Archives 1/9/05 Thru 4/19/05
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Posted at 1:20am on Apr. 19, 2005 Kondracke on Filibusters
By AndrewHyman
Mort Kondracke, the Executive Editor of Roll Call, has some sage observations about the current predicament. Here's a long excerpt:
If "nuclear war" befalls the Senate, the blame falls first on Democrats for abandoning normal procedure - full debate - and resorting to the filibuster to block Bush's nominations.
Republicans say that judicial filibusters are unprecedented in American history.Democrats respond that there have been several in the past, notably by Republicans in 1968 over the nomination of Abe Fortas to be chief justice. The dispute gets murky over whether this or that nominee was really filibustered, but this much is certainly true: It's unprecedented for any party to filibuster judicial nominations routinely.
In the previous Congress, Democrats could plausibly argue that breaking precedent was justified to prevent Bush from "packing the courts" when he was a "minority president" who took office only due to Supreme Court intervention. That justification was upended in 2004. Bush is now a majority president and deserves to have his judicial nominations given an up-or-down vote in the Senate. Democrats are obstructing that process.
So, are Republicans justified in changing the Senate rules to trump the Democrats? Technically, the "nuclear option" is parliamentary sleight of hand - substitution of a majority vote on a ruling from the chair to effect a rules change that would normally require a two-thirds vote.
But which is worse: altering Senate rules by parliamentary maneuver, or inducing the Senate (by filibuster) to abandon its constitutional duty to "advise and consent" on presidential nominations?
The filibuster is a Senate tradition, not a constitutional mandate. The Constitution provides that each Congressional chamber should write its own rules. It doesn't say what they should be or how they should be established.
The rules on filibusters have been changed several times in the past. In 1995, Democrats tried (and failed) to eliminate the filibuster entirely, with nine currently serving Senators voting for that proposition.
Democrats argue that if the Senate rules are changed with respect to judicial nominations, the chamber will come to resemble the House, where the majority rules ruthlessly, and the founders' design for the Senate to be the government's "cooling saucer" will be undermined.
The "nuclear option" would be a step toward strict majority rule, but it's up to the Senate itself whether it goes any further, and there seems no impulse so far to do so for legislation.
....
[I]f Frist succeeds in changing the rules and Democrats "go nuclear" by halting Senate business, fallout will rain on them, as well. Shutting down the government is unlikely to be popular.
Thanks to How Appealing for the link to Kondracke's piece.
Posted in Senate Rules —
Posted at 12:21am on Apr. 19, 2005 Gordon Smith and Chuck Hagel on Filibusters
By AndrewHyman
An Oregon web site has this excerpt from Roll Call:
Sen. Gordon Smith (R-Ore.) called his support for Frist a "qualified yes," noting he has encouraged Frist to seek a compromise.
"We've got to find a way so we can both save face and keep our institution from being dysfunctional," Smith said.
And, Senator Hagel was interviewed by Wolf Blitzer yesterday. The Republican Senator from Nebraska is still firmly situated on the fence. The Hagel interview is below the fold.
BLITZER: Senator Hagel, your friend, Senator McCain, Republican, good conservative, says it would be shortsighted for the Republicans to go ahead and change the rules regarding a filibuster. Because one of these days, the Democrats are going to be in the majority. The Republicans will the in the minority. And guess what, you may want to use that filibuster then.
HAGEL: Well, I think Senator McCain's argument is a good one, but I would make a little deeper argument here as to how we have to be very careful.
It seems to me, we have two very important issues that are about to collide unless cooler heads prevail.
One is the rights of minorities in the Senate, and Senator Feinstein is absolutely correct. The United States Senate is a very unique institution. One of the reasons it is, it is at the core of its responsibilities, the protection of minority rights. That is very important.
And the other interest that is important, and we have some constitutional obligation for, is advising consent for presidential nominees, including giving those presidential nominees a vote.
So, those two interests are about to collide here, and I think what Senator McCain is saying is obviously correct. But I would go even deeper to say, it's important that we protect the institution of the Senate and the tools of minority rights because if those are eroded, you will then put the institution on a slippery slope to keep -- by straight majority vote. By saying this rule's going to change. This rule's going to change.
BLITZER: So, let me just try to pin you down on this. If it comes down to changing the rules on a filibuster, will you go along with Senator McCain or your majority leader, Senator Bill Frist?
HAGEL: I've said that I have not made a decision. I have not made a decision. If I have to make one, I will. But I've said to both sides, don't include me in your count right now.
I do not like this approach. It's a dangerous approach. It's an irresponsible approach. And it further erodes the constitutional minority rights element of the Senate.
One might likewise say of the judicial filibuster that it's a dangerous approach, an irresponsible approach, and an approach that inflates minority rights beyond what the Advice and Consent Clause allows.
Posted in Senate Rules —
Posted at 11:50pm on Apr. 18, 2005 Bob Dole: The Bottom Line on Filibusters
By AndrewHyman
Confirmthem has previously reported comments by former Senate Majority Leader Bob Dole regarding the judicial filibuster controversy. Yesterday, he was interviewed by Wolf Blitzer on CNN. In addition to discussing Sen. Dole's new book (titled "One Soldier's Story"), they also talked about judicial nominations:
I've said you've got to use extreme caution. It's got to be a last resort. You've got to try negotiation. You've got to try everything with the other side.
But the bottom line is the president ought to nominate judges, not the minority party, whether it's Republicans or Democrats.
More of the interview is pasted below. I think Senator Dole has hit the nail on the head. Suppose the Senate minority said, "We won't allow a vote on any nominee for Chief Justice unless it's Jerry Springer." Surely, that would be usurping the nomination power. The usurpation would be no less egregious if the minority instead said, "We won't allow a vote on any nominee for Chief Justice unless it's a raunchy talk show host." Just switch "raunchy talk show host" to "consensus nominee," and you see what the minority is now trying to do, and why it is unconstitutional. Anyway, here's more of the Dole-Blitzer interview:
BLITZER: Let's talk a little about Senator Bill Frist, the Senate majority leader. He wants to change the rules of the game now to prevent filibusters where you need 60 votes out of 100 to move legislation or action forward because of the stand-off on these judicial nominees.
Is he right -- Senator Frist -- should they eliminate the filibuster?
DOLE: Not eliminate the filibuster. In fact, I was a little worried about this when I first heard it. But now it's been limited just to judicial nominees. ....I think the stage of play now is that it applies only to judicial nominees. It's very limited. And my advice to Bill Frist is: That's got to be a last resort. You've got to make every effort to come to terms. I checked and I'm told that during my 12 years as a Republican leader we never held up anybody for a vote, a judicial nominee. So I do think the Democrats are sort of going against tradition here.
BLITZER: Well, former President Bill Clinton repeatedly points out that whole dozens of his judicial nominees weren't filibustered but they were just...
DOLE: Well, they...
BLITZER: ... sort of kicked aside. And they didn't even come up for a hearing or a vote.
DOLE: They came up late. And you know, a lot of his nominees came up late. And I think he doesn't tell you that. But I can recall, you know, you have sort of a shut-off date, particularly in a presidential year. It used to be about July 1st.
