Posted on 05/15/2005 4:58:11 AM PDT by billorites
THE MISINFORMATION being spread about the current abuse of the filibuster to block U.S. judicial nominations is awesome. Given the importance of the fight, however, it is not surprising.
The idea that the Senate Democrats are merely employing the "checks and balances" built into our system of government is hogwash and insulting to the intelligence of the American people.
It is our three distinct branches of government — executive, legislative, and judicial — that hold each other in check and balance. What the Democratic Party is doing is to misuse the filibuster rule so that a minority in the Senate can frustrate that branch from its constitutional duty of providing "advice and consent" to the President on appointments.
How can the Senate advise the President if it cannot even be allowed to vote on his nominations?
Further, the claim that Republicans have misused the filibuster to similarly block up-or-down votes on judicial nominations is also hogwash. The Republicans have played by the rules. They have defeated judicial nominations by up-or-down votes, either in committee or before the full Senate. The single instance in modern times when they employed a filibuster was in the celebrated case of Justice Abe Fortas, whom members of Lyndon Johnson's own majority Democrats couldn't stand, either.
Neither the Senate nor the Constitution envisioned use of the filibuster to halt up-or-down votes on judicial appointments. It is the Democrats who are breaking the rules and the Republicans have finally come close to calling them on it. If a deal is not struck soon, the GOP is prepared to rule this chicanery "out of order," which it most assuredly is.
New Hampshire Senators Judd Gregg and John Sununu understand what is at stake here. The Democrats are trying to thwart the will of the voters, who want judicial extremism stopped. With more than one U.S. Supreme Court appointment in the offing, this is a fight that must be won now.
Democratic lies are being spread through the MSM.
Similarly, nothing in the Constitution says the Senate SHALL try impeachments, just that it has the power to do so.
Nothing says the Senate MUST vote on treaties, only that if it does, 2/3rd are required for assent.
I think the only sensible read is that the Senate has a duty in all of these cases, and the duty is not discharged in a refusal to vote.
When a Federal Court threw out the recently passed marriage amendment to the Nebraska constitution.
look at the history of the filibuster, your assumptions are wrong.
Fortas was not a filibuster, he had no support and his candidacy for Supreme Justice was withdrawn promptly.
Never have qualified candidates who have been passed on with recommendation by the relevant committee been denied an up/down vote.
This act by the dhimmicrats is a barbarous mangling of the Constitution - clearly, the role of the senate is to Advice And Consent, and they express this via an Up/Down Vote.
We all know the left cannot legislate it's agenda, hence the travesty that is our judicial system these past 35 years. Not just RoeVWade, but a host of others. Do you know that in the recent Mass Courts ruling on Gay Marriage, that this collection of robed ones not only made law from the bench, but also had the audacity to order the Mass legislature to legislate accordingly, with a deadline of compliance to boot???!!!
Do you know that President Bush, shortly after taking office in 2001, presented several candidates some of which were (9 or 11, iirc) nomination hold-overs (2 of which were lib-democrats) fm the previous administration, and that the democrats (remember, Jeffords was independent and the pubbies had no majority then) quickly confirmed the lib candidates and proceeded to hold up the Republican candidates (one of which was Miguel Estrada)?
The dhimmi's have been successful in thier mangling - they reason that sooner or later the pendulum swings back towards them, and whatever prospective gains the current administration can be prevented from achieving just means they will install more leftist amoeba utopian oligarchs on the bench when it comes their turn.
This is outrageous, and you Sir, damned well Know This!
OK -- totally agree with you there. I thought when you said "continue to" you meant the courts had already done so, but I see what you're saying now.
"When a Federal Court threw out the recently passed marriage amendment to the Nebraska constitution."
Yeah, that was a horrible decision, though it's an exaggeration to say the court read gay marriage (or protection of such) into the US Constitution. Rather, the court (idiotically) said the Nebraska state constitution couldn't BAN it and civil unions, leaving it up to the Nebraska legislature. Now, a state has every right to amend its own Constitution; the legislature must then work within those parameters. That's what a constitutional democracy is. But it's not like, say, Lawrence v. Texas, where the court said there's some magical Constitutional right to commit sodomy.
Please give me one example of a Clinton judicial nominee being filibustered. True, some didn't get out of committee but neither did dozens of Republican nominees when the Dems controlled congress.
