Filibusters

Off Topic Politics & World Issues
121

[quote]100meters wrote:

Frist isn’t towing the line to party leadership, he’s towing the line for the group whose support he’ll be seeking in order to get the gop nomination. That’s not blather, and everybody in the senate room knows it. Everybody in there also knows Frist is lying, and of course he knows he’s lying—But now he’s finally got to do what his master tells him. In the real world filibusters are good for the senate, we certainly don’t need another house, however the kids are in control now, most are converts from the house, and most obviously they love James Dobson’s ass, but hate america. (and 200 year old senate traditions)

[/quote]

First, to reiterate an obvious point: No one is proposing getting rid of the filibuster. The Byrd Option is only focused on removing the filibuster with relation to judicial nominees (and it darn well should remove it with respect to all appointments, but, oh well).

Second, Frist is party leadership, so I don’t know why you’d think I was implying he was toeing the line… He (and others) sets the line, and the whip helps get the Senators to follow it.

Interestingly, the Dems do a much better job of disciplining their rank and file, and getting them to vote as a unit with no defections…

Anyway, as to who is beholden to special interest groups, I think you should refer to the Washington Times story I posted above, which looked at internal Democratic party memos concerning how they vetted their votes to the various extreme single-issue liberal groups: NARAL, race-groups, etc.

But on to your bizarre contention that Frist is beholden to James Dobson – while I realize that is an excellent Dem talking point, aimed squarely at riling up the liberal base that gets riled up by any mention of “Religious Right!” I don’t really see that as the case at all, nor have I seen anything that would indicate that is the case.

The vast majority of conservatives would appreciate getting more originalist judges in the courts. Especially those who view activist judges as undermining our whole system of government, as I do.

But hey, I understand why the Democrats are getting their panties all in a wad. I understand that enacting legal changes that would lose – or at least be subject to a lot more fighting – in a democratic battle via the judiciary has been a key point in the liberal battle plan over the last generation, and now it looks as if Republicans have FINALLY figured that out and are moving to do something about it. The fact that Republicans have recognized that judicial nominations are important, and the fact that Democrats realize they may be out of power for a long time apparently combine to wad quite a few panties…

Filibusters are an interesting piece of parliamentary procedure. They are not good, nor bad in and of themselves, though I see them as a net positive regarding legislation, given that I generally favor Congress doing less. I’m glad you seem to agree.

However, in the real world and under our real Constitution, filibustering nominees that have majority support is flatly Unconstitutional as an usurpation of Presidential Appointment Power, and I’m glad to see that the Republicans in the Senate are at least partially rectifying that situation.

122

When the Dems shut down the business of government because they did not get their way, my guess is they will get crushed in the mid-terms.

The whine till we get our way strategy is going to seal their fate.

123

Has anyone heard if anything came out of the negotiations today?

Barring some sort of an agreement, it looks like the day of reckoning will be Tuesday for the Dems.

Honestly, I think Frist should have pulled the trigger weeks ago.

But if the Dems want to throw a fit like a spoiled brat in the middle of WalMart - let them. They are slitting their own throats.

124

rainjack,

They’re having open threads commenting on the C-SPAN coverage here:

http://www.redstate.org/

It’s an easy way to keep up.

As to the “compromise,” I hope they don’t do it, and it’s looking less likely. Here’s the latest:

http://www.redstate.org/print/2005/5/19/145957/034

and

http://www.nationalreview.com/beltway/063670.html

However, if the Dems really look as if they’re going to lose, they may vote for cloture in order to save the filibuster fight for the Supreme Court nominees:

http://www.slate.com/id/2118812/&#cloture

125

100meters,

I have a little Constitutional question for you: What would be your position if Congress decided to de-vest the lower federal courts (e.g. district and appellate courts) of all jurisdiction regarding abortion cases?

Whatever you come up with, I guarantee you that the case that there is any Constitutional restraint on doing that is much weaker than the argument that filibusters applied to Presidential nominees are Unconstitutional, especially nominees with majority support.