If you didn't get your hearing in a vote in a committee, in judiciary committee, your guy probably -- or lady -- wasn't going to be sent to the floor. Because I remember pleading with the then majority leader to get a Kansan confirmed before we left. I finally worked it out.
BLITZER: Senator McCain and other Republicans say this can be shortsighted. Because you know what? The Republicans aren't going to be the majority in the U.S. Senate forever. There presumably could be a Democratic takeover and they could play the same kind of games as the Republicans.
DOLE: And I've thought about that a lot. I've said you've got to use extreme caution. It's got to be a last resort. You've got to try negotiation. You've got to try everything with the other side.
But the bottom line is the president ought to nominate judges, not the minority party, whether it's Republicans or Democrats. It seems to me what's fair is to report out a nominee with no recommendation or whatever and let the full Senate vote. That would ensure the Democrats would have the same treatment the Republicans have. Maybe make this for eight years. It would be four Bush years and the Democrats probably hope there'd be four Democratic years.
Posted in Senate Rules —
Posted at 10:12am on Apr. 18, 2005 Specter on Owen and Myers
By AndrewHyman
Senator Specter has gone out of his way to endorse both William Myers and Priscilla Owen, so I thought I'd post a few links about that. Here's a Dallas Morning News story titled, "Specter endorses Owen: Texan's abortion-related rulings neutral, senator says as vote nears." We at confirmthem have previously posted about Owen, including this post indicating that her record has been severely distorted, and I've just added an update to that post. I agree with Jonathan Turley that Justice Owen is no "wild-eyed extremist" and that she interpreted the Texas "parental notification law in a way that was plausible."
Regarding Myers, Senator Specter has said that, "I think that William Myers would give some balance to the Ninth Circuit, and that is going to be one of the arguments I am going to make." Former Senator Alan Simpson has also pointed out that Myers has been endorsed by Jimmy Carter's Interior Secretary. Is Myers really unfit because he meets but does not exceed the environmental standards of the Carter administration?
Neither Myers nor Owen nor any judicial nominee should be filibustered, and moreover Myers and Owen both ought to be confirmed.
Posted in Senate Rules —
Posted at 8:47am on Apr. 18, 2005 Mobile Register, Turley, Hagel, and Warner on Filibusters
By AndrewHyman
Here's a quick summary of some current filibuster-related items.
The Mobile Register has a very intelligent editorial, and here's part of it:
To allow a minority of just one of the two houses of Congress to keep judgeships empty through a filibuster is to let that semi-minority hold hostage an entirely separate branch of government....Filibusters on ordinary bills --- which do not involve the important separation-of-powers issues associated with judgeships --- would still be allowed....
Democrats several times supported then-Majority Leader Robert Byrd in his successful efforts to make other subject matters, such as budgets, immune from filibusters. Sen. Byrd himself argued back then that simple rules changes --- such as ones to limit the filibuster --- could be passed by simple majority votes. In other words, the Senate can't use a filibuster to kill an attempt to limit the filibuster....The practices of 215 years, the understanding of the nation's founders, and the principle of majority rule all demand it: Kill the judicial filibuster, and kill it now.
Law Professor Jonathan Turley has an interesting piece in the LA Times calling for the Democrats to make the first move by allowing approval of most of the previously filibustered nominees:
As a pro-choice social liberal, I didn't find much reason to like these nominees. However, I also found little basis for a filibuster in most cases.....Presidential aide Brett M. Kavanaugh served with the independent counsel during the Monica Lewinsky affair. He's now being attacked as if he stuffed trunks for the Gambino crime family.....For nine of the Republican nominees, Democratic opposition looks as principled as a drive-by shooting....[However,] Democrats are on good ground in filibustering William J. Haynes II....William G. Myers ....[and] Priscilla R. Owen.....Hostilities should cease. Democrats disinclined toward apocalypse should confirm Brown, Griffith, Griffin, Kavanaugh, McKeague, Neilson, Pryor, Saad and Boyle. That should shame the president into withdrawing Haynes, Myers and Owen.
Turley was interviewed recently by Fox News, as reported by confirmthem, at which time I indicated why Myers and Owen should be confirmed, and why Haynes should be defeated in a straight up-or-down vote if the allegations against him are substantiated. UPDATE: Power Line is unconvinced by Turley.
Here are a few comments about Nebraska Senator Chuck Hagel from a newspaper in Lincoln, Nebraska:
Hagel is far from a certain Republican vote when the GOP attempts to eliminate the right to filibuster federal judicial nominees in the Senate. While the president's nominees deserve an up or down vote, Hagel said last week, "the core of the institution of the U.S. Senate is the protection of minority rights (and) the filibuster is part of that protection."
Of course, Senator Hagel is right that the filibuster is central to the protection of minority rights in the Senate, regarding most legislative matters. However, endless filibusters have never been a central feature of the Senate regarding judicial nominees (and also are not permitted for trade agreements, budget resolutions, and several other legislative matters). So let the minority filibuster judicial nominations for a finite time, in order that they can get their views across and express displeasure. But why let the minority filibuster judicial nominations forever? That's not part of Senate tradition at all.
Here are a few comments about Virginia Senator John Warner from a newspaper in Richmond, Virginia:
Last week, Warner said in an interview he believes "there's a constitutional mandate that the president is obligated to pick people for the court, and that the Senate should render the advise and consent process fairly under the Constitution. The filibuster is a situation that I think directly confronts the president's constitutional obligations," Warner added. "However, on the other side, I do believe it's extremely important that we take every caution to preserve the traditions of the Senate, and that central pillar has always been unlimited debate from the first day the institution started."
Keep in mind that unlimited debate was limited in 1917 by the cloture rule, and it's been limited many times since then, not only by modifications of the cloture rule, but by fast track trade legislation, and anti-filibuster provisions for budget resolutions, for example. The best way to protect the existing legislative filibuster would be to simply recognize that it's become part of Senate tradition and is very popular; the present controversy about judicial nominations would be miniscule compared to any future controversy about eliminating the legislative filibuster.
Posted in Senate Rules —
Posted at 7:52pm on Apr. 17, 2005 The Lowest Confirmation Rate of Modern Times
By AndrewHyman
On April 2, the Associated Press reported this:
The Senate has confirmed 204 of the president's 214 trial and appellate judicial nominees.
"Gee," you might say, "that sure is a high confirmation rate." But you'd be wrong. Those numbers include trial court judges in addition to appeals court judges, whereas the Dems have only been going after the latter. On April 15, the Associated Press more accurately reported this:
Democrats blocked 10 of Bush's first-term appeals court nominations through filibuster threats while allowing the confirmation of 34. Bush has renominated seven of the 10.
Here are the appellate confirmation rates of all the presidents since FDR:
Truman 81.8%
Eisenhower 90.2%
Kennedy/Johnson 89.7%
Nixon/Ford 89.1%
Carter 91.8%
Reagan 81.3%
G.H.W. Bush 77.8%
Clinton 61.3%
G.W. Bush 51.5%
The nominees of George W. Bush have been no more conservative than those of Ronald Reagan, according to Professors Cass R. Sunstein and David Schkade:
Remarkably, there are no significant differences among the voting records of Reagan, Bush I and Bush II appointees. The three most recent Republican presidents have shown extraordinary consistency in their choices.
