Filibusters

Off Topic Politics & World Issues
21

[quote]100meters wrote:

How is it radical to use existing rules to block judges you find harmful to the american people. …[/quote]

Oh, and one thing I forgot to address (again) – it’s “radical” in that it is a radical departure from Senatorial protocol and from history. It’s “radical” in that it is a radical attempt for a minority of members of the U.S. Senate to usurp the Presidential appointment power, which is de facto the same as amending the Constitution to require a supermajority approval requirement for judges.

That’s pretty damn radical.

22

[quote]BostonBarrister wrote:
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.

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:

http://www.fed-soc.org/pdf/recapp.pdf[/quote]

That was a good read. The constitutionality of recess appointments was never in question though, so I don’t see how citing that passage of the constitution is relevant to my question.

My question was, why is such a big fuss being made over the judicial filibuster (which is also, except by some extreme interpretations, considered consitutional) and not over the power of recess appointment?

In my mind recess appointment is an inherently more dangerous tool, especially since the “that may happen during the Recess of the Senate” clause has been expanded to mean vacancies that occur at any point in time.

So, taking as given that neither are considered unconstitutional, why are judicial filibusters considered more harmful to our democracy than the power granted by the expanded interpretation of recess appointment? Just because of the historical pattern of usage?

23

And this could go under either “filibusters” or “liberal media bias,” but it’s more topical here I suppose:

http://www.volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1116020779

More Starr on the Filibuster: Those following the story about CBS’s possible misrepresentation of Ken Starr’s comments on the filibuster (get up to speed here http://slate.msn.com/id/2118301/&#boomerang ) might be interested in a larger excerpt of the e-mail exchange quoted yesterday by Ramesh Ponnuru over at Bench Memos ( http://www.nationalreview.com/benchmemos/062887.asp ). The e-mail is making the rounds, and I have verified its authenticity. The exchange starts with Kirkland & Ellis associate Steve Engel ( http://www.kirkland.com/ourFirm/lawyerBio.aspx?InfiniumH4ID=9096&employeeH4ID=29098&attorneyH4ID=10374 ) e-mailing Starr (a former Kirkland partner) to see if he was misquoted. Starr responds with this e-mail:

----- Original Message -----
From: “Starr, Ken”
Sent: 05/11/2005 06:53 PM
To: “‘Steven Engel’”
Subject: RE: misquoted on filibusters?
Steve:
I just watched the CBS report. Totally wrong employment of the snippet: I was condemning the Democrats for challenging judges based on philosophy. It was in that context that I made the radical departure point. Wow. Ken

Later, Starr adds a fuller explanation in another e-mail, forwarding on his response to Engel:

[i]  I have now seen the CBS report. Attached is an exchange with Steve Engel at K&E-Washington, who alerted me earlier today to other dimensions of the wild misconstruction of what I said in the Gloria Borger interview.

  Brief background: I sat on Saturday with Gloria for 20 minutes (approx.) and had a wide-ranging on-camera discussion. In the piece that I have now seen, and which I gather is being lavishly quoted, CBS employed two snippets. The "radical departure" snippet was specifically addressed ? although this is not evidenced whatever from the clip ? to the practice of invoking judicial philosopy as a grounds for voting against a qualified nominee of integrity and experience. I said in sharp language that that practice was wrong. I contrasted the current practice . . . with what occurred during Ruth Ginsburg's nomination process, as numerous Republicans voted (rightly) to confirm a former ACLU staff lawyer. They disagreed with her positions as a lawyer, but they voted (again, rightly) to confirm her. Why? Because elections, like ideas, have consequences. . . . In the interview, I did indeed suggest, and have suggested elsewhere, that caution and prudence be exercised (Burkean that I am) in shifting/modifying rules (that's the second snippet), but I likewise made clear that the "filibuster" represents an entirely new use (and misuse)of a venerable tradition.

  Anyway, our folks here at Pepperdine's Public Information Office (who arranged the CBS interview) are scrambling to get the full transcript of the entire interview. But our friends are way off base in assuming that the CBS snippets, as used, represent (a) my views, or (b) what I in fact said.

