Posted on 04/22/2005 4:05:48 AM PDT by billorites
CONFIRMING a federal judge requires a simple majority vote of the U.S. Senate. Democrats are preventing a vote on some of President Bush’s judicial nominees by threatening to filibuster them. Republicans say that would be unconstitutional. Democrats say the filibuster is a sacred democratic tradition. Both are wrong.
Under Senate rules, 60 votes are required to end debate on any issue. Democrats opposed to some of Bush’s nominees have threatened to endlessly debate them. (This is called a filibuster.) Republicans want to change the rules so that only 51 votes are required to end debate on judicial nominees. (The rules would still require 60 votes to end debate on other issues.)
Republicans, who sank the nomination of liberal judge Abe Fortas in 1968 by threatening a filibuster, claim that allowing a minority to prevent a vote on a judge violates Article II, Section II of the Constitution, which states that the President has the power to appoint judges with the “advice and consent” of the Senate. That section sets a two-thirds supermajority vote to approve a treaty, but is silent on how many votes are needed to approve judges, ambassadors, consuls and ministers. Clearly, the Founding Fathers anticipated a simple majority vote. And that, in fact, is what is required now.
But Article I, Section V of the Constitution gives the Senate authority to make its own rules. Current rules requiring 60 votes to end debate are not unconstitutional when applied to judicial nominees, as Republicans claim. They are undemocratic, but not unconstitutional.
Democratic arguments are no more honest. Until 1917, the Senate had no limits on speech-making by members. That year the Democrats changed the rules so they could end debate by a two-thirds vote. In 1975, the Democrats reduced the percentage of votes needed to end debate to its current ratio of three-fifths, or 60 votes. The party that, for partisan purposes, set the precedent for ending filibusters with a vote is now saying the filibuster is a sacred democratic tradition with which no one should tamper.
While eliminating the minority’s ability to filibuster judges is constitutionally sound, it is politically dangerous. The Founding Fathers did not contemplate a political judiciary. But in an era when liberal judges rewrite the Constitution according to their own whims, Republicans must be very wary of creating a situation in which judges can get on the bench without the support of at least a few minority members of the Senate.
That's how I read it, too.
Of the status quo.
The Republicans have said no such thing. They have said that requiring a vote would be Constitutional, but that is a long way from saying the Senate rules on cloture are UnConstitutional.
Depends on how one defines "unconstitutional." A court is not apt to intervene in any disruption in the balance of power between the president and the Senate.
At the extreme hypothetical, would it be "constitutional" for the Senate rules to be such that the Senate never voted on anything? Of course, politically, that would not happen over an extended period, but as a matter of illuminating the assignemnt of the label "constitutional" to the present rule, the hypothetical is useful. I think the label "constitutional" carries substantial baggage that clouds the argument. Instead, to me, the question can be composed without using that label.
Does the Senate practice of denying an up or down vote to a presidential nominee comport with [hard to insert something here without referring to the Constitution! but hopefully my drift is clear]. Does the Senate have any DUTY? If the Senate has a DUTY to provide advice and consent, is it's present machination in harmony with our form of government?
The whole thing comes down to this. They are holding up the vote on these judges with a threat of filibuster.
Stop playing with these clowns . Lock them down in the Senate and dont let them out till they pass out or vote.
Stop the threat of filibuster and lets get on with it make them talk till they are blue in the face.
Orrin Hatch has asserted that cloture rules are unconstitutional as applied to the confirmation process.
January 12, 2005, 7:29 a.m.
Crisis Mode
A fair and constitutional option to beat the filibuster game.
By Senator Orrin G. Hatch... A filibuster occurs most plainly on the Senate floor when efforts to end debate fail, either by objection to unanimous consent or defeat of a cloture motion. During the 108th Congress, Senate Democrats defeated ten majority-supported nominations to the U.S. Court of Appeals by objecting to every unanimous consent request and defeating every cloture motion. This tactic made good on then-Democratic Leader Tom Daschle's February 2001 vow to use "whatever means necessary" to defeat judicial nominations. These filibusters are unprecedented, unfair, dangerous, partisan, and unconstitutional.
The Republicans have said no such thing.
Will someone MAKE these people debate?
I thought the point of filibuster was to stand up and rant and rave for/against your point of view...until someone collapses. Win or lose, why can't this be done? If no debate occurs, how is this different from minority rule?
The party that, for partisan purposes, set the precedent for ending filibusters with a vote is now saying the filibuster is a sacred democratic tradition with which no one should tamper.
The big problem with the current filibuster rule is that it has become a procedural motion to table a nominee ....
OK, my bad. I would have to think that Orrin Hatch, who is, if nothing else, well versed on the Constitution, was trying to say that Filibusters of judicial nominees is not in keeping with the character or intent of the Constitution. The word UnConstitutional carries special weight these days, as half the laws passed by Congress are Dead Letter in the Circuit Courts.
I certainly agree with you there. I notice that the majority of discussion here at FR is actually argument about what a label means, or a jump to conclusion based on a label. "Unconstitutional" and "filibuster" being two such labels. "Conservative" being another one. ;-)
There is little effort to step back from the labels and attempt to get at the nub of the issue. Instead, the discussion circles around and around the meaning of the label.
In the matter of moving executive and judicial nominees "through the process," one way to frame the issue is to aske whether or not the Senate has a DUTY to vote, to conclusively dispose of the nomination.
...Orrin Hatch, who is, if nothing else, well versed on the Constitution, was trying to say that Filibusters of judicial nominees is not in keeping with the character or intent of the Constitution.
The procedural facts were well explained on FR a couple years ago, but it's more fun to follow the media lead, and the imopression that the word "filibuster" leaves.
First, let's dispose of the word "filibuster," and instead discuss "agreement to vote on the nominee." How does the Senat move from debate to agree to vote on the nominee? That is the question.
The way that process works is for a Senator to call for the vote. If one Senator objects, there is no vote. All the Senator has to say is, "I object." No big speech, no late nights. Just, "I object." The burden then shifts to the Senator who called for the vote. He (or she) has to get 60 Senators to agree to vote. And here is where the minority, in lockstep, can hold up the vote. They all say, in unison, "I object," or even more simply, "no."
No long speech, no late nights. Just plain, "no." That's how it works. Now, sit back and watch the little impact your new knowledge has on the discussion. The vast majority of posters will persist, "Make them stay up all night! Make them talk! What ever happend to a 'real' filibuster?! Will someone MAKE these people debate?"
disagree with one of his basic premises in the above article; that Republicans threatened to filibuster Abe Fortas. That is not true; Fortas was opposed by a majority of the chamber, both Dem & Pubby. This would then be defined not as a filibuster, rather "stillborn" would be the better definition, since had it gone to the floor, he would have been voted down.
But the dhimmis/media/academe successfully make much hay in painting this as a "gotcha" by misleadingly labelling it as a filibuster fm the Right - just another example of dumbing down the discourse.
still waiting for the pubs to grow some stones on this... and afraid our window of opportunity to get things done is closing as a result of their weakness...
... that Republicans threatened to filibuster Abe Fortas. That is not true; Fortas was opposed by a majority of the chamber...
"I'll hold my breath until I turn blue." OK, hold your breath, you little brat. I swear the Senate is full of a bunch of spoiled prissy-pants babies.
Make them filibuster; don't let them to pretend to filibuster.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.