The enormous discrepancy in the appellate confirmation rates of Reagan (81.3%) and Bush II (51.5%) is mainly attributable to one thing: the filibuster.
UPDATE: The most authoritative statistics seem to be from the following two sources:
Judicial Nomination Statistics: U.S. District and Circuit Courts, 1977-2003.
Judicial Nomination Statistics: U.S. District and Circuit Courts, 1945-1976.
Posted in Senate Rules —
Posted at 6:06pm on Apr. 17, 2005 Alter the Filibuster
By AndrewHyman
Earlier today, Wade Henderson and Stephen Moore had an op/ed in the Washington Post titled "Don't Alter the Filibuster." They wrote:
It is clear to us that it takes a two-thirds majority (67 votes) to change the Senate's standing rules. The filibuster will become effectively emasculated over time if a precedent is set that a simple majority of the Senate can override the 60-vote rule whenever the majority feels frustrated by the actions of 41 senators. As such, this rule change could eventually apply to all legislation and thereby be used as a tool to create a Senate majority with absolute power.
In response, I would like to point out that neither liberal scholars, nor conservative scholars, nor any other scholars who have actually read the Senate Rules, believe that it takes 67 votes to change those rules. There is simply no disputing the fact that, if there are 51 Senators present and voting, then only 34 (i.e. 2/3 of Senators voting) are needed to end debate on a rule change according to Rule 22, and subsequently only 26 Senators (i.e. more than 1/2 of Senators present) are needed in order to go ahead and change the rules. So, Mr. Henderson and Mr. Moore are either mistaken or are oversimplifying the Senate rules.
Henderson and Moore may be referring to the legitimate controversy about whether --- and under what circumstances --- a simple majority of the Senate can override the 2/3 rule, by invoking rulemaking powers directly from Article I, Section 5 of the Constitution. Everyone agrees that the action by a simple majority to invoke their constitutional rulemaking power is more appropriate if notice is given at the beginning of the congressional session. Indeed, on the opening day of the present congressional session, Sen. Frist did give appropriate notice, when he said this:
Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate rule XXII, and do not acquiesce to carrying over all the rules from the last Congress.
No Senator expressed non-acquiescence to Frist's statement, or sought to prevent him from reserving the right to propose changes. Democratic Senator Ron Wyden spoke immediately after Senator Frist, and praised Sen. Frist for his interest in health care. No Senator on that opening day challenged Senator Frist's statement quoted above. Even if Dr. Frist had been challenged, it is doubtful that it would have made any difference. Senator Mondale made a similar statement in 1975, and there was a unanimous consent agreement to "nail down doubly" (as Senator Mansfield put it) what Mondale had said, but still Senator Frist nailed the same thing down, albeit not doubly.
There is ample precedent for the GOP's present proposal to change the Senate rules. None of that ample precedent has thus far led to a ban on filibustering legislation, and so it's very speculative to imagine that it will lead to such a ban in the future. Even if that were to happen, it would not "create a Senate majority with absolute power" as Henderson and Moore contend. There would remain all of the Constitution's limitations on the Senate's power, and those limitations are far from trivial. Also keep this in mind: if any Senator seeks to open a new session by reserving a right to change the rule for legislative filibusters, there will surely be an immediate response to protect that rule, because it is a popular rule, and one which has been frequently used for many years.
Posted in Senate Rules —
Posted at 4:21pm on Apr. 17, 2005 The World's Greatest Deliberative Body
By AndrewHyman
The blog "Captain's Quarter's" has an interesting post regarding the effects on nominees of the increasingly bitter and lengthy confirmation process. That post concludes by suggesting (in jest) that the blogosphere may be eclipsing the Senate as the world's greatest deliberative body. But let's not start taxing people and declaring war just yet.
Seriously, I'd like to take this opportunity to thank all of the filibustered nominees for their public service. Those who have been renominated should get medals for heroism, after they are confirmed.
Posted in Senate Rules —
Posted at 2:49pm on Apr. 17, 2005 Lugar and Hagel on Filibusters
By AndrewHyman
Senator Lugar was interviewed today on Fox News Sunday. Here's a report about the interview:
One Republican who has been undecided on the rule change...[is] Sen. Richard Lugar of Indiana...."I would not take a stand against my party's view that we should have up-or-down votes on judges and that this is a part of the filibuster thing that really needs to be settled and set aside," Lugar told "Fox News Sunday." Lugar said he hopes differences can be settled "through negotiation." A second Republican who has been on the fence, Sen. Chuck Hagel of Nebraska, said, "I've said to both sides, don't include me in your count right now."
Meanwhile, Richard Hallock of Pueblo West, Colorado has some advice:
Some Repubs say, "yes but! What'll happen when we are again in the minority? They'll do the same thing to us." So what? If changing the rules is right, it is right no matter which side you are on. If it isn't right, don't do it, but then quit gnashing your teeth and take your lumps. We'd like to see the nuclear option used by either side when there is no constitutional justification for minority blockage of the will of the Senate majority.
I agree with Mr. Hallock. Nominations and legislation are very different, and have always been treated differently. After all, they're in separate articles of the Constitution. From 1917 to 1949 there was a cloture rule for legislation but not for nominations. It makes sense to have a 60-vote cloture rule for legislation, but a different threshold for nominations. A lower cloture threshold for nominations would make the Senate less likely to encroach upon the nomination power of the President (i.e. less likely to demand that particular people or types of people be nominated).
Posted in Senate Rules —
Posted at 9:32am on Apr. 17, 2005 Santorum and Lott on Filibusters
By AndrewHyman
Senator Santorum writes in the Washington Post:
Texas Supreme Court Judge Priscilla Owen .... has shown time and again that the American Bar Association got it right when it unanimously awarded her its highest possible rating. She was also reelected with 84 percent of the vote in 2000 ... [with] the endorsement of every newspaper in Texas....
Justice Janice Rogers Brown .... was called upon by her colleagues to write the majority opinion more often than any other member of the California Supreme Court. She was retained with 76 percent of the vote in her last election.
Hardly out of the "mainstream." Senator Lott sums up:
People outside the Washington Beltway don't care about endless debates .... They want results. Whether liberal or conservative, most fair-minded Americans would agree that every judicial nominee, regardless of ideology, deserves an up-or-down vote by the U.S. Senate --- a vote by your representatives.
And, on a silly note, Senator Reid's shutdown threats evoke a scene from Blazing Saddles:
SHERIFF BART: (deep voice) Hold it. The next man makes a move, the n*gger gets it.
OLSON JOHNSON: Hold it men. He's not bluffing.
DR. SAMUEL JOHNSON: Listen to him men. He's just crazy enough to do it.
SHERIFF BART: (deep voice) Drop it or I swear 'll blow this n*gger's head all over this town.
SHERIFF BART: (high voice) Oh lordy lord! He's desperate. Do what he say! Do what he saaaaaay!
