way had there been a majority of liberal votes going for liberal nominees. If the shoe was on the other foot, you know how many liberals would be screaming about this.
The other main point here is they are backing up the courts so bad, and they are backed up to begin with. They are just creating more problems all for the simple fact that the nominees don’t jive with thier liberalism, (like bush is supposed to nominate liberals or something).
V
The filibuster is an interesting creature – it’s purely a matter of internal Senate rules. It’s only link to the Constitution is the part of the Constitution that states that the Senate shall be in charge of setting its own internal rules.
It’s been changed a lot over the years, and I’m not opposed to changing it again. I would change it so that there was a decreasing threshold for cloture as time passed – start with 60, then in 2 weeks move it to 55, then in two more weeks to 51. I don’t like as much the proposal to disallow it w/r/t all judicial nominations, but I like that better than I like the current practice of setting the requirement for judicial nominations for appellate courts to a de-facto 60-vote approval.
It has not always been thus. The current minority in the Senate has decided on a slash-and-burn campaign w/r/t appellate-court nominees, a fact they try to obscure by looking at the percentage of all nominees that have been approved (no one filibusters or objects to district court nominees generally, and there are many, many more district court judges and thus district court appointees, thus drowning out the appellate court numbers).
Also, the political-beliefs litmus test is new. When Ruth Ginsberg, former counsel to the ACLU, was nominated to the U.S. Supreme Court by Clinton, Republicans and conservatives (two distinct but overlapping groups) did not filibuster that nomination, because she was qualified intellectually and otherwise, even though they knew how she would likely vote on issues that were important to them. They did not feel it was proper to mess with the Presidential appointment power due to political disagreement.
This principal has been tossed out, and it either needs to be dropped by the current minority party, or it needs to be properly responded to by the majority.
[quote]Vegita wrote:
It would be equally as stupid for a minority of conservatives stand in the way had there been a majority of liberal votes going for liberal nominees. If the shoe was on the other foot, you know how many liberals would be screaming about this.[/quote]
But that was the case during previous administrations (most recently during the Clinton Administration). Republicans held up plenty of nominees.
I also agree that changes could easily be made. I just don’t think eliminating it is a good idea. As a tool, it ensures that the minority opinion has a voice that can be heard.
To me… I guess I just don’t think this shouldn’t be a partisan issue.
[quote]Muskie wrote:
But that was the case during previous administrations (most recently during the Clinton Administration). Republicans held up plenty of nominees.[/quote]
Nominees might have been held up - but I don’t believe they used the fillibuster against judicial nominees getting an up or down vote.
The republicans are not trying to “kill the fillibuster”. They are considering changing the rules so that a super majority isn’t needed when all that is required is 50%+1 for confirmation.
If I understand it - Bolton’s nomination has left committee and is headed for a senate vote, which should get him the UN job.
Somebody on the right played hardball to get this nomination through.
Frist released this statement today – minus a compromise, it looks like it’s on, which means Frist at least thinks he has the votes lined up to pull this off:
Upon completion of action on the pending highway bill, the Senate will begin debate on fair up or down votes on judicial nominations. As is the regular order, the Leader will move to act on judge nominations sent to the full Senate by the Judiciary Committee in the past several weeks. Priscilla Owen, to serve as a judge for the 5th Circuit Court of Appeals, and Janice Rogers Brown, to serve as a judge for the 9th Circuit Court of Appeals, will be the nominees of focus.
The Majority Leader will continue to discuss an appropriate resolution of the need for fair up or down votes with the Minority Leader. If they can not find a way for the Senate to decide on fair up or down votes on judicial nominations, the Majority Leader will seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nominees. After the ruling, he will ensure that every Senator has the opportunity to decide whether to restore the 214-year practice of fair up or down votes on judicial nominees; or, to enshrine a new veto by filibuster that both denies all Senators the opportunity to advise and consent and fundamentally disturbs the separation of powers between the branches.
There will be a full and vigorous Senate floor debate that is too important for parliamentary tactics to speed it up or slow it down until all members who wish have had their say. All members are encouraged to ensure that rhetoric in this debate follows the rules, and best traditions, of the Senate.
It is time for 100 Senators to decide the issue of fair up or down votes for judicial nominees after over two years of unprecedented obstructionism. The Minority has made public threats that much of the Senate?s work will be shut down. Such threats are unfortunate.
The Majority Leader has proposed his Fairness Rule: up to 100 hours of debate, and then an up or down vote on circuit and Supreme Court nominations. Further, the Fairness Rule would eliminate the opportunity for blockade of such nominees at the Judiciary Committee. And finally, it will make no changes to the legislative filibuster.
