Frist's warning

The Washington Times ^ | 11/12/04 | Greg Pierce

[Pfesser]

With the pressure now on to break filibusters, Senate Majority Leader Bill Frist last night told the Federalist Society that Democrats face a choice — either stop, or face a rules change that will make judicial filibusters a thing of the past.

"The Senate now faces a choice — either we accept a new and destructive practice, or we act to restore constitutional balance," Mr. Frist said in prepared remarks he was set to deliver to the group of conservative legal minds in Washington last night. "One way or another, the filibuster of judicial nominees must end," he said. "The Senate must do what is good, what is right, what is reasonable and what is honorable. The Senate must do its duty."

Mr. Frist last year introduced a rules change for judicial nominations in which each successive vote would reduce the number necessary to defeat a filibuster. The first time a filibuster was voted on, 60 votes would still be required, but the second time would take 57 votes, the third time 54, the fourth time 51, and the fifth time a simple majority.

Before the election Mr. Frist, Tennessee Republican, had predicted that a pickup of three or four seats, though still leaving Republicans shy of the 60 votes needed to guarantee an end to filibusters, probably would persuade Democrats to stop filibustering anyway.

[InterceptPoint]

Getting this done is the most important task of the next Congress. It is more important than killing the Specter Judiciary Chairmanship. In fact, to get it done may take swallowing our pride and trading his vote for the Judiciary Chair. If that is what it takes it has to be done.

On the other hand, if you can make it without his vote that is the best but don't forget: there are a bunch of RINOs who really don't want Bush to get his way with his judicial nominations. There are the three North East RINOS, Specter and The Arizona RINO McPain who are potential if not likely NO votes on the Nuclear Option. One more and we are dead. That is the game that Frist must play and win.

[TomGuy]

Frist has been giving these whining threats since 2002, and he still hasn't done anything about them.

Remember the all-nighter the Pubbies tried last year? What a laugh. They made a big production about bringing in 'cots' [which where actually expensive mattresses] and giving speeches all night. And it accomplished absolutely zero.

When Frist starts DOING rather than whining and threatening, changes might happen. Until then, Frist makes himself and his Party appear more and more impotent by allowing a minority of 41 to control things.

Frist should DO something NOW or step aside and let new leadership take over.

[Pharlap]

This is the way it can be done. The Senate's Republican leadership must determine that it has 50 votes. (The new Senate will be 55-45. But, there may be up to 5 Republican's who will not vote to change the Rules. They are the two from Maine; Chafee from Rhode Island; Specter from Pennsylvania; and McCain from Arizona. On the other hand, there are several "red" state Democrat senators up for reelection in 2006 who might be willing to vote for a Rule change.) Assuming 50 votes, the Vice President as the President of the Senate would then cast the tie breaking vote (see, the Constitution, Article I, Section 3, Clause 4). The Chairman of the Rules Committee (currently, Trent Lott) would propose a change to Senate Rule XXII, which provides for a filibuster, and requires a 60 vote super majority to effect cloture. The change could exempt all presidential nominations, or just judicial nominations from Rule XXII, thereby mandating an up or down vote on the exempted nominations; or, the change could effect a sliding scale cloture vote so that by a certain point in time, say 3 months, only 50 votes would be required for cloture.

The Rules Committee then votes out the Rule change (probably along party lines). Once on the floor (before the full Senate) for debate, should a senator move to filibuster the Rule change, the presiding officer (most likely the Vice President) would rule the filibuster out of order because (1) the Rules of a prior Senate cannot bind or limit the rule making authority of the incoming Senate, and (2) because the Constitution does not require a super majority for the enactment of Rules. As to this last point, when the Constitution mandates a super majority it does so expressly as with treaty ratification. In all other instances, only a simple majority is required. That is the intent of the combination of specific super majority provisions and the operation of Article I, Section 3, Clause 4, which envisions tie votes (there being an even number of senators),and, therefore, expressly empowers the Vice President to cast the tie breaking vote.

[mrsmith]

First's speech is being replayed by CSpan NOW.

[TakeChargeBob]

"Republicans fear that they may need it one day."

WAKE UP REPUBLICAN SENATORS!

Haven’t you learned anything since 2000. The law means nothing to the Rats. Look at the Florida Supreme Court in the 2000 election, the NJ Supreme Court decision to let Lautenberg take over for Torricelli, and most importantly look at the Senate forgoing tradition and filibustering judges in mass. The issue of the nuclear option is out of the bag. If the Rats take control, they will use the nuclear option to their own advantage. This is particularly true when it comes to getting their judges in. They want to accomplish thru the courts what they can’t possibly accomplish thru the legislature. It is a false fear to not utilize the nuclear option.

[robertpaulsen]

"Does anyone know when the first Supreme court nominee was filibustered?"

Abe Fortas, 1968.

"First Federal judge??

Miguel Estrada and Priscilla Owen for federal appellate judges, 2001.

[B4Ranch]

Get ready for some changes to the US Constitution next time around.

[ken5050]

Excellent synopsis..thanks..allow me to point out one aspect of Frist's comments that have escaped notice. The timing is very important. Spector has asked for a meeting with the GOP Judiciary committee members next week. IMHO, itnseems incumbent upon Arlen, BEFORE that meeting..to speak out publicly about Frists's comments..to say loud and clear that he agrees with and supports them. If he doesn't, he's toast..

[Pharlap]

Your point is well taken. Specter, or whoever will become Chairman of the Judiciary Committee, should fully support the Rule change, and agree to vote for its adoption as a precondition to being voted Chairman. In the current Senate, there has been testimony before both the Rules and the Judiciary Committees on the constitutionality of filibustering judicial nominations. That esoteric discussion is no longer the critical to the resolution of the filibustering of judicial nominations. The change to Rule XXII, as a process or procedural matter, is now the paramount matter for Senate consideration.

[mrsmith]

Changing the rule is also a political neccessity now to protect our moderates from votes over judges who aren't 'pro-life'.

Snowe, Chaffee and Collins have many voters who NARAL will enrage against them if their vote to end a filibuster lets a 'pro-life' judge be confirmed.

If the filibuster is ended they can vote against the 'pro-life' judges every time. Otherwise they're on the spot. Politicians hate being put on the spot.

[Paperdoll]

Doctor Frist, I pressume. Sensitive surgery in progress.

[discostu]

Of course changing the rules on filibuster takes more votes than breaking a filibuster, if we can't accomplish the later there's no possible way to accomplish the former.

What it all boils down to is how many Dem Senators are running for re-election in red states in 2006. If we can get them to chase job security across the aisle the nominees will get through.

[Nov3]

Thank You for the info.

I am not real aware of the history of the filibuster of judges. I can see why. It is a recent phenomenon. I too thought they were supposed to get an up or down vote until Bork.

[robertpaulsen]

Abe Fortas was the only USSC nomination filibustered.

Bork was "borked". The Judiciary Committee voted 9 to 5 against him, and the full Senate voted 58-42 against his nomination to the USSC.