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Senators Mull Options to End 'Advise and Dissent' ^ | May 07, 2003 | Jeff Johnson

Posted on 05/07/2003 8:30:57 AM PDT by Remedy

Pennsylvania Republican Arlen Specter is one of three senators with proposals pending to end the stalemate over President George W. Bush's more conservative judicial nominees.

At a hearing of the Senate Judiciary Subcommittee on the Constitution Tuesday, Specter said the current filibuster of two nominees by some Democrats is evidence of the currently high levels of "partisanship and bitterness" in the Senate.

"For more than 200 years, the latitude has been accorded to presidents on 'advise and consent,' but suddenly, the Constitution has been turned into 'advise and dissent,'" he said. "Now, we have the unprecedented situation with the filibusters. There's just no basis for that in the more-than-200-year history of our Republic."

Specter has proposed amending the Senate rules so that the time periods between a judicial candidate's nomination and his or her Senate Judiciary Committee hearing and the wait between the Committee's affirmative vote and a floor vote are fixed unless cause can be shown for a delay. His proposal would also mandate that, if a nominee is rejected by the Judiciary Committee on a party-line vote, the nominee would still receive a vote by the full Senate.

Sen. Charles Schumer (D-N.Y.) argued the problem is not that the Senate is not voting on some of the president's nominees, but that the president is failing to consult senators before nominating candidates.

"Yes, we're sort of at a deadlock, but this was not started by Democrats in the Senate," Schumer claimed. "This was brought on because President Bush, as he said it in his campaign, he said he chooses to nominate people in the mold of Scalia and Thomas ... Bush's nominees have had a hugely ideological caste, and we have had no choice."

Schumer wants to effectively take the power of nomination away from the president, placing it in the hands of an allegedly bipartisan "judicial nominating commission." The commission would be made up of an equal number of appointees chosen by the president and the leader of the opposition party in the Senate.

The members of the commission would then agree to one nominee per vacancy, which the president would formally nominate. The Senate would agree to confirm that nominee unless "anything that disqualifies the person for service" is discovered during a background investigation.

The White House has already responded to Schumer's proposal, labeling it unconstitutional.

"We appreciate and share your stated goal of repairing the 'broken' judicial confirmation process and the 'vicious cycle' of 'delayed' Senate nominees," White House Counsel Alberto Gonzales wrote to Schumer in a letter Tuesday. "But we respectfully disagree with your proposal as inconsistent with the Constitution, with the history and traditions of the nation's federal judicial appointments process and with the soundest approach for appointment of highly qualified federal judges, as the founders determined."

Gonzales said the proper way to resolve the dilemma is for the Senate to abide by the Constitution, not try to unofficially change it.

"As President Bush and many senators of both parties have stated in the past, the solution to the broken judicial confirmation process is for the Senate to exercise its constitutional responsibility to vote up or down on judicial nominees within a reasonable time after nomination," Gonzales explained, "no matter who is president or which party controls Congress."

Sen. Zell Miller (D-Ga.) has introduced a third proposal to amend the Senate rules that could appease those senators who are truly concerned that debate on a nominee not be ended too quickly.

Miller's plan would reduce the number of senators needed to end debate on a nominee on each successive cloture vote. The first vote to end debate would still require the current 60 supporters to succeed. The second would require 57 supporters, the third 54 and a fourth vote to end debate on a specific nominee and hold a vote would require a simple majority of the Senate. There would be two days between each cloture vote, meaning the opposition could have up to two full weeks to expose any perceived deficiencies in a nominee.

"The United States Senate is the only place on the planet where 59 votes out of 100 cannot pass anything because 41 votes out of 100 can defeat it," Miller said in a prepared statement for the subcommittee.

"Try explaining that at your local Rotary Club or to someone in the Wal-Mart parking lot or, for that matter, to the college freshmen in Poli-Sci 101," he added. "You can't because this silly Senate math stands democracy on its head."

Sen. John Cornyn (R-Texas) chaired the hearing. He agrees with both Miller and the White House.

"Any exceptions to the doctrine of majority rule, such as any rule of a supermajority vote being required on nominations, must, in my view, be expressly stated in the Constitution," he said.

"For example, the Constitution expressly provides for a supermajority, two-thirds voting rule for Senate approval of treaties and other matters," Cornyn continued. "That's not the case, however, with regard to judicial nominees."

