Skip to comments.The Constitutional Truth About Filibusters - (historical fact makes liars out of Reid & Dems)
Posted on 05/17/2005 4:36:17 PM PDT by CHARLITE
On the filibuster issue, the Democrats are anything but protectors of the Constitution. They are anything but principled defenders of time-honored constitutional values. Instead, they are simply following the only political strategy they seem to know - using deception and outright falsehoods to cast themselves as the oppressed, innocent victims of tyrannical Republicans.
Under the Democratic scenario, Republican efforts to end the filibustering of judicial nominees amounts to an unprovoked assault on the minority party. What this claim of victimhood ignores is that Democrats are the ones who started the war. For the past four years, they have been filibustering President Bushs judicial nominees.
In 2001, for instance, Miguel Estrada was nominated for the United States Court of Appeals for the District of Columbia, but after two years and seven failed attempts to break the Democratic filibuster preventing any vote on his nomination, he finally gave up and withdrew his name from consideration.
Democrats complain that the Republican opposition to filibusters undermines their right to advise and consent. But there is ample evidence that from the very start of the Bush presidency, Democrats had no intention of fulfilling their constitutional duty to advise and consent.
Shortly after George W. Bushs election in 2000, liberals vowed to block the nominations of any judge perceived as conservative. Writing in The American Prospect in February 2001, liberal scholar Bruce Ackerman urged the Senate to refuse to confirm any nomination offered up by President Bush. Thus, the conclusion is almost inescapable that the Democratic filibustering of judicial nominees is simply a vengeful act of rebellion for Bushs election to the presidency.
Perhaps the most significant falsehood perpetuated by the Democrats victim strategy involves the claim that the filibuster is an essential component of the judicial appointment process. This claim directly contradicts the framers intention regarding confirmation of federal judges.
As Professor William Ross notes in his study of the appointment process, the plain language of the Constitution contemplates a simple majority vote of the U.S. Senate for any judicial nominee. Indeed, over the two-plus centuries since the Constitution was adopted, a simple majority approval has been the governing standard for judicial appointments. But the filibuster essentially negates this standard, because the denial of a vote on a nominee produces the same result as rejecting that nominee in a full-Senate vote.
As Professors Catherine Fisk and Erwin Chemerinsky conclude in their Stanford Law Review article on the subject, the use of the filibuster to block judicial nominees is a clear violation of constitutional design. It also produces the illogical result in which the mere decision to vote on a nominee requires a greater majority than does a decision to actually confirm that nominee. However, just because the Constitutional does not forbid the filibuster, Democrats have made the perverse argument that the Constitution mandates the use of filibusters by a minority party seeking to obstruct the appointment of federal judges.
Writing during the Clinton presidency, Professors Fisk and Chemerinsky characterized the filibuster as a minority veto having little to do with deliberation and less to do with debate. Rather than being a means of eliciting more information or facilitating negotiation, the filibuster is simply a ploy to shift the balance of power to a minority of senators and create gridlock in the appointments process.
The Constitution is explicit about the specific congressional acts requiring more than a simple majority -- acts that in effect carry a presumption of disapproval. For instance, the Constitution imposes a two-thirds requirement for overriding a presidential veto, removal after impeachment, ratifying a treaty, and congressional proposal of a constitutional amendment. Nowhere does the Constitution say that such a supermajority is needed for judicial appointments, yet this is the result when a minority party deliberately employs the filibuster to block those appointments.
Harry Reid and his Democratic colleagues are dead wrong when they argue that the filibuster is a longstanding tradition enjoying unquestioned constitutional approval.
A host of constitutional scholars have in fact advocated reforms similar to the one now proposed by Senator Frist. For instance, Professor Michael Gerhardt in his book The Federal Appointment Process (2000) calls for the adoption of procedures that would weaken or eliminate the stranglehold of filibusters over the appointment process.
The Democrats are right about one thing: the Constitution is being subverted in the way the Senate is handling President Bushs judicial nominees. But if they really want to see the cause of subversion, the Democrats should look in the mirror rather than across the aisle.
Patrick M. Garry is a professor at the University of South Dakota's Law School who regular writes on the subjects of law and politics. He is also the author of Nation of Adversaries: How the Litigation Explosion is Reshaping America (Insight Books).
I believe the nuclear option is the answer.
Analyze till you paralyze then you hope it dies. Or talk it to death.. When in danger run in circles, when in doubt scream, and when cornered smile!! It drive the other person crazy.
If you repeat a lie often enough it becomes truth!!
The Dems have been repeating this lie often enough...
It is time for the Repubs to just DO IT and change the stupid rule that is presently in place...
In a month from now no one will even know that they changed the rule.
On 911 President Bush still had only half a staff thanks to Senate stalling. I cant say the Dems are responsible for 911 , but their stalling tactics didnt help.
At the start of each session, congress sets it's ground/oerating rules for that session. They don't consider themselves "bound" by/to prior rules. When the RATS have control they alter/set the rules as they wish, seldom paying much attention to opposing input. Simple ain't it?
"the Democratic base will be demanding that Harry Reid follow through on his threat to shut down the Senate which will only hurt the Democrats even more with the American public."
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