  Kindly feel free to share this message with anyone you deem appropriate. Ken[/i]
24

[quote]BostonBarrister wrote:
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.
[/quote]

That’s an interesting framing. What makes requiring 51 votes for judicial confirmation any more “fair” than requiring 60 votes? As long as it is constitutionally sound (and by most interpretations it is), I just don’t see how needing 51 votes is “fair” but needing 60 is somehow damaging to our government. If anything filibusters make judicial appointments more moderate, not more radical. I haven’t followed the issue enough to know if the case is strong that the filibuster is being “abused”, but if it is why not let the electorate decide in 2006?

I don’t really have a strong opinion of changing the filibuster rules. As BB has said it’s a matter of internal Senate rules and they can do as they please. I just don’t understand why this is considered so damaging to the integrity of the Senate, nor why so many people seem to be buying into Frist’s framing of the issue.

25

[quote]BostonBarrister wrote:
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.
[/quote]

Great point.

26

[quote]Moriarty wrote:

That’s an interesting framing. What makes requiring 51 votes for judicial confirmation any more “fair” than requiring 60 votes? As long as it is constitutionally sound (and by most interpretations it is), I just don’t see how needing 51 votes is “fair” but needing 60 is somehow damaging to our government. If anything filibusters make judicial appointments more moderate, not more radical. I haven’t followed the issue enough to know if the case is strong that the filibuster is being “abused”, but if it is why not let the electorate decide in 2006?
[/quote]

The electorate has already decided. That’s what’s pissing a lot of people off so much. Let the representatives of the people vote. How much time has been wasted with this anti-democratic nonsense? Vote on it. Lose elections and you lose power, that’s the name of the game. If the dems want to put judges into place, they have to win congressional seats.

27

Cream,

Are you serious!!!

The Democrats are the party of the French/Germans!!! They are the international community!!!

It is the inherent right of the Democratic minority to decide what is right for the rest of the “crazy” right!!!

The whole country has gone crazy!!!

Bush lied, Sinatra died!!!

JeffR

28

[quote]JeffR wrote:

Bush lied, Sinatra died!!!

JeffR[/quote]

muskie,

Bush lied, the Atari 800 died!

29

Ummmmmm… my aren’t we getting a little emotive here? The left’s pass rate is still more than fifty percent and suggesting that “almost one quarter” have been blocked…so what’s your point? I would seriously suggest not using statistics in an argument unless you can derive anything useful out of them.

And as far as imposing a “Supermajority” it seems to me that the whole point of this process is to limit the power of the majority over the minority–read equal opportunity for all–which in turn ensures a more moderate return.

True. I am very liberal and voted for Kerry as did my state, MN. As liberal as I am I would still not want majority control of Congress by the left. A swing too quickly from one end of the spectrun to the other is not, in my opinion, a good thing for one simple reason–it tends to make the other side feel left out. The process of a fillabuster is the minority’s way of saying, “Hey, watch it!” In particular, in regards to the Bush administration it asks, “What referendum?”

One last liberal jab: Bush only won 51% of the vote the last I read. Does this entitle him to totally rewrite the constitiution and change the political landscape for a long time to come? After all 49% of the the populus still disagrees with him. This is my definition of changing the spectrum too quickly.

30

FYI:

http://www.nationalreview.com/benchmemos/063070.asp

Re: Revising the Senate Filibuster Rules
[Edward Whelan 05/14 07:48 PM]

Andy asks whether the Post is correct in suggesting that filibuster reform depends on a determination that the existing filibuster rule is unconstitutional. The Post is clearly not correct.

From what I can tell, there are three or four people who fully understand the intricacies of changing the Senate rules, and I?m certainly not one of them. But Marty Gold is. Based on a discussion I had with him, here?s my understanding:

  1. The Senate has plenary power under the Constitution to change its rules at any time. As a constitutional matter, that power can be exercised by a majority of Senators present and constituting a quorum. One traditional means of modifying the Standing Rules of the Senate is for the majority to override the presiding officer’s application of the existing rules. Such override doesn?t mean that the presiding officer was wrong. It means, rather, that the Senate is exercising its plenary power to change the existing rules. In parliamentarian language, the Senate establishes a ?precedent? that departs from the Standing Rules. That ?precedent? governs Senate proceedings on a going-forward basis.

  2. It is crystal-clear that reforming the filibuster does not depend on a determination that the existing filibuster rule is unconstitutional. The Senate has revised its filibuster rule numerous times.

