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2 GOP senators consider lawsuit to break filibuster
Atlanta Journal-Constitution ^ | 11/14/2003 | Self

Posted on 11/14/2003 10:00:14 PM PST by WillRain

Two Senate Republicans are considering filing a lawsuit aimed at putting an end to delaying tactics by Democrats trying to block President Bush's nominations to the federal bench.

Freshman Sens. Saxby Chambliss of Georgia and Lindsey Graham of South Carolina said Wednesday they have their staffs as well as outside experts looking at whether such a suit -- filed, in essence, against the Senate itself -- would be feasible.

Their announcement comes in the midst of the debate over nominees Miguel Estrada, a Washington lawyer, and Priscilla Owen, a Texas Supreme Court justice. Democrats charge both are too conservative for the federal bench. The Estrada debate alone has dragged on for three months.

There are enough votes -- including that of Georgia's Democratic senator, Zell Miller -- to approve the nominations of Estrada and Owen. But Republicans in the 100-member Senate have not been able to marshal the 60 votes required to end debate on the nominations so they can be brought to a vote. The continued debate to block a vote is known as a filibuster.

Republicans have repeatedly protested that the filibuster, in effect, creates an unfair requirement that any nomination by the president be approved by a 60-vote margin.

"What we're seeing with respect to the judicial nominees is for the first time in the history of America, we're having a filibuster on our judicial nominees," Chambliss said Wednesday. "That's just wrong. That's not the way the Senate is supposed to operate."

The announcement by Chambliss and Graham comes just shy of two years after Bush made his judicial nominations.

"On this, the two-year anniversary of the presidential nominations, I think it's appropriate that we start ratcheting up the pressure," Chambliss said.

The lawsuit would challenge the constitutionality of the filibuster, Chambliss said. Details such as which court would hear the lawsuit would be decided by those reviewing whether it is possible, Chambliss said.

"We're not to the point of where we're going to discuss the details of what we might or might not do," Chambliss said. "Hopefully, this logjam will be resolved without us having to do that."

All through the debate, Senate Democrats have pointed out that they have helped approve the nominations of more than 90 percent of the Bush nominees. Some have suggested that if Estrada and Owen were liberals, Republicans would not have a problem with filibuster tactics. In fact, Lindsey Graham's predecessor, Republican Strom Thurmond -- then a Democrat -- set the filibuster record in 1957, speaking continuously for 24 hours and 18 minutes in a futile effort to block passage of a civil rights bill.

"It's somewhat hard to take them seriously," Sen. Patrick Leahy of Vermont, ranking Democrat on the Judiciary Committee, said Wednesday of his Republican colleagues. "They stopped something like 70 of President Clinton's nominees -- 70. We've stopped two of President Bush's. The thing I'm always impressed with is they can actually make the claims with a straight face."

In addition to Chambliss and Graham's lawsuit rumblings, there were two other prominent proposals to break the filibuster in recent weeks. Miller introduced a resolution that would limit how long debate over an issue could take place. And New York Democrat Charles Schumer proposed that the president appoint state boards, composed equally of Democrats and Republicans, to vote on the nominations.

Senate Majority Leader Bill Frist (R-Tenn.) said Wednesday that he will likely unveil a proposal that blends the Miller and Schumer plans.

When asked about the potential lawsuit, Frist said, "That is one [avenue] that I personally will not be pursuing. I will likely pursue trying to break the filibuster through persuasion and using the rules of the Senate . . . if need be."

The problem with modifying Senate rules to control filibusters is that filibusters are not exactly part of the Senate rules, said Betty Koed, assistant U.S. Senate historian.

"There's no real clear definition of what a filibuster is," she said. "It's more a Senate tradition than a rule."


TOPICS: Constitution/Conservatism; Culture/Society; Front Page News; Government; News/Current Events
KEYWORDS: appointees; fillibuster; graham; judicialnominations; lawsuit; senate
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To: WillRain
This is really all Bush's fault. If he had any balls, he would recess appoint these judges. Then the tables would be turned and it would and the democrats would need 60 votes to end the debate to remove them. All the gutless Repubs would need to do is keep one person on the floor to object whenever the rats called for cloture.
21 posted on 11/14/2003 11:06:49 PM PST by RatSlayer
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To: RatSlayer
There's something to be said for that, though, as I understand it, Bush went on record long ago as disavowing that tactic.

I'm thinking that Bush ought to addressthe nation on TV and lay out his case, with specific, truthful (even if it's embarrasing) discussion of past precedent and the current situation, then introduce each of the nominees and their qualifications and their previous approvals if any to the American people.
The problem now is that the mushy middle who never pays attention sees only names in newsprint, if Bush puts Janice Rogers Brown and Priscilla Owens and yes, even Miguel Estrada as cases in point before the American people it's going to be much harder for Teddy to get away with calling then "neanderthals"
22 posted on 11/14/2003 11:26:24 PM PST by WillRain
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To: RatSlayer
Last night I saw some posts on another thread stating that persons accepting recess appointments do not receive pay unless and until they are actually confirmed later by the Senate. I believe they stated that the salary would then be paid retroactively for the full time served.

