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2 GOP senators consider lawsuit to break filibuster
Atlanta Journal-Constitution ^ | 11/14/2003 | Self

Posted on 11/14/2003 10:00:14 PM PST by WillRain

Two Senate Republicans are considering filing a lawsuit aimed at putting an end to delaying tactics by Democrats trying to block President Bush's nominations to the federal bench.

Freshman Sens. Saxby Chambliss of Georgia and Lindsey Graham of South Carolina said Wednesday they have their staffs as well as outside experts looking at whether such a suit -- filed, in essence, against the Senate itself -- would be feasible.

Their announcement comes in the midst of the debate over nominees Miguel Estrada, a Washington lawyer, and Priscilla Owen, a Texas Supreme Court justice. Democrats charge both are too conservative for the federal bench. The Estrada debate alone has dragged on for three months.

There are enough votes -- including that of Georgia's Democratic senator, Zell Miller -- to approve the nominations of Estrada and Owen. But Republicans in the 100-member Senate have not been able to marshal the 60 votes required to end debate on the nominations so they can be brought to a vote. The continued debate to block a vote is known as a filibuster.

Republicans have repeatedly protested that the filibuster, in effect, creates an unfair requirement that any nomination by the president be approved by a 60-vote margin.

"What we're seeing with respect to the judicial nominees is for the first time in the history of America, we're having a filibuster on our judicial nominees," Chambliss said Wednesday. "That's just wrong. That's not the way the Senate is supposed to operate."

The announcement by Chambliss and Graham comes just shy of two years after Bush made his judicial nominations.

"On this, the two-year anniversary of the presidential nominations, I think it's appropriate that we start ratcheting up the pressure," Chambliss said.

The lawsuit would challenge the constitutionality of the filibuster, Chambliss said. Details such as which court would hear the lawsuit would be decided by those reviewing whether it is possible, Chambliss said.

"We're not to the point of where we're going to discuss the details of what we might or might not do," Chambliss said. "Hopefully, this logjam will be resolved without us having to do that."

All through the debate, Senate Democrats have pointed out that they have helped approve the nominations of more than 90 percent of the Bush nominees. Some have suggested that if Estrada and Owen were liberals, Republicans would not have a problem with filibuster tactics. In fact, Lindsey Graham's predecessor, Republican Strom Thurmond -- then a Democrat -- set the filibuster record in 1957, speaking continuously for 24 hours and 18 minutes in a futile effort to block passage of a civil rights bill.

"It's somewhat hard to take them seriously," Sen. Patrick Leahy of Vermont, ranking Democrat on the Judiciary Committee, said Wednesday of his Republican colleagues. "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."

In addition to Chambliss and Graham's lawsuit rumblings, there were two other prominent proposals to break the filibuster in recent weeks. Miller introduced a resolution that would limit how long debate over an issue could take place. And New York Democrat Charles Schumer proposed that the president appoint state boards, composed equally of Democrats and Republicans, to vote on the nominations.

Senate Majority Leader Bill Frist (R-Tenn.) said Wednesday that he will likely unveil a proposal that blends the Miller and Schumer plans.

When asked about the potential lawsuit, Frist said, "That is one [avenue] that I personally will not be pursuing. I will likely pursue trying to break the filibuster through persuasion and using the rules of the Senate . . . if need be."

The problem with modifying Senate rules to control filibusters is that filibusters are not exactly part of the Senate rules, said Betty Koed, assistant U.S. Senate historian.

"There's no real clear definition of what a filibuster is," she said. "It's more a Senate tradition than a rule."


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; Government; News/Current Events
KEYWORDS: appointees; fillibuster; graham; judicialnominations; lawsuit; senate
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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.

1 posted on 11/14/2003 10:00:15 PM PST by WillRain
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To: WillRain
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.
2 posted on 11/14/2003 10:02:10 PM PST by rs79bm (Insert Democratic principles and ideals here: .............this space intentionally left blank.....)
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To: WillRain
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.
3 posted on 11/14/2003 10:02:48 PM PST by Keith in Iowa (Tag line produced using 100% post-consumer recycled ethernet packets,)
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To: WillRain
It would seem to me that Article 1 Section 5 2nd paragraph will force the Senate to solve their own problems.
4 posted on 11/14/2003 10:06:56 PM PST by Libertarianize the GOP (Ideas have consequences)
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To: Keith in Iowa
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

5 posted on 11/14/2003 10:09:05 PM PST by spokeshave (Cancel the San Jose Merc and the one way truck to Nevada)
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To: Keith in Iowa
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.

6 posted on 11/14/2003 10:12:44 PM PST by KellyAdmirer
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To: spokeshave
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.
7 posted on 11/14/2003 10:14:19 PM PST by KellyAdmirer
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To: Keith in Iowa
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.

8 posted on 11/14/2003 10:17:22 PM PST by P-Marlowe (Milquetoast Q. Whitebread is alive!)
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To: KellyAdmirer
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.
9 posted on 11/14/2003 10:18:55 PM PST by kayak (The Vast, Right-Wing Conspiracy is truly Vast! [JohnHuang2])
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To: P-Marlowe
They're just looking at this now but if it goes to court, the Dems aren't going to like how it ends.
10 posted on 11/14/2003 10:20:30 PM PST by Hillarys Gate Cult (Proud member of the right-wing neanderthals.)
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To: P-Marlowe
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.
11 posted on 11/14/2003 10:24:18 PM PST by Keith in Iowa (Tag line produced using 100% post-consumer recycled ethernet packets,)
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To: kayak
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.
12 posted on 11/14/2003 10:31:43 PM PST by KellyAdmirer
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To: Keith in Iowa
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.

13 posted on 11/14/2003 10:38:30 PM PST by P-Marlowe (Milquetoast Q. Whitebread is alive!)
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To: KellyAdmirer
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.
14 posted on 11/14/2003 10:40:06 PM PST by kayak (The Vast, Right-Wing Conspiracy is truly Vast! [JohnHuang2])
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To: KellyAdmirer
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.
15 posted on 11/14/2003 10:42:15 PM PST by byteback
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To: Keith in Iowa
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"
16 posted on 11/14/2003 10:44:22 PM PST by WillRain
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To: P-Marlowe
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.
17 posted on 11/14/2003 10:49:16 PM PST by Keith in Iowa (Tag line produced using 100% post-consumer recycled ethernet packets,)
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To: WillRain
"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.

18 posted on 11/14/2003 10:55:37 PM PST by ProudGOP
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To: 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.

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.

19 posted on 11/14/2003 10:57:56 PM PST by cpdiii (RPH, Oil field Trash and proud of it)
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To: cpdiii
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.
20 posted on 11/14/2003 11:04:42 PM PST by Keith in Iowa (Tag line produced using 100% post-consumer recycled ethernet packets,)
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