  3. As I understand it, the particular procedure that would unfold would involve a determination by the vice president, as president of the Senate, or by the president pro tem or other presiding officer whether the existing filibuster rule applies to judicial nominations. If the initial determination is that the rule does apply, a majority of senators could then vote to override this determination and establish a precedent that the Standing Rule does not apply to judicial nominations. (In the event of a tie, the VP would break the tie, so the votes of 50 Senators are needed.) If the initial determination is that the rule does not apply, a majority of senators would be needed to override this determination and retain the filibuster. Again, this parliamentarian jargon should not obscure that what would really happen is a simple exercise of the Senate?s constitutional authority to revise its rules. So, as I understand it, there would be nothing improper in the vice president?s determining as an initial matter that the existing filibuster rule does not apply to judicial nominations (even though the Standing Rule plainly does). Such a determination would merely be part of the mechanism for changing the rule.

(I have not run the above written explanation by Marty Gold, and any error in it is mine alone.)

There?s a minor side issue as to whether the Senate can formally revise its Standing Rules at any time (as opposed to establishing precedents that effectively depart from the Standing Rules). My own understanding of the Senate?s constitutional power leads me to the conclusion that the Senate can do so, but I?ve heard others express a contrary view (the basis of which I’m unclear on). In practice, nothing turns on this.

31

[quote]BostonBarrister wrote:
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.

LIFTICVSMAXIMVS wrote:

Ummmmmm… my aren’t we getting a little emotive here?[/quote]

Were you trying to be ironic?

[quote]
LIFTICVSMAXIMVS wrote:
The left’s pass rate is still more than fifty percent and suggesting that “almost one quarter” have been blocked…so what’s your point? I would seriously suggest not using statistics in an argument unless you can derive anything useful out of them.[/quote]

Derive this: The filibuster has never been used before President Bush’s first term by the minority party to block an appellate-court nominee. It has also never been used in a solely partisan fashion to block any judicial nominee. It is arguable that it has ever been used, period. So go divide the current rate of filibustering of appellate-court nominees by the historical rate of filibustering appellate-court nominees, and come back when you’ve hit the answer…

[quote]LIFTICVSMAXIMVS wrote:

And as far as imposing a “Supermajority” it seems to me that the whole point of this process is to limit the power of the majority over the minority–read equal opportunity for all–which in turn ensures a more moderate return. [/quote]

Not quite. You could perhaps make that argument with respect to normal legislation, though your “equal opportunity for all” line would be bad, because the minority party would actually have a disproportionate influence based on their electoral successes. The filibuster is a tool that expressly overrides “equal opportunity for all.”

However, in this case, the application of the filibuster procedure is Unconstitutional (I’ll note that there is no USSC authority on this, because it has never come up before), as it is a legislative usurpation of the Presidential appointment power. The President is granted, under Article II, the power to make appointments “with the advice and consent of the Senate.” Not a Supermajority of the Senate, as was specifically required for treaties. Common sense interpretation would lead to the conclusion that the Founders did not want a supermajority requirement – in other words, its absence in that clause is authoritative.

[ADDENDUM: A different argument for this application being Unconstitutional would hold that the minority is actually denying the Senate its “advise and consent” power, in a manner dissimilar to blue-slips or committees, because the full Senate can vote to override both of those by simple majority. I think this is a weaker argument than usurping the Presidential appointment power, but it’s probably still valid.]

But how can it be, you may ask, that the Senate is granted the Constitutional power to make its own rules, yet the filibuster as applied to judicial appointments is Unconstitutional?

Here’s an analogy: Congress was granted in Article I the power to make laws. However, that does not make each law it passes under that power otherwise Constitional. The Senate was granted the power to make its own procedural rules – that does not mean that each application of each rule it makes is Constitutional.

[quote]LIFTICVSMAXIMVS wrote:

True. I am very liberal and voted for Kerry as did my state, MN. As liberal as I am I would still not want majority control of Congress by the left. A swing too quickly from one end of the spectrun to the other is not, in my opinion, a good thing for one simple reason–it tends to make the other side feel left out. The process of a fillabuster is the minority’s way of saying, “Hey, watch it!” In particular, in regards to the Bush administration it asks, “What referendum?”[/quote]

Interesting, and totally irrelevant. The proposed rule change for the filibuster would only be applicable to Presidential Appointments (and might officially be only changed w/r/t Judicial Appointments).

