2 GOP senators consider lawsuit to break filibuster

Atlanta Journal-Constitution ^ | 11/14/2003 | Self

[WillRain]

I wouldn't give Chuckie's plan the effort it took to file it in the old circular file but the lawsuit idea works, I think.

I know some will point out that the courts hate to meddle in Senate internal affairs and that may well turn out to be the dicision, BUT a case can be made that since this affects the Executive branch too, it's no longer an "internal matter."

In any case, if it is timed right, it puts the stalling on the front pages if the SCOTUS agrees to at least hear it and I think that the Dems position won't play with the mushy middle who right now is just ignoring the thing.

Politically, having a court case on the way to the SC is a winner in an election year.

which might be the best way to get the Dems to back away.

After all, even THEY have enough sense to know that Teddy Kennedy calling Janice Rogers Brown a "neanderthal" on the evening news is a losing position.

Don't they? If not, so much the better for us.

[rs79bm]

Oh but the Atlanta Urinal Constipation forgot one thing..... Democrat Zell Miller also said this evening on Scarborough Country that he would also be on board in the lawsuit.

[Keith in Iowa]

They're tilting at windmills.

SCOTUS won't touch this. Separation of powers. The Constitution gives the House & Senate the power to set thier own rules. If they don't like the rules, they can change them.

[Libertarianize the GOP]

It would seem to me that Article 1 Section 5 2nd paragraph will force the Senate to solve their own problems.

[spokeshave]

If Fox News can sue itself why not..?

What about one of those manamuss (sp) thingies .... which instructs a government dept to follow its own rules...in this case an up/down vote on the judges

[KellyAdmirer]

I don't think the Senate can have unconstitutional rules just because it is in a separate branch of government. The executive is a separate and equal branch and it can't do unconstitutional things such as override due process and so forth. I'm sure there are very bright boys and girls researching this very topic right now somewhere, so we'll know definitively soon enough.

What I find fascinating is that, if the Supreme Court did rule on the merits, it could conceivably throw out the entire filibuster process as unconstitutionally vague and require the Senate to craft a new one. A longshot, but one can dream. Now THAT would be interesting.

[KellyAdmirer]

A writ of mandamus. I don't know how that would work here. They are directed at an official who is not doing his job, I don't think it works against an entire legislative body that is following its own rules.

[P-Marlowe]

SCOTUS won't touch this.

I think they might. We are not dealing with rules in regard to legislation, which is within the perview of the Senate and house, but this deals with the constitutional power and authority of the President to nominate Justices. The Senate has a constitutional authority to advise and consent. The Supreme Court has the authority to interpret that clause. Does it mean that a minority of senators can hold up the consent? Or does it require that the Senate vote these nominations up or down without undue delay?

I think that since this filibuster rule has not been used in over 200 years of judicial nominating procedures, that the SCOTUS very well may find that the Senate has engaged in an unconstitutional infringement upon the President's constitutional power to make nominations that will either be rejected or consented to following a reasonable investigation into their qualifications.

I am optimistic on this one. I do not believe that the Senate has the right to ignore a nomination, but I believe that the Senate has a constitutional obligation to give advise and consent upon each and every judicial nominee. Failure to act upon a nomination is an unconstitutional infringment upon the power and authority of the Executive Branch. This is not a political question. This is a pure constitutional question. The Supreme Court has an obligation to interpret the advise and consent clause if it is brought before it.

[kayak]

My understanding (and I'm definitely not a lawyer) is that it isn't filibustering in general that is in question but that filibusters related to the Senate's advise and consent function regarding Presidential nominations violate the Constitutionally-mandated 'majority vote' because they force a super-majority. If that is correct, then it would be a Constitutional issue rather than a matter of Senate rules.

[Hillarys Gate Cult]

They're just looking at this now but if it goes to court, the Dems aren't going to like how it ends.