John Armor gets credit (or blame) for this analogy. In any event, because a shutdown would likely hurt the Democrats more than anyone else, there probably wouldn't be a shutdown or even a slowdown.
Posted in Senate Rules —
Posted at 7:04pm on Apr. 16, 2005 Will the GOP Rubberstamp the Dems' Vetoes of Nominees?
By AndrewHyman
Brit Hume recently interviewed law professor Jonathan Turley of George Washington University, to discuss the judicial nominations that the Senate minority has tried to veto by filibuster. Turley is widely regarded as moderate to liberal, so his analysis of the filibustered nominees should carry some extra weight. The first Turley interview from April 13 is here and the second Turley interview from April 15 is here.
Turley says of Priscilla Owen, Janice Brown, Terrence Boyle, and William Pryor that, "ALL THESE PEOPLE ARE MORE CONSERVATIVE THAN I AM, BUT I WOULDN'T CALL THEM EXTREMISTS . . . . YOU CAN STILL BE A VERY GOOD JUDGE AND HOLD VIEWS THAT THEY HOLD." Turley says that the Owen nomination is probably in worse shape than those of Brown, Boyle or Pryor because of statements made by Alberto Gonzales, the attorney general. But, confirmthem has shown that Gonzales has been misinterpreted. If Justice Owen is in the worst shape, then plainly they should all be confirmed.
On Janice Rogers Brown
TURLEY: She's a California judge who has, I think, drawn the ire of some groups because she believes very strongly in property rights. And she may have a slightly libertarian streak. But she's not by any means this threat to the rule of law that people have made her out to be. I'm actually a little bit mystified as to why Brown has attracted so much criticism. . . . She is suspected of having pro-life views and being very conservative on a number of issues, particularly when it comes to property rights, environmental laws, and those types of things. . . .The decisions that she has written, most of her decisions are not controversial. She actually stands out on this list as one of two nominees that has actually thought very, very deeply about the philosophical basis of law. She incorporates it into her decisions. [See what confirmthem says about this nominee and Senator Schumer.]
On William Pryor
TURLEY: Well, I actually know Pryor. Back when we were --- we both clerked on the 5th Circuit for different judges. And back then he was known as sharp as a whip. We weren't close back then, but he was well known even then as being a real bright light. And I think he's gotten a raw deal, quite frankly. He's very conservative, there's no question about it. But I think it was very telling that he believes very strongly that the Ten Commandments can be shown in a monument or in a display. And yet, when there was that confrontation with Chief Justice Moore in Alabama, he carried out his duties. He prosecuted Moore, even though he agreed with Moore. And so with Pryor, I think that he's gotten a uniquely raw deal, because he's proven that even against his own views, he will carry out the law. . . . Pryor I don't think is being credit by the fact that he was tested under fire. He was an attorney general in Alabama who took an incredibly controversial position. . . . He could be breathtakingly conservative, but he's proven that he will yield to the law, as in the case with the Ten Commandments.
On Priscilla Owen
TURLEY: Well, Priscilla Owen, I think, is primarily in trouble because she was criticized in print by Alberto Gonzales, who accused her of judicial activism. They both served on the Texas Supreme Court together, and he went after her in a couple of opinions and actually called her an activist, said she was ignoring the law. And those words have been used as powerful ammunition against her. . . . My view is that she was interpreting things like the parental notification law in a way that was plausible. I don't agree with it. But she's not some wild-eyed extremist. But I think she has the best ground for the Democrats to attack because they have this prior criticism from Gonzales, and she is very, very conservative. There's no question about that. [See what confirmthem says about this nominee and Molly Ivins.]
On Terrence Boyle
TURLEY: Well, Boyle actually has been a judge for a long time. He's been a trial judge. And Boyle's problem is a mix. Some people have accused him of being an ultra-conservative, but his main problem is that he's been reversed a number of times on what's called plain error. That's a very low standard for a judge to make. So when you're reversed on plain error, it tends to mark up your record . . . . But with Boyle, there really is ground for some senators to say "we don't like the cut of this guy's jib, he's just not up to the task". [See what confirmthem previously said about Boyle's reversal rate.]
On Thomas Griffith
TURLEY: Well, Griffith has really been put through the wringer because he is the general counsel of Brigham Young University, and he was accused by the Democrats of a suspension of his bar license for failure to pay dues and practicing without a license. . . . This guy has been grossly mistreated. First of all, thousands of lawyers go into arrears because of their dues. It's not good, but there's a lot of lawyers of multiple jurisdictions, and it happens. . . . There's a difference between venal and mortal sin.. . . [T]he other thing is that he has a perfectly good reason why he did not become a Utah bar member. And five presidents of the Utah Bar supported him in his interpretation. And I think this is the correct move for the committee. But I do think he has been grossly mistreated.
On William Myers
TURLEY: I think the White House is going to have a serious problem getting Myers through. The reason is he's a former Interior Department official. He was also a lobbyist for mining interests. But at Interior he took fairly extreme positions, you know, and very controversial positions . . . . [o]n environmental and Native-American matters. He's also said things that were viewed as sort of over the top and hostile towards environmental issues. . . . I think they probably could get him through on a straight vote, but he really is a third rail candidate in terms of filibusters. [See Sen. Alan Simpson's piece pointing out that Myers has been endorsed by Jimmy Carter's Interior Secretary. Is Myers going to be defeated because he meets but doesn't exceed the environmental standards of the Carter administration?]
On William Haynes
TURLEY: Haynes actually, I think, is probably really the most in danger of not only a successful filibuster but even an up or down negative vote . . . . The reason is that he was general counsel of the Department of Defense, he signed the controversial memo dealing with whether the president could violate federal law, whether torture in some circumstances was allowable. That controversy is still brewing, and there are very significant allegations against him. I think the White House would have been wiser if they had held off a bit. But right now, there are legitimate controversial issues here. . . . [H]is views on the torture memo I think do raise legitimate questions. [See Newsweek article regarding allegations against Haynes. If the allegations are true, then a filibuster won't be needed to stop Haynes.]
On Richard Griffin, Henry Saad, Susan Bieke Neilson, and David McKeague
TURLEY: There are four Michigan judges, and three of them I couldn't get any Democratic staffer to actually give me a reason what the problem was. . . . virtually no, you know, articulated reason against . . . . [McKeague] has been listed as well qualed by the ABA. The only statement made against him is "his temperament," which is in political terms just above bad dental hygiene. It's one of those terms you use when you don't have anything else to oppose someone on. And McKeague is very well respected. And once again, there's no reason for these four Michigan judges to be held, except ... a turf war with the Michigan senators. It has nothing to do with their background. [See what confirmthem says about these nominees and Senator Levin.]
Posted in Senate Rules —
Posted at 10:38am on Apr. 16, 2005 Showdown on Judges
By AndrewHyman
Robert Novak writes:
Republican leaders count only two or three GOP senators who will vote against the efforts to end, by a straight majority vote, filibusters on confirmation of judicial nominations.