[quote]LIFTICVSMAXIMVS wrote:
One last liberal jab: Bush only won 51% of the vote the last I read. Does this entitle him to totally rewrite the constitiution and change the political landscape for a long time to come? After all 49% of the the populus still disagrees with him. This is my definition of changing the spectrum too quickly. [/quote]

I would love for you to show me how changing the Senate’s filibuster rule amounts to rewriting the Constitution.

32

[quote]
LIFTICVSMAXIMVS wrote:
One last liberal jab: Bush only won 51% of the vote the last I read. Does this entitle him to totally rewrite the constitiution and change the political landscape for a long time to come? After all 49% of the the populus still disagrees with him. This is my definition of changing the spectrum too quickly.

I would love for you to show me how changing the Senate’s filibuster rule amounts to rewriting the Constitution.[/quote]

Or, how George Bush could change the Senate filibuster rule. That is done by the Senate, where the Republicans enjoy a clear majority… because they were VOTED IN!

33

[quote]BostonBarrister wrote:
BostonBarrister wrote:
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.

Were you trying to be ironic?

LIFTICVSMAXIMVS wrote:
The left’s pass rate is still more than fifty percent and suggesting that “almost one quarter” have been blocked…so what’s your point? I would seriously suggest not using statistics in an argument unless you can derive anything useful out of them.

Derive this: The filibuster has never been used before President Bush’s first term by the minority party to block an appellate-court nominee. It has also never been used in a solely partisan fashion to block any judicial nominee. It is arguable that it has ever been used, period. So go divide the current rate of filibustering of appellate-court nominees by the historical rate of filibustering appellate-court nominees, and come back when you’ve hit the answer…

Not quite. You could perhaps make that argument with respect to normal legislation, though your “equal opportunity for all” line would be bad, because the minority party would actually have a disproportionate influence based on their electoral successes. The filibuster is a tool that expressly overrides “equal opportunity for all.”

However, in this case, the application of the filibuster procedure is Unconstitutional (I’ll note that there is no USSC authority on this, because it has never come up before), as it is a legislative usurpation of the Presidential appointment power. The President is granted, under Article II, the power to make appointments “with the advice and consent of the Senate.” Not a Supermajority of the Senate, as was specifically required for treaties. Common sense interpretation would lead to the conclusion that the Founders did not want a supermajority requirement – in other words, its absence in that clause is authoritative.

[ADDENDUM: A different argument for this application being Unconstitutional would hold that the minority is actually denying the Senate its “advise and consent” power, in a manner dissimilar to blue-slips or committees, because the full Senate can vote to override both of those by simple majority. I think this is a weaker argument than usurping the Presidential appointment power, but it’s probably still valid.]

But how can it be, you may ask, that the Senate is granted the Constitutional power to make its own rules, yet the filibuster as applied to judicial appointments is Unconstitutional?

Here’s an analogy: Congress was granted in Article I the power to make laws. However, that does not make each law it passes under that power otherwise Constitional. The Senate was granted the power to make its own procedural rules – that does not mean that each application of each rule it makes is Constitutional.

Interesting, and totally irrelevant. The proposed rule change for the filibuster would only be applicable to Presidential Appointments (and might officially be only changed w/r/t Judicial Appointments).

I would love for you to show me how changing the Senate’s filibuster rule amounts to rewriting the Constitution.[/quote]

Fist, “the fillibuster has never been used”…so what? I don’t care for what reason it is or isn’t being used. The point I was trying to make is that statistics don’t mean didly in and of themselves–it was totally pointless to “break out a calculator” and do fifth grade math which I’m sure we are pretty much capable of doing this (I hesitate to use a pointless statistic to illustrate this). The answer to your question is infinity so again I ask, what’s your point?

Secondly, the argument I beleive was never about the constitutionality but rather a question of opinion concerning totally “killing the filibuster”. In my opinion–and I hold to everything I said earlier–is that it holds the spectrum in place and keeps change from happening too quickly–again, I reiterate, this is my opinion.

Thirdly, I was merely sharing my idiology–this lets you know out in the open who I am so you won’t think I was trying to be objective–which, in my opinion your writing indicate you are trying to be. Hey, we all have opinions. Don’t try to color them as fact. I don’t think you have the wherewithall to argue constitutionality with myself or anyone on this post–otherwise I believe you would be actually doing it.

Lastly, the filibuster would greatly stop amendments which is where I think it would do the greatest good. The process needs to pass both house and senate before it goes to the states for ratification anyway. I believe it must be by 2/3 of both houses. In the case of stopping an amendment all it takes is a minority to speak up and say so. I believe this is protected in Article I of the Bill of Rights. Of course, this is just my feable, liberal attempt to wax philosophic.

