Posted on 03/19/2005 10:26:40 PM PST by neverdem
I tend to agree, but I will explain below why I believe this means the problem will defy solution anytime soon.
There is nothing unconstitutional in the Senate's not voting on appointments of federal judges. Under Article III, Section 1, Congress is allowed to establish lower courts, and under Article II, Section 2, Congress is allowed to vest the appointment of inferior officers as Congress deems proper.
The current problem is that Congress has set up a system of lower courts that over time has become populated with judges that have distorted the view of the Constitution which you have expressed. That is, nowhere in the Constitution does it say that Article III courts may not, by order, practice each of the enumerated powers granted to Congress in Article I (although I would argue that each of us is denied due process when courts issue such orders affecting any of our liberties or property rights). However, it is my view that these powers were enumerated in Article I in order to make clear that these were the powers exclusively of Congress and not of the Executive or the Judiciary, and that Article III speaks of "cases" and "controversies" in order to limit the Judiciary to settling actual disputes that have already occurred and implicitly to forbid prospective rule-making (such as "evolving standards of decency dictate that it violates Amendment 5 or 8 to execute someone who was 17 years old when they murdered someone in cold blood" or some such nonsense).
In any event, I believe the blame lies with Congress for not reserving to itself the power to legislate -- Article I, Section 1 states that all such power is vested in Congress -- and, instead, delegating this power. Congress seems to have no problem exercising an oversight function over inferior officers within the Executive, but Congress leaves the Judiciary alone and seems to regulate it only by giving the Judiciary a very small budget (of which the Chief Justice has famously complained). The result is that judges make laws that Congress would never pass. By now, it seems, the electorate is too atomized or apathetic to do anything about the problem.
Certainly I hope I am wrong, so feel free to tell me where.
I would be interested in your thoughts concerning the above.
The GOP might as well change the rules. The gloves are off, and you can count on the Dems changing the rules to their advantage the moment the shoe is on the other foot.
I haven't read Will's column in years, but I went and read this one. Will is a stuffed shirt idiot.
I think you're arguing apples and oranges.
There is no supermajority required by the Constitution to confirm a judge. It is required for treaties, laws, etc. BUT NOT FOR JUDGES.
What is it about this that people don't understand ..?? The repubs are NOT trying to stop the filabuster of legislation. That is not even on the table.
They are going to change a SENATE RULE which says a filabuster CAN STOP THE FLOOR VOTE for a JUDICIAL NOMINEE - which the CONSTITUTION DOES NOT REQUIRE - AND A SENATE RULE DOES NOT SUPERCEDE THE CONSTITUTION.
But no one is saying that the Senate rule is that a confirmation vote can fail 59-41 (although I believe the Senate is constitutionally able to make such a rule, that's not the rule). The Senate rule for confirmation is 50 votes + the President of the Senate, or 51 votes.
You are saying that since the Constitution does not command the Senate to have a supermajority vote to call the question, that the Constitution forbids it. IOW, what is not required is forbidden.
I think the power granted in Art I, s5 is much, much broader than that.
I think the Senate could very well require unanimity to consent to Supreme Court nominations, for example. Defining "what constitutes the consent of the Senate" is entirely up to the Senate.
Congress can set its own procedural rules. Some think the Procedures Committee, whatever they call it, is the most powerful committee, some think Finance. FedGov should be considered an extension from the several states, a roof over the totality, a tarp over the lawn party on a rainy day. The independently sovereign states created FedGov and gave it limited power over the states. What FedGov does internally is of interest to FedGov and some get very involved with that. Some mathematicians get very involved with graph theory; some politicians get very involved with procedures. It's good to have a hobby.
"what constitutes the consent of the Senate" is entirely up to the Senate.
RIGHT!! and the repubs want to change a senate rule to determine what constitutes the "advise and consent" STATEMENT IN THE CONSTITUTION.
The dems are saying it means you can filabuster judicial nominees and the repubs are saying it does NOT. Having read the Constitution portion which makes those statements, about 2/3 for treaties, legislation, etc., there is a semicolon [;] and then it says, AND ADVISE AND CONSENT - which clearly means to me no filabuster rules apply to judicial nominees.
The dems - particularly Byrd and Kennedy and Boxer - keep saying the repubs want to STOP ALL FILABUSTERS. Which a BIG FAT LIE!!!
"However, only a simple majority is required to change the rule that requires a vote of 60 to a rule that requires a simple majority for rules changes."
You are not confused! I agree with the above statement.
FedGov should be considered an extension from the several states, a roof over the totality, a tarp over the lawn party on a rainy day.
Which beats losing the gig entirely, I suppose.
The independently sovereign states created FedGov and gave it limited power over the states. What FedGov does internally is of interest to FedGov and some get very involved with that. Some mathematicians get very involved with graph theory; some politicians get very involved with procedures. It's good to have a hobby.
Agreed. I just get concerned when the FedGov magistrate whose undiminishable salary we pay develops the rather unseemly hobby of issuing orders inconsistent with the limited scope of FedGov power.
FedGov is free to issue recommendations. Such recommendations may be ignored, especially if there is no attached fiscal note.
The problem is that the cloture rule was changed in 1975 from two-thirds of those Senators elected AND present to the current rule three-fifths of those Senator just elected. This means that the Democrats can send ONE of their Senators to the filibuster, the Republicans must send at least 51 Senators.
It has been affirmed by two Vice-Presidents (in their capacity as President of the Senate), Nixon and Humphrey that any sitting Senate may change its rules and NOT be bound by the strictures of a previous Senate. Some Senators believe the fiction that since the Senate considers itself a "continuing" body that any rules set down by a long-gone Senate still hold sway over the sitting US Senate.
If that were so then a US Senate from the 1830s could have set a Senate 'rules' requirement that the filibuster 'rule' could never be changed unless there was a unanimous agreement from all US Senators (before they were elected), which would mean that a filibuster could never be stopped in a subsequent US Senate as long as ONE member objected to changing the 1830s Senate 'rule'. Imagine that since 1830 there would always be at least ONE Senator who objected to changing the long-ago set cloture rule: it would be more permanent than any portion of the US Constitution (except for the State's Senate representation portion) since it can be amended with a three-fourths majority of the Houses of Congress and the States...
dvwjr
Probably so, and the practical effect of such a rule change is exactly zero, since under the Constitution, neither the current Senate, nor any future Senate is bound by such a rule, because it must always be possible for a simple majority to overturn any or all of the existing rules of the chamber, except those for which the Constitution makes explicit provisions.
Your argument is about how many Angels can dance on the head of a pin. The practical reason for establishing supermajorities to call a particular question is the sound principle that "sweeping changes should not be made on the basis of narrow majorities. (George F. Will)." Such a sound principle does not obtain in the case of judicial confirmation. We have the power, and so we should sweep this arbitrary and indefensible rule away.
This sounds like the articles of faith maintaining that killing the ABM treaty would destroy the world and an ABM system won't work anyway.
Wrong.
If Frist says we have the votes for this, and the ruling is made, it will be upheld.
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