A Filibuster About Something vs. A Filibuster About Nothing: The dilemma facing Senate Democrats.

National Review Online ^ | April 15, 2003 | Byron York

[xsysmgr]

There's a heated debate going on among Senate Democrats over whether to broaden the party's strategy of filibustering the Bush administration's judicial nominees.

So far, Democrats have filibustered only the nomination of D.C. Circuit Court of Appeals candidate Miguel Estrada, although they are blocking several other Bush nominees by the use of senatorial holds and other parliamentary measures (see "The Democrats' Big Plan," April 3). The issue has taken on new urgency because Republicans are pushing ahead with efforts to bring the nomination of Priscilla Owen to the Senate floor for a final confirmation vote. Owen, a Texas state supreme-court justice who is being considered for a place on the Fifth Circuit Court of Appeals, was approved by the Senate Judiciary Committee last month on a straight party-line vote.

So far, Democrats have dragged their feet on debating Owen, but there appears to be a deep division in the party over whether to resort to a filibuster. The debate is focused on the question of how Democrats might frame the issue. Should they filibuster Owen based on objections to her views on questions like abortion? Or should they filibuster Owen based on objections to the way the White House and Senate Republicans have handled the nominations process? Or, lacking any agreement on strategy, should they forgo a filibuster altogether?

The short version of the debate is this: Would it be more effective for Democrats to launch a filibuster about something, or about nothing?

So far, the "nothing" answer seems to be winning, mostly because the "something" approach involves serious political risks. The substance of Democratic opposition to Owen in the Judiciary Committee centered around her decisions involving a Texas law that requires underage girls who want to have an abortion to first notify one parent (the law requires simple notification, not consent). The law gives some girls the option of going to court to request permission to have an abortion without parental notification, and Owen's sin, as some Democrats saw it, was to read the court-bypass clause more narrowly than some of her colleagues on the Texas high court.

That was enough to cause every Democrat on the Judiciary Committee to vote against her. But the problem for some less-zealous Democrats is that parental notification laws are quite popular nationwide, and it would seem suicidal to launch a filibuster based on a position that so clearly flies in the face of public opinion.

Among Senate Democrats, pro-filibuster forces have identified 15 colleagues who are thought to be opposed to a filibuster based on substance. They are Bob Graham and Bill Nelson of Florida, Evan Bayh of Indiana, Mary Landrieu and John Breaux of Louisiana, Thomas Carper of Delaware, Byron Dorgan and Kent Conrad of North Dakota, Ben Nelson of Nebraska, Max Baucus of Montana, Blanche Lincoln and Mark Pryor of Arkansas, Ernest Hollings of South Carolina, Zell Miller of Georgia, and Robert Byrd of West Virginia.

The opposition of all, or even most, of those senators would be enough to stop a filibuster. Democrats control 49 votes in the Senate. They need 41 votes to sustain a filibuster, which means they can lose no more than eight defectors before the effort falls apart.

In the case of Estrada, just four Democrats — Miller, Breaux, and the two Nelsons — have split with the party's leadership. But Democrats have remained united only because they have framed the argument in terms of process. They first claimed that Estrada had failed to answer Democrats' questions about his legal views. Then, when Estrada offered to answer any and all questions, they focused their objections on the White House's refusal to release memos Estrada wrote while working in the Justice Department, which Democrats say might reveal new information about his legal opinions.

So far, the procedural approach has been enough to keep 45 Democrats together. But would it work against Owen?

She has answered all the Democrats' questions — in two hearings. There are no secret memos to fight about. But Owen was voted down by the Judiciary Committee, on a straight party-line vote, last year when it was under Democratic control. Now, it appears Democrats will base their argument against her on the contention that President Bush should not have renominated her since she had been voted down in committee. "Owen is a nominee who has already been defeated by the Senate," Nan Aron, head of the liberal interest group Alliance For Justice, said last month. "It's inappropriate and unprecedented for her to have been renominated having already been defeated. We believe a filibuster will be just as easy to organize for her as Estrada."

It is unclear whether there are 45 Democrats who agree. Almost all of those who are said to be wavering on the filibuster question are from states carried by George W. Bush in the 2000 election. Several face reelection in 2004. While most went along with the Estrada filibuster — some reluctantly — they might not be willing to stick their political necks out again.

[freekitty]

Thank you Congressman Billybob.

[ez]

. And as for Republican tactics in the Senate, I hope that Bill Frist is simply looking for the right opportunity to spring the trap on the Democrats.