Here’s an easier one for you. What if Congress used its Commerce Clause authority, which it obviously has, to pass a law saying no federal funds would be used to pay for the Presidential election in 2008? Would that be Constitutional, even though they are just exercising their Commerce Clause Power, and the Constitution doesn’t strictly require that the government fund elections, only that they hold them? Would you have a problem with that?

Do you really believe your own position that the filibuster as it is being applied by the Democrats, a Senate minority imposing a de facto supermajority approval requirement for Presidential nominees, is Constitutional?

Sometimes necessary logical inferences can be pretty powerful…

126

http://www.nationalreview.com/benchmemos/063778.asp

Putting Judicial Nominees in Perspective, Part III

[Edward Whelan 05/20 07:35 AM]
Imagine, if you will, that a Democrat President nominated a judge whose constitutional and policy views were, by any measure, on the extreme left fringes of American society.

Let?s assume, for example, that this nominee had expressed strong sympathy for the position that there is a constitutional right to prostitution as well as a constitutional right to polygamy.

Let?s say, further, that he had attacked the Boy Scouts and the Girl Scouts as organizations that perpetuate stereotyped sex roles and that he had proposed abolishing Mother?s Day and Father?s Day and replacing them with a single androgynous Parent?s Day.

And, to get really absurd, let?s add that he had called for an end to single-sex prisons on the theory that if male prisoners are going to return to a community in which men and women function as equal partners, prison is just the place for them to get prepared to deal with women.

Let?s further posit that this nominee had opined that a manifest imbalance in the racial composition of an employer?s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer. But then, lo and behold, to make this nominee even more of a parody of an out-of-touch leftist, let?s say it was discovered that while operating his own office for over a decade in a city that was majority-black, this nominee had never had a single black person among his more than 50 hires.

Imagine, in sum, a nominee whose record is indisputably extreme and who could be expected to use his judicial role to impose those views on mainstream America. Surely such a person would never be nominated to an appellate court. Surely no Senate Democrat would support someone with such extreme views. And surely Senate Republicans, rather than deferring to the nominating power of the Democrat President, would pull out all stops?filibuster and everything?to stop such a nominee.

Well, not quite. The hypothetical nominee I have just described is, in every particular except his sex, Ruth Bader Ginsburg at the time she was nominated to the Supreme Court in 1993.

President Clinton nominated Ruth Bader Ginsburg on June 22, 1993. A mere six weeks later, on August 3, 1993, the Senate confirmed her nomination by a 96-3 vote.

(The source for the information in the second through fourth paragraphs is ?Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law,? co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974. The information in the fifth paragraph can be found in the transcript of Ginsburg?s confirmation hearing.)

127

[i]Sen. Chuck Hagel, R-Neb., for weeks said he was undecided on whether to back a move by Frist, if it comes. Wednesday, he officially rejected signing on to a compromise.

“I believe that all of the president’s nominees deserve an up or down vote,” Hagel said, quoted by spokesman Mike Buttry. “The agreement that has been proposed calls for three of the president’s nominees not to get a vote. I could not agree to that. That is unfair and it’s not right.” [/i]

This quote is taken from the website BB referenced below:

http://www.redstate.org/print/2005/5/19/145957/034

Part of me is glad to see Hagel finally wake up and play a little team ball. I just have a huge problem with Chuckie and his posturing. Can anyone else see his opportunism? When it looked like a comprimise was in the offing - Hagel was all for seeing the Dems side of the argument. Now that an agreement seems unattainable, CHuckie is a hardliner again.

It’ll be interesting to see if he’ll be re-elected.

128

Rainjack,

I’ve often heard Hagel referenced as “the liberal Senator from Nebraska,” even though the other one is the Democrat…

129

I’ve been listening to the “deals” on the table.

How about letting five of the seven judges go through while maintaining the ability to filibuster in certain circumstances.

If all seven of these nominees were as extreme as the Dems say they are, why would they even discuss letting them go through?

Are their “convictions” that malleable?