I do not know if this is true or not but those posting it seemed pretty sure of themselves. If that is the case, then it puts a whole different slant on the notion of recess appointments. How many people can afford to take months, if not years, out of their lives to serve in full-time positions with no pay? Why should they be forced into that position by the 'rats? And there is nothing stopping the 'rats from refusing to confirm them even after the appointments, thus assuring that any recess appointments would be serving on a charity basis.

If any attorneys or scholars would care to comment on this, I would welcome the information.

23 posted on 11/14/2003 11:33:13 PM PST by kayak (The Vast, Right-Wing Conspiracy is truly Vast! [JohnHuang2])
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To: WillRain
Teddy Kennedy calling Janice Rogers Brown a "neanderthal" on the evening news

Which evening news programs showed this?

24 posted on 11/14/2003 11:36:57 PM PST by Jeff Chandler (I'm a racist, you're a racist, we're all racists, hey!)
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To: WillRain
WillRain said:

"...as I understand it, Bush went on record long ago as disavowing that tactic.

I'm thinking that Bush ought to address the nation on TV..."

Your correct. It's all part of the "new tone" (barf). IMO he's being so non-confrontational that he won't even do what you suggest. And unfortunately, it's turned him into doormat, which a minority of Rat senators can walk all over without any consequences.
25 posted on 11/14/2003 11:41:33 PM PST by RatSlayer
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To: cpdiii
"Just because we have seperation of powers does not mean one branch of goverment can act unconstitutionally. "

You might want to think about that for a while....

Our Government has been acting Unconstitutionally for the last 60 years.

L

26 posted on 11/14/2003 11:43:24 PM PST by Lurker (Some people say you shouldn't kick a man when he's down. I say there's no better time to do it.)
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To: kayak
kayak said:

"Last night I saw some posts on another thread stating that persons accepting recess appointments do not receive pay unless and until they are actually confirmed later by the Senate. I believe they stated that the salary would then be paid retroactively for the full time served.
I do not know if this is true or not but those posting it seemed pretty sure of themselves. If that is the case, then it puts a whole different slant on the notion of recess appointments. "

I haven't heard this before and I would be surprised if its true. I remember one Clinton recess appointee that ended up serving multiple years (and I seriously doubt any Clintonite would have served w/o pay).

However, even if this is the case, I think Bush could find some far right people who are already financially set for life, that would serve w/o pay at the Circuit court level. Remember, there wouldn't be any qualifications needed, so they wouldn't have to be lawyers or judges or anything else. They could just be ex-CEOs or sports stars or anything else.
27 posted on 11/14/2003 11:58:58 PM PST by RatSlayer
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To: Jeff Chandler
Kennedy Calls Bush Minority Nominees 'Neanderthals'

Kennedy's overtly racist language stunned even liberal CNN correspondent Jonathan Karl, who reported, "Strong words from Ted Kennedy suggesting that some of these nominees are Neanderthals."

Karl said Kennedy's harsh tone was "exactly what Republicans point to when they say it is the Democrats that have been the extremists on this."


28 posted on 11/14/2003 11:59:12 PM PST by kayak (The Vast, Right-Wing Conspiracy is truly Vast! [JohnHuang2])
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To: Keith in Iowa
But can a the Senate confect a rule (by majority) which requires a 60% vote for a constitutionally-mandated advise and consent function, which function, pursuant to the Constitution, only requires a simple majority? I think not since I believe that Senate rules cannot trump the Constitution.
29 posted on 11/15/2003 1:48:59 AM PST by MarkT
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To: MarkT
>>But can a the Senate confect a rule...

They can. The constitution says each house makes it's own rules. The constitution does say there are super majority requirements for certain things. The consitutution does not say that one house can not create a rule for a super majority for something not specified n the constitution.

Historically, the courts have not, up to now, messed in congressional rules squabbles. If a case can be made, and the courts act in this instance, more power to them - I don't think it's going to happen. The place do do it is in the Senate - and they have to change their rules.
30 posted on 11/15/2003 2:09:48 AM PST by Keith in Iowa (Tag line produced using 100% post-consumer recycled ethernet packets,)
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To: RatSlayer
I think it was Bill Lann Lee (Sp.?) who received a Clinton recess appointment to the Justice Department and served there for at least a couple of years. I can't imagine that Lee would have accepted the job without pay.
31 posted on 11/15/2003 4:59:59 AM PST by gaspar
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To: gaspar
I think it was Bill Lann Lee (Sp.?) who received a Clinton recess appointment to the Justice Department and served there for at least a couple of years. I can't imagine that Lee would have accepted the job without pay.

The 'Rats probably got some union or moveon.org to pay him.

