How Senate Republicans Can End Democrat Obstructionism Of President Bush's Judicial Nominees

TooGood ^ | May 5, 2003 | Paul M. Weyrich

[ZGuy]

The new freshman class of Senate Republicans is a brighter-than-usual class. As proved to be the case with many of the members of the 1980 and 1994 classes, those Senators who come to power in watershed elections often do not fare well in their reelection campaigns because they were the product of a zeitgeist that no longer existed.

This freshman class, although they benefited from President Bush putting himself on the line, could have stood on their own. Two members, Elizabeth Dole (R-NC) and Lamar Alexander (R-TN), are former cabinet members. Alexander had also been a two term Governor of Tennessee. John Cornyn (R-TX) had been a judge and the Attorney General of a large state. Norm Coleman (R-MN) had been mayor of the second largest city in his state and four new Senators -- John Sununu (R-NH), Saxby Chambliss (R-GA), Lindsey Graham (R-SC) and Jim Talent (R-MO) -- had served in the House when Republicans were in the majority.

The last group is significant because they learned that it is possible for Republicans to exercise power. Considering the razor-thin margins Republicans had in the 105th , the 106th and the 107th Congresses, they did remarkably well thanks to the skilled leadership of now Majority Leader Tom DeLay (R-TX), who is intensely disliked by the minority Democrats precisely because he does not hesitate to use his power for the common good whenever it is necessary.

This freshman Senate class -- the four former House Members in particular -- is very frustrated with the Republican-controlled Senate. Senator Jim Talent of Missouri, by far the most cerebral member of his class, commented recently that it is the culture, rather than the rules, which is keeping the Senate's leadership from accomplishing meaningful things.

It is true that even the most solid conservatives have convinced themselves that nothing can be done about the current situation. They wring their hands and insist that it takes 60 votes to pass anything, and since Republicans can almost never muster that many votes, the ballgame is over. Right now the minority Democrats are filibustering two appeals court nominees and appear ready to filibuster a district court nominee for the first time in history. The Senate leadership has convinced itself that there is no way out of this situation. The most support that they have been able to muster is 55 votes. Some have suggested that what is needed is a round-the-clock filibuster, but that means all 51 Republicans have to be ready for quorum calls in the middle of the night. If as many as a single Senator were absent, Republicans could lose control of the floor.

I have suggested that President Bush make the blocked nominations his top priority and campaign hard in the states where Senators might be persuaded to switch their votes on cloture, thus allowing an up or down vote on the judicial nominees. But the White House is tied up with tax cuts now and isn't inclined to make judgeships top priority.

Talent suggests there is another way out if you could change the mindset of his caucus to the point where Republican senators would convince themselves that they could use their power to act.

The Talent solution goes like this: After a cloture vote is lost for lack of 60 votes, a senator would move to appeal the vote on the grounds that it is unconstitutional. Why unconstitutional? Because the minority is requiring 60 votes for judicial nominations, yet the Constitution is very clear about when super-majorities are required. Judges isn't one of them. The parliamentarian would most likely rule the motion out of order. (He is a real problem and should be fired by Majority Leader William Frist). His ruling would be appealed and if all 51 Republican Senators held together, his ruling would be overridden. Thus having taken back control of the process, the Senate Majority Leader would move to have the pending nominations considered, which would only need a simple majority vote for approval and which could be readily obtained. The GOP would have taken back control of the process and would be confirming the best of President Bush's nominees.

Now, of course, Republicans would have to be prepared for screams of anguish from the minority, echoed by the national media. But who cares? See, that's the problem. In their current mindset, many Republican Senators, and not just liberals, worry about what is written on the editorial page of the New York Times, or said on the CBS Evening News with Dan Rather. These guys don't yet get it. Fewer and fewer people rely on newspapers and the traditional print media for their information. Most people get their news about politics and government from the broadcast media. Conservatives dominate talk radio and the Fox News Channel is the fastest growing channel in news/ talk television. Then, there is the Internet. All the big web pages are conservative. The liberal media is in a state of significant decline. The Republican senators can get by with doing what Senator Talent suggests and survive politically.

The current culture of the Senate, however, says otherwise. That's why Sen. Talent says it's not the rules but the mindset that is holding back his fellow Republicans in the Senate. It's time Senate Republican caucus faced up to this problem. If they can finally get into the correct mindset, they can stop the whining about how powerless they are and at last use their power for the good of this country.

[Grand Old Partisan]

This is old news. The Senate Republicans are already considering this and other even more clever possible maneuvers. We'll see what they decide to do.

[TomGuy]

It is amazing that the Dims never seem to have a problem ruling and controling with a 51 majority or even 50-49 in post-2002.

Pubs need to learn how to lead and how to control. They won, they have the majority. But they tend to manage to pull defeat out of the jaws of victory.

[HoundsTooth_BP]

Sen. Talent has the right idea. I hope we will do that. One thing is for certain, the Dems would use it.

[dark_lord]

Someone who has a more detailed knowledge of Senate procedure should comment here. This solution looks good to me. The only danger is this. The Republicans will not always hold the majority in the Senate. Someday, whether it be 6 years, 8 years, 10 years, or more...someday the Rats will again regain control. And when that happens, they will be able to push through the most leftist, make-up-the-Constitution-as-you-go-along judges that they want -- without the R's being able to stop them. So the question is --- while this maneuver probably might work, is the long term risk worth it?

