John Dean on FindLaw's Writ said A new political campaign is underway. It was launched this week.
On one side are the Bush White House and Senate conservatives. The White House seeks to pack the federal judiciary with ultra-conservative judges and justices. Ultimately, the goal is to place far-right justices on the U.S. Supreme Court. (Given the age of several justices, and the poor health of the Chief Justice, one or more vacancies are expected at the end of the current term, in June.)
Ironically, it is the conservatives who seek to obliterate the Senate's two-hundred- year-old tradition of unlimited debate.
Actually all they are doing is gong back to the way the Senate has worked for the past 200 years; approviing judicial appointments by a majority vote. The fillibuster has been used for legislation many times in the past, and would still be available. It is only approving the President's appointments that they seek to approve with a majority vote.Indeed, they are avid about it: On April 4, an assembly of conservative organizations held a briefing at the National Press Club -- doubtless meant to keep the pressure on Senate Majority Leader Bill Frist. On the other side are Senate Democrats. They are fighting to keep the filibuster precisely so that they can block the Bush White House's nominees. They believe that some of the Bush-nominated ideologues lack the necessary temperament to be a federal judge.
What temperament would that be? A willingness to make up legislation from the bench, rather than letting the Legislative branch actually make the laws, and restricting themselves to the role the Founding Fathers invisioned the Judiciary as filling.If the Republicans win, then whenever a judicial nomination is reported out of the Senate Judiciary Committee, a simple Senate majority vote will result in the confirmation - or failure - of the nomination. That is an extraordinary change in Senate procedure.
It is what they did for most of the past 200 years.Typically, the minority party has used the filibuster threat - in essence, a threat to talk the nomination to death before it can be voted on - in order to ensure that the majority party's nominees have sufficient bipartisan appeal.
That is true of legislation, but not approval of the President's nominees, except for the last couple of years.Only a cloture vote - which requires a 60-vote, three-fifths majority of the Senate - can stop a filibuster. The result has been either the nomination of moderates or, at least, of judges and justices palatable to the minority party.
Untrue. When the Democrats were in power they loaded the Judiciary with a lot of liberal judges. But now that they dont control the White House, the House of Representatives, or the Senate, they want to block conservative judges from going on the bench.Given that the judges and justices have life tenure, for the minority party to have this kind of input seems not only reasonable, but necessary.
If the situation was reversed and if there was a Democrat in the White House, and if the Democrats held a majority in the Senate, would that still be true?But now the Republicans want the Democrats, currently the minority, to have no input at all. That is particularly unfortunate given that Senate Democrats represent the majority of Americans - as Washington Post columnist E. J. Dionne Jr. has pointed out. Dionne found, based on July 2004 Census Bureau figures, that the 44 Democratic Senators represent 148,026,027 people, while the 55 Republican Senators represent 144,765,157. (Independent Vermont Senator Jim Jeffords, who votes with the Democrats on such issues, represents 310,697, making the gap even greater.)
I don't know whether EJ Dionne realizes it or not, but the Founding Fathers specifically set up the Senate such that each state had two votes; it is the House of Representative that has proportiona representationThe Democrats do have one final weapon in their arsenal. If Republicans try to remove the filibuster option, then Democrats can try to make the Republicans play by all the Senate's Rules, construed literally. That, in turn, would bring the Senate's business to a halt - save for the barest essentials - and thus, Congress' business as well, for the House cannot pass laws without the Senate.
That would be wonderful. Congress does a lot of damage when it passes laws. Texas allows its Legislature to meet only one time every two years (unless a special session is called by the Governor) to keep them from making too much mischief. And it sounds like the Democrats are going to shoot themselves in the foot and shut down the Legislature. I hope the same thing happens to them as happened to the Republicans when they were blamed for shutting the House down.The Senate operates largely by "unanimous consent," which enables it to waive the myriad rules of procedure. Senate Minority Leader Harry Reid (D NV) has made clear that should the Democrats destroy the filibuster option, he will not "enter into any consent agreements" except regarding matters that affect U.S. troops or are necessary for the continuity of government operations.
I suspect he means the Republicans, but I am happy to see consent agreements will no longer be used.In effect, the Democrats have the option of nuclear winter. If they don't rely on this counter-tactic - with the hope of restoring Republicans to their senses - they might as well pack up and go home.
That would be fine with me.No longer would there be an opposition party in the Senate.
CrooksAndLiars (must be a Democrat) blogged "When the rest of the country understands that it was Frist who was responsible for the destruction of the Senate, his chances for the Presidency will be over."
