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."
I do not know if this is true or not but those posting it seemed pretty sure of themselves. If that is the case, then it puts a whole different slant on the notion of recess appointments. How many people can afford to take months, if not years, out of their lives to serve in full-time positions with no pay? Why should they be forced into that position by the 'rats? And there is nothing stopping the 'rats from refusing to confirm them even after the appointments, thus assuring that any recess appointments would be serving on a charity basis.
If any attorneys or scholars would care to comment on this, I would welcome the information.
Which evening news programs showed this?
You might want to think about that for a while....
Our Government has been acting Unconstitutionally for the last 60 years.
L
Kennedy's overtly racist language stunned even liberal CNN correspondent Jonathan Karl, who reported, "Strong words from Ted Kennedy suggesting that some of these nominees are Neanderthals."Karl said Kennedy's harsh tone was "exactly what Republicans point to when they say it is the Democrats that have been the extremists on this."
The 'Rats probably got some union or moveon.org to pay him.
As an American citizen, I am frustrated and angered and feel misrepresented through this failure of the United States Senate to advise and consent, to vote UP or DOWN on the nominees whose names come before the senate after judiciary committee reveiw.
Are you kidding me?
If O.J. Simpson can get away with cold-blooded murder on national television with 100 million people watching, don't you the the DemoRATS can find a good enough weasel (lawyer) to get them past a filibuster?
Are you telling me that Kennedy used the 'N-word' against Janice Rogers Brown? Where is the media outrage?????? I think that Kennedy needs to immediately apologize. Hmmm, I wonder if Kennedy considered Mary Jo Kopeckne a neanderthal too????
To those who say the SCOTUS won't take it, flat out, I say there are good arguments on both sides of that issue. The courts indeed get involved in separation of powers cases, but the threshold is not clear.
Purely hypothetical, but what if the Senate rules required unanimity for signing on to a treaty, in clear contravention of the Constitutional requirement for 2/3rds? That would effectively neutralize the Presidential power to make treaties. Similarly, in the case at hand. the President's power to approve Article III judges has been tipped.
Further, the Constitution provides for Senate oversight for Supreme Court nominees, and that the Congress can make laws prescribing the process for lower court judges (District and Circuit courts, in this case). Notice that the Constitution says the -mandatory- laws prescribing filling those lower offices may "... vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." This clause intimates a limit on Senatorial power, and that for inferior Officers, the appointment power can be vested in the President alone, or in the courts -- but NOT interposing a higher barrier for appointment than the advise and consent of the Senate. It happens that the relevant statutes (for filling Disctict and Circuit Court vacancies) recite an advice and consent requirement, but the Constitution does not mandate this.
Clearly, if the Senate rules required unanimity in order to produce the advise and consent the Constitution requires for Supreme Court nominees, thereby permitting a single Senator to thwart the President in the exercise of his Constitutional power to fill a Supreme Court vacancy, we would have a Constitutional crisis. Would the SCOTUS take such a case? If yes, then we are talking about the threshold for taking a case. The Senate rules are now being used to effectively permit a minority of Senators to do precisely that, block Presidential appointments. The suit would be stronger if the President joined it, but I think the suit is ripe.
There is no doubt in my mind that the Democrats are perpetrating a Constitutional Crisis, and I sincerely hope they are called out on it.
As to whether or not the SCOTUS will take the case, I don't know. The point of this one-sided missive was merely to assert that the issue is legitimately arguable. It is not a cut and dried matter, and if the case is brought, the SCOTUS would be compelled to at least issue an opinion explaining why it is denying to become involved.
Did any of the posts cite 5 USC 5503? That is the relevant statute. The purpose of a no-pay for recess appointees statute is to enforce the Sentate's power of advice and consent.
See also Recess Appointments of Federal Judges, which discusses your question.
I respectfully disagree.
In my humble opinion the issue is the patently unconstitutional usurpation of presidential power by a minority IN the senate and the resulting disenfranchisement of the American people.
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