Stay tuned for the haiku I'm composing to answer the question of  "constitutionality".
34

[quote]LIFTICVSMAXIMVS wrote:

Fist, “the fillibuster has never been used”…so what? I don’t care for what reason it is or isn’t being used. The point I was trying to make is that statistics don’t mean didly in and of themselves–it was totally pointless to “break out a calculator” and do fifth grade math which I’m sure we are pretty much capable of doing this (I hesitate to use a pointless statistic to illustrate this). The answer to your question is infinity so again I ask, what’s your point?[/quote]

To state what I assumed was obvious, but perhaps was wrong in so assuming: The fact that it has never been used in such a manner should be a good clue, aside from all the Constitutional analysis I threw out there, that using the filibuster to keep the Senate from voting on judicial appointees is in fact Unconstitutional.

[quote]LIFTICVSMAXIMVS wrote:
Secondly, the argument I beleive was never about the constitutionality but rather a question of opinion concerning totally “killing the filibuster”. In my opinion–and I hold to everything I said earlier–is that it holds the spectrum in place and keeps change from happening too quickly–again, I reiterate, this is my opinion.[/quote]

Fine. And the above was my opinion on why your opinion was incorrect as it applied to the topic at hand.

Basically, “killing the filibuster” isn’t an option on the table at present. Only killing it with respect to a particular Unconstitutional application.

[quote]LIFTICVSMAXIMVS wrote:
Thirdly, I was merely sharing my idiology–this lets you know out in the open who I am so you won’t think I was trying to be objective–which, in my opinion your writing indicate you are trying to be. Hey, we all have opinions. Don’t try to color them as fact. I don’t think you have the wherewithall to argue constitutionality with myself or anyone on this post–otherwise I believe you would be actually doing it.[/quote]

I have the training, as you may have guessed from my screen name, to argue Constitutionality with you or whoever else wants to do so. Unfortunately for my personal interests, it’s rather hard to do both corporate law and constitutional law as parts of a practice, and corporate law has much greater pecuniary reward. Perhaps I will see what my firm’s pro bono department thinks of my donating my time to the Institute for Justice, or FIRE, or something…

[quote]LIFTICVSMAXIMVS wrote:
Lastly, the filibuster would greatly stop amendments which is where I think it would do the greatest good. The process needs to pass both house and senate before it goes to the states for ratification anyway. I believe it must be by 2/3 of both houses. In the case of stopping an amendment all it takes is a minority to speak up and say so. I believe this is protected in Article I of the Bill of Rights. Of course, this is just my feable, liberal attempt to wax philosophic. [/quote]

This doesn’t actually make any sense. If there were 67 Senators who favored an amendment, overcoming a procedural hurdle, the filibuster, that required only 61 votes to defeat would be easily and quickly done.

[quote]LIFTICVSMAXIMVS wrote:

Stay tuned for the haiku I'm composing to answer the question of  "constitutionality".[/quote]

Perhaps you could include a file with you singing the words to the tune of "Don't Worry, Be Happy."
35

[quote]LIFTICVSMAXIMVS wrote:
Fist, “the fillibuster has never been used”…so what? I don’t care for what reason it is or isn’t being used. The point I was trying to make is that statistics don’t mean didly in and of themselves–it was totally pointless to “break out a calculator” and do fifth grade math which I’m sure we are pretty much capable of doing this (I hesitate to use a pointless statistic to illustrate this). The answer to your question is infinity so again I ask, what’s your point?[/quote]

The point is that the senate-created fillibuster has NEVER been used to block a judicial nomination. The Democrats - in a totally partisan move have basically locked themselves ion the bathroom and are holding up the entire operation because they are having a titty fit - and they don’t have the votes to defeat it the way the constitution tells them to.

You might want to go tell Sheets Byrd this, because him and the rest of the left seem to think that changing senate rules is tantamount to rewriting the constitution.

There isn’t a constitutional argument to be had here. Changing Senate rules has absolutely nothing to do with the constitution. It has everything to do with the partisanship being displayed by the crippled and limping left, and their last gasp attempts to hold some power.

A fillibuster would be useless in a constitutional ammendment vote - as you will either have the votes, or not - and a super majority (which is required by the constitution) renders a fillibuster pointless.