If they are as extreme as the liberals keep making them out to be, why would they float this trial balloon?

This is fascinating. Most of us suspect that this is mere posturing prior to the main event: The Supreme Court.

Does anyone see a political game plan here?

If there is an effective strategy behind all of this, I cannot see it.

It seems fairly obvious that Frist will call for the rule change.

Now what do the democrats gain by making their stand with the judicial nominees? Why not wait for the Supreme Court?

It’s hard to maintain that the mainstream American gives two farts and a shit about district judges (BB excluded).

More people would be willing to stomach a protracted fight over a Supreme Court Justice.

It looks like their temper tantrum is going to cost them. They won’t even be able to bluff anymore.

Poor darlings!!!

On a side note, if I were Frist, I would call the Democrat’s bluff. I would force them to fillibuster.

Can you imagine two-sheets to the wind Byrd or Gin Teddy trying to stand on their feet for more than 20 minutes?

Imagine the rambling. Imagine the soundbites for future campaigns!!! Imagine the outcry for Senate rule changes if the Senate ground to a halt for the fillibuster!!!

The Republicans would win in every conceivable way!!!

That is what we like!!!

JeffR

130

Jeff,

THe Dems are all about trying to get the Republicans to make a deal that would have the Republicans agree to oppose the Byrd Option in the future, in exchange for the Democrats reserving a right to filibuster, which they would pull out for a Supreme Court nominee. From what I understand, all the “negotiations” are being aimed at the Democrats giving a conditioned promise , i.e. only using the filibuster in the “most extreme” circumstances, while trying to get an unconditioned promise to oppose the Byrd Option from the Republicans.

Some deal.

Hopefully the Republicans are smart enough to avoid making such a stupid deal.

131

[quote]BostonBarrister wrote:
100meters,

I have a little Constitutional question for you: What would be your position if Congress decided to de-vest the lower federal courts (e.g. district and appellate courts) of all jurisdiction regarding abortion cases?

Whatever you come up with, I guarantee you that the case that there is any Constitutional restraint on doing that is much weaker than the argument that filibusters applied to Presidential nominees are Unconstitutional, especially nominees with majority support.

Here’s an easier one for you. What if Congress used its Commerce Clause authority, which it obviously has, to pass a law saying no federal funds would be used to pay for the Presidential election in 2008? Would that be Constitutional, even though they are just exercising their Commerce Clause Power, and the Constitution doesn’t strictly require that the government fund elections, only that they hold them? Would you have a problem with that?

Do you really believe your own position that the filibuster as it is being applied by the Democrats, a Senate minority imposing a de facto supermajority approval requirement for Presidential nominees, is Constitutional?

Sometimes necessary logical inferences can be pretty powerful…[/quote]
I’ll be the first to admit that senate rules are acrcane, confusing, contradictory, and legislatively frustrating. My gripe is the hypocrisy. If the rules change, fine. But listening to the nonsense of allowing up or down votes by rethugs is sickening. Look at the devices used by republicans to block clinton judges. The anonymous vote, the home state senator objection, all utilized by the Republicans. Why can’t dems do the same? Well as you know, they’ve changed the rules from one home state senator to 2 home state senators, to now none! Then bye bye rule 4 —the anonymous minority vote. So what have dems been left with by the majority? The filibuster.(Please note the Republicans freely, frequently used all of these means to block judges, and after 2000 changed the rules so that these means couldn’t be used by the minority party) And they’re to blame for using it? I’ll admit that perhaps none of these rules make “sense”, but still spare me the rhetoric that these liars use. So unfortunately, though I see your point in your questions, the same questions would had to of been asked to yourself in 1996.

132

http://www.cbsnews.com/stories/2005/03/25/opinion/main683182.shtml

"Traditionally, the filibuster has not been the only weapon in an opposition party’s arsenal. There are other, less visible ways whereby the Senate’s rules and traditions empower individual senators to block judicial and other nominations. Between 1996 and 2000, Republicans in control of the Senate developed these techniques to a high art.