Sens. Olympia Snowe of Maine and Lincoln Chafee of Rhode Island will not support this move, and they are likely to be joined by Sen. John McCain of Arizona. That would mean 52 senators would go along with the parliamentary maneuver attempting to end filibusters on judges. Only 50 are needed.
The only Democrat who might possibly join this effort is Sen. Ben Nelson of Nebraska. But Bush will not press him to break party discipline if his help is unnecessary.
Regarding Chafee, Novak has this to say:
National Republican leaders are pressuring Cranston Mayor Stephen Laffey to stay out of the Rhode Island Republican primary election against liberal Sen. Lincoln Chafee. Although Chafee votes against some of President Bush's proposals, he often sticks with the administration on party-line votes and may do so on the confirmation of John Bolton as ambassador to the United Nations. The White House feels Chafee is still the best Republican bet in heavily Democratic Rhode Island and does not want him to face a Republican challenge. Laffey, who is to the right of Chafee, is described by his supporters as confident that he would win the primary against the incumbent senator. Laffey also feels he would have a better chance than Chafee of winning the general election.
Incidentally, Senator Snowe is running for reelection in 2006, but Senator McCain is not. Regarding Snowe, the Portland Press Herald reports:
[Democratic] U.S. Rep. Tom Allen and [Democratic] Attorney General Steven Rowe are not ruling out the possibility of a run....The only other Democrat making noise about running for the Senate is Jean Hay Bright....Every once in a while, a popular incumbent does go down in Maine. It happened in 1972, when William Hathaway ended the career of the legendary U.S. Sen. Margaret Chase Smith.
There's excellent commentary at Redstate about Novak's column.
Posted in News —
Posted at 8:58am on Apr. 16, 2005 Cheney: "Restore the Constitutional Practices"
By AndrewHyman
The President of the U.S. Senate (VP Dick Cheney) has now committed to using his tie-breaking vote if necessary, in order to end the unprecedented minority control of judicial confirmations. While this may not be surprising, it is certainly encouraging:
I would support an effort to restore the constitutional practices that existed before the Democrats started using the filibuster for judicial appointments....Democrats are the ones who altered the traditional practice....It's important that that precedent not be allowed to stand....If you allow that filibuster precedent to stand, in effect you've raised the bar for confirmation of judicial appointments to say that you've now got to have 60 votes to get a judge confirmed. That was never the case before. That should not be the case now.
It will be interesting to see whether undecided Senators agree with Senator McCain that it's vital for the Senate majority to henceforth rubberstamp each and every decision of the Senate minority to veto a judicial nomination.
Posted in Senate Rules —
Posted at 8:50am on Apr. 16, 2005 McCain: "I'm Very Popular"
By AndrewHyman
Senator McCain burned his bridges today. He says he won't be changing his mind about supporting the Senate leadership in the judicial nomination crisis, and he's not concerned about the fallout. He says, "I'm very popular."
Posted in Senate Rules —
Posted at 9:36pm on Apr. 15, 2005 The Fairness Option
By AndrewHyman
The Weekly Standard has an excellent editorial titled "The Fairness Option." Here's an excerpt:
No Senate Republican should misunderstand the Democrats' motive in blocking the nominations....If the Democrats manage to prevent a vote for the sake of political obstruction, they will set a precedent more momentous than a change in Senate rules.
Of course, that's correct. The Senate has rules, and it also has precedents, and one or the other is going to be changed this month in a profound way.
On a lighter note, Sen. Frist's success is assured, because the "CIA Says Sen. Frist Lacks Nuclear Capability," according to Scrappleface.
But seriously, there's some controversy about a speech that Sen. Frist will be giving at a religious assembly on April 24. Evidently the organizers of the event distributed a flyer decrying the "filibuster against people of faith." Of course, several leading Democrats have indignantly seized upon this scrap (which has not been endorsed in any way by Sen. Frist), in order to distract everyone from the fundamental unfairness of denying up or down votes for qualified judicial nominees. Here's what Sen. Ted Kennedy huffs:
I hope Senator Frist will decide not to participate in this blatant assault on the fundamental principle of separation of church and state.
Isn't this precious? As if Democratic Senators haven't spoken at a million church rallies. And can you really blame some religious people for suspecting that --- just maybe --- the Democratic filibusters are directed at least partly against religious people? Here's what Teddy huffed on July 13, 2004 (while speaking of the proposed federal marriage amendment):
The rabid reactionary religious right has rarely looked more ridiculous. They know they don't have the votes to come even close to passing this amendment, but they have a sufficient stranglehold on the White House and the Republican leadership in Congress to force the issue to a vote anyway, in a desperate effort to arouse their narrowminded constituency and somehow gain an advantage in the elections this year. My guess is their strategy will boomerang and that vastly more Americans will be turned off than are turned on by this appeal to stain the Constitution with their language of bigotry.
No, of course Teddy would never use a filibuster against a nominee associated with the religious right. How bigoted of me to even think such a thing.
The Dems are now simply trying to create a big distraction, as the President's press secretary explained today:
Q Is there a danger in making this a faith issue? It's going to be made a faith issue this weekend.
MR. McCLELLAN: Well, the issue here is that Democrats are not giving these nominees an up or down vote. They're blocking up or down votes on the nominees. That's what the issue is here, and some want to take attention away, try to divert attention away from that. The issue here is that Senate Democrats need to stop playing politics and allow these nominees to have an up or down vote.
So let's try to stick to the point, here. The point is that the President is supposed to nominate judges, not Senator Kennedy. The point is that the Senate has a duty to provide advice and consent if those nominees are qualified. The point is that the Constitution will be stained if the filibuster continues to be used for the first time in American history to permanently block nominees who are deemed qualified by a clear majority of Senators. Even the minority doesn't seriously dispute the nominees' qualifications, and instead they simply want to extort nominees from the President having a different judicial philosophy.
Incidentally, Hugh Hewitt did an interview with Colorado Senator Wayne Allard today, on the filibuster issue. No huge news, but it's interesting.
Posted in Senate Rules —
Posted at 4:50pm on Apr. 15, 2005 Andrew McCarthy on impeachment
By Zummo
I know that this blog is called Confirm Them, not Impeach Them, but Andrew McCarthy had a rather thoughtful post on impeachment earlier today on the Corner that I thought was worth noting. The question he asks and attempts to answer is, "For what egregious thing would we impeach a judge?" Here's the essence of his argument:
But if it came to it, for what would we impeach a judge? Iââ‚â„¢ve never been too impressed by the conventional wisdom that the failure to impeach Justice Samuel Chase in 1804 stands as insuperable precedent that a judge may never be impeached for unpopular rulings - even if the rulings are unpopular precisely because they far transcend the proper role of the judiciary and usurp the people's democratic prerogatives.
But, that said, how outrageous would a ruling have to be such that we would say the judge was no longer in "good Behaviour" status (Art. III, Sec. 1) and should be impeached? And should our calculation today be the same as Hamiltonââ‚â„¢s, given that Hamilton wrote before the Supreme Court seized the mantle of ultimate constitutional arbiter in 1803 - and long, long before that ruling (Marbury v. Madison) was cemented as seemingly indisputable law.