IMHO, the Republicans wish to keep the cloture rule on Judicial appointees in order to stop particularly odious leftist judges, and instead, will use political pressure on Senators who face reelection next year as their weapon of choice. If the Dems do not conceed, they will drag this out until next fall, where they will use it much like they used Max Cleland's anti-War stance against him.

[John123]

Good point. :)

[Former Proud Canadian]

So why don't they take your advise and implement "PLAN B" sounds good to me.

[Havoc]

I wish Evan Bayh was a Pubbie sometimes

[deport]

IMHO, the Republicans wish to keep the cloture rule on Judicial appointees in order to stop particularly odious leftist judges,

---

Could you name any that they have used this tactic on in the past other than Fortas to be Chief Justice?

[TomHarkinIsNotFromIowa]

Harkin also explained why he's helping Democrats prevent a Senate vote on the confirmation of lawyer Miguel Estrada to a federal court judgeship.

Harkin told his colleagues he's heard that Estrada - who learned English after immigrating to America from Honduras, who graduated with honors from Harvard's law school, who was given the highest possible rating by the American Bar Association, a man Harkin's never met - might be a "right-wing kook."

Harkin also is outraged that Estrada refuses to answer senators' questions.

Senate records show Harkin has not asked a single question of Estrada.

[deport]

If York is correct in his assessment then Owen may have a shot at being confirmed.... It is basically philosophical
that the are opposed to Owen. It will be interesting to see how many of the Democrat Senators will ultimately vote for cloture should it get that far.

[CGVet58]

Dear friends,

the left-democrats have gotten quite used to manipulating our judicial system for social engineering. This is the only reason they are filibustering Estrada. It is the first time in the history of our Nation that a filibuster has been held for an appellate court nomination. Why? 2 reasons: because the Washington DC appellate court is considered to be the inside lane for appointment to the Supreme Court. And more importantly, because Estrada isn't a leftist democrat... and the Dems fear losing hispanic votes to the right.

What is most insulting to me (I am of hispanic ancestry) is the inference in this act that any group can be considered to be "in the Dems pocket" - and that their filibuster is done NOT for the good of the country, but for their own partisan (ie: for the ILL of the country) reasons. But much as I may personally abhor their position, there is something I can do to send them a message. I just did, and urge you to follow suit:

I urge everyone who is following &/or concerned about the Estrada Filibuster, especially Americans of Hispanic Ancestry, to write their senators and demand the filibuster be stopped. A good place online to do this is over at www.townhall.com - they've a hyperlink which allows you to find your representatives and email them (I'm from NY, so good ole Chuck Schumer got a note from me just a bit ago). As a writer on this thread properly noted... "... Applying the filibuster means the Senate is amending the Constitution by force -- requiring 60 Senators to do what requires only 51 Senators per the Constitution..."; it is time that we ALL show these Senators that the TRUE force of the Constitution lies not in their hands, but in the hands of the People.

The truth is that yes, we CAN show these bozos our opinion of their jobs through our Votes - but I'm not willing to wait another 3 years to see my respective Senators (Schumer & Clinton... ugghhh) pull stunts that I'm not happy with, or that I think are not in the interests of the nation. So I wrote them, and I ask that you write your reps/sens as well... especially if they're Dems.

So please, write to them! It only will take a couple of minutes, and spread the word! Let's get ACTIVE!!!

God Bless America,


CGVet58
Juan Rosario
Lieutenant(jg), United States Coast Guard (retired)

[votelife]

I'm glad to see the Estrada issue is alive and well! Keep piling on!

FREEPers, I have created the ultimate Estrada activism thread. On it you will find ways to contact Senators, newsspapers, radio/tv people, organizations etc. Go there and help support Estrada. Keep the thread bumped until we get him confirmed.

http://www.freerepublic.com/focus/news/847037/posts

[John Valentine]

IMHO, the Republicans wish to keep the cloture rule on Judicial appointees in order to stop particularly odious leftist judges, and instead, will use political pressure on Senators who face reelection next year as their weapon of choice.

This might be a viable theory if there were even the slightest evidence that Republicans actually wanted to do such a thing. Far from it, there is virtually no history of filibuster of judicial appointments by republicans.

As far as particularly odious leftist judges, how about Ruth Bader Ginsburg? She is about as odious and as leftist you can get and still not be a university professor, yet the Republicans did not filibuster her nomination. In fact most voted for her and her nomination passed overwhelmingly in spite of her odiousness.

Really, here is the issue: The Constitution provides for an up or down vote on judicial nomineees. If we place the filibuster breaking vote of 61 Senators in front of all judicial nomineees one party doesn't like, we have effectuated an amendment to the Constiution in a most unconstitutional manner. This is TRULY odious.

