Supermajority Rules? Why the Estrada filibuster is unconstitutional

Opinion Journal ^ | 03/08/03 | DOUGLAS W. KMIEC

[Pokey78]

WASHINGTON--The plight of Miguel Estrada is a national disgrace. The confirmation to the D.C. Circuit of this highly talented lawyer is being aborted by a Democratic opposition bent on preventing the president and a majority of the Senate from staffing the federal courts as the Constitution requires. And the Democratic "spoiling" method--filibusters, as presently conducted and entrenched in Senate rules--are arguably in violation of the Constitution.

[TheConservator]

I don't think a Court would touch the question of the constitutionality or the enforceability of the Senate's internal rules. I think any Court would consider that a political question, internal to the Senate.

Of course, the Senate itself has the power to invalidate its own rules on the grounds that they are being applied in a manner that violates the Constitution (in addition to the fact that one Senate cannot bind the next, as is well explained in this article). Therefore, if 51 senators simply decided to hold an up or down vote to confirm Estrada, and did so (simply ignoring the Senate filibuster/cloture rules), I think his confirmation would be recognized by the judiciary.

Frist would simply need to hold a press conference and announce something like the following:

"The Constitution obligates this Senate to provide advice and to consent with respect to the President's judicial nominees.

The Democrats, by refusing to permit a vote on Miguel Estrada, the President's nominee for the DC Circuit court of appeals, are preventing the Senate from discharging its Constitutional obligation.

In particular, the Democrats are applying a Senate rule, which requires the votes of a 60 senator super-majority to permit the scheduling of a substantive vote, to an issue--judicial nominations--to which this rule was not intended to apply, and to which it has historically not been applied.

After serious consideration, I, as well as a majority of the members of this Senate, have determined that the minority's use of this rule in this fashion, because it is preventing this Senate from discharging an obligation specifically imposed on this body by the Constitution, is not constitutional.

Although I greatly respect the rules of this Senate, when the rules are applied in a manner which prevents this body from fulfilling its Constitutional obligations, then those Constitutional obligations must prevail.

Therefore, notwithstanding the Senate's rules, I have directed the Clerk of the Senate to schedule a vote on the nomination of Miguel Estrada to occur at _______________.

Assuming a majority of the members of the Senate vote at that time to confirm the nomination of Mr. Estrada, I will thereupon officially certify that the Senate has consented to the nomination of Miguel Estrada, thereby permitting him to immediately assume his duties at the DC Circuit Court of Appeals.

I, and the majority of the other members of the Senate who support me in this action, have not lightly chosen to take this action. But the minority's misuse of the Senate Rules to achieve the clearly unconstitutional purpose of frustrating this body's duty to provide advise and consent with respect to Mr. Estrada's nomination has left us with no other choice."

The Democrats are the great practitioners of the art of pure power politics. Let the Republicans give them a taste of their own medicine.

[LADY J]

What about a class action suit by concerned citizens?

[Illbay]

I predict that if they attempted to do that, the Democrats they have now, and even a few Republicans, would desert, and you'd end up no better than where you started.

[Illbay]

Bah. That's a cowardly, Leftist way out.

[Torie]

Hang in there. The Dems have the power, and they are using it. Is it ill considered? Yes. Does it portend negative consequences down the road? Yes. Is it unconstitutional? Nope. Folks are just venting their frustrations, and that is understandable, but a bit more self restraint would be refreshing.

[Russian Sage]

Article I, Section 5: ...  Each House may determine the rules of its proceedings...

This clearly includes setting the rules for debate and bringing a matter to a vote.

[nightdriver]

Frist needs to just let them filibuster to their heart's content. When the senators get tired and try to go home for some sleep, Frist should wait for them to just get home then make a quorum call, or whatever they call it, where the sergeant at arms rousts everyone out of bed and brings them back to the chamber where they can hear the filibuster read from the phone book.

In time, they may change their own rules.

[jimkress]

That's an OUTSTANDING suggestion! Have you mentioned it to Frist?

[Jhoffa_]

I am sold.

I always thought a filibuster was an end run around the constitution anyway.

They shouldn't be allowed period.