Letââ‚â„¢s say a judge held that the logic of the "right to privacy" required government recognition of three-party marriages or of the freedom to inject heroin in the privacy of oneââ‚â„¢s bedroom? Or letââ‚â„¢s say a judge ordered the president to pull all troops out of Iraq on the ground that our invasion was not approved by the Security Council and thus violated the UN Charter? Are those rulings impeachable?
They are surely wrong and would (one hopes) be swiftly reversed. But I suspect there is enough bad, judge-made law out there that they would not be deemed so irrational as to warrant an impeachment that two-thirds of the Senate would endorse. This only underscores that the problem we are talking about here is, to echo some of whatââ‚â„¢s been argued, cultural and systemic.
I largely agree with him, and also believe that impeachment is a last resort to be utilized when a judge has committed a criminal or highly corrupt act, or has demonstrated a lack of mental competence on the bench.
The solution is not impeachment, but to fight the good fight and ensure that honest individuals who will uphold the plain meaning of the Constitution are confirmed. Hear that, Senator Frist? It's up to you.
Posted in Uncategorized —
Posted at 10:00am on Apr. 15, 2005 Filibuster Myth-Busters
By AndrewHyman
Wendy Long has an excellent op/ed piece in the Washington Times titled
"Filibuster Myth-Busters." She shoots down various bogus ideas about the filibuster. One of those ideas is that Senators are entitled to demand nominees having their own judicial philosophy (i.e. ideology). Actually, the Senate is just supposed to weed out unfit characters. If Senators say they'll only allow a vote on a particular person of their choosing (e.g. Jerry Springer), then that usurps the nomination power. The usurpation is no less if they only allow a vote on a particular category of people (e.g. raunchy talk-show hosts, or "consensus" nominees). This is the main way the Senate minority is presently violating the Constitution, in my humble opinion. In any event, the Constitution clearly gives a simple majority of the Senate authority to determine its rules.
In other news, Senate Majority Leader Bill Frist will speak at a telecast organized by the Family Research Council the evening of April 24, called "Justice Sunday." Some blogs are publishing open letters to fence-sitting Senators, and urge you to do the same. The Senators in question are believed to be Alexander, Chafee, Collins, Hagel, Snowe, Sununu and Warner. As always, the most influential letters are from each Senator's constituents, and their contact info is here.
Senator McCain is right that there will someday be a liberal President with a liberal Senate, just as there have been in the past. The filibuster was not used then to defeat majority-supported nominees, nor should it be used in the future to do so. It's important that presidents be able to shift the direction of the judiciary as they deem necessary, so that in the long run the only surviving precedents will be those that are clearly supported by the objective meaning of our laws.
Posted in News —
Posted at 12:47am on Apr. 15, 2005 Some More April 14 Filibuster Stuff
By AndrewHyman
Although Senator McCain has decided to vote against requiring final votes on filibustered judicial nominations (the MSNBC transcript is here) , Sen. Thad Cochran of Mississippi announced today that "he would support it." Senator Cochran's full statement is here. Apparently, Senator McCain believes that President George H.W. Bush never should have nominated Justice Thomas, seeing as how Thomas was not "acceptable" to all the Democrats on the Judiciary Committee. Needless to say, we at confirmthem believe that Cochran is right and McCain is wrong. McCain is also undermining any realistic hope of a compromise between Senate Democrats and Republicans (much as Jacques Chirac dashed any hope of a compromise with Iraq in the run-up to the Iraq War, by undermining the credibility of allied resolve).
There reportedly could be "a backlash at the ballot box if Senate Republicans fail to follow through on their promise to change the rules in order to overcome the Democratic filibuster of President Bush's judicial appointments."
The Hill has an article discussing the position of Senate Parliamentarian Alan Frumin. That article notes that, "any Republican sitting in the chair would be free to reject or ignore the parliamentarian's advice....whoever is in the chair would not even have to ask the parliamentarian for his view."
John Lott of the American Enterprise Institute wanted to find out why certain judicial nominees have been singled out for harsher treatment such as filibusters. "It is pretty much the dumber you are, the easier it is to get on the court," he says. Senators get more upset if the President wants to "put a bright person on who may be influential," Lott says. The CS Monitor has the news story and Lott's study is available here. Professor Calvin Massey of UC Hastings has just delivered a speech summarizing the history of filibusters, and deploring their present use to kill nominations.
The Washington Post reports that the Judicial Confirmation Network will be running TV spots on this issue. The nominations of Judge Terrence Boyle, Justice Priscilla Owen, and Justice Janice Rogers Brown will all be considered by the Judiciary Committee on April 21.
Posted in Senate Rules —
Posted at 11:41pm on Apr. 14, 2005 <i>Post</i> on Frist
By Irishlaw
Charles Babington of the Washington Post reports that "close associates" of Senator Frist have confirmed that Frist is "all but certain to press for a rule change that would ban filibusters of judicial nominations in the next few weeks, despite misgivings by some of his fellow Republicans and a possible Democratic backlash that could paralyze the chamber."
I continue to think that a Democratic backlash would work against the Democrats, since the only way they can justify their non-votes on the current nominees is by seriously distorting the nominees' records. As long as Frist and others can make the case that the president's nominees are reasonable, eminently qualified people being held up irrationally -- denied even an up-or-down vote -- then they should carry public opinion.
Senator McCain is quoted in the article as telling MSNBC that he would vote against the rule change, but Frist should have enough votes overall.
Posted in Fillibuster —
Posted at 6:40pm on Apr. 14, 2005 New Web Site From Sen. Frist
By AndrewHyman
Check it out:
Meanwhile, Thomas Griffith has been approved by the Senate Judiciary Committee, with four Democratic votes, so a filibuster seems unlikely. He would fill a seat for which Miguel Estrada was nominated (see the "JELLYPHANTS," and Estrada was also previously discussed here at confirmthem).
Posted in Senate Rules —
Posted at 11:21am on Apr. 14, 2005 Jonathan Adler: Justices not greatest threat
By Zummo
Jonathan Adler recently posted this comment on The Corner, and I think it well worth pondering.
I certainly agree that the judiciary has strayed far beyond its proper role. But I don't share the view voiced by many conservatives that judges are the greatest threat to liberty and self-government in America today. It is the political branches that refuse to cut spending, adopt budget-busting entitlements, suppress political speech, create uncontrollable bureaucracies, authorize regulatory intrusions into everyday life, and so on. To me, this remains a far greater threat than the occasional judicial usurpation. Don't get me wrong. I think the judiciary is exceedingly important, but I also think conservatives should be careful not to overstate the judiciary's impact.
At a glance I largely agree with this sentiment. As a fiscal conservative I am outraged that the GOP has become somewhat soft in regards to domestic spending, though I still think they are a far cry from what the Democratic party has become.
But the key point is that representatives are just that - representatives of the people. As Shannen Coffin alludes to in his response on the Corner to Adler, the members of the other branches face re-election, and can be voted out of office if the people deem them unfit. It is of course admitted that that conjecture is somewhat more theoretically than factually true. The re-election rates of House members demonstrate that it is rather difficult for a Congressman to draw enough ire from their constituency to ever be voted out of office. But the fact remains that legislators and executives face their constituency every few years. Judges do not, and therein lies the grave problem.