36

[quote]BostonBarrister wrote:

To state what I assumed was obvious, but perhaps was wrong in so assuming: The fact that it has never been used in such a manner should be a good clue, aside from all the Constitutional analysis I threw out there, that using the filibuster to keep the Senate from voting on judicial appointees is in fact Unconstitutional.

Fine. And the above was my opinion on why your opinion was incorrect as it applied to the topic at hand.

Basically, “killing the filibuster” isn’t an option on the table at present. Only killing it with respect to a particular Unconstitutional application.

I have the training, as you may have guessed from my screen name, to argue Constitutionality with you or whoever else wants to do so. Unfortunately for my personal interests, it’s rather hard to do both corporate law and constitutional law as parts of a practice, and corporate law has much greater pecuniary reward. Perhaps I will see what my firm’s pro bono department thinks of my donating my time to the Institute for Justice, or FIRE, or something…

This doesn’t actually make any sense. If there were 67 Senators who favored an amendment, overcoming a procedural hurdle, the filibuster, that required only 61 votes to defeat would be easily and quickly done.

LIFTICVSMAXIMVS wrote:

Stay tuned for the haiku I'm composing to answer the question of  "constitutionality".

Perhaps you could include a file with you singing the words to the tune of "Don't Worry, Be Happy."[/quote]

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~      As a trained lawyer I would hope you would learn not to assume--I know I as a physicist I would do the same.  And just because I am a trained physicist doesn't mean I'm going to argue about condensed matter when my training is in nuclear behavior.  This goes for you and constitutional law as well.  

The fundamental difference between us is you are paid to argue a point no matter the validity (or the facts) and have received training in that.  I too have a skill in argument; but it is based solely on observation and backing my argument up with "fact" that is always testable and re-testable--that is what makes it valid.  As a scientist I have a commitment to myself and others to be forthright in where my opinion diverges from fact (this is usually delivered at the end of most arguments as an analysis).  When an experiment or hypothesis goes wrong we still publish.  When we think we're right usually there are dozens who still think otherwise.  

I guess, in my round-about way of saying so, I am trying to tell you that a conservative lawyer's over use of "fact" not backed up by publication notes (foot notes of where you received your information) means nothing--I know it's your opinion--I disagree with it. 

Your systematic approach of trying to rationalize each of my opinions is pointless.  I have stated that these are my opinions.  My original post was to question why you are using statistics (where did you get them?  I believe them to be at least partially correct but I am accustomed to doing my own math) for what was supposed to be a question of whether we agreed with the use of the filibuster for this case.  

I understand you're argument about blocking presidential appointments being unconstitutional; but since it is not explicitly stated in the constitution that the Senate cannot block presidential nominations it's just your (and many others) interpretation--and nothing more.  

In conclusion, yes I think it?s acceptable that the Senate is blocking Bush?s appointments.   I don?t like him (this is not based on anything but my own personal belief).   But then again I?m a liberal, hippy who thinks Bush has done no good for this country.
37

[quote]rainjack wrote:
A fillibuster would be useless in a constitutional ammendment vote - as you will either have the votes, or not - and a super majority (which is required by the constitution) renders a fillibuster pointless.
[/quote]

I believe that it is quite useful and makes a huge statement when a single, solitary individual stands up and says, “Hey, not on my watch.” This is why we are great–because I may be in the minority on my opinion but I still get a say–whether it comes to fruition or not. That is the point of the filibuster–it protects us.

I realize that many of you do not agree with it’s use here because it keeps the majority from completeing it’s “mandate”. But when the winners write the history (and they always do) they may decide to write about the attempt of that individual to stop a criticle decision from being made that may have affected this country in the worst way. And all the school children who read about it in the history books will use their ability to think freely (this is a stretch I know) and be able to see why it was or wan’t important.

Maybe it’s not the correct way to ust this “tool” but can we really kill it because we don’t like one of it’s outcomes?

38

[quote]LIFTICVSMAXIMVS wrote:

As a trained lawyer I would hope you would learn not to assume–I know I as a physicist I would do the same. And just because I am a trained physicist doesn’t mean I’m going to argue about condensed matter when my training is in nuclear behavior. This goes for you and constitutional law as well. [/quote]

I never said I wasn’t trained in Constitutional law. That’s your assumption – which I guess is based in nuclear behavior?

In fact, I said the opposite.

