Replies

THE AMERICAN CENTER FOR LAW AND JUSTICE, INC. JAY ALAN SEKULOW Chief Counsel

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.

Û Û Û

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.

Û Û Û

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.

Û Û Û

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:

First, whether a simple majority of the Senate may close debate on a resolution providing for new Standing Rules of the Senate,
Second, whether, under such new rules, filibusters may be made "out of order" on questions related to the judicial nominations, and,
Third, whether the nomination of Miguel Angel Estrada (or any other filibustered nominee) should be agreed to by a vote of the Senate.

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.

Û Û Û

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.

I hope they do it!

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.

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.
Dumbasses.

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.

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.

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!

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.