What's more, the judges have severely altered the balance of power. By placing themselves as the ultimate arbiters of constitutional law, they have become the de facto most powerful branch of government. Any branch which can so easily determine the limits of its own authority, and which can dictate what the constitution does and does not mean according to their own whims, has attained far more power than envisioned by the Framers.
That is not to say that Adler does not make a fair point about the irresponsible behavior of our federal government. But to repeat, at least they face the people and must answer for their decisions.
Posted in Uncategorized —
Posted at 1:37am on Apr. 14, 2005 Senator McCain on Filibusters
By AndrewHyman
On Tuesday, an article by Jeanne Cummings appeared in the Wall Street Journal regarding nomination filibusters. The article was quickly criticized by Hugh Hewitt as being slanted, which it is in some respects. But the WSJ article also contains some quotes that are worrisome, if true:
"I don't know why in the last 200 years we have not had this kind of crisis before, but we've always been able to work things out," says Arizona Sen. John McCain, who is now "strongly inclined" to vote against the rule change. "We will not be in the majority forever. History has shown us that," the 19-year incumbent added.
If Senator McCain is truly asserting that advocates of filibuster reform are shortsighted, then he is mistaken. There are extremely compelling reasons for believing that the long-term interest of the judiciary and of the country will be poorly served by a minority Senate veto of judicial nominations. For the past 210+ years, there has been a recognition in the Senate that filibustering majority-supported judicial nominees is only appropriate as a means to extend real debate and deliberation. That tradition was jeopardized in 2003, and it is a very valuable tradition that badly needs to be restored. The tradition survived for 210+ years not by accident, but because of wisdom.
Our greatest political writers recognized that only a Senate majority could be trusted to evaluate nominations based upon merit, without dragging in other factors. As Alexander Hamilton said, "it could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy." People like Hamilton put nominations and legislation into separate articles of the Constitution, because they should not be treated the same.
It's essential for different presidents to be able to shift the judicial philosophy of the courts, so that in the long run the only surviving precedents will be those that are firmly based upon the objective meaning of our laws.
Furthermore, legislative filibusters allow a minority to preserve the status quo, whereas judicial nomination filibusters allow a liberal minority to demand judges who will change the status quo. The latter is a vastly greater power.
Plain and simple, the Democrats are now seeking to bar people in the mold of Justices Scalia and Thomas from being nominated as Supreme Court Justices. Being eminently qualified is no longer enough. The Democrats are now seeking to usurp part of the nomination power, by insisting that the President select nominees from what the minority considers a "mainstream" pool of candidates.
One reason we have not had this kind of crisis before is because filibustering has become easy. The Senate can now go on with other business, using the two-track system devised by Senator Mansfield, while multiple filibusters are happening.
Another reason why we have not had this kind of crisis before is because Senators in the past realized that the Senate has an obligation to give its advice to the President, regarding nominees submitted by the President. Senate Rule 31, Section 1 explicitly says that the Senate provides its advice by conducting an up-or-down vote, and this the Democrats now forbid. The Republicans may soon become complicit in honoring a "right" that does not exist: the "right" of a Senate minority to prevent the full Senate from ever having a final vote on a presidential nomination.
Posted in Senate Rules —
Posted at 10:51pm on Apr. 13, 2005 Wednesday, April 13 Filibuster Stuff
By AndrewHyman
Via the Raw Story, we learn that Roll Call's Mary Ann Akers' reports that a spokesman for Bob Dole said his boss would support the nuclear option as "a last resort. And he assumes that Frist has the same opinion." Confirmthem previously discussed how the mainsteam media has quoted Dole selectively to make it seem like he opposes any rule change.
Senator Chambliss gave an interesting speech about filibusters on the Senate floor.
Senator Schumer is taken to task by the Committee for Justice, and deservedly so.
Hugh Hewitt has posted transcripts of his interviews with Ralph Neas and Nan Aron, who virtually guarantee filibusters of Supreme Court nominees such as Michael Luttig and Michael McConnell. Hugh summarizes here. UPDATE: Hugh also discusses his interviews with Aron and Neas in the Weekly Standard.
How Appealing provides access to video interviews in which Sen. Frist and Sen. Reid discuss the filibuster situation. How Appealing also mentions that there's a recently updated Congressional Research Service report floating around somewhere titled "Changing Senate Rules: The 'Constitutional' or 'Nuclear' Option." Howard Bashman argues that Republicans would be wrong to filibuster future Democratic nominees for the appellate courts, but nevertheless argues that Republicans should preserve the ability of Democrats to filibuster judicial nominees as much as they want (this is a very unappealing argument).
The National Ledger criticizes Senator Boxer's attempt to get newspaper editors on her side in the filibuster controversy.
And, Rush Limbaugh hits the nail on the head:
We're not talking about wiping out the filibuster on legislation or any other cherished act in the Senate. We're talking about righting a wrong that the Democrats have instituted here after 200 years of it having never been done: filibustering judicial nominations.
Rush is right. Until 2003, no judicial nominee having clear majority support in the Senate was ever defeated by filibuster.
Posted in Senate Rules —
Posted at 9:20am on Apr. 13, 2005 Please Read Me the Phonebook
By AndrewHyman
Jonah Goldberg writes in the Jewish World Review that the cure for what ails the Senate is to restore real old-fashioned filibusters, at least for nominations:
My unoriginal solution: real filibusters. Senators like the current filibuster rules because blame is diffused in the confusion of institutional logjam, parliamentary procedure and generic partisan squabbling. The old system required senators to pack a thermos and ramble from a podium for hours or days on end. Restoring the old school filibuster would put a human face on these fights.
That would certainly be better than the painless nomination veto that Democrats exercised in the last congress.
Posted in Senate Rules —
Posted at 6:32am on Apr. 13, 2005 Sen. Ben Nelson: "Let's make a deal [on President Bush's judicial nominees]"
By feddie
The Hill has this report.
Posted in Uncategorized —
Posted at 12:19am on Apr. 13, 2005 Senate Shutdown "Not Going to Happen"
By AndrewHyman
The Hill reports that Democratic Senator Ben Nelson is still working to strike a compromise with the GOP on judicial nominations. This report also says that many Democratic Senators are opposed to shutting down the Senate if the nuclear/Byrd/constitutional option is used:
[A] number of centrist Democrats indicated they would not support obstruction of key legislative initiatives not related to funding government or troops overseas, such as the energy bill and the highway bill. "We have an overwhelming need for an energy bill," Conrad said. "I would put it as one of the top things on the agenda." He added that he didn't think Democrats would block initiatives such as the energy bill to retaliate against Republicans for using the nuclear option. "That's not going to happen," he said. "The Senate can't be shut down." Sen. Tim Johnson (D-S.D.) said he also would not support Democrats' blocking certain big-ticket legislative items not related to funding government or overseas troops. "Clearly I don't want to see complete gridlock in the Senate," he said. "I've never heard Reid say that he would shut down the Senate."
