Posted on 05/19/2005 4:18:01 PM PDT by RWR8189
In the current debate over judicial nominations, some commentators claim Republicans such as myself are misrepresenting history by suggesting the current filibuster tactics of the Democrats are unprecedented.
These commentators cite the 1968 nomination of Abe Fortas to be chief justice of the United States as an example of how Republicans once attempted to block a judicial nomination on the Senate floor. I welcome the opportunity to respond to this claim, because the more Americans learn about the history of judicial nominations, the more they will realize how terribly off-track our confirmation process has become.
In 1968, President Lyndon Johnson sought to elevate his longtime personal lawyer, then-Associate Supreme Court Justice Abe Fortas, to be chief justice. I would not be elected a senator for a few more months, but followed the news surrounding this nomination closely.
There were problems with the Fortas nomination from the beginning. Not only did he represent the most aggressive judicial activism of the Warren court, but it soon became apparent Justice Fortas had demonstrated lax ethical standards while serving as an associate justice.
For example, it emerged Fortas had taken more than $15,000 in outside income from sources with interests before the federal courts. This was more than 40 percent of his salary at the time, or about $80,000 in today's dollars.
More fundamentally, Fortas never took off his political hat when he became a judge. While serving as a Supreme Court justice, Fortas continued serving as an informal political adviser to the president and even involved himself in Vietnam War policy. It later emerged Fortas had discussed pending cases with the president, an obvious violation of professional ethics.
In fact, less than a year after his nomination as chief justice was withdrawn by President Johnson, Justice Fortas was forced to resign from the
(Excerpt) Read more at washingtontimes.com ...
Chuck Shummer
*******
Prophet-
Please, just had dinner.
lol, i got the point
gotta love your tag line. How we could use a man like Thomas More today (sigh)
lol.........
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.
He sure can.
"But, I imagine it would be the Executive Branch that would have standing, and so, I don't see why the matter couldn't be adjudicated quickly in an application for mandatory injunction- or writ of mandamus- petitioning the District Court to compel the Senate to fulfill it's obligation under the Constitution."
Pretty doubtful a District Court, or even the Supreme Court would vote to compel Congress to act in a particular manner.
I would predict the courts would let Congress work out their internal rules by themselves. IOW if the Senate doesn't have the votes to change their rules, that's the Senate's prerogative.
So it rests in the hands of Senate leadership, and perhaps the persuasive skills of the President. As for the troubled nine, their pet projects and issues need not see the light of day.
And some may arguably be looking to a future time, when Republicans would wish to block appointments.
Another point about Fortas ,he was already a supreme court judge,he was nominated for chief justice .
Seeker-
I essentially agree with your points.
My comment was based on the query put to me by Jack Bull, who posits that there exists a potential legal argument (above) that could be framed as to the constitutionality of the filibuster, mirroring the authorities that found the the line item veto unconstutional.
Without research, and having not read his cited authorities, I only suggest a way it could be advanced in Court- but agree, my cursory opinion is that it would likely fail.
As for your comment, ‘some may arguably be looking to a future time, when GOP would wish to block appointments-‘ that is likely true.
But, for himself, a conservative with a populist streak, I disagree with those who hold that view. During a Presidential election, one of the issues that is invariably put to the voter is the fact that the winning candidates enjoys the prerogative of appointing justices. IMO, the Senators have a right to oppose the nominations, but not to use a filibuster to block the nomination- that would go for either party.
read later
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