Prior to 1996, when the Senate majority and the president were from opposing parties, senators usually deferred to the president with respect to lower-court judicial nominations. With the notable exceptions of the 1968 Fortas nomination and a failed Republican filibuster of H. Lee Sarokin in 1994, neither party filibustered the other’s judicial nominations, and virtually all nominees received a hearing unless they were sent up after the presidential nominating conventions.

All this changed in 1996. Rather than openly challenge President Clinton’s nominees on the floor, Republicans decided to deny them Senate Judiciary Committee hearings. Between 1996 and 2000, 20 of Bill Clinton’s appeals-court nominees were denied hearings, including Elena Kagan, now dean of the Harvard Law School, and many other women and minorities. In 1999, Judiciary Chairman Orrin Hatch refused to hold hearings for almost six months on any of 16 circuit-court and 31 district-court nominations Clinton had sent up. Three appeals-court nominees who did manage to obtain a hearing in Clinton’s second term were denied a committee vote, including Allen R. Snyder, a distinguished Washington lawyer, Clinton White House aide, and former Rehnquist law clerk, who drew lavish praise at his hearing – but never got a committee vote. Some 45 district-court nominees were also denied hearings, and two more were afforded hearings but not a committee vote.

Even votes that did occur were often delayed for months and even years. In late 1999, New Hampshire Republican Bob Smith blocked a vote on 9th U.S. Circuit Court of Appeals nominee Richard Paez for months by putting an anonymous hold on the nomination. When Majority Leader Trent Lott could no longer preserve the hold, Smith and 13 other Republicans tried to mount a filibuster against the vote, but cloture was voted and Paez easily confirmed. It had been over four years since his nomination.

When his tactics on the Paez and Marsha Berzon nominations (Berzon was filibustered along with Paez, more than two years after her nomination) were challenged, Smith responded with an impassioned floor speech in defense of the judicial filibuster: “Don’t pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution of the United States of America by blocking a judge or filibustering a judge that I don’t think deserves to be on the circuit court … . That is my responsibility. That is my advice and consent role, and I intend to exercise it.”

The public spectacle that occurred the one time that Republicans did wait for a floor vote to kill a nomination confirmed the untenability of their strategy when openly exposed. Ronnie White, an African American judge from Missouri, was nominated for a district judgeship. He was opposed by then-Senator John Ashcroft, who was hunting for a re-election campaign issue; to support Ashcroft, Republicans voted in lockstep against the nomination. Afterward, some of them claimed they hadn’t known White was African American. After the embarrassing fight, one Republican staff member acknowledged that “[I]t’s just better to kill them in committee.”

But when the Republicans took over the White House in 2001 and the Senate in 2003, things sped up. In 2003, Hatch announced that he would abandon the “blue-slip system” he had insisted on since 1995, whereby a senator could block action on a nominee from his or her home state; North Carolina’s Jesse Helms had used this power to block every one of three black candidates to the 4th U.S. Circuit Court of Appeals. Anonymous floor holds were abolished, as was the rule requiring that at least one minority-party senator on the Judiciary Committee must agree to a vote on a nominee if any committee member objects. These rules changes left the Democrats with only the filibuster.

Frist’s solution to the current stalemate on judicial nominations is a “simple return to the 200-year of tradition on judges.” Frist’s memory and history are obviously selective. It was just five years ago, in March 2000, that Frist himself participated in the filibuster against Paez after Lott finally overrode the Smith hold. In light of the ferocity with which Republicans stonewalled Clinton’s nominees, Frist’s entire case folds; the 10 nominees filibustered by Democrats hardly compare to the 65 Clinton nominees denied a vote by the Republicans’ under-the-radar procedural maneuvers."

Just trying to point out just some of my justification, and objection to Republican hypocrisy.