The American Center for Law and Justice (ACLJ) prepared a report for the subcommittee entitled "An End to Nomination Filibusters and the Need for Cloture Motions," which argues that the Senate can, by a simple majority vote, amend its own rules to eliminate the use of filibusters against judicial nominees.

Under current Senate Rule XXII, the Senate is bound to allow unlimited debate unless 60 senators vote to "invoke cloture," ending discussion on the matter under consideration. When Rule XXII was adopted, the sponsors included language requiring a two-thirds majority vote to amend the rule.

ACLJ Chief Counsel Jay Sekulow believes that provision is not binding on the current members of the Senate.

"Nothing in the Constitution, the Federalist Papers or other source documents indicates the obstructive and delaying tactics by legislative minorities were intended to be the source of the Senate's deliberative care," Sekulow wrote.

"A willing majority of senators [could] make new rules for the Senate," Sekulow concluded, "either eliminating the filibuster or substantially curtailing the impact of a filibuster by eliminating the supermajority requirements."

Miller's proposal, examined in light of the ACLJ analysis, appears to be both constitutional and practical. Democrats may have a harder time opposing Miller's strategy, as well, both because he is a Democrat and because it is modeled after a proposal originally introduced in 1995 by Tom Harkin (Iowa) and Joseph Lieberman (Conn.), both Democratic senators.


TOPICS: Constitution/Conservatism; Government; News/Current Events
KEYWORDS: filibuster

At present, the search for cause never strays far from the Standing Rules of the Senate, particularly Rule XXII, governing the termination of filibusters. Under Rule XXII, the Senate departs from the democratic principle of majority rule, and makes the Senate hostage to voting blocs of Senators who are, by their numbers, a minority. Confronted by an intractable minority, the Senate has options to move beyond the roadblock to confirmation that filibusters present. Each option targets the problem of the supermajority required under Rule XXII to restore power to the majority and to allow that majority to move forward on the country's business.


The Senate is to be a deliberative body, but nothing in the Constitution, the Federalist Papers or other source documents indicates that obstructive and delaying tactics by legislative minorities were intended to be the source of the Senate's deliberative care. The tenor of the Constitution broadly supposes internal governance of the two chambers, and a general principle of majority governance of the bodies. Unlike constitutional challenges to the filibuster, which have roundly failed, challenges to the exercise of majority rule in the House, the Senate, and in other deliberative bodies, provide a firm foundation for action by a willing majority of Senators to make new Rules for the Senate, either eliminating the filibuster, or substantially curtailing the impact of a filibuster by eliminating the supermajority requirements entirely.


According to publicly reported numbers, in March 2003, the federal district courts of the United States suffered from a vacancy rate of 6.4 %. The federal appeals courts suffered from over twice that rate, experiencing a 13.4 % vacancy rate. [1] The vacancy rates tell an important part of the story of the judicial crisis. Another part of that story is told by the number of judicial emergencies in existence around the Nation. Judicial emergencies are defined in accordance with a numerical formula for case filings, authorized judgeships, and other factors. Because some kinds of cases are more complicated and require more time, the number of case filings is adjusted by assigning a weight or value to new cases according to their kind (e. g., student loan defaults are much simpler than patent litigation; new patent cases are assigned nearly four times the weight of student load default cases). At the present time, there are seventeen judicial emergencies in the federal appeals courts and nine in the federal district courts. [2] Today's judicial vacancy crisis in the federal courts has unhappily coincided with the consequences of a fifty-year trend in abdication of control of the Senate by a majority of its members.


Standing Rules. The Senate has exercised that power, as well, from time to time, by amending those Rules to meet the needs perceived by the Senate for such amendment or revision. Amongst the Rules it has adopted is Rule XXII, by which the Senate has bound itself to allow unlimited debate, unless sixty senators agree to a motion to invoke cloture, and to never change those Rules without approval thereof by two thirds of the Senators present and voting, see Rule XXII


Finally, a third approach looks to a simple majority of the Senate to accomplish the necessary change in the Standing Rules by a bare majority of that body. That last proposal has the most to recommend it. Reform advocates have established as a precedent of the Senate that a simple majority of the Senate can amend its own Rules. As discussed infra at 26-27, the precedents of the Senate recognize the power of the majority to do so, the Standing Rule to the contrary notwithstanding. A simple majority of the Senate can take just such action, calling upon itself, at the direction of a majority of its members, to decide three questions:

These steps will no doubt provoke cries of "foul" by opponents of the nominee and by members of the minority in the Senate. Nonetheless, there is no constitutional objection against these steps, and there is substantial authority that undermines the likelihood of success of any challenge to them.