If Senators believe a nominee is qualified, they should have the opportunity to vote for her. If they believe she is unqualified, they should have the opportunity to vote against her.
Members must decide if their legacy to the Senate is to eliminate the filibuster?s barrier to the Constitutional responsibility of all Senators to advise and consent with fair, up or down votes.
Wall Street Journal Europe Editorial
Going Nuclear
May 13, 2005
Barring a surprise last-minute deal, U.S. Senate Majority Leader Bill Frist will soon ask for a ruling from the chair – Vice President Dick Cheney presiding – that ending debate on a judicial nominee requires a vote of a simple majority of 51 senators, not a super-majority of 60. The so-called nuclear option – aka the “constitutional option” – will have been detonated. Judicial filibusters, R.I.P.
This will not be the world’s greatest deliberative body’s greatest moment, and the only thing we know for sure about what will happen next is that the reputation of the U.S. Senate will suffer. It’s a shame that it’s come to this. But at this point it would be worse if Republicans let a willful minority deny the president’s nominees a vote on the Senate floor.
On the eve of this brawl, it’s worth recalling how we got here. Our own choice for what started the modern bitterness would be 1987 and the Robert Bork nomination to the U.S. Supreme Court. There were previous nomination battles but the trashing of such a widely respected jurist marked that date that nominations became political campaigns.
The judicial filibuster of the last two years marks another political escalation – this time twisting a procedure used historically for the most important legislative debates into an abuse of the Senate’s advise-and-consent responsibility. Had their nominations been allowed to go to the floor, every one of the 10 men and women filibustered in the last two years would have won majority support, including Democratic votes.
The audacity of the Democrats’ radicalism is illustrated by the breadth of their claims against the nominees. It isn’t just one nominee they object to; it’s 10 and counting. It isn’t just abortion they’re worried about but the entire range of constitutional law.
This also marks a political escalation in reaching below the U.S. Supreme Court to the federal circuit courts of appeal. These nominations have long been considered more or less routine. With the filibuster, Democrats are denying an elected president the ability to fill out even the lower courts.
They are going to such bitter lengths, we suspect, precisely because they view the courts as their last hold on federal power. As liberals lost their majority status over the past 30 years, they turned increasingly to the courts to implement their political program. The Bush nominees, pledged to judicial restraint and greater deference to legislatures, will mean the left has to return to the electoral arena to get its way.
In our view, this is among the best reasons to defeat the judicial filibuster. If Democrats succeed in blocking these nominees, they will feel vindicated in their view that judicial activism pays. They will also conclude that Senate obstructionism works, and so will dig in for more of it.
We understand the argument of conservatives who worry about undermining a process that protects minority rights. But the filibuster is a Senate rule that has been changed frequently over the years, while the right of a president to nominate judges is written into the U.S. Constitution. Only one judicial nominee – Abe Fortas for chief justice of the Supreme Court – has ever arguably been filibustered and that was for the purpose of taking a straw vote on his prospects, not to deny him an up-or-down vote on the Senate floor. Democrats who point to other judicial “filibusters” are deliberately confusing the distinction between a filibuster and a vote for cloture, or to end debate.
As for Republicans who want to preserve the option of filibustering a future nominee, it’d be just as wrong for them to do so. In any event, Democrats willing to use the filibuster to block judges would have any qualms about using the nuclear option themselves to kill a filibuster in the future.
This is at its core a political fight, and elections ought to mean something. Republicans have gained Senate seats in two consecutive elections in which judicial nominations were among the most important issues, including against the Senate Minority Leader.
Perhaps the coming showdown and the media circus that will accompany it will lead to more political bitterness, but it’s also possible it could work the other way. If Democrats conclude they can’t succeed by abusing procedures, then they will begin to realize the limits of legislating through the courts. Maybe they’ll even return to trying to win power the old-fashioned way, through elections.
I don’t understand the fuss over the filibuster. It’s an internal Senate device whose only consequence of usage is that the judiciary is made slightly more moderate. Aren’t there more important things to be upset about than a tool that makes things more moderate? What about a fuss over procedure that allows for judicial appointments without Senate confirmation?
[quote]Moriarty wrote:
…
What about a fuss over procedure that allows for judicial appointments without Senate confirmation?[/quote]
What procedure are you referencing?
