Posted on 03/07/2003 9:08:02 PM PST by Pokey78
Edited on 04/23/2004 12:05:22 AM PDT by Jim Robinson. [history]
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.
(Excerpt) Read more at opinionjournal.com ...
If at long last, again, a President would summon the courage.
Actually, this current President already has a framework in place for which he could certainly attach time limits. Recall his guidelines for selecting nominees (in which sitting judges would inform the White House in advance so that the nomination process could be started way earlier)? All the President has to do now is this: (a) amend those guidelines to retroactively impose a six month confirmation deadline; (b) declare that Consent is given by default if no action is taken; and (c) Sign the guidelines as an Executive Order.
This should do it.
To which the President of the Senate must reply, "Yes, a vote has been taken, and the result is for Mr. Estrada."
Thereupon, the President has followed the Constitution and sought the consent of the Senate.
That's it; the matter is concluded. The President can turn to Mr. Estrada and swear him in as the judge, right then and there, if the President chooses.
Each of the three federal branches has Constitutional power, to make sure that the other two branches are operating within the limits of the Constitution.
The President of the United States has the power to summon the Congress into session, whenever the President wishes, as well as to request order and timely completion of its business. The President has that same power over the Supreme Court.
At the same time, the Congress has the power to limit the range of the President, by both controlling the "power of the purse" and the country's military strength as well as commitments. The Congress also has the power to set the limits of jurisdiction for the Supreme Court.
The Supreme Court has the power to finely decide a turn of the law that exists on the books, as well as make the final determination of any federal court case. That power "says" to the Congess, "you had better write the law down well in those books." That power "says" to the President, "you had better know the law."
Much of what happens at this three-way stratosphere depends upon the current political strength of the branches. Thereupon, that strength, each branch can or cannot, may or may not, take action to, in its view, "straighten out the mess" over at either or both of the other branch(es). This action can range from dull to spectacular.
The fascinating part of it all, is that there is no law other than the Constitution, its foundations, and the determination of the American people, to consult in such matters.
To wit: What happens and the results therefrom, very much relies upon He Who Dares. Because really, between the three brances, and over them, the Constitution, the rule of law, and the authority of the people, there is a constant, fluid struggle for power.
If the people wish to remain sovereign, they must exercise their power to preserve the rule of law and our Constitution, above the warring branches of the federal government, in order to enforce the limits of the government.
We admire a President who stands up for the rule of law and our Constitution and our democratic-republic --- we expect him or her to represent us in this job of protecting and defending the working formula.
George Washington sure did, but will George Bush?
Well, the problem with George Bush is his unwillingness to assert the power of the Executive branch, because he is petrified of being labeled as a "meanspirited" person. He is way too overly-sensitive to that label; he's been running from it all throughout his campaigns, and thereby, unfortunately, running away from this particular responsibility of the Office, which is to act as a check against, in this case, the Congress.
This matter is not up to judges and lawyers to decide --- in other words, somebody else to take the heat. The matter is plain and simply his job.
The U.S. Senate did vote for Mr. Estrada. It is up to the President of the United States to fulfill his duty and take the result, and make it so.
Make it so.
That, is within the Executive power of the President.
If he wishes to consult with the Supreme Court, and ask that body, "Has the Senate voted for or against Mr. Estrada?" he certainly may do that, but whether he does or does not, depends largely upon his political strength.
Because here, again, is that wrestling match between the three branches. You might say, the President ought to first have a good idea of what the Supreme Court would say; do they really want to become involved in this? Based on that idea, the President may or may not wish to take the matter before them --- the President certainly does not have to, but he may feel that, given his political support, he must; while on the other hand, he may be quite strong, yet still take the matter before the Supreme Court, or then again, not.
They might want to have something to say about the matter, and that might be good for the country, to have both the Executive and Judical branches clarify the limit of the Congress, on the matter of what is consent.
I'm betting that the President will not be this bold, because it is not his nature; however, I'm betting that the Supreme Court will remove all doubt, that the Constitution "says" that a majority vote of the members of the Senate is it, and has been so plain, for centuries.
Toll free for Sen. Graham in Fla.: 1-866-418-9569
Janet Parshall is providing this easy, free way to Fax our Senators Re. Miguel.
The Senators are paying attention to the big city newspapers. This Miami Herald editorial is excellent...cut and paste the list of Senators to the "e-mail (to a friend)" link.
LET MIGUEL HAVE HIS VOTE!!!
"If Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president's power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election."
President Bush is clearly frustrated by the Democratic intransigence over Mr. Estrada: "They're blocking the vote on this good man for purely political reasons." He's right. And the Senate is doing it by unconstitutional means that have effectively denied the president and the American people the fruits of the last election, which gave Republicans the Senate majority.Denying Mr. Estrada his confirmation vote by the full Senate is no more legitimate than if the outgoing Democratic majority had attempted by rule to prevent repeal or modification of any Democrat-sponsored enactment except by supermajority. And it is not just Mr. Estrada who is being injured; it is the right of Senate members not to have their representation diluted or nullified. Ultimately, what is being filibustered here is the right of all of us who voted.
I totally agree.
I would love it if Bush "called their hand" by doing what you suggested.
But then I am really enjoying the spectacle of the RATs making asses of themselves over Estrada while America is on the brink of a war.
3D-JOY, your "lone Freeps" matter. You inspired me to send a few hundred more copies of my favorite Miguel Estrada articles to fellow Americans this weekend:
a An Ugly Stall, in praise of Miguel from a former boss, Rudy Giuliani.
a Statement of support for the nomination of Miguel Estrada, Commissioner Jennifer Cabranes Braceras, U.S. Commission on Civil Rights.
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