Lessons of the Estrada Defeat

Legal Theory Blog ^ | September 4, 2003 | Prof. Lawrence Solum

[El Gato]

Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions. Can that bell be unrung? I wish that I could say "yes" with confidence, but alas, I cannot.

For the most part it has not been Conservative Judges and Justices who have turned the judiciary into a polictical organization and the "most dangeous" branch of government. It wasn't conservative justices who said that "No state shall .. deny to any person within its jurisdiction the equal protection of the laws" meant that it was OK to do so for a "good cause" or at least a politically correct one. Nor was it conservative justices who took away the power of the states to define what constitutes a crime in their states. And that's just in the last session of the Supreme Court. It certainly hasn't been "strict constructionist" judges that have declared that "right of the people" means "right of the National Guard" (not even the right of National Guardsmen!).

[Congressman Billybob]

The Democrats have already committed that they will not filibuster a nomination to the Supreme Court. However, you know how those Democrats can lie.

It is best at this point that the Senate Republicans "go nuclear" for the remaining held up judicial appointments. That way, the decks are absolutely clear for the next Supreme Court nomination -- which will come no later than June, 2004, perhaps earlier.

John / Billybob

[rdf]

Thanks for an excellent post

Cheers,

Richard F.

[jrushing]

It's About the Votes Stupid
The best way to bust a filibuster is to get the 60 vote necessary for cloture

I don't understand what happened to "Advice & Consent". Those terms do not include "filibuster". How can the Dems suddenly turn around 200 years of history & change Advice & Consent into filibuster???

[thedugal]

I usually just skim articles on FR, but this one had me parsing each word. Great article, highly informative.

[unspun]

Thank you for posting this very educational analysis, p1.

unspun's unsolicited ping: uno momento, especially for those whom I pinged earlier on this critical issue. This is well worth the read.

We should use this news, though, especially in bringing hispanic households to the right side.

[Congressman Billybob]

No, the best way to kill the filibuster in THIS Senate on THESE nominees is to use the nuclear option to end forever the application of any filibuster to any judicial nominee. It's last use of the nuclear option was by Senator Byrd. And it works.

The Democrats in the Senate (Zell Miller and John Breaux sometimes excepted) are a cancer on the body politic. Since they cannot be removed by surgery, they need to be isolated and attacked. Dr. Bill Frist should have gotten that point months ago. He should do it now, or risk being consigned to the ashheap of history like Trent ("Vacant") Lott.

John / Billybob

[Reb Raider]

This is a lengthy but excellent analysis of what has happened and what the future possibly holds for the judicial nomination process. A line has been crossed by the dems in the Senate and it's not just "politics as usual".

[jrushing]

The best way to kill the filibuster in THIS Senate on THESE nominees is to use the nuclear option to end forever the application of any filibuster to any judicial nominee

The NUKE option as written above sounds dangerous because,"It would make the Senate function like the House."

Would it be wise to alter the Senate in this direction?
(Miller, Lott & Breaux--I was born in Georgia, grew up in Mississippi, & now live in Louisiana)

[PogySailor]

Good article. I will be very interested to see what the next move in this ideological war will be.

[caltrop]

I agree. Bush is holding Gonzales back for a SCOTUS seat. Gonzales is clearly his first choice and, with Estrada gone, becomes an even more likely appointee.

Were Bush ever willing to get tough with the Senate I'd suggest Bush might be just as happy it turned out this way. He's picked up an electoral hook into the Hispanic community in next year's election and he's made the Gonzales appointment that much more certain to be both made and confirmed. Since Bush never goes to the mat with the Democrats, however, I have to guess he just doen't care as much as I think he should - on many counts.

[headsonpikes]

A worthwhile read.

[Congressman Billybob]

The "Senate would function just like the House" is another Democrat dodge. It would not.

The proper use of the nuclear option is tactical, not theater. It can and should be used ONLY to eliminate the filibuster as applied to judicial nominations and no other subject. That way, judicial confirmations will go back to what the Constitution requires -- majority vote only. And all other activities of the Senate will continue as before.

John / Billybob

[potlatch]

Estrada thread. Thanks for the ping, unspun.

[livius]

Very informative.

[jrushing]

The proper use of the nuclear option is tactical, not theater.

This sounds great. I liked the NUKE option when I first heard about it.
My concern is that changes will be made that we will regret at a later date.
The Dems held onto power for 50+years. We have a Majority now and can't get a Judge appointed.
I want our Majority to rule by the Constitution. I do not want to win a battle and lose the war. I value our Constitution & want it preserved.

[ladyinred]

da withdrew" The Democrats should NOT have prevailed!

You are so right! I am sooo furious! Our country has been hijacked by liberal socialists and we just have to sit here and take it!!!!

[Paulus Invictus]

Given what the author of this fine piece has written, what would you have suggested the leadership have done? Seems to me they were stymied by Senate rules and recalcitrant RATS with nary a possibility of defeating them.

[Dog Gone]

This is the most intelligent and accurate article I have seen which even touches the subject. 99% of the reporting is either superficial or agenda-driven and inaccurate.

[TigersEye]

bump to read later