133

[quote]100meters wrote:

I’ll be the first to admit that senate rules are acrcane, confusing, contradictory, and legislatively frustrating. My gripe is the hypocrisy. If the rules change, fine. But listening to the nonsense of allowing up or down votes by rethugs is sickening.
[/quote]

But you aren’t at all sickened by the tripe trotted out by the Dems to save their asses? You have a hell of a hearing filter if you don’t notice the rhetoric on either side.

134

[quote]rainjack wrote:
100meters wrote:

I’ll be the first to admit that senate rules are acrcane, confusing, contradictory, and legislatively frustrating. My gripe is the hypocrisy. If the rules change, fine. But listening to the nonsense of allowing up or down votes by rethugs is sickening.

But you aren’t at all sickened by the tripe trotted out by the Dems to save their asses? You have a hell of a hearing filter if you don’t notice the rhetoric on either side.

[/quote]

The rethugs are attacking dems for the refusal of opportunity for up and down votes. They are (naturally) not mentioning their rampant abuse of such denials (of up or down votes) just a handful of years ago. My side is pointing out the blatantly obvious hypocrisy of your side (in this regard) Not to mention its my side plus some senior senators on the other side of the aisle who obviously respect the senatorial traditions. Are these examples of tripe?:

‘On the fundamental issue, I believe we are skating over very thin ice here with regard to the continuity of life in the Senate as we’ve known it,’ Sen. Richard G. Lugar (R-Ind.) said on CNN’s ‘Late Edition.’ ‘I’m opposed to trying to eliminate filibusters simply because I think they protect minority rights, whether they’re Republicans, Democrats or other people.’"

– Los Angeles Times, 05-16-05

“It’s very important that one faction or one party not be able to ride roughshod over the minority and impose its will. The Senate is not the House.”

-- Senator Thad Cochran of Mississippi
    Wall Street Journal, 06-05-03

“I am one of the Republicans who believe such a rules change is not a good idea–not good for the Senate, not for the country, not for Republicans, and not for Democrats. The Senate needs a body that by its procedures gives unusual protection to minority rights.”

-- Senator Lamar Alexander of Tennessee
    Senate floor statement, 04-12-05

If you took Republican senators on their word the vote would go down 62-38 in favor of filibuster.
http://www.pfaw.org/pfaw/dfiles/file_529.pdf
Obviously the actual vote won’t go down like that (Not all are gonna keep their word) It essentially will be decided by whether the moderates crumble or not.

135

[quote]100meters wrote:
If you took Republican senators on their word the vote would go down 62-38 in favor of filibuster.
http://www.pfaw.org/pfaw/dfiles/file_529.pdf
Obviously the actual vote won’t go down like that (Not all are gonna keep their word) It essentially will be decided by whether the moderates crumble or not.
[/quote]

Was there an answer to my question in your post somewhere? I either fell asleep and missed it, or you were so caught up in your partisan flag waving that you forgot to answer.

136

[quote]rainjack wrote:
100meters wrote:
If you took Republican senators on their word the vote would go down 62-38 in favor of filibuster.
http://www.pfaw.org/pfaw/dfiles/file_529.pdf
Obviously the actual vote won’t go down like that (Not all are gonna keep their word) It essentially will be decided by whether the moderates crumble or not.

Was there an answer to my question in your post somewhere? I either fell asleep and missed it, or you were so caught up in your partisan flag waving that you forgot to answer.

[/quote]

Oh yeah my answer:
No, not sickened.

137

In addition Boston seemed unaware of Frist’s connections to the (un)religous right.

On Friday, reports spread among social conservative groups that have pushed hardest for the rule change that Republican aides were preparing them for a possible deal, officials of three groups said.

“I immediately contacted Frist’s office,” said Paul Weyrich, founder of the Free Congress Foundation, who said he heard the reports from others. “They said flat-out it is just not true, period.” Mr. Weyrich added, “I don’t know if they have got the votes or not, but they are not involved in any compromise.”

http://www.nytimes.com/2005/05/21/politics/21judges.html?

The only reason we are dealing with this whole filibuster thing is the religous right.(Interesting that constitution haters would be seeking “originalist” judges—cut to Madison rolling in his grave.)