[Wphile]

Let the Dems use it. I think this is brillant. They are holding everything up because they are insisting on a super majority where only a simple majority is required, and specifically stated as so in the constitution. Let the dems scream bloody murder. In the meantime, we'll be seating solid, conservative judges on the bench. The editorial page of the NYT might scream - look at their ridiculous editorial about the death of CFR, for example - but who the hell cares? The general public doesn't care about most issues, and they especially don't care about stupid senate rules. All they know is it requires a majority and if the judges get 55 votes, that's a majority.

Message to the GOP: GO FOR IT!

[MarkT]

I am not sure that this is old news but should be done immediately. Frist is nothing more than the same old eunuch that Lott is but with different initials behind his name. Pull the trigger and take these lazy, self-absorbed, narcissistic political whores to task - the Senate rules do not trump the Constitution - are not many of them delighted to say (when it serves their purpose) that no man is above the law? If no man is, then surely no clique of forty are - I wonder why no fine organization like Mark Levin's foundation do not take the entire Senate to Court in pursuit of a resolution of the constitutional question this quagmire surely raises.

[So Cal Rocket]

Watch DeLay... my guess is that there won't be a SINGLE piece of Democrat-sponsered legislation that makes it out of committee in the House until the House Dems reign in their buddies in the Senate.

[Wphile]

Don't tell me you actually think that if the Dems were in control in a situation like this, that they wouldn't employ it? Of course they would. In a frickin' heartbeat. The dems would have had all these guys seated by now. The dems play hardball - all the time - and the GOP rarely gets its dander up. If this is how the GOP is going to behave, there isn't much point in having the majority now is there?

So, yes, it's worth the long term strategy.

[JohnnyZ]

And when that happens, they will be able to push through the most leftist, make-up-the-Constitution-as-you-go-along judges that they want -- without the R's being able to stop them.

They could -- and would -- use this method whether the R's use it now or not.

[Rodney King]

The Talent solution goes like this: After a cloture vote is lost for lack of 60 votes, a senator would move to appeal the vote on the grounds that it is unconstitutional. Why unconstitutional? Because the minority is requiring 60 votes for judicial nominations, yet the Constitution is very clear about when super-majorities are required. Judges isn't one of them. The parliamentarian would most likely rule the motion out of order. (He is a real problem and should be fired by Majority Leader William Frist). His ruling would be appealed and if all 51 Republican Senators held together, his ruling would be overridden. Thus having taken back control of the process, the Senate Majority Leader would move to have the pending nominations considered, which would only need a simple majority vote for approval and which could be readily obtained. The GOP would have taken back control of the process and would be confirming the best of President Bush's nominees.

This is all it would take guys.

[Sender]

I agree, we should tell them in clear and simple language that until fair consideration and voting on these fine judges is permitted, NOT ONE single piece of Democrat paper will be discussed, period. The Dems have enough to worry about with the Nonelectable Nine, so get off the Borking already.

[PhiKapMom]

I am also impressed with thise group of new Republican Senators especially Talent and Freshman Judiciary Committee Members Chambliss, Cornyn, and Lindsey Graham! I like the idea of House members moving up to the Senate -- they seem to be more grounded in commonsense!

[Pharlap]

The approach offered by Sen. Talent is one of several that would stop the application of the procedural mechanism known as a filibuster from being used to "prevent" a Senate vote on judicial nominees. The important point advanced by the Talent argument is that the use of a filibuster (which was established under Art. I of the Constitution that deals with the LEGISLATIVE power of the Congress) to prevent a vote under Art. II (which deals, in Sec 2., with the President's power to nominate and the Senate's obligation to provide its advice and consent) is that The use of the filibuster IN THIS INSTANCE is UNCONSTITUTIONAL. This point cannot be stressed enough because it puts the Republicans in the position of upholding the Constitution and the Democrats in the position of violating the Constitution.

[AmishDude]

What would stop the Democrats from filibustering the appeal of the parliamentarian's ruling?

[b4its2late]

I guess they never heard of peer pressure. Too afraid they'll hurt someones feelings?

The most pressure should be on the members of their own party that are acting like dems, then on Jumpin' Jim and finally on the dems themselves.

Pure political BS.

[Rodney King]

What would stop the Democrats from filibustering the appeal of the parliamentarian's ruling?< /i>

My prior knowledge of Robert's Rules Of Order is that an appeal on a ruling is not filibusterable.

[justshe]

~~~What would stop the Democrats from filibustering the appeal of the parliamentarian's ruling?~~~

Good question.

[CMAC51]

The constitutional issue does seem like the key to breaking the log jam. The Senate is required by the constitution to provide advise and consent. A rule which prevents this would therefore be unconstitutional. The Republicans should be patient however. The Dems still hold a media advantage although it is dwindling. The Republicans should manage an issue to the point of hitting a homerun when they make their move.

The inteligent thing to do would be to continue having cloture votes to develop a record of intransigence. Fill the pipeline with nominees waiting for floor votes. The judiciary committe is in Republican control so they should act expeditiously on hearing and get nominees out to the Senate floor. When the pipeline is full, release a multipronged attack.

1. Hit the airwaves with "Judicial Crisis". Play on the denial of Civil Rights because of delays in trials, rulings, etc.

2. Play the constitutionality card and break the head of the logjam.

3. Hit the Senate floor with a plan for reviewing and approving judges similar to that previously proposed by President Bush.

Such an approach would highlight the problem, provide a short term solution and a long term corrective action. That's the way good business is done. Even in a screwy place like the Senate.

[TLBSHOW]

The current culture of the Senate, however, says otherwise. That's why Sen. Talent says it's not the rules but the mindset that is holding back his fellow Republicans in the Senate. It's time Senate Republican caucus faced up to this problem. If they can finally get into the correct mindset, they can stop the whining about how powerless they are and at last use their power for the good of this country.


BUMP

They better do more than whine and cry........