Conservative Columnists: Lay off the Judiciary

the GOP had the votes in committe to block sending them to the floor. this has been done many times in the past, by both parties, when they control the senate. filbuster of judicial nominees is, however, unprecedented.

Black sable one day.
Next day it goes into hock,
But I'm here.
Top billing Monday,
Tuesday you're touring in stock,
But I'm here.
First you're another
Sloe-eyed vamp,
Then someone's mother,
Then you're camp.
Then you career from career
To career.
I'm almost through my memoirs.
And I'm here...

 

for all intents and purposes, george bush scored a landslide victory in november.

I've gotten through "Hey, lady, aren't you whoozis?
Wow! What a looker you were."
Or, better yet, "Sorry, I thought you were whoozis.
Whatever happened to her?"
Good times and bum times,
I've seen 'em all and, my dear,
I'm still here.
Flush velvet sometimes,
Sometimes just pretzels and beer,
But I'm here...

 

and it's the injuns' fault. here's one option out of the morass, from your favorite source, the (kelvin) cato institute.

http://www.cato.org/research/articles/pilon-050428.html

--
April 28, 2005
The Constitutional Option

by Roger Pilon

Roger Pilon is vice president for legal affairs at the Cato Institute in Washington, D.C., and director of Cato's Center for Constitutional Studies.

No question, we're headed soon for a Senate showdown on the judicial filibuster, probably right after the Senate returns from the break it's taking next week. Everyone in Washington knows that this is the first big skirmish in the upcoming battle for the Supreme Court. In fact, it may well determine the outcome of the High Court battle, which is why the fur is now flying. Here's the scenario.

Last week the Senate Judiciary Committee signed off on two of President Bush's federal appeals court nominees, Janice Rogers Brown, who sits on the California State Supreme Court, and Priscilla Owen, from the Texas Supreme Court. It was a straight party line vote, 10-8. "Outside the mainstream," said the Democrats, even though both nominees were overwhelmingly re-elected and both received the American Bar Association's highest rating. This was not the first go-round for the two. In the last Congress the committee sent both names to the floor, but Senate Democrats filibustered both, despite cloture votes to end the filibusters that indicated both would have been confirmed had the full Senate been allowed to vote.

It's that up-or-down vote that Democrats blocked last time, and they say they'll do it again, just as they did last session with eight other Bush nominees. That's why Senate Majority Leader Bill Frist has promised that if they do, he'll bring on the so-called nuclear option. He'll call on the Senate, by majority vote, to prohibit filibusters in the case of judicial nominations. No longer will it take 60 votes to confirm a nominee. A simple majority of 51 will do. That will mean, come the first Supreme Court opening, that the filibuster will be off the table, and that's why this preliminary battle over appellate court nominees is so ferocious.

What especially galls Republicans is that the filibuster, with its checkered history of blocking civil rights measures, had never been used successfully to block judicial nominations - until the last Congress. Democrats of late have made feeble efforts to deny that, but the example they most often cite, Abe Fortas in 1968, misses the point. Yes, a bipartisan filibuster of the Fortas nomination to be chief justice was begun. But when a cloture vote was taken, it was clear the nomination didn't have the support of even a majority of the full Senate. So the White House withdrew the nomination to avoid an embarrassing defeat on the Senate floor. That's no precedent, therefore, for the 10 filibusters last session. All of those nominees would have been confirmed had a Senate vote been allowed, which is why Senate Democrats didn't allow one.

Thus, the nuclear option hardly amounts to stripping away over 200 years of Senate practice, as Democrats today are screaming. It's the Democratic filibusters of the past two years that are unprecedented. Democrats don't have the votes to defeat Bush's nominees on the floor. So they filibuster to keep the nominees from ever getting to the floor. It's not unconstitutional:

The filibuster arose through the Senate's power to set its own rules, as provided for by the Constitution. But it's hardly consistent with the tenor of the Constitution. When the framers wanted something decided by a supermajority - like treaties, or constitutional amendments - they said so, explicitly, in the Constitution. By implication, everything else was to be decided by a simple majority. Thus, the "nuclear option" is more properly called the constitutional option.

But doesn't the filibuster protect minorities against overbearing majorities? Even some Republicans today raise that concern, mindful that one day they'll be back in the minority. That's an attractive objection against the Frist plan - until you think about it. If the filibuster were justified for that reason, then why set the vote to overcome it at 3 /5? Why not 2 /3, as it once was, or 3 /4, or even 9 /10? The reason, of course, is that government would be brought increasingly to a standstill - which might not be a bad thing, except that there are some government services we all need.

