Posted on 01/31/2006 2:58:11 PM PST by NormsRevenge
"Is it asking too much that the President’s nominees for lifetime appointments to the federal courts at least get the support of 60 of 100 senators?" - Sen. Joe Lieberman on ABC’s This Week, on Sunday, May 22, 2005
"These last-minute efforts using procedural maneuvers ... has been the wrong way of going about it." - Sen. Barack Obama on ABC’s This Week, on Sunday, Jan 29, 2006
Senate Democrats just can’t understand why Republicans object to judicial filibusters requiring 60 votes to approve President Bush’s nominees. They have controlled the Senate for so many decades they find it impossible to adjust themselves to minority status. They demand the right to interpret, expand, and contract the Senate’s Rules to suit their whims.
An analysis of the Democrats’ use of the judicial filibuster reveals that it is not only unconstitutional but conflicts with the role of the Senate as conceived in the United States Constitution.
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Now that the Democrats seem to be more or less permanently locked into minority status in the Senate, they cannot comprehend why the Constitution has to stand in the way of a special new class of Senate "minority rights" to allow them to protect the world against President Bush’s depredations. Oblivious to the way the Constitution narrowly circumscribes the roles of the majority and the minority in the Senate, the Democrats seek to redefine "minority rights" as "minority control" and "minority veto power" over everything done by the majority in the Senate.
The Democrats’ filibuster of President Bush’s judicial nominees amounts to nothing short of a legislative minority’s assault on the constitutionally granted rights of the Senate majority. Out of the Senate Rules the Democrats have invented the fictitious right to judicial filibusters and have utilized this tactical maneuver as if the Constitution grants the minority veto power over the president’s judicial nominees. Such a veto is not provided for in the Constitution, statutory law, or over 200 years of Senate precedent. That's why the Democrats had to invent it.
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"But I think generally speaking, the constitution -- I'm different in this regard as far as this group [of Senate Republicans seeking compromise]. For two years now I've been saying that the filibuster is an unconstitutional way to give advice and consent. The advice and consent clause has for 200 years been vote your conscience, tell the president how you feel by voting. And it's a majority vote requirement, and the Senate rules always have to give way to the Constitution." - Republican Sen. Lindsey Graham appearing on CNN’s Sunday Late Edition with Wolf Blitzer May 22, 2005.
We offer below a strategy, based on our original analysis of the Constitution, to deny constitutional legitimacy to all judicial filibusters--and in fact to all filibusters of Executive Branch nominees.
The counterculture Republican would-be compromisers in the highly publicized Gang of Fourteen "moderates" were simply appeasing the minority Democrats in their effort to subvert the Constitution and overthrow more than two centuries of precedent and more than 100 different elected congresses during which the judicial filibuster was never used.
These renegade Republicans were embarked on a thoroughly misguided effort to preserve a procedure that sings a seductive siren song of moderation and compromise but is both radically undemocratic and demonstrably contrary to the most fundamental provisions of the Constitution.
By claiming to seek compromise with the Democrats, the counter-constitutional Republicans actually make a constitutional resolution impossible. These holdouts bought-into the Democrats’ propaganda that: (a) judicial filibusters are an important instrument, and protection, for the minority, and are not in conflict with the Constitution; (b) the minority party just happens to be the Democrats right now but not many years hence it will likely be Republicans who find themselves in the minority and it will be their minority rights that will need protecting; and (c) judicial filibusters protect judicial nominations from the influence of extremist special interest groups, especially the religious conservatives feared and despised no less by some of these Republican nail-biters than they are by the Democrats; (d) the notion that the Senate’s Rules are sacrosanct and inviolable, not subject to external review, the Constitution be damned.
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Contributors Sherry and Steven Eros
Sherry Eros, MD, is a neuropsychiatrist and Steven Eros is a philosopher. They are conservative columnists and proprietors of the blog Eros Colored Glasses.