[ez]

Well, I still think the plan is to use this Democrat obstructionism as a campaign bludgeon, but I agree with you that all nominees should receive a straight up or down vote, and no vote in committee. Otherwise, you are changing the Constitution as described in the Federalist papers which says that the executive should have the larger share of the power, by giving a Senate minority a veto over his choices. And the rule allowing a single home state Senator to quash a Presidential selection is particularly unConstitutional.

IOW, a nominee should be so undesirable that over half the Senators agree he should be rejected.

FReegards...

[TLBSHOW]

bttt

[TLBSHOW]

Majority status allowed them to make a frontal assault on nominees by voting them down in committee. Minority status will mean a guerrilla war to kill nominees by filibuster on the Senate floor.

Sure, in the past Democrats have denounced nominee filibusters—at least of Clinton nominees. Daschle has said allowing the full Senate to vote on nominations is "a question of fairness." Outgoing Senate Judiciary Chairman Patrick Leahy (D.-Vt.) said the Senate "should have a vote up or down."

But actions speak louder than words. During the 1980s, Democrats filibustered Republican nominees to all three levels of the federal judiciary. Three times as many Democrat senators voted to sustain them as Republicans have voted to sustain their filibusters.
http://www.humaneventsonline.com/articles/11-18-02/jipping.htm

[TLBSHOW]

This from a rat Feminist site......


Following the committee vote, Senator Charles Schumer (D-NY) told the New York Times that Owen “would be a good candidate for a filibuster.

snip

The Feminist Majority joins a wide variety of women’s rights, civil rights, consumer rights, environmental, labor and other progressive groups in opposing the confirmations of Owen, Estrada,

and Kuhl.

http://www.singlemomz.com/news/2003/033103-3.shtml

[okie01]

So please, write to them! It only will take a couple of minutes, and spread the word! Let's get ACTIVE!!!

Done. And bump.

[votelife]

bump

[votelife]

Dear President Bush,
With the Surpeme Court session getting ready to close, it may well be time for perhaps the most important domestic decision of your presidency: the appointment of a Supreme Court Justice(s). The main reason why I supported you in 2000 and why I wanted Daschle out of power in 02 (and 04) has to do with the courts. I want America courts to interpret law, not write law. During your presidential campaign you said Thomas and Scalia were your two model justices. Those are excellent models. The High Court needs more like them. Clarence Thomas recently said to students that the tough cases were when what he wanted to do was different from what the law said. And he goes by the law. This should be a model philosophy for our justices. Your father, President Bush lost his reelection campaign for 3 main reasosn, as far as I can see. 1. he broke the no new taxes pledge 2. David Souter 3. Clinton convinced people we were in a Bush recession (which we had already come out of by the time Clinton was getting sworn in)

I urge you to learn from all three of these: 1. on taxes, you're doing great. Awesome job on the tax cut. 2. good job so far on judicial appointments. I want to see more of a fight for Estrada, Owen, and Pickering, but I commend you on your nominations. 3. by staying engaged in the economic debate you'll serve yourself well

I have been thoroughly impressed with your handling of al Queida, Iraq, and terrorism. You have inspired confidence and have shown great leadership.

But I want to remind you that your Supreme Court pick(s) will be with us LONG after you have departed office. I urge you to avoid the tempation to find a "compromise" pick. Go for a Scalia or Thomas. Don't go for an O'Connor or Kennedy. To be specific, get someone who is pro-life. Roe v Wade is one of the worst court decisions I know of, and it's the perfect example of unrestrained judicial power.

I know the temptation will be tremendous on you to nominate a moderate. But remember who your true supporters are. I am not a important leader or politician. I am "simply" a citizen who has been an enthusiatic supporter of you. I am willing to accept compromise in many areas of government but I will watch your Court nomiantions extremely closely. What the Senate Dems are doing right now is disgusting, but as the President you have the bully pulpit to stop it. Democrats will back down if you turn up serious heat on them.

Moreover, I think public opinion is shifting towards the pro-life position. Dems will want you to nominate a moderate, but almost all will vote against you anyways. Pro-choice Repubs will likely still vote for you if you nominate a Scalia, after all, you campaigned on it. So Mr. President, I urge you to stick with your campaign statements and nominate justices who believe in judicial restraint, like Scalia and Thomas.

Happy Memorial Day and may God bless you and your family.

[Alissa]

My money's on Scalia. I think this is an easy call. Bush practically made this decision before he was elected. He's already said that Scalia is one of his role models for Supreme Court Justices.