In fact, the problem with the old Articles of Confederation was that unanimity was required among the states on many things and so stalemate was the rule. We have a taste of that today in the judicial context.

Thanks to the supermajority requirement imposed by Democratic filibusters, the Sixth Circuit Court of Appeals has been half empty for the better part of Mr. Bush's first term. That means litigation, affecting millions of people, is backing up.

And so we come to the nub of the matter. The filibuster of judicial nominees upsets the balance the framers struck. The Constitution is run through with checks and balances, designed to limit power on one hand, but allow government to go forward on the other. The filibuster intrudes on that design by adding an extra check. But it's not without costs. No doubt today's Democrats think they know better how to strike the right balance than the framers did. Republicans are saying the framers got it right. I'd go with the framers. Let's give these nominees the up-or-down vote they deserve, as plainly contemplated by the Constitution.

This article originally appeared in the New York Sun on April 28, 2005.

 

"muck" mark, the only poll that counts is the one W won last november. all the rest is just political background noise, something for CNN, Fox, et al to do while they wait to misinterpret the next group of exit polls in 2006.

 

the big difference in "procedure" is during the clinton years the republicans also had a senate majority most of the time. the "procedures" you lament were nothing more than the senate majority using exercising it's clout. if that were the case today, i'd be pissed, but i'd have no real right to b****. instead, we have a minority of senators trying to impose new super-majority rules on the confirmation process. as i've noted elsewhere, this is really unprecedented. now, that it's been proven that your arguement can't be supported by the facts, you attempt to move the goal posts with "all intents and purposes..." that's really pretty weak.

I've run the gamut.
A to Z.
Three cheers and dammit,
C'est la vie.
I got through all of last year
And I'm here.
Lord knows, at least I was there,
And I'm here!
Look who's here!
I'm still here!!!

...and still no list...

 

here's some more info on the fortas nomination, from the U.S. Senate's own site:

http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm

--
A seasoned Senate vote-counter, [President Lyndon] Johnson concluded that despite filibuster warnings he just barely had the support to confirm Fortas. The president took encouragement from indications that his former Senate mentor, Richard Russell, and Republican Minority Leader Everett Dirksen would support Fortas, whose legal brilliance both men respected.

The president soon lost Russell's support, however, because of administration delays in nominating the senator's candidate to a Georgia federal judgeship. Johnson urged Senate leaders to waste no time in convening Fortas' confirmation hearings. Responding to staff assurances of Dirksen's continued support, Johnson told an aide, "Just take my word for it. I know [Dirksen]. I know the Senate. If they get this thing drug out very long, we're going to get beat. Dirksen will leave us."

Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.

 

the filibuster of fortas was bi-partisan, and quickly ended when LBJ pulled the nomination.

 

as i explained earlier, the issue isn't blocking nominees, it's the unprecedented use of filibuster by a minority party to impose a super-majority requirement for confirmtion, clearly counter to senate tradition, comity, and constitutional intent. is a filibuster by a minority fundamentally different than the majority blocking a nominee in committee? you betch, but hey! it's just procedure, but so, for that matter is the nuclear option. i'd say one good unprecedented deserves another!

 

here's an interesting quote from Orin Hatch from 2003, referenceing an earlier quote from 1994, when Clinton was president and republicans were in the majority. emphasis added:

http://judiciary.senate.gov/member_statement.cfm?id=744&wit_id=51
--
'Mr. President, one of the games that is being played around here is that whenever the majority leader wants to move something along, he files cloture, whether or not anybody has decided to use extended debate. I have heard the majority leader�who is a person I have great regard and respect for�say how beset we are with filibusters in this body.

Naturally, in the last week or so of a session, there is going to be the threat of some filibusters. It is one of the few tools that the minority has to protect itself and those the minority represents. But this is not a filibuster. I find it unseemly to have filed cloture on a judgeship nomination�where I have made it very clear that I would work to get a time agreement�and make it look like somebody is trying to filibuster a Federal court judgeship.

I think it is wrong, and I think it is wrong to suggest in the media that this is a filibuster situation, because it is not.

I personally do not want to filibuster Federal judges. The President won the election. He ought to have the right to appoint the judges he wants to.'

For the record, then, there was in fact no filibuster of Judge Sarokin�s nomination, and I specifically did not support a filibuster of that or any other federal judge�s nomination."