32 posted on 11/15/2003 5:11:01 AM PST by Mannaggia l'America
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To: Keith in Iowa
I respectfully disagree - I am from the South and the Southern states used to confect rules (laws) relating to Negroes, etc., done under the States rights concept (all powers not enumeratedspecifically to the Congress shall rest with either the States or the People...) - those rules/laws failed as well they should since they tried to pre-empt the Constituion.
33 posted on 11/15/2003 5:16:21 AM PST by MarkT
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To: Keith in Iowa
I suppose the normal venue would be to change the rules in the senate. But if senators are breaking their own rules, changing the rules as previously understood, there must be a way to stop this.

As an American citizen, I am frustrated and angered and feel misrepresented through this failure of the United States Senate to advise and consent, to vote UP or DOWN on the nominees whose names come before the senate after judiciary committee reveiw.

34 posted on 11/15/2003 5:19:38 AM PST by Republic
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To: WillRain
"Freshman Sens. Saxby Chambliss of Georgia and Lindsey Graham of South Carolina said Wednesday they have their staffs as well as outside experts looking at whether such a suit -- filed, in essence, against the Senate itself -- would be feasible."

Are you kidding me?

If O.J. Simpson can get away with cold-blooded murder on national television with 100 million people watching, don't you the the DemoRATS can find a good enough weasel (lawyer) to get them past a filibuster?

35 posted on 11/15/2003 5:22:31 AM PST by Happy2BMe (Nurture terrorism in a neighborhood near you - donate to your local community mosque.)
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To: WillRain
After all, even THEY have enough sense to know that Teddy Kennedy calling Janice Rogers Brown a "neanderthal" on the evening news is a losing position.

Are you telling me that Kennedy used the 'N-word' against Janice Rogers Brown? Where is the media outrage?????? I think that Kennedy needs to immediately apologize. Hmmm, I wonder if Kennedy considered Mary Jo Kopeckne a neanderthal too????

36 posted on 11/15/2003 5:24:36 AM PST by eeriegeno
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It's an interesting avenue for the Senators to pursue.

To those who say the SCOTUS won't take it, flat out, I say there are good arguments on both sides of that issue. The courts indeed get involved in separation of powers cases, but the threshold is not clear.

Purely hypothetical, but what if the Senate rules required unanimity for signing on to a treaty, in clear contravention of the Constitutional requirement for 2/3rds? That would effectively neutralize the Presidential power to make treaties. Similarly, in the case at hand. the President's power to approve Article III judges has been tipped.

Further, the Constitution provides for Senate oversight for Supreme Court nominees, and that the Congress can make laws prescribing the process for lower court judges (District and Circuit courts, in this case). Notice that the Constitution says the -mandatory- laws prescribing filling those lower offices may "... vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." This clause intimates a limit on Senatorial power, and that for inferior Officers, the appointment power can be vested in the President alone, or in the courts -- but NOT interposing a higher barrier for appointment than the advise and consent of the Senate. It happens that the relevant statutes (for filling Disctict and Circuit Court vacancies) recite an advice and consent requirement, but the Constitution does not mandate this.

Clearly, if the Senate rules required unanimity in order to produce the advise and consent the Constitution requires for Supreme Court nominees, thereby permitting a single Senator to thwart the President in the exercise of his Constitutional power to fill a Supreme Court vacancy, we would have a Constitutional crisis. Would the SCOTUS take such a case? If yes, then we are talking about the threshold for taking a case. The Senate rules are now being used to effectively permit a minority of Senators to do precisely that, block Presidential appointments. The suit would be stronger if the President joined it, but I think the suit is ripe.

There is no doubt in my mind that the Democrats are perpetrating a Constitutional Crisis, and I sincerely hope they are called out on it.

As to whether or not the SCOTUS will take the case, I don't know. The point of this one-sided missive was merely to assert that the issue is legitimately arguable. It is not a cut and dried matter, and if the case is brought, the SCOTUS would be compelled to at least issue an opinion explaining why it is denying to become involved.

37 posted on 11/15/2003 5:41:29 AM PST by Cboldt
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To: kayak
I saw some posts on another thread stating that persons accepting recess appointments do not receive pay unless and until they are actually confirmed later by the Senate.

Did any of the posts cite 5 USC 5503? That is the relevant statute. The purpose of a no-pay for recess appointees statute is to enforce the Sentate's power of advice and consent.

See also Recess Appointments of Federal Judges, which discusses your question.

38 posted on 11/15/2003 5:51:23 AM PST by Cboldt
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To: Keith in Iowa
The issues is the rules of the Senate

I respectfully disagree.

In my humble opinion the issue is the patently unconstitutional usurpation of presidential power by a minority IN the senate and the resulting disenfranchisement of the American people.

39 posted on 11/15/2003 5:51:49 AM PST by Bigun (IRSsucks@getridof it.com)
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To: WillRain
There are at least 3 GOP Senators. Hatch is also a sponsor.
40 posted on 11/15/2003 5:55:33 AM PST by Consort
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