Given the prerogative of the majority, and the respect for that prerogative expressed in Brown, Metzenbaum, and Davis, a willing majority in the Senate could make it in order for the Senate immediately to take up the questions proposed above, regarding the making of the Senate’s rules, the prohibiting of filibusters on judicial nominations (or the phasing out of them), and the confirmation of Miguel Estrada (or other nominees). And while sixty votes may not be found to invoke cloture, Brown, Metzenbaum, Davis, and their predecessors in law and Senate practice confirm that all that would be required to make the necessary rule changes is a majority of a quorum of the Senate – a sufficient number of Senators to insure that the power of the body to act has arisen.

1 posted on 05/07/2003 8:30:57 AM PDT by Remedy
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To: Remedy
I hope they do it!
2 posted on 05/07/2003 8:37:25 AM PDT by b4its2late (I don't mind the rat race, but I could do with a little more cheese.)
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To: Remedy
It seems that several alternatives exist. They take effort and would probably result in a lot of screaming and gnashing of teeth from the opposition, but there do seem to be ways to end the filibustering.

That begs the question: Why haven't the Republicans taken any of these measures?

If the situation were reversed, and a Democrat President, with a Senate of 51 Democrats, would have no problem getting their nominations through or in using any of the methods available.
3 posted on 05/07/2003 8:39:59 AM PDT by TomGuy
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To: b4its2late
BUSH is behind it...scheduled to make address several days from now.
4 posted on 05/07/2003 8:40:10 AM PDT by Remedy
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To: Remedy
Friday is the 2 year anniversary of Estrada's nomination. I'm waiting to see what Bush does.
5 posted on 05/07/2003 8:42:38 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: TomGuy
NCPA - Opinion Editorial - Republicans Have Become The Majority ...

As Republicans and Democrats absorb the significance of last week's election results, a few things are starting to become clear. For one thing, Republicans are finally starting to settle into the idea that they are the majority party in this country. They have not thought so since 1932.

I worked in the Senate in 1980, when Republicans won control there for the first time in almost 30 years, and I remember clearly the sense that this was all just temporary. In contrast to the Democrats, who treated Republicans like dirt, the latter were very deferential. They didn't treat Democrats with the same disdain, because in their hearts they knew it wouldn't last.

The memory of 1946-48 and 1952-54, the last times that Republicans held either house of Congress, were very much in their minds. Although no one ever said so, I think most Republicans in the Senate thought they would probably lose the majority in 1982. Consequently, they were fearful of alienating the Democrats, whom, they thought, would soon be back in power, lest they be punished as a consequence.

This sort of meek attitude toward one's oppressors is, sad to say, not uncommon. People who are kidnapped, such as Patty Hearst, have been known to fall in with their kidnappers. Republicans in Congress had somewhat the same attitude. They were so used to being beaten and abused that they thought this was the normal state of affairs. When they got the majority, some reacted like a caged bird suddenly set free: they simply didn't know what to do.

Some reacted by leaving. Congressman Bob Walker of Pennsylvania, for example, was one of the most energetic Republicans opposing Democrats while in the minority. But shortly after Republicans got the majority in the House in 1994, he retired, as did several other long time Republican congressmen. I can only conclude that they really preferred being in the minority, where they could lob bombs without taking any responsibility for their actions. Once they actually had to do so, they bailed out.

I think that now, at last, Republicans in Congress may be ready to come to grips with the consequences and responsibilities of being the majority party--the governing party--in America. But they must first shake off the tendency to think--in the back of their minds--that they are, in effect, illegitimate and temporary holders of positions that, by rights, really belong to Democrats.

This will be hard for some Republicans. I think that many of the problems that developed after their 1994 takeover of the House resulted from a fear that they would be out again in 1996. Their mentality, therefore, was that we have to do it all today; there is no tomorrow. This led to an over-reaching and pushing the envelope that proved to be self-defeating in certain respects.