138

[quote]100meters wrote:
Oh yeah my answer:
No, not sickened.[/quote]

So you are quoting quotes of Republicans in an attempt to show how evil, and sickening they are. But the same quotable quotes can be found of Democrats decrying the use of the filibuster (I believe Sheets Byrd can fill a few pages alone), and it doesn’t sicken you?

Methinks you are as partisan in your politics as I am.

Not that there is anything wrong with that.

139

100meters,

I suppose this new tack in your arguments is a tacit admission that I am correct on the Constitutionality aspect. Good.

Now as to the other issues, I think it’s also problematic to have the minority party blocking nominees with blue slips, anonymous holds, and whatever other mechanisms are available via the Byzantine Senate rules. The filibuster is the worst, and the most problematic on its face given the Constitutional analysis, but as I pointed out earlier, it’s tougher to make the argument that a particular nominee would or wouldn’t have majority support unless he is put to a vote.

And there is a very good argument that the Senate’s duty to “advise and consent” would imply the duty to take an actual vote on nominees – it’s not as strong an argument as that a minority filibuster of a nominee is Unconstitutional on its face, but it’s a decent argument.

Of course, the reason this whole thing is being fought like this is because of judicial activism. If judges stuck to doing their jobs – that is, interpreting laws rather than making them up – then this wouldn’t be such an issue, as the minority party wouldn’t care who the President appointed provided the appointees were well qualified. You know, that standard to which they actually claim to be holding the nominees…

Now, as to your point on comments, I suppose you’re correct – however, if you were to take Democrats at their word, the filibuster reform would still pass, given how many of them came out against filibusters back in the days of the Democratic majority (of course, this was in the case of filibustering legislation, in which the filibuster wouldn’t actually be Unconstitutional).

140

[quote]BostonBarrister wrote:
100meters,

I suppose this new tack in your arguments is a tacit admission that I am correct on the Constitutionality aspect. Good.

Now as to the other issues, I think it’s also problematic to have the minority party blocking nominees with blue slips, anonymous holds, and whatever other mechanisms are available via the Byzantine Senate rules. The filibuster is the worst, and the most problematic on its face given the Constitutional analysis, but as I pointed out earlier, it’s tougher to make the argument that a particular nominee would or wouldn’t have majority support unless he is put to a vote.

And there is a very good argument that the Senate’s duty to “advise and consent” would imply the duty to take an actual vote on nominees – it’s not as strong an argument as that a minority filibuster of a nominee is Unconstitutional on its face, but it’s a decent argument.

Of course, the reason this whole thing is being fought like this is because of judicial activism. If judges stuck to doing their jobs – that is, interpreting laws rather than making them up – then this wouldn’t be such an issue, as the minority party wouldn’t care who the President appointed provided the appointees were well qualified. You know, that standard to which they actually claim to be holding the nominees…

Now, as to your point on comments, I suppose you’re correct – however, if you were to take Democrats at their word, the filibuster reform would still pass, given how many of them came out against filibusters back in the days of the Democratic majority (of course, this was in the case of filibustering legislation, in which the filibuster wouldn’t actually be Unconstitutional).[/quote]

No, I’d still argue that it is constitutional( you stick with Article II, Section 2, clause 2 and I’ll stick with Article I, Section 5, clause 2, Each House may determine the Rules of its Proceedings?)
And naturally I don’t agree with judicial activism. These judges would be the WORST form of activism, the last thing we need would be so called “originalist” like Scalia who is perfectly willing to ignore the constitution in order to implement political idealogy! Make no mistake that Scalia is an activist like no other, the foolishness of him touring the country arguing for originalism with statements like:
“government derives its authority from God” and “[o]ur laws come from God.”

It takes the utmost nerve to pretent to hold madison’s pen like that when oh so obviously the constitution DOES NOT SAY THAT! Would Madison be stabbing Scalia in the neck with his quill or what? The 10 judges in question are just as activist if not worse than Scalia, and it certainly isn’t the type of activism needed.