[Keith in Iowa]

You make an interesting case...but history is replete with examples of Representatives & Senators going to court only to get tossed on the basis of separation of powers. I would not get my hopes up. The only thing I see breaking this log-jam is the 'nuclear option' that's been suggested.

[KellyAdmirer]

Yes, I agree that is the issue. But if the general Senate rule allowing filibusters can be applied in unconstitutional fashions - and that is how the general filibuster rule is being used, to require the super-majority which is not contemplated by the Constitution - then the entire rule itself is flawed and must be re-written in order to only apply in constitionally benigh situations. Or at least that may be a possible argument here. Unconstitutionally vague and all that stuff. Just a possibility, however remote.

[P-Marlowe]

I don't think in this case that it is your standard run of the mill separation of powers issue. In this case both the it is not necessarily the executive "branch" vs. the legislative "branch" We are dealing with the explicit authority of the president to make nominations and the explicit DUTY of the Senate to advise and consent. Thus I believe that the constitution does not give the Senate the option of sitting on a nomination, but the Senate would be required to act upon that nomination. My guess is that if the SCOTUS takes the issue, the SCOTUS will interpret that clause to mean that the Senate cannot close its term without ruling on the nominations within that term -- since in essense there is a new Senate elected every 2 years. That would put an end to all the Borkings. That's for sure.

This is really a double edged sword. If the SCOTUS agrees with my interpretation, then a lame duck president could conceivably stack the courts by requesting that all the old dying judges that agree with his philosophy resign and allow the lame duck president to stack the courts with young ideolouges.

Nevertheless, I believe that this one has merit. I don't think it has been tried before only because nobody has ever used the filibuster technique to stop judicial nominations before. Now this issue is ripe for a SCOTUS review. Eventually neither side will like what happens.

[kayak]

OK, I see what you're saying ..... it's a fine point of distinction but a significant one. I just hope that someone can do something to stop the donkeys.

[byteback]

Marbury vs Madison? The first major ruling established that the judiciary is the final arbitor of interpreting the Constitution. They could rule that the Constitution doesn't grant the Senate the power to hold a nominee to a supermajority.

[WillRain]

I don't know. The SCOTUS need not directly address Senate procedures to simply haul them up for not fullfilling the Constitutional mandate.

they can, in effect, say "WE don't care if you do it by consulting the Psycic Hotline but your constitutionally appointed job is to decide - so do it!

Besides, as I mentioned, once there actions affect another branch - and here they affect both the exec branch (because they are presiential appoinments) in that they are interfereing with Bush carrying out his assigned duties and the Judicial branch (by leaving open court seats) they have stepped outside of "internal affairs"

[Keith in Iowa]

The issues is the rules of the Senate - and thus far, the SCOTUS has not gone there - leaving rules squabbles to each legislative body. There is ample evidence in case law to support this.

More power to any Senator who can get a Federal court to first take the case, rule, and get it passes an Appleals court, then on to the SCOTUS if it comes to that.

[ProudGOP]

"They stopped something like 70 of President Clinton's nominees -- 70. We've stopped two of President Bush's. The thing I'm always impressed with is they can actually make the claims with a straight face."

The difference being that the Republicans had the majority when they stopped Clintons judges. Having the majority should mean something.

[cpdiii]

They're tilting at windmills. SCOTUS won't touch this. Separation of powers. The Constitution gives the House & Senate the power to set thier own rules. If they don't like the rules, they can change them.

Just because we have seperation of powers does not mean one branch of goverment can act unconstitutionally. The Constitution says the Senate will "advise and concent." The concent is by a simple majority vote not a super majority.

Congress in the past has passed laws that were struck down as unconstitutional, and the legislature does not have the authority to conduct itself outside of constitutional law. The judicary does have the authority to interven in this case.

[Keith in Iowa]

The issue is the rules of the Senate. The constitution gives the Huose & Senate the power to set and enforce their own rules. Thus far in history, courts have not stepped into House or Senate rule squabbles. Perhaps this will be the first time.