Reid: Bush, GOP Seek to Reinvent Reality

WASHINGTON - Senate Democratic leader Harry Reid said Thursday that President Bush and Republican senators are trying to "rewrite the Constitution and reinvent reality" in their push to confirm controversial judicial nominees.

"The Senate is not a rubber stamp for the executive branch," Reid said. "Rather, we're the one institution where the minority has a voice and the ability to check the power of the majority. Today, in the face of President Bush's power grab, that's more important than ever."

Republicans are threatening to eliminate the Democrats' ability to use filibusters to block Bush's judicial picks, beginning with federal appeals court nominee Priscilla Owen.

Reid says that the Constitution does not require that judicial nominees get confirmation votes, allowing the minority to block them. Bush and other Republicans who argue otherwise "rewrite the Constitution and reinvent reality," he said.

Senate Majority Leader Bill Frist said he will call a vote next week on whether Republican senators are willing to let the minority Democrats continue to block the White House's judicial appointments through filibusters.

"The principle is that judicial nominees with support of a majority of United States senators deserve a fair up-or-down vote on the floor of the United States Senate," Frist said.

But while senators argue over Owen's nomination on the Senate floor, the driving force in backroom negotiations in the Capitol is how senators will treat a future Supreme Court nominee if a vacancy opens up in the next two years.

"This whole debate, for me, is about the Supreme Court," said Sen. Lindsey Graham (news, bio, voting record), R-S.C., one of the Senate negotiators who scurried from office to office Wednesday trying to work out a deal that would avoid a showdown over whether to block the use of filibusters against judicial nominees. "What do you do with the next level? Can you get the Senate back to more of a normal working situation?"

Senate negotiators were to get back to work Thursday trying to find a compromise on confirming Owen and the seven other U.S. Appeals Court nominees. But while lower court nominees are at the forefront of the argument, the clear subtext of the debate is how the Senate will treat a future Supreme Court nominee from President Bush.

Republican leaders are concerned that Democrats want to enshrine judicial filibusters in the Senate so they can block a future Bush nominee to the nation's highest court, along with Owen and the six other lower court nominees they already have blocked using the parliamentary tactic that requires 60 votes to overcome.

While there are no current vacancies, Supreme Court watchers expect a retirement before the end of Bush's presidency. Chief Justice William Rehnquist, who is 80, is fighting thyroid cancer.

"When a Supreme Court position becomes open the issue will be, will it require 60 votes to approve a Supreme Court judge — something that's never required — or will it be a majority vote? Must we have a super majority?" said Sen. Sam Brownback (news, bio, voting record), R-Kan.

But Democrats worry that Republicans want to get rid of judicial filibusters so the White House can use the Senate's GOP majority to ram through a nominee that Democrats will find extreme and objectionable. If such a move were to succeed, it would give the GOP full control over which nominees could be confirmed for lifetime judgeships since the party controls the White House and has a 55-44-1 majority in the Senate.

"If Republicans roll back our rights in this chamber, there will be no check on their power," Reid said. "The radical right wing will be free to pursue any agenda they want. And not just on judges. Their power will be unchecked on Supreme Court nominees, the president's nominees in general and legislation like Social Security privatization."

Senate centrists hope to avoid both options. If they can get 12 senators to agree to a deal — six Republicans and six Democrats — they can prevent Frist from banning judicial filibusters and keep Reid from filibustering Bush appointees.

Under the most recent Republican-crafted offer, Democrats would have to allow the confirmation of six Bush nominees: Owen, California Supreme Court Justice Janice Rogers Brown, former Alabama Attorney General William Pryor, as well as Michigan nominees Susan Neilson, David McKeague and Richard Griffin. The Senate would scuttle the nominations of Idaho lawyer William Myers and Michigan nominee Henry Saad, aides said.

But more importantly, both sides would have to operate on "good faith" when it comes to future nominations. Republicans would be bound not to ban judicial filibusters only if Democrats forswear judicial filibusters on court nominees except for extraordinary situations, aides said.

The aides spoke on condition of anonymity because the discussions are being held behind closed doors.

"If we can get through this week, really, get through these eight, I think calmer heads will prevail down the road and we'll have a better chance of dealing with the Supreme Court nominees in a traditional way," Graham said.

if you're interested, this is why I think filibustering judicial nominees is unconstitutional:

I was thinking about when the Supreme Court found the line item veto to be unconstitutional. It struck me there might be some similarity with line item vetoes and filibustering judicial nominees because each requires the interaction of the Executive and Legislative Branches. Actually, the Constitution requires the Executive and Legislative branches work together with nominating and confirming judicial nominations like it requires the Legislative and Executive Branches to work together to pass laws. The line item veto is a legislative creation. But, the filibuster is a Senate creation/rule, so maybe there is the similarity.