"Never have qualified candidates who have been passed on with recommendation by the relevant committee been denied an up/down vote."
True, though the Democrats point out (correctly, in this case) that Republicans kept Clinton nominees bottled up in committee. So those nominees never received an up-or-down vote, even though the Republicans avoided that vote through a means other than the filibuster. The Democrats' point that Republicans have not always been committed to the ideal of an up-or-down vote is therefore valid.
Now, this doesn't mean we shouldn't change the rules. I think we should. I think nominees ARE entitled to an up-or-down vote, now or at any other time. That, in my view, is the right interpretation of the "advice and consent" clause. Remember, that clause comes in the positive, not the negative: it doesn't exactly prohibit the filibuster on judges; rather, it suggests the need for a real vote.
As for Fortas, you are right that he never had majority support, but he was filibustered and never received an up-or-down vote. The difference is that Fortas probably would have lost such a vote, unlike the nominees that the Democrats are now blocking.
"By the time that republicnas would rue the day that they blocked filibustering judicial nominations, I submit that the filibuster would not be relevant because looking at the makeup of the courts as they will be slated, any judge appointed will be in no postion to undo what the prospective courts have already done."
Well, remember that we're now trying to undo what LIBERAL judges have done for the past 60 years. The pendulum may take a while to swing, but swing it may. Anyway, the argument for ending the filibuster of judges is not strategic, but principled. Every nominee should get an up-or-down vote. That's the constitutional part of the constitutional option.
Pray for W and Our Troops
When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.
On October 1, 1968, the Senate failed to invoke cloture. Johnson then withdrew the nomination, privately observing that if he had another term, "the Fortas appointment would have been different."
As you can see, Fortas was recommended by the committee but failed to get an up or down vote.
I would also refer you to Cboldt's comments just above these posts. Cboldt is correct on his first two points. However his last point about a "duty" isn't there. If there is a duty, it is that the Senate should consider whether to exercise the power to ratify the treaty (as in Kyoto, it did not), trying the impeachment or even if it wants to have a full vote on judicial appointees. The Senate has the power and the Senate chooses whether or not to exercise that power. The rules of the Senate allow a filibuster to be clotured with 60 votes. Remember that at the time of Abe Fortas' nomination, it was 66 votes. The Senate changed the requirement, but did not abolish the filibuster for judicial nominees or any other issue. (Granted, the Fortas issue was not why the requirement was changed to 60.)
While I would also like to see these nominees confirmed by the full Senate, I don't advocate "throwing the baby out with the bathwater". This issue has cut both ways in the past as each party controlled the Senate. The filibuster served conservatives well during the Fortas nomination and it now serves the liberals. On the other hand, Republicans also have used their Senate privilege of placing a hold on Clinton nominees, again, something not specified in the constitution. So the issue has benefited and hurt both sides.
The only true and unarguable answer is to elect 60 GOP Senators.
But the Senate DID vote on the Kyoto treaty (it failed, miserably), and and far as I know, it has brought to trial every article of impeachment brought to it.
My point is that there is never any discussion of whether or not the Senate can stonewall these decisions, yet the same Constitutional construct is there in each case. That is, the word DUTY does not appear. I assert that duty is implied. When the Senate refuses to exercise its judgement in treaties and nominees, it is stepping on the president's toes.
Obviously, the point is arguable. We are arguing it. ;-) You hold that I am wrong, that the Senate has no duty to try an article of impeachment, that it has no duty to vote at all when presented with a treaty, and that it has no duty to vote when presented with a nominee. I hold the opposite position.
It is as the GOP has forgotten what it is like to be in the minority - and think they will never be there again.
First off, my apologies for my last remark in my previous post - I get passionate about this whole filibuster thing, view it as a stalling tactic which the dhimmis have successfully employed. Between the enablement of this twisting of the Constitution by the left, the blessing said tactic has recieved from the media, and the general lack of backbone by the republican majority, I don't know which gets me pissed off more.
For BiB: though I cannot speak for all events involving nominees, I know there were many clinton nominees posted in the very latter part of his administration - pubby senators felt he was trying to ramrod some quick ones ala his 11th hour mass pardoning of dubious characters, and rightly held them up. To President Bush's credit, he did forward some of those qualified nominees in his first batch, along with (of course) nominees of a more conservative leaning. The dhimmis (remember, at this point in 2001 there was no republican majority, said fact reflected in committee membership as well...) quickly passed those democrat nominees, then held up the conservative ones.