In law school you get a lot of training in Constitutional law – it’s just not my area of specialty right now. Kind of like a doctor who learned the ins and outs of the endocrine system in med school, but who now practices in another related field.

[quote]LIFTICVSMAXIMVS wrote:
The fundamental difference between us is you are paid to argue a point no matter the validity (or the facts) and have received training in that. I too have a skill in argument; but it is based solely on observation and backing my argument up with “fact” that is always testable and re-testable–that is what makes it valid. As a scientist I have a commitment to myself and others to be forthright in where my opinion diverges from fact (this is usually delivered at the end of most arguments as an analysis). When an experiment or hypothesis goes wrong we still publish. When we think we’re right usually there are dozens who still think otherwise.

I guess, in my round-about way of saying so, I am trying to tell you that a conservative lawyer’s over use of “fact” not backed up by publication notes (foot notes of where you received your information) means nothing–I know it’s your opinion–I disagree with it. [/quote]

Really? Based on what training?

What does physics teach us about the separation of powers, and why that is important to the Constitutional structure?

Or, in the alternative, what is your opinion on this issue?

[quote]LIFTICVSMAXIMVS wrote:
Your systematic approach of trying to rationalize each of my opinions is pointless. I have stated that these are my opinions. My original post was to question why you are using statistics (where did you get them? I believe them to be at least partially correct but I am accustomed to doing my own math) for what was supposed to be a question of whether we agreed with the use of the filibuster for this case. [/quote]

The numbers came from the CNN story linked in the post. The grade-school math was my own.

And I explained above why they were relevant.

[quote]LIFTICVSMAXIMVS wrote:

I understand you’re argument about blocking presidential appointments being unconstitutional; but since it is not explicitly stated in the constitution that the Senate cannot block presidential nominations it’s just your (and many others) interpretation–and nothing more. [/quote]

It’s about the same as your opinion on the location of an electron at any given point in time. Though I suppose that were the Supreme Court to actually rule on the issue – which, as I said, has never come up because it was understood to be Unconstitutional prior to this time – then we could move back to Newtonian certainties.

Given that isn’t particularly likely to happen, I suppose we’re left for the moment with making our educated guesses – some better defended than others.

[quote]LIFTICVSMAXIMVS wrote:

In conclusion, yes I think it?s acceptable that the Senate is blocking Bush?s appointments. I don?t like him (this is not based on anything but my own personal belief). But then again I?m a liberal, hippy who thinks Bush has done no good for this country.
[/quote]

So do you think that the Senate can make any use of its internal rule-making power that it wishes to, irrespective of how it stomps on the other sections of the Constitution, or the power and function of other branches? That would be the implication of your reasoning, and your opinion.

To quote Andrew McCarthy:

"Could the Senate, for example, make a rule that said: ?the Senate will only consider presidential appointments in even-numbered years?? After all, the Senate may make its own rules and, as with the filibuster, there is nothing in the Constitution that expressly says such a rule is impermissible. But of course, such a rule would have the effect of grinding government to a halt. It would nullify the president?s express constitutional authority to appoint most high government officials (art. II, sec. 2, cl. 2). That is, such a Senate rule could force the president to try to govern not only bereft of the ability to choose judges but, in fact, with no Cabinet and sub-Cabinet officials.

Similarly, if in a fit of pique a rule were adopted that the Senate would no longer consider nominees to the Supreme Court, that would eventually leave the Supreme Court empty, notwithstanding that it is the repository of the judicial power and a branch made co-equal to Congress by the constitution. The branches are supposed to compete, but a construction that allowed one to dissolve another?s powers would, in short, destroy the foundations of the Constitution.

Clearly, there must be some objective limits to the Senate?s authority despite the fact that the clause granting it rule-making power does not expressly admit of any. What should our guiding principle be in determining what those limits are? I believe they ought to be (and in fact are) those points at which the Senate?s powers intersect with the powers of the coordinate branches. That is, the Senate may make rules that control any matter over which it uniquely exercises legitimate authority. Beyond that, its rules must yield to the enumerated powers of the other branches.

If the Senate chooses to consider ? or not to consider ? health care, crime, tax reform, Social Security or any of the plethora of other areas in which it might legislate, that is for it to decide. Neither the House nor the other branches may legally force the Senate to act (although they may of course try to persuade it to do so). The Senate is well within its rights in those circumstances to determine the rules under which it will proceed. But where its powers cross paths with the recognized prerogatives of the other branches, mere Senate rules may not nullify the constitutional powers of those branches. The president?s warrant to make appointments is such a power.