Good lord! Everytime I see a WSJ editorial, I’m stunned at how stupid they are. Dems have only passed oh 205 judges! And blocked the most radical 10 judges— thats’s 95 percent!I’m pretty sure that’s a good thing. Meanwhile Reps. blocked 60 clinton judges and around 200 exec. branch appointees not by votes but by delay often with the full backing of the WSJ editorial–or scolding Hatch for allowing up and down votes! Also, need I mention “cat killer” Frist is purely playing to his hopeful base (the religious wrong) as obviously he didn’t really care about up or down votes before:
‘Senator Frist, if you oppose the use of the filibuster for judicial nominations, why did you vote to filibuster Judge Richard Paez when President Clinton nominated him to the 9th Circuit?’" from Face the Nation.
the reason-- Fristy was a member of this coalition to stop his nomination
http://www.americanprogressaction.org/atf/cf/{65464111-BB20-4C7D-B1C9-0B033DD31B63}/SMITH_113004.PDF
naturally with WSJ approval, which balked at Hatch for letting that one go to vote!
[quote]100meters wrote:
Good lord! Everytime I see a WSJ editorial, I’m stunned at how stupid they are. Dems have only passed oh 205 judges! And blocked the most radical 10 judges— thats’s 95 percent!I’m pretty sure that’s a good thing. Meanwhile Reps. blocked 60 clinton judges and around 200 exec. branch appointees not by votes but by delay often with the full backing of the WSJ editorial–or scolding Hatch for allowing up and down votes! Also, need I mention “cat killer” Frist is purely playing to his hopeful base (the religious wrong) as obviously he didn’t really care about up or down votes before:
‘Senator Frist, if you oppose the use of the filibuster for judicial nominations, why did you vote to filibuster Judge Richard Paez when President Clinton nominated him to the 9th Circuit?’" from Face the Nation.
the reason-- Fristy was a member of this coalition to stop his nomination
http://www.americanprogressaction.org/atf/cf/{65464111-BB20-4C7D-B1C9-0B033DD31B63}/SMITH_113004.PDF
naturally with WSJ approval, which balked at Hatch for letting that one go to vote!
[/quote]
Your stat is problematic for exactly the reason I pointed out above. Take out the district judges from the numbers and see if they look so rosy. What are the stats overall for appellate-court nominees?
This CNN story ( http://www.cnn.com/2005/POLITICS/04/15/republicans.filibusters.ap/ ), dated 4/15/05, gives the following numbers for appellate-court nominees:
52 nominees
10 blocked
34 confirmed
– For the sake of simplicity, let’s assume that the 8 unaccounted-for nominees who have neither been confirmed nor blocked haven’t come up yet. So let’s cut them out of the calculation, since the Senate has taken no action.
So there are 44 nominees on whom the Senate has had a chance to act.
The minority party has blocked 10 of them.
Let’s break out the calculator here… let’s see, 10 is what percent of 44…
10 = (x/100)*44
x/100 = 10/44
x = (10/44)*100
x = approximately 22.7%
So the Democrats have blocked almost one quarter of the President’s appellate court nominees on whom they have had a chance to act.
That’s the crucial number, and that’s why the Dems are engendering this reaction.
ADDENDUM –
I forgot to point out that your Republican v. Democrat comparsion fails for another reason. The Republicans were actually the majority party for 6 of 8 Clintonian years (Thanks Hillarycare!), so they actually could have voted down a lot of the “blocked” nominees, but didn’t bring them up because they didn’t want to humiliate them via failed confirmation hearings.
In this case, you have the minority party attempting to impose a supermajority approval requirement, which in and of itself would be unconstitutional on its face if the Senate hadn’t been given control to set its own procedures (which makes it more of an open question).
[quote]BostonBarrister wrote:
Moriarty wrote:
…
What about a fuss over procedure that allows for judicial appointments without Senate confirmation?
What procedure are you referencing?
[/quote]
Recess Appointment.
Well, The numbers are correct, and by your math I would say the Dems have allowed almost 4/5’s of the appellate nominees, and there is nothing “radical” about their trying to do so. The point also remains, the WSJ is talking out both sides of it’s mouth. “Cat Killer” Frist is still a hypocrite and is pandering to the religous right. And still Republicans did not offer the right to up or down votes to Clinton, regardless of if they were the majority party or not. Also as to constitutionality you have this on the senate floor yesterday:
SEN. BYRD: I ask the Senator from Tennessee, I ask any Senator to respond to that question. Does this Constitution accord to each nominee an up-or-down vote on the Senate floor?
SEN. FRIST: The question: Does the Constitution say that every nominee of the President deserves an up-or-down vote. And the ABC is - the answer is: no, the language is not there.
Oh Fristy—what a nightmare to be slave now to James Dobson!(NOTE: Frist will continue to say it’s unconstitutional, even after yesterday’s exchange with “Sheets” Byrd.)