The main reason why the 2002 elections are important is precisely because Republican gains were not supposed to happen. The party holding the White House nearly always loses in mid-term elections, but does better in presidential elections. Since Republican gained this time, they can realistically look forward to holding the House and Senate in 2004. This means, for the first time in 2 generations, that Republicans can think beyond the next election cycle. They can start to think long-term, about building a base for policy changes that may not occur for 2 to 3 years, rather than going for broke immediately.

Of course, another element in this change in thinking is that a growing number of Republicans in Congress have only been there since they have had control of at least one house. They are not intimidated by the Democrats, as a whole generation of their predecessors were. When I went to work in the House in 1976, Republicans were like animals who had been severely beaten. They were shy, fearful, easily intimidated and extremely deferential to their masters. That is no longer the case.

President Bush personifies a more self-assured, majority- minded Republican attitude. His ability to convey this to other Republicans will be key to his ability to pursue an agenda and change the political dynamics for a generation. He has a historic opportunity to do so, since so many Republicans believe that they owe their seats to him. Not unlike Newt Gingrich after the Republican takeover of the House in 1994, Mr. Bush can, for a time, lead Republicans in Congress anywhere and they will follow.

On the other hand, Republicans have grown terribly weary of the lack of respect shown to them by Democrat leaders such as Democratic National Committee Chairman Terry McAuliffe, and the constant attacks on them for racism, sexism, homophobia and corporate malfeasance, among other things. They also don't like it when they are continually attacked for simply wanting honest elections, while Democrats turn a blind eye to fraud in places like South Dakota, where a Democrat operative was caught attempting to forge absentee ballots.

Between now and January, Mr. Bush must think very, very carefully about how to use the power he has been given. Fortunately, he is in a much better position than Mr. Gingrich was to exercise it effectively. Having been denied the traditional "honeymoon" that new presidents generally get, owing to the unusual circumstances of his election, he has now been given that honeymoon back again. How he uses this window of opportunity will tell us much about the future of the Republican Party.

Source: Bruce Bartlett, senior fellow, National Center for Policy Analysis, November 13, 2002.

6 posted on 05/07/2003 8:43:10 AM PDT by Remedy
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To: Remedy
Once again, the dems will find that they picked the wrong fight and lose worse than they could ever have imagined.
Once this is out of the way, the Supreme Court nominees will be cake.
7 posted on 05/07/2003 8:43:23 AM PDT by dyed_in_the_wool (Syria. Iran. North Korea. Decisions, decisions, decisions...)
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To: b4its2late
If we had a responsible news media, more of the voting public would learn about this filibuster and see the Democrats for what they are.

Instead, the liberal media covers for them and Americans have to pay the price.

8 posted on 05/07/2003 8:46:32 AM PDT by capt. norm
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To: Remedy
Sen. Charles Schumer (D-N.Y.) argued the problem is not that the Senate is not voting on some of the president's nominees, but that the president is failing to consult senators before nominating candidates.

What a clymer.

Good post---may the Republicans take all of these suggestions under their belt and start aggressively pressing forward.

9 posted on 05/07/2003 8:47:45 AM PDT by fightinJAG
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To: TomGuy
Tactics exist to search for a politcal solution, the GOP is just to lazy to use them. And Bush seems to be going along with it.

There will be hell to pay decades down the road if this precedent is set.
10 posted on 05/07/2003 8:47:56 AM PDT by JohnGalt (They're All Lying)
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To: dyed_in_the_wool

If we had a responsible news media, more of the voting public would learn about this filibuster and see the Democrats for what they are.

It wouldn't have taken much space or effort.

Filibustering the confirmation process is a violation of Senators oath of office and unconstitutional.

US Senate: Art & History Home > Origins & Development > ... I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Senate Is to Advise And Consent, Not Obstruct and Delay The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.

United States Senator Jeff Sessions

Wednesday, February 26, 2003 Judicial Nominations -- Miguel Estrada

How did we get into this circumstance? How did we get to this point where the ground rules have changed, that we are into an obstructionist tactic, an unfair procedure? What happened? After the last election when President Bush was elected, the New York Times reported that the Democrat majority, the Democratic Senators at that time early in President Bush's administration had a retreat at some location unknown to me, and they heard at that time from three liberal law professors, Lawrence Tribe, Cass Sunstein, and Marcia Green burger. These liberal professors at this private retreat told the Democrats at that time, they should change the ground rules for nominations. They should ratchet up the pressure and they should alter the historic rules of courtesy, the historic presumptions in the Senate, and they should change how nominees are treated. They said: You have the power to do it. Do it, Democrats. Stand up and block these nominees. Do not accept the nominees from President Bush, like this Republican Senate accepted President Clinton's nominees. Fight every step of the way. That is apparently what has happened.