[ambrose]

Frist has to force a REAL filibuster... make them stay on the floor 24/7... no time of for holidays, weekends, nothing. 24/7.

[ambrose]

before we all rush off to repeal the filibuster, consider this:

by the time 2009 rolls around, we may have a Democrat controlled Congress and a President Hillary Rodham Clinton.

The answer is not to repeal the rule, but to call the 'Rats bluff and force them to sit on the senate floor 24/7. Make them decide if it is really worth it. Let's see how long they stick together when they start missing birthdays, anniversaries, school plays, etc...

[First_Salute]

The matter of the U.S. Senate's consent, unfortunately and disgracefully became a time-dishonored tradition of fouling things up, after our country's first few Presidents' terms in office, because successive Presidents refused to assert their Constitutional Executive authority, in order to maintain their authority over the complete Constitutional process.

Initially, the U.S. Senate's consent process of debate is the Senate's to decide. They can be nice; they can pound shoes on the table; they can blame aliens from Mars; they can make a mess of the English language ad infinitum, while in practice, reference to Mark Twain applies, when he prepared to make an observation about the Congress, in words to this effect, "First, take some idiots; then, take the Congress; but I repeat myself."

That aside, what is consent, is in [the foundation of] the Constitution, which enumerated the Senate's standard: a majority of votes for approval, or a majority of votes for disapproval; no other statistic was enumerated in the Constitution as a requirement for consent.

The matter, here, is actually not whether there is or is not consent --- obviously, the vote statistic is for Mr. Estrada, there is consent.

Yet the Senate has hamstrung itself with a set of procedural rules which appear to not permit the Senators consent to be officially given --- that is the technical hangup, the matter here, the giving of the consent to the President; how does he get it when the idiots, excuse me, Senators are brawling?

Well, according to the foundation of our Constitution as well as President Washington's precedent, that process of giving of the consent, is not entirely decided by the U.S. Senate. To wit: The Senate votes to consent or to dissent, but the decision is actually either of, or both of, a physical act of delivering the statistic to the President as well as the President going to the Congress to get it.

There is a time limit, and President Washington established the precedent from the very beginning ... if anybody would care, and bother, to look it up!

The President of the United States has the authority to take along the candidate and personally present the candidate to the U.S. Senate for consent. The President has the power to set the time limit on how long the Senate has to make its consent or dissent known. By precedent, that limit was set by George Washington at a matter of a few days for ambassadors, cabinet members, and judges. It is not up to the U.S. Senate to decide when the matter of consent is at rest --- that power is the President's.

If at long last, again, a President would summon the courage.

[AmericanVictory]

Here's to the Democrat, the Democrat man,
trashing the Constitution whenever he can!

Go, little Tommy Daschle, go, go, go
now we've got the race card, ho, ho, ho.

[TLBSHOW]

bookmarked to bump on saturday!

[TLBSHOW]

Sen. Frist has said that he intends to use "every tool" at his disposal to allow the full Senate an opportunity to deliberate and resolve Mr. Estrada's nomination. Unfortunately, under Senate rules, his tool bag will prove empty--except that is, for the instruction manual we know as the Constitution.

[Jhoffa_]

Oh, I agree.. We should make them bable like fools on CSPAN 24/7 if they want to fight over Estrada so bad.

But I don't like the filibuster in principle. Let the party in charge make the decisions (if they have the votes to do so) and then let them take their beating at the polls for it.

Estrada should have already been confirmed, he's got the votes and this is an end run around the constitution.

I would say the same thing if we were doing it.

This is like letting OJ off on a technicality or something, this filibuster rule they have..

[T. Jefferson]

You echo statements I've been making for weeks. Hold a vote, elect him, and let the Dems scream in vain in court. This issue doesn't belong on the floor.

[reg45]

Let's see how long they stick together when they start missing birthdays, anniversaries, school plays, etc.

..., union meetings, fund raisers, hate-America rallies, Al-Qaeda meetings, Mafia meetings, connections with drug-suppliers, late night rendesvoux with interns, Satanic cult meetings, Hitlery Youth meetings, ...

[Travis McGee]

Hear hear! I wish that they would!