(Update) Santorum: Frist will go nuclear : Sen. Rick Santorum (Pa.), the chairman of the Senate Republican Conference, has reassured conservative activist leaders that Senate Majority Leader Bill Frist (R-Tenn.) is committed to triggering the “nuclear option,” stripping Democrats of the power to filibuster judicial nominees.
Pessimist @LeftCoaster: blogged According to the well-publicized finding by law professor Herman Schwartz, in March 2000, Majority Leader Frist himself participated in the filibuster against Clinton judicial nominee Richard Paez. (In the end, Judge Paez was confirmed for a seat on the U.S. Court of Appeals for the Ninth Circuit after a cloture vote.)
So he was NOT blocked by a fillibuster, debate was limited by a cloture vote and he was rushed through
7 comments:
Recall that the Republicans have used filibusters to block judicial appointments. The basic concept of requiring supermajorities is sound; there's no need to change it now.
When did they block a judicial appointment? As indicated above, Richard Paez WAS NOT BLOCKED, he is currently sitting on the U.S. Court of Appeals for the Ninth Circuit
During the Clinton years, Senator Jesse Helms blocked about 60 Clinton judicial nominees by using the power of his committee chairmanship to refuse to even give them a hearing.
There are many ways to delay things, some of which are being used by Dems now, like anonymous holds. But we are talking about fillibusters.
Others were blocked by filibuster; I don't have the numbers, though.
Just give me a few specific examples of judges actually blocked, i.e. that did not eventually get to an up and down vote of the whole Senate.
In 1994 the Republicans were filibustering a Clinton judicial nominee and Senator Hatch, in defending the filibuster, said that the filibuster is "one of the few tools the minority has to protect itself and those the minority represents."
Did he ever get an up and down vote by the entire Senate?
I admit that I am unable to find any case of the Republicans successfully filibustering a judicial nominee.
I did not think you would. There were not any
The catch, though, is that they never needed to, because they resorted to the much dirtier trick (in my opinion) of refusing to hold hearings or to permit committee votes on the nominees.
The difference is they were able to do that because they were in the majority. If a majority on the committee liked a particular candidate, he got a hearing, and was reported out for a vote by the entire senate.
During the Clinton years, 65 judicial nominees were blocked by such tactics, while only 10 Bush nominees have been blocked by filibuster.
They let some lower court judges through because they thought the liberal judges on the appeals courts would nullify anything they did. The 10 they are blocking are appealate judges (one blocked because they feared he would be a cadidate for the Supreme Court)
The main argument behind the nuclear option is that such nominations should get a straight up or down vote, but the hypocrisy of that argument is revealed by the Republican tactics to block Clinton nominations without any straight up or down votes.
If the political situation were reversed, and Republican Senators were blocking a small portion of Democratic nominees with the filibuster, would you still hold the same position that every nominee deserves a straight up and down vote?
This will surprise you, but yes. I believe that the nominees of any President (R or D) should have a prompt hearing, and then come before the full Senate for an up or down vote that cannot be blocked by a Fillibuster.
I approve of the fillibuster on legislation, but not on approval of Presidential nominees.
OK, so we're close to agreement here. You appear to be saying that you do not approve of the tactic used by Senator Helms in refusing to hold hearings on judicial nominees or refusing to permit a vote on them. Have I read you correctly?
I would have been more comfortable with the matter had the Republican majority allowed the matter to be voted down by the entire Senate. I don't like Committee Chairman blocking things from going to the whole Senate, just as I don't like having a single senator to be able to put an anonymous hold on a nominee. I would prefer it if the committee held its hearings and then made its recommendation to the entire senate, and then allowed the entire senate to be able to cast an up or down vote on any nominee, Democrat or Republican.
I don't expect the Dems to agree to such a change, since they fear many of the nominees would have majority support, but yes I would like to see that change (and have it made permanent).
OK, so I have a clearer idea of where you stand. You seem to be arguing the case for pure democracy, while I am holding out for a republic.
No. In a pure democracy, everyone in the country would vote, which is not feasible. In a republic the people elect represenatives (in this case Senators) to vote for them. I believe both of us favor a republic.
I think it's a good think that we need a 2/3 majority for an amendment to Constitution, and I think that the supermajority requirements we have in place are sound. But let's make this clear: is it your position that supermajority requirements are in principle sound, but in this particular case they should not apply; or is it your position that supermajority requirements are always undesirable?
I agree with the 2/3 majority in both houses plus 3/4 of the states to ammend the Constitution. I approve of the use of the fillibuster regarding legislation, since the more debate legislation receives, the more likely it will be that it helps rather than hurts (and maybe they will even have time to read what they are voting for). But when it comes to the Advice and Consent role to confirm appointments made by the President, I believe that the procedure used for most of the last 200 years, with an up and down vote of the Senate after the Judiciary committee has had an opportunity to hold hearings, is just fine. The extreme left wing Democrats just cannot get over the fact that they lost in the last several elections, and they are just trying to control things from their minority position.