The really cool thiong about this issue, 100M, is that the majority has the ability to change the Senate rules. No amount of bitching, or truth distorting by the left can affect the power that the right now owns.
And the Right’s power will only grow bigger next November.
[quote]Moriarty wrote:
…
What about a fuss over procedure that allows for judicial appointments without Senate confirmation?
BostonBarrister wrote:
What procedure are you referencing?
Moriarty wrote:
Recess Appointment.[/quote]
Article II, Section 2, Sub-clause 3 of the Constitution:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
For a survey of historical arguments regarding recess appointments, see this position paper:
[quote]100meters wrote:
Well, The numbers are correct, and by your math I would say the Dems have allowed almost 4/5’s of the appellate nominees, and there is nothing “radical” about their trying to do so. …[/quote]
So, the fact that over the course of the previous history of the USA, NO appellate-court justices have been filibustered by the minority party in the Senate, and now the President has has approximately 25% of his appellate-court nominees filibustered, is not “radical”?
In fact, only one nominee for any court has faced a filibuster by the minority party in the Senate in the history of the USA. And that was the nomination of a sitting Supreme Court associate justice to move up to the Chief Justice position, for Abe Fortas. And that was not because of objections regarding his politics or religion, but rather gross misconduct from the bench.
See ProfessorBainbridge.com and http://www.pejmanesque.com/archives/010195.html
So, in the end, your position is that it is NOT radical for the minority party in the Senate to obstruct close to 25% of the President’s appointees for the U.S. appellate courts, although it is an arguable proposition that any judicial nominee has ever faced the filibuster previously (and in the alternative, it has been only 1 nominee for the USSC chief justice, and the filibuster wasn’t based on ideological grounds).
Now, as to the second part of what you wrote,
[quote]100meters wrote:
…The point also remains, the WSJ is talking out both sides of it’s mouth. “Cat Killer” Frist is still a hypocrite and is pandering to the religous right. And still Republicans did not offer the right to up or down votes to Clinton, regardless of if they were the majority party or not. Also as to constitutionality you have this on the senate floor yesterday:
SEN. BYRD: I ask the Senator from Tennessee, I ask any Senator to respond to that question. Does this Constitution accord to each nominee an up-or-down vote on the Senate floor?
SEN. FRIST: The question: Does the Constitution say that every nominee of the President deserves an up-or-down vote. And the ABC is - the answer is: no, the language is not there.
Oh Fristy—what a nightmare to be slave now to James Dobson!(NOTE: Frist will continue to say it’s unconstitutional, even after yesterday’s exchange with “Sheets” Byrd.)
[/quote]
THe WSJ and Frist are not talking out of both sides of their mouths, because of what I wrote above. The “advice and consent” of the Senate with respect to appointments obviously means the whole of the Senate, which means a simple majority vote unless it is otherwise specified. When the authors of the Constitution wanted a supermajority requirement, they were quite able to specify one, as they did in the same exact article, the same exact section, the exact same subsection, referencing the same “advice and consent” of the Senate with respect to treaties.
In Article II, Section 2, Subsection 2, the Constitution states:
“He shall have the Power, by and with the consent of the Senate to make Treaties, provided two thirds of the Senators concur;”
Obviously, the founders understood how to put in a supermajority vote requirement. The very next clause, in the same paragraph, says this:
“and he shall nominated, and by and with the consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law;”
Thus, if the Constitution had wanted a supermajority requirement for the approval of judges, it very well would have specified one.
[quote]rainjack wrote:
The really cool thiong about this issue, 100M, is that the majority has the ability to change the Senate rules. No amount of bitching, or truth distorting by the left can affect the power that the right now owns.
And the Right’s power will only grow bigger next November. [/quote]
True,—and we shall see.
[quote]BostonBarrister wrote:
100meters wrote:
Well, The numbers are correct, and by your math I would say the Dems have allowed almost 4/5’s of the appellate nominees, and there is nothing “radical” about their trying to do so. …
So, the fact that over the course of the previous history of the USA, NO appellate-court justices have been filibustered by the minority party in the Senate, and now the President has has approximately 25% of his appellate-court nominees filibustered, is not “radical”?
In fact, only one nominee for any court has faced a filibuster by the minority party in the Senate in the history of the USA. And that was the nomination of a sitting Supreme Court associate justice to move up to the Chief Justice position, for Abe Fortas. And that was not because of objections regarding his politics or religion, but rather gross misconduct from the bench.
