Posted on 05/16/2005 10:01:23 AM PDT by Natty Boh
During the coming week, the US Senate will be struggling with a question that will affect the path of American constitutional law for decades. While senators are battling over Democratic efforts to filibuster George W. Bush's nominees to the courts of appeal, this conflict will set the stage for a larger struggle in June, when William Rehnquist is expected to announce his retirement as chief justice of the Supreme Court.
Mr Rehnquist's retirement will be the first of a series. Eight of the court's nine justices are over 65. Depending on the new appointments, the court may continue down its present course or launch revolutionary changes in constitutional principle. Under existing rules, it takes 60 senators to terminate debate, enabling Democrats to filibuster judicial nominations that pander too obviously to the religious right. But rightwing activists are pressing the 55 Senate Republicans to allow a simple majority to confirm the president's judicial nominations.
Their prime target is Bill Frist, the Senate majority leader. As a leading candidate for the presidency, Mr Frist is especially eager to pacify his religious constituency. But the Senate rules do not make this easy. A special provision requires "two-thirds of the senators present and voting" to end debate on rule changes and Mr Frist will fall far short of the 67 senators this requires. His predicament is exacerbated by another provision stipulating that no rule may be changed except as "provided in these rules".
Faced with this unambiguous command, the Republican leadership has manufactured a constitutional objection to the rules themselves. The constitution says each house "may determine the rules of its proceedings", and for two centuries the Senate has exercised this power in a distinctive fashion. As only one-third of its members enter with every election, the Senate has viewed itself as a continuing body. Unless there is a challenge at its opening session, the Senate continues to operate under its established rules.
Mr Frist is urging his fellow Republicans to repudiate this understanding. He claims that the Senate has the constitutional right to be like the House of Representatives, which approves its rules each session by simple majority vote. Conservatives do not often insist on repudiating a practice dating from the founding fathers. In any event, Mr Frist's analogy to the House does not get him where he wants to go. Once the House organises itself at its opening session, it must follow its own rules if it wants to change them later. In contrast, Mr Frist claims that a Senate majority may simply repudiate the rules at any time. This raises the question, according to the nonpartisan Congressional Reference Service, of wheth-er the Senate will become "a chaotic environment in which a temporary majority could change precedents any time it wanted to". The constitution gives the Senate the power to "determine its rules", but nothing gives it the authority to ignore them.
Nevertheless, the Republican leadership wants change before the Rehnquist vacancy opens. Mr Frist plans this week to make a pending judicial nomination into a test case. He is counting on vice-president Dick Cheney, as president of the Senate, to declare the key Senate rules unconstitutional, and to end debate on the basis of a simple majority vote. Unsurprisingly, he is having trouble rounding up 51 votes to support this manoeuvre, leading Mr Cheney to offer further assistance. As Senate president he has the power to break tie votes and has said he would cast the deciding ballot to destroy the rules.
There is more at stake than sheer lawlessness. The filibuster permits the Senate to play a moderating role within the constitutional system of checks and balances. Except when there is a decisive landslide, it requires the majority party to moderate its initiatives to gain the support of at least a few minority Senators. Mr Cheney's role in destroying the moderating role of the Senate is particularly problematic. For two centuries, the Senate president has been the pre-eminent guardian of the rules. Thomas Jefferson first put them in writing when he served as vice-president. His aim was to prevent political manipulation by the presiding officer, and Senate presidents have consistently served as impartial arbiters. In breaking with this tradition, Mr Cheney has a clear conflict of interests. As president of the Senate, he owes the institution fidelity to its rules, but as vice-president to Mr Bush, he wants to see his boss's judicial nominations confirmed. By allowing his executive interest to trump his duty to the Senate, Mr Cheney is undercutting the separation of powers.
Constitutional tragedy turns to farce in the light of Mr Cheney's professed aim: to appoint judges who will return to the original understanding of the constitution and the rule of law. Physician, heal thyself.
You forgot the barf alert
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Bruce Ackerman
Professor
Yale U
John Kerry
$2,000
5 Killams Point Rd
Branford, CT 06405
I was just on ebay. I bid $41; someone else bid $59. Guess who won the item?
If the Democrats don't like Bush's nominees, they should start winning more elections.
All the Christian-bashing in the world does not hide the fact that the Republicans have the majority, as they did in the 90s when they "blocked" Clinton nominees.
Couching this debate in terms of "fairness" to both Republicans and Democrats ignores the most important part of the equation - THE PEOPLE, who VOTED for a majority Republican Senate.
Wrong!!! Not pandering to the religious right BUT ENABLING DEMOCRATS TO FILIBUSTER JUDGES WHO BELIEVE IN THE US CONSTITUTION AS WRITTEN.
The writer is obviously an anti American leftist wacko liberal.
Good point, except that while the the states voted for a Republican majority senate, I'm not sure the majority of people did. For example, Dem Senators from California and NY got a lot more votes than then Republican Senators from Wyoming.
Fair enough. But I was thinking specifically of the argument made that "well, the Republicans blocked Clinton nominees." The cases are dissimilar because there was a Republican congress from 1995 to 2001 also.
Heck, even if the Democrats fell below 40 senators (and there were no Republican defectors), they would still find a way to block nominees, and not be one bit ashamed to do so.
I agree, the example of the Republican Senate during Clinton is not the same as today's majority Republican senate under a Republican president.
67 senators? I thought it was 60 senators. If somehing this simple is wrong, what else did he get wrong.
It can be done in Committee and that's EXACTLY what Schumer said they would do.
67 senators are needed to end debate on rule changes. You only need 60 to end debate on nominations.
I don't see that they should be ashamed. They have a political agenda and they are expected to work to advance that agenda as long as they are withing the rules.
Conservatives do not often insist on repudiating a practice dating from the founding fathers. In any event, Mr Frist's analogy to the House does not get him where he wants to go. Once the House organises itself at its opening session, it must follow its own rules if it wants to change them later.The filibuster does not date from the founding fathers, but rather from the late 19th century. Until the filibuster was established with a requirement for 2/3 present to invoke cloture, a simple majority could call for the question (a call to end debate and take a vote) at any time. Rules regarding the filibuster have been changed several times since then and NEVER has the practice been used to prevent a confirmation vote on a judicial appointee who had clear majority support for confirmation.
If impartiality were possible, why do we have PARTYS.?...
NEXT.. the Impartial Party... or Republicrat party for impartiality in anything meaningful.. or Demican party for the continual slide into socialism.. or Chaoscrats for the neglect of everything.. or... ((( TILT )))...
It's very dishonest to try to elevate a Senate rule to the status of the U.S. Constituiton. If the filibuster were so important, whey isn't it part of the Constitution instead of just a Senate rule. Why hasn't someone offered an amendment to this effect?
While this might be a legitimate argument in the case of legislation which must pass both houses, it is a fallacious argument in regards to the Senate's constitutional advise and consent role.
Ah. Thanks. This is the first I've heard about this.
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