There is nothing novel about this concept. Indeed, it is played out with regularity between Congress and the courts. Congress, for example, ostensibly has plenary authority to regulate interstate and foreign commerce (art. I, sec. 8, cl. 3). It may not, however, enact a law that announces a legal test for determining what regulations of such commerce are valid. Why not ? especially given that the commerce clause expresses no such limitation? Because doing so would impermissibly intrude on the prerogative of the courts to say what the law is. Under this limiting principle, the Supreme Court has struck down, for instance, an act of Congress that attempted to prescribe a test for determining when official action impermissibly burdened religious exercise, as well as a law that attempted to reverse Miranda v. Arizona and replace it with Congress?s own view of the parameters of the Fifth Amendment?s protection against self-incrimination.

The case for voiding the filibuster of presidential appointees is actually stronger than that for the long-accepted judicial override of invalid legislative enactments. To begin with, laws passed by Congress and signed by the president plainly have a higher pedigree than mere, ephemeral Senate rules, yet this avails those laws of nothing if they overstep their bounds. If statutes have to give way, Senate rules must, a fortiori, retreat upon collision with constitutional barriers.

More significantly, there is nothing in the Constitution explicitly giving the judicial branch preeminence in construing the Constitution and federal laws. Rather, the Supreme Court assumed this function two centuries ago and has exercised it ever since. To the contrary, the power of the president to make appointments is explicitly spelled out in the constitution. By blocking it, the Senate is thus effectively denying the executive his indisputable authority.

Does this mean the president gets to make any appointments he wishes? Of course not. Only those as to whom the Senate consents may assume their appointed positions. This, I believe, obligates the Senate to perform its constitutional obligation: to advise and consent, to consider and vote. It may properly reject nominees, but it should not be able to use procedural dodges (such as filibusters or refusing in committee to consider a nominee proffered by the president) to avoid its obligation to vote one way or the other."

39

I don’t think you understand rainjack’s point, unless you’re simply ignoring it. A filibuster could not stop an Amendment to the Constitution that otherwise had the support to pass. So one guy could stand up and say “Not on my watch,” and then his friends would clap, and then the 67 Senators would vote to pass it anyway.

40

[quote]LIFTICVSMAXIMVS wrote:

I believe that it is quite useful and makes a huge statement when a single, solitary individual stands up and says, “Hey, not on my watch.” This is why we are great–because I may be in the minority on my opinion but I still get a say–whether it comes to fruition or not. That is the point of the filibuster–it protects us.

I realize that many of you do not agree with it’s use here because it keeps the majority from completeing it’s “mandate”. But when the winners write the history (and they always do) they may decide to write about the attempt of that individual to stop a criticle decision from being made that may have affected this country in the worst way. And all the school children who read about it in the history books will use their ability to think freely (this is a stretch I know) and be able to see why it was or wan’t important.

Maybe it’s not the correct way to ust this “tool” but can we really kill it because we don’t like one of it’s outcomes?
[/quote]

You’re talking about using a filibuster to highlight debate. That’s not what’s happening here. The democrats have clearly said “we’re going to bring the senate to a halt” to stop a VOTE on this. They’ve aired their objections, been unable to convince anyone else, and are now going to do something that has NEVER been done before. Read that again – NO JUDGE THAT WOULD WIN A VOTE HAS EVER BEEN FILIBUSTERED.

This is not “killing” the usage of filibusters, in the arena that they have always been used – legislation. That’s not being discussed.

I wish Frist had the balls to let them shut the senate down. “C’mon, fuckers! Filibuster all ten judges, and let’s talk about why you all don’t want to allow them to occupy offices which they are eminently qualified for! Get on the news and talk for 500 hours about why you don’t want these people. Eventually you will let the truth slip – no remotely religious people allowed!” I’m not religious and I find this ignorant position by the liberal wing of the democrat party (i.e. 90+% of the modern party) patently offensive, and I think it is tantamount to political suicide.

I want ted kennedy and nancy pelosi and john kerry and barbara boxer and howard dean and barney frank and al franken calling some of these fine, moderate judges “religious nuts” and “activists”. This will ensure that no democrat will be elected in the south, the midwest, and the west for a generation.