I think that we have reached a point where we can agree to disagree. I feel that the reliance on a supermajority for confirmation of judicial appointments is a sound practice. It insures that those nominees who are extremely objectionable to a minority can be blocked.
let me seee, exactly where in the constitution is that the test?
Let's remember that our electoral system exaggerates small majorities; President Bush won the election, but 48% of the voters voted against him. It's not right to simply tell those voters, "tough luck, you lost the election, and now we're going to screw you." There really should be some constraints on extreme policies. That's what supermajorities requirements do for us -- they insure that the most extreme cases get blocked.
Or reasonable nominees when the minority is lead by extremists
The Democrats have approved the great majority of President Bush's judicial appointments.
Primarilly lower level judges that have no real influence
They have drawn a line with ten appointments that they find particularly objectionable. From what I have seen of a few of these nominees, I agree that they fall well outside the pale of reasonable differences of judicial philosophy.
In other words they are conservatives, and hence unlikely to legislate from the bench, and if they do decide to do that, the left is unlikely to approve of what they do.
If the Democrats were blocking a great many nominees, I could see the case in favor of the nuclear option. But I think that they are using the filibuster in a responsible way, confining its use to only the most extreme cases.
Have you seen the qualifications of some of President Bush's nominees?
Not all 10, but the ones I have checked out seem fine to me
I can only attribute the solid Republican support for these nominees to strong party discipline, because these nominees really are questionable, and not just in terms of political ideology. I think that any non-partisan observer would also raise questions about these ten.
Then they should be entitled to an up and down vote, and see if the majority of the Senate agrees with you.
let me seee, exactly where in the constitution is that the test?
The justification for the supermajority is explained in the Federalist Papers.
Can you give me a specific URL to the explanation you cite?
One of the nominees, William Myers III, was a longtime lobbyist for the mining and cattle industries. Now, the fact that he supported a conservative cause here is not the issue; what bothers me is that as a lobbyist, this guy is clearly very partial. We have a long-standing rule that judges are supposed to be fair and impartial. I would not want to see the president of Earth First or the Animal Liberation Front nominated for any judgeship; that's just too partisan. And I think the same applies to this guy.
That was in 1993-1997 according to his biography and in that job he was expected to lobby. He is currently a Solicitor for the Department of Interior. Is that a position subject to confirmation, and if so why was he confirmed if his earlier job as a lobbiest prevents him from going to the Court of Appeals
Terrence Boyle, who has been nominated to the United States Court of Appeals for the Fourth Circuit, based in Richmond, has an extraordinarily high reversal rate for a district court judge. Many of the decisions that have been criticized by higher courts wrongly rejected claims involving civil rights, sex discrimination and disability rights. Mr. Boyle's record is particularly troubling because the court reversing him, the Fourth Circuit, is perhaps the most hostile to civil rights in the federal appellate system, and even it has regularly found his rulings objectionable.
If all of that is true, you should find it easy to defeat him in an up and down vote.
Thomas Griffith, who has been nominated to the powerful Court of Appeals for the District of Columbia Circuit, has the unfortunate distinction of having practiced law in two jurisdictions without the required licenses. While practicing law in Washington, D.C., he failed to renew his license for three years. Mr. Griffith blamed his law firm's staff for that omission, but the responsibility was his. When he later practiced law in Utah as general counsel at Brigham Young University, he never bothered to get a Utah license. These may be technicalities, but remember that we have rejected judicial nominees for employing illegal aliens as housekeepers. We expect a judge to be above all an upholder of the law.
I am sure that those technicalities are not the real reason you are opposed to his receiving an up and down vote.
There was another nominee, whose name I can't recall, who received an "unacceptable" rating from the American Bar Association, which is scrupulously nonpartisan.
Perhaps there was one, but I believe all of the others have had at least an acceptable rating, and I believe some had a higher rating, and you still oppose them
We can do much better than these nominees. There are lots of candidates who are squeaky clean and have impeccable records. I wouldn't expect President Bush to nominate liberals, but he seems so determined to get far-right nominees in place that he is relaxing basic judicial standards. He has so many solid conservative candidates to choose from, why does he have to select the extremists?
I don't think they are extremists. I think they are just conservativates you have found something to focus on as the reason you oppose them.
What do you think of Matthew Yglesias article in American Prospect suggesting that the Dems change the rules to remove the filibuster on everything (legislative as well as appointments)
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