On the Senate website, I confess that the distinction is blurred on Fortas... were the floor discussions against him part of the talking period prior to vote? If so, how then could it be called a filibuster? Seems to me, to have been a filibuster means it would have 1) gone to the Senate floor for discussion, pro & con; 2) been posited for a vote; at which point 3) the opposition would then have filibustered to prevent the actual vote. Fortas was shot down when it became evident he did not have the support needed to be voted in, therefore I would think he was removed during my ad-hoc step (1), above.
This is not an issue about the filibuster per se; I believe to address this under the same parachute obfuscates the main point; that a filibuster has never:
A) been used on judicial nominees who otherwise have been favorably forwarded by the committee; who
B) would, if the senate were to vote, almost certainly be elected to the bench; or for that matter...
C) been a filibuster in name only, whereby the minority party is not required to "hold the floor" in discussion.
True, the Constitution does not specify filibuster on judges... or anything else. The filibuster is an artifice which falls under Senate Rules.
But those rules must perforce be based on Constitutional ethics - could the senate make a rule that states all decisions must be unanimous, effectively rendering that body into the 21st century incarnation of the Polish Diet? We know full well what paralysis would ensue from such folly, and Poland can tell you the dangers of giving one vote effective hindrance upon the body politic can do to a Nation's survival.
Advice and Consent does not mean 41 can prevent the other 59 from exercising thier Constitutional obligations... as Robert KKK Byrd so famously (if certainly not covered by MSM) described recently when he stated "the Senate has voted against them" (the nominees). The Senate has NOT voted, and you, Sen Byrd, are Out of Order!
For that matter, I've never understood why a point of order was not posited from the very first - the Senate would then have had to decide whether this filibuster was legit or not, and I believe the vote would have been against it.
But, as I mentioned before regarding my angst against wuss-pubby senators... if frogs had handguns, birds wouldn't f*"k with them...
I believe that technically, the Fortas filibuster was actually on the motion on whether or not the Senate would take up the actual consideration of Fortas for Chief Justice. I remember reading somewhere a few weeks ago about how Ernest Hollings read through long passages from a book as part of this filibuster. But, in any event, the filibuster of the motion to bring up the Fortas nomination for a full vote ended up with Fortas not being confirmed after he was recommended by the committee.
The truth is that the Senate can make any rules it wants, including 100% agreement however foolish that would be. Since the constitution gives the Senate no specific guidance on procedural matters of how to conduct its business, the Senate must make its own rules. I think this is perfectly legitimate no matter which party is in charge.
The issue does boil down to just what "advice and consent" means. I personally think that when the Senate goes about giving or not giving advice and/or consent, which ever way that goes, it is subject to the rules adopted by the Senate for it's operation. There is nothing unconstitutional about the Senate changing the filibuster rules on judicial appointments to a simple majority if that's what it votes to do. The Dems' only valid argument is against the abolition of the Senate precedent and tradition of the filibuster and nothing else. And, as the GOP argues, once that rule is changed, that becomes the new precedent.
But going back to my original post, I do question whether it is wise to change the rules, regardless of whether the Senate can or cannot change the rules. I think that in the long run this will come back to bite the GOP in the posterior as the mood of the country swings back and forth like a pendulum. One day, the Dems will control the Senate again. Sorry if that bothers some, but that's the nature of the beast we call politics.
well said.
Anyway, the argument for ending the filibuster of judges is not strategic, but principled. Every nominee should get an up-or-down vote. That's the constitutional part of the constitutional option.
Agreed. I was posting the opinion as a mater of strategy because is how many RINOS look at the issue. I was basically trying to show how silly retaining the filibuster is as a matter of long or short term strategy. btw, not only RINOS are looking at keeping the filibuster, but there are many conservatives like George Will who do not want to end this as a tool. Honestly, I don't know what planet Will is on if he thinks that if the senate changes hands, the donks will honor a repub filibuster. Pure poppycock. IMHO, the entire practice (filibustering ANY appointment, not just judicial) needs to be deep-sixed.
It is as the GOP has forgotten what it is like to be in the minority - and think they will never be there again.
Okay. If you can tell me why Thomas or Bork was not filibustered by the donks, I will shut up and go away.
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