I believe that senate rule requiring a super-majority (cloture) passes constitutional muster, so long as it only takes a majority vote to repeal said rule.
I think you might have a point but that's getting in too deep for me.
Maybe, but who is going to stop dems when they pull crap like this? I was just over at DU and one of the libs actually "got it". He said that if the dems set this precedent (filibustering over ideology, not qualifications), that they'd be more than sorry when the repubs repay in kind someday.
Or visit the Library of Congress on the web.
When the next Senate is seated, after the elections of 2006, the Senate must adopt its rules, binding on all Senators for the next session.
After all this filibuster aggravation, I think the Republicans would be supremely foolish if they re-adopt this rule that lets filibusters happen for appointments.
That rule should NEVER be part of the next Congress. It only takes 51 votes to adopt the rules, so they should adopt a rule in this regard that ends this silly charade.
"An analysis of the Democrats’ use of the judicial filibuster reveals that it is not only unconstitutional but conflicts with the role of the Senate as conceived in the United States Constitution."
Well, I'll be...
What a shock!
You don't mean?
Oh my. There's goes another world view...
The Senate rule has always applied to Legislative matters.
"All you have to do is read the Constitution. It is very clear on the Advise and Consent vote"
I've read that section many times and it couldn't be clearer to me that it only takes a majority vote to confirm.
The Senate is considered to be a continuing body. Ergo, the rules carry over from Congress to Congress - unlike the House, which effectively ceases to exist, every two years.
Except for Democrats.
But they hardly seemed to be able to make the case that it is unconsitutional. Most of it is full of question-begging about how "Senate rules can't conflict with the Constitution", which no one at all denies. What they'd need to demonstrate is that the rule does conflict with the Constitution. They could make their essay much shorter and to the point if they avoided trying to "prove" plainly obvious statements over and over again.
Actually I just now noticed this:
"Sherry Eros, MD, is a neuropsychiatrist and Steven Eros is a philosopher."
That explains it. Not much need to wade further.
In the summer of 1968, LBJ tried to pack the Supreme Court with two picks including Abe Fortas for Chief Justice just months prior to the presidential election. Senate Republicans threatened a filibuster if the DemocRATS tried to bring those nominations to the floor. I think that was a justifiable use of the threat of a filibuster on judicial nominations. The Senate then agreed to let the new incoming president make the appointments after the election.
bump
That is the game played by the elites in this "Two-Party Cartel". They won't allow a true conservative agenda to flourish as it works against them.
I would argue that the Senate has an affirmative duty to accept or reject candidates put before it. If the Senate were to pass a rule at the start of its term mandating that all candidates would be rejected if they did not receive unanimous consent, I would argue that would be constitutional, but the purpose of a filibuster is not to accept or reject candidates, but rather to keep them from being acted upon one way or the other. And that, IMHO, constitutes deriliction of duty.
Filibustering of legislation generally does not pose the same problem, btw, because with very few exceptions there's no constitutional imperative to pass or even consider legislation. To be sure, I don't think congresscritters would have much fun if they never considered any legislation beyond what was Constitutionally required, but postponing indefinitely the discussions of non-required legislation falls entirely within legislative prerogative.
I would like somebody to explain to me how filibusters are unconstitutional. There is nothing in the constitution that governs the length of debate in the senate. (Check it out yourself.. http://www.archives.gov/national-archives-experience/charters/constitution_transcript.html) The 60 votes needed to end debate is a senate rule and senate rules require a supermajority of 67 votes to change. This simple majority "nuclear option" stuff is nonsense and can only occur because the senate has no oversight. (The Parlimentarian opposes it for Gods sake). And for it to be unconstitutional for judicial nominations but not for anything else?!? Here's the actual text of the advise and consent clause. "Advise and consent" is kind of vague, and given the preceding sentence, you could take it to mean a two thirds majority being that "advise and consent" for treaties is spelled out to mean exactly that.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
No Senate can bind a future Senate, look it up.
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