See ProfessorBainbridge.com and http://www.pejmanesque.com/archives/010195.html
So, in the end, your position is that it is NOT radical for the minority party in the Senate to obstruct close to 25% of the President’s appointees for the U.S. appellate courts, although it is an arguable proposition that any judicial nominee has ever faced the filibuster previously (and in the alternative, it has been only 1 nominee for the USSC chief justice, and the filibuster wasn’t based on ideological grounds).
Now, as to the second part of what you wrote,
100meters wrote:
…The point also remains, the WSJ is talking out both sides of it’s mouth. “Cat Killer” Frist is still a hypocrite and is pandering to the religous right. And still Republicans did not offer the right to up or down votes to Clinton, regardless of if they were the majority party or not. Also as to constitutionality you have this on the senate floor yesterday:
SEN. BYRD: I ask the Senator from Tennessee, I ask any Senator to respond to that question. Does this Constitution accord to each nominee an up-or-down vote on the Senate floor?
SEN. FRIST: The question: Does the Constitution say that every nominee of the President deserves an up-or-down vote. And the ABC is - the answer is: no, the language is not there.
Oh Fristy—what a nightmare to be slave now to James Dobson!(NOTE: Frist will continue to say it’s unconstitutional, even after yesterday’s exchange with “Sheets” Byrd.)
THe WSJ and Frist are not talking out of both sides of their mouths, because of what I wrote above. The “advice and consent” of the Senate with respect to appointments obviously means the whole of the Senate, which means a simple majority vote unless it is otherwise specified. When the authors of the Constitution wanted a supermajority requirement, they were quite able to specify one, as they did in the same exact article, the same exact section, the exact same subsection, referencing the same “advice and consent” of the Senate with respect to treaties.
In Article II, Section 2, Subsection 2, the Constitution states:
“He shall have the Power, by and with the consent of the Senate to make Treaties, provided two thirds of the Senators concur;”
Obviously, the founders understood how to put in a supermajority vote requirement. The very next clause, in the same paragraph, says this:
“and he shall nominated, and by and with the consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law;”
Thus, if the Constitution had wanted a supermajority requirement for the approval of judges, it very well would have specified one.[/quote]
How is it radical to use existing rules to block judges you find harmful to the american people.—what’s radical is the hypocrisy, and the lies—why lie? (Not you- your party.) Filibuster is NOT unconstitutional. Dems are not the only party to use the Filibuster. Frist is a hypocrite on the essential issue(yes or no vote). And the WSJ is still talking out it’s butt. (If the issue is “just” giving something an up or down vote, then these guys are just lying–again as I already mentioned they supported blocking clinton appointees!) If they change senate rules—then so be it.
[quote]100meters wrote:
How is it radical to use existing rules to block judges you find harmful to the american people.—what’s radical is the hypocrisy, and the lies—why lie? (Not you- your party.) Filibuster is NOT unconstitutional. Dems are not the only party to use the Filibuster. Frist is a hypocrite on the essential issue(yes or no vote). And the WSJ is still talking out it’s butt. (If the issue is “just” giving something an up or down vote, then these guys are just lying–again as I already mentioned they supported blocking clinton appointees!) If they change senate rules—then so be it.[/quote]
The constitutionality of using the filibuster procedure to impose a de facto supermajority approval requirement when such a requirement is not in the constitution is dubious at best.
Under the same logic by which the USSC ruled that term limits for congressional representatives were not constitutional, because that amounted to the imposition of a higher constraint than what was put in the Constitution for congressional representatives.
In this case, the argument would be that this particular use of the filibuster is an unconstitutional restraint on the Presidential appointment power, as it adds an extra constraint not specified in the Constitution. It thus amounts to an usurpation of executive power by the legislative branch.
Your other statements are completely immaterial to the point,as no one is arguing that the Dems are the only ones to use the filibuster, only that they are the ones abusing it now. However, to the extent you are comparing the “filibuster” of Fortas, it’s not a good comparison as: 1) the “filibuster” of Fortas was bi-partisan; 2) Fortas would likely have lost a floor vote in the Senate ( http://www.nationalreview.com/comment/cornyn200311131044.asp ); and 3) Fortas’ opponents were actively debating his nomination and insisted they were not engaging in any sort of filibuster ( http://www.cornyn.senate.gov/record_jc.cfm?id=225340 ). And this is aside from Fortas’ large ethical problems ( http://committeeforjustice.org/contents/reading/Filibusterfinal.pdf ).
The essential issue is what “advice and consent of the Senate” means with regard to the Presidential appointment power, not how Frist chose to state or misstate the issue. It means approval of the majority of the Senate. To give that approval, obviously the matter needs to come to a vote. Your attempt – and Robert KKK Byrd’s attempt – to resort to semantics to avoid the core Constitutional issue is weak.