Shortly after that, when the majority in the Senate changed, I served on the Administrative Oversight and the Courts subcommittee. Senator Schumer chaired that subcommittee. He held hearings. He held hearings to argue the point that the burden of proof for a confirmation of a judge should change and it ought to be on the judge to prove he is qualified. That has never been done before in the history of this country. We had Lloyd Cutler, former Counsel to the White House of Democrat Presidents. We had others testify. They testified that it would be wrong to shift the burden to the nominee, it was not the right thing to do. Then he had hearings to say we ought to just consider your politics, your ideology, as he said, and we can consider somebody's politics, and we can reject them if we do not agree politically.

ED : Administration Cites Recent Surveys Showing Lack Of Basic Knowledge Of U.S. History

ED : Senate Panel Hears that Ignorance of U.S. History Poses Major Security Threat

11 posted on 05/07/2003 8:51:14 AM PDT by Remedy
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To: fightinJAG

may the Republicans take all of these suggestions under their belt and start aggressively pressing forward.

BUSH and a 'coalition of the willing' simple majority...a little shock and awe.

12 posted on 05/07/2003 8:54:47 AM PDT by Remedy
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To: capt. norm
If we had a responsible news media, more of the voting public would learn about this filibuster and see the Democrats for what they are.

You're correct capt.

And like what Rush said yesterday the Repubs are afraid of negative press they'd get. But people are using "the press" less and less to get their news. They get it from other more reputable sources (like FR).

I say go with it and get the wheels moving. The dems will get their faces in the news either way. I'd rather see their faces screaming like Mrs. Clinton was than having Dashole acting like he's a saint.

13 posted on 05/07/2003 8:55:17 AM PDT by b4its2late (I don't mind the rat race, but I could do with a little more cheese.)
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To: Remedy
I hope that it does not require a rules change to get President Bush's judicial nominations through. This could also be a potential win for the Democrats (and may be their real goal) since the power to ram nominees through confirmation could be used very effectively by them in the future. I think they are falling back on the courts as their last line of defense. The courts have historically been the Democrats most powerful weapon.
14 posted on 05/07/2003 8:58:20 AM PDT by Empire_of_Liberty
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To: Empire_of_Liberty
That's defeatist thinking. Do what's right because it's right. We lose elections by playing "prevent defense" when we're in the majority. Don't just sit there saying "our political enemies could use this against us"... if the Dems get the majority back, they can change rule then and use it anyway. The difference is we can get something done in the meantime.
15 posted on 05/07/2003 9:13:29 AM PDT by pgyanke (In history, slavery is nearly universal...emancipation is unique)
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To: Remedy
The only alternative is to have the DemocRATS elect mature and law-abiding adults...but then, they wouldn't be qualified to run in the primary, would they!
16 posted on 05/07/2003 9:22:33 AM PDT by Redleg Duke (Stir the pot...don't let anything settle to the bottom where the lawyers can feed off of it!)
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To: Remedy
This is a political problem and it needs a political solution.

The problem, as I see it, is that there are only 45 Senators (not a majority) who support the President's right to nominate judges who will enforce the Constitution and who will overturn fictitious "precedents".

The necessary solution is to elect more conservative Republican Senators.

Fortunately, there are many targets-there are, for example, eleven RAT Senators from states where Bush got >54% of the vote in 2000.

It is not so important whether or not poor Miguel gets his job. What is important is that we make progress, and our next opportunity to progress is November 2, 2004.

If the Senate Republican leadership makes it more likely that we will gain 8-10 seats in 2004 by "growing balls", then they should grow balls.

If they make it less likely, then they should bend over and take it.

As I see it, +4 in 2004 is a given, whatever the GOP leaders do or don't do.

+8 or +10, OTOH, involves winning a lot of close races where sucker Moms and greedy geezers are the margin of victory. The current goon show in the Senate may be helping pump up the number of seats won in 2004.

I trust Bush and Rove to know more about this than I do.

17 posted on 05/07/2003 9:24:23 AM PDT by Jim Noble
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