My thought is if the Court finds that the line item veto circumvents the Constitution and the separation of powers, what about filibustering to avoid giving advice or consent on judicial nominees? A line item veto subverts the Constitution's separation of powers even though it is a piece of legislation passed by the Congress and signed into law by the President. It is not expressly forbidden by the Constitution; yet, a Senate rule can subvert the clear direction and expectation of the Constitution? From Wikopedia (note Scalia's dissent at the end):

Clinton v. City of New York
In the case Clinton v. City of New York, 524 U.S. 417 (1998), the Supreme Court of the United States declared the Line Item Veto Act of 1996 ("Act") in violation of the United States Constitution, in a decision delivered by Justice John Paul Stevens. The Act allowed the President to "cancel", that is to void or legally nullify, certain provisions of appropriations bills, and disallowed the use of funds from canceled provisions for offsetting deficit spending in other areas.

-----The Senate rule is used to nullify the advice and consent role of the Senate, right?

In this case, which was consolidated from two cases by a lower court, the City of New York and several organizations related to health care alleged injury from the President's cancellation of certain provisions of the Balanced Budget Act of 1997 that eliminated certain liabilities, and Snake River Potato Growers, Inc. alleged injury from the President's cancellation of certain provisions of the Taxpayer Relief Act of 1997 that gave tax benefits to aid farmer's cooperatives in purchasing potato processing facilities.

The Court decided that the Act allowed the President to unilaterally amend or repeal parts of duly enacted statutes by using line-item cancellations, and therefore violated the Presentment clause of the Constitution ( article I, section 7, clause 2), which outlines a specific practice for enacting a statute. The Court construed the silence of the Constitution on the subject of such unilateral Presidential action as equivalent to "an express prohibition", agreeing with historical material that supported the conclusion that statutes may only be enacted "in accord with a single, finely wrought and exhaustively considered, procedure" (from INS v. Chadha, 462 U.S. 919 (1983)) and that a bill must be approved or rejected by the President in its entirety.

-------The Senate rule allows a minority of Senators to unilaterally nullify or repeal the advice and consent requirement of the Constitution which outlines a specific practice for confirming or rejecting judicial nominees. The Constitution is silent as to the impact of Senate rules on the Senate's duty to give its advice and consent for judicial nominees. It is procedurally specific, is it not, about a majority of Senators giving or withholding its consent after delivering its advice?

The dissent, written by Justice Stephen Breyer, contended that the objective of the Act was constitutionally proper and was consistent with powers that the President has held in the past, stating that the Act "does not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle". He extensively refers to many different cases which support the delegation of power by the Congress, and primarily suggests that the Act is an efficient means by which a constitutionally legitimate end may be achieved.

----- What is stated above makes the case so strong that a filibuster of judicial nominees is unconstitutional.

Justice Anthony M. Kennedy, in a concurrence of the opinion of the Court, objected to the dissent's argument that the Act did not violate principles of the separation of powers and threaten individual liberty, stating that the "undeniable effects" of the Act were to "enhance the President's power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another." In an alternative opinion, Justice Antonin Scalia objected to the Court's consideration of the President's cancellation of provisions of the Taxpayer Relief Act, finding no party in the case with standing to challenge it. However, he does find a party with standing to challenge the President's cancellation of provisions of the Balanced Budget Act, and concludes that it did not violate the Constitution because the Congress has the power to delegate the discretionary authority to decline to spend appropriated sums of money, which he asserts is equivalent to cancellation.
http://en.wikipedia.org/wiki/Clinton_v._City_of_New_York
Scalia said Congress has the power to delegate DISCRETIONARY authority. Perhaps the question is: Is the Senate's advice and consent role discretionary? I don't think so. It is as specific as anything in the Constitution.

The spirit of this case -- it seems to me-- is when the Constitution is specific about the obligations of the separate branches of government, the branch in question is expected to fulfill its responsibilities-- unless discretion is granted. I think the advice and consent provisions are specific and mandatory. The majority vote of Senators to confirm is specific and cannot be subverted. At least, that's how I read it.

The Court found the line item veto to be unconstitutional because piecemeal cancellations of laws by a President does not conform to the constitutionally mandated procedure for the enactment or repeal of laws

The line item veto was Congress' attempt to have the President sign a budget/law the Congress didn't fully write. The Constitution did not specifically allow for the Congress to vary from its responsibility to do something-- drafting laws for an up or down vote, so to speak, by the President. The Constitution was specific: The President either said "Yes" or "No" to the (nominated) law sent to him by the Congress. The opposite happens when a President sends his nominee to the Senate. The Constitution provides for a majority of Senators to either say "Yes" or "No", up or down, on the judge sent to them by the President. It does not allow for anything else. Nothing less than what is mandated. Democrats argue that the Constitution, by omission, gives the Senate discretion to vote on a judicial nominee. Democrats argue they may reject its obligation to advise and give, or withhold, consent. The Constitution did not provide for that. There is no discretion.

If there is no discretion for the line item veto, that is, if the Congress cannot renege on its clearly stated responsibility to send laws to the President for an up or down vote (to sign or veto), then the Senate cannot renege on its clearly stated mandate to either confirm or veto a judicial nominee.

How is it that Democrats always manage to kill pieces of their living, breathing Constitution?

The Senate can filibuster a particular law. There is no mandate in the Constitution for them to write any law. But, if they do write one, it has to be sent to the President for his "vote" before it becomes the law of the land. However, there is a mandate for the Senate to vote on judicial nominees sent to them by the President.

I think the filibustering of a judicial nominee is unconstitutional. Especially after reading what the Court said about line item vetoes.

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