For the views of other Democratic Senators on a possible shutdown, see here.
Posted in News —
Posted at 11:30pm on Apr. 12, 2005 A Decision Possible Within Two Weeks
By AndrewHyman
The New York Times reports:
As the fight over the federal judiciary spread across Capitol Hill, Senate Republicans said Tuesday that they might quicken their push to prevent Democratic filibusters of judicial nominees. Senior lawmakers and party officials said that while Republican leaders had been expected to put off any confrontation over Senate rules until next month at the earliest, they might now force a confrontation within the next two weeks. "It's possible," though "that does not mean it will happen," said Bob Stevenson, a spokesman for the majority leader, Senator Bill Frist of Tennessee.
....
But the majority leader also said Republicans were going to step up their own efforts, in the belief that opponents of the rules change were winning the public relations war. "I do feel that we need to do a better job at this juncture in getting information out," he said. "While I'm sitting here trying to work across the aisle, our voice is being lost."
So let's get the word out. The Democratic Senate minority is suddenly trying to rig the system so that there will be no more Justice Scalias and no more Justice Thomases. The Democratic Senate minority is trying to do what no other minority has ever tried: they are attempting to reject judicial nominees even though they have fewer votes than the majority. The Democratic Senate minority is trying to tell the President what range of judicial philosophies his nominees must have. So, the GOP wants to restore tradition and protect the separation of powers, by giving up-or-down votes to presidential nominations that reach the Senate floor.
Posted in News —
Posted at 11:18pm on Apr. 12, 2005 Bob Dole on Filibusters
By AndrewHyman
The former Senator Majority Leader was interviewed by NPR about his new autobiographical book, "One Soldier's Story." Inevitably, the discussion turned to the nomination filibuster controversy in the Senate, as reported by Knight Ridder:
Former Republican leader Bob Dole, interviewed on National Public Radio, warned Republicans "to be very careful, that's my advice, before you start tinkering with the rules. I mean the rules have been changed before," he said. "You want to think down the road. The Senate's going to change. It's not always going to be Republican."
Unfortunately, both the New York Times and the Los Angeles Times presented a heavily edited version of Sen. Dole's remarks, omitting the portion that I've put in bold.
Here's how the LA Times reported Sen. Dole's remarks:
Reid referred to comments by former Senate Majority Leader and Republican presidential candidate Bob Dole, who told National Public Radio earlier in the day that "you have to be very careful ... before you start tinkering with the rules" because one day Republicans will be in the minority and need to use the filibuster.
And, here's how the New York Times reported Sen. Dole's remarks:
Democrats circulated an interview in which Bob Dole, a former Senate majority leader, told National Public Radio that his fellow Republicans ought to be "very careful." "You want to think down the road," Mr. Dole said. "The Senate's going to change. It's not always going to be Republican."
Now, here's what Sen. Dole actually said according to the NPR transcript, and I have again bolded the part that the LA Times and the NY Times didn't think worth reporting:
I think you have to be very careful---that's my advice---before you start tinkering with the rules. I mean, the rules have been changed before. You know, when I think down the road, you know, the Senate's going to change. It's not always going to be Republican. It changes back and forth. The history shows that.
So, you can see that the LA Times and the NY Times did not omit a huge crucial statement, but they did omit an acknowledgment that changing the rules is not outlandish. In context, Sen. Dole was saying that if you're going to change the rules, be careful and think ahead. Wise advice indeed. Too bad the NY Times and LA Times felt it necessary to present Sen. Dole's remarks as chopped up by the Democrats, instead of as originally delivered.
NOTE: On April 13, confirmthem learned, via the Raw Story, that Roll Call?s Mary Ann Akers? reported a spokesman for Bob Dole said his boss would support the nuclear option as ?a last resort. And he assumes that Frist has the same opinion.?
Posted in Senate Rules —
Posted at 10:29pm on Apr. 12, 2005 Owen Set for Committee Vote on Thursday
By AndrewHyman
The Dallas Morning News reports:
Texas Supreme Court Justice Priscilla Owen isn't the anti-abortion activist critics have painted her to be, the chairman of the Senate Judiciary Committee said Tuesday. With her nomination to the federal appellate bench up for a vote in committee Thursday after being stalled for nearly four years, Sen. Arlen Specter, R-Pa., said he has reviewed her rulings on abortion-related cases in Texas and found them evenhanded.
More confirmthem stuff on Justice Owen is here.
Posted in Senate Rules —
Posted at 4:40pm on Apr. 12, 2005 Distinction Between Filibustering Nominations and Legislation
By AndrewHyman
A bunch of groups have written to the Senate leadership to express concern that limiting or getting rid of nomination filibusters could lead to the same fate for legislative filibusters. They mistakenly write:
There has never been a distinction between filibusters of legislation or nominations. Thus, we are concerned that if the so-called "nuclear option" is exercised to eliminate the filibuster on judicial nominations, it may also be exercised to eliminate senators' right to filibuster legislation.
Actually, from 1917 to 1949, nomination filibusters were treated by the Senate Rules very differently from legislative filibusters, according to the Congressional Research Service (CRS): "Until 1949, cloture could be moved only on legislative measures, and nominations could not be subject to cloture attempts."
The distinction between nominations and legislation has also been evident in practice: "From 1949 through 2002, cloture was sought on 35 nominations . . . . Only 3 of the 35 nominees were not confirmed" (and only one of those 3 was a judicial nominee). In contrast, there have been vastly more cloture motions on legislation. Obviously, there has long been a distinction between filibusters of legislation and nominations. This makes sense, because nominations and legislation are different, and are covered by different articles of the Constitution. It's like comparing apples and meatloaf.
Meanwhile, Marcy Dallmeyer of Lenox, Massachusetts deplores the Democrats' "twisting of parliamentary procedure which prevents those nominees from being voted on by the full Senate." She's right. It is indeed twisting the rules when you filibuster until the President nominates the people you want to be nominated. The proper role of the Senate is to weed out unqualified people, rather than to usurp the nomination power.
NOTE: Regarding the "slippery slope" argument, the Congressional Research Service (CRS) put out a report today saying the following:
If a change to the rules were accomplished by a majority vote, nothing would prevent other changes to the rules from being proposed, which could then conceivably be accomplished with a majority vote to end debate on them as well.
Rules were adopted and changed for many years by simple majority vote during the first years of the Senate, so the precedent is already there, it seems to me. In other words, the CRS is right that "nothing would prevent other changes" but I would also argue that "nothing does prevent other changes." The power to change the Senate rules by simple majority vote comes straight from the Constitution. Incidentally, I think Senate Rule 31, Section 3 already requires a majority vote to reject a nominee, so changing the text of the Senate rules does not necessarily seem like the only way.
Posted in Senate Rules —
Posted at 3:06pm on Apr. 12, 2005 Scuttlebutt from "The Corner"
By AndrewHyman
At the risk of violating all kinds of copyright laws, and losing my license to practice law, I will repeat here a whole post from National Review's "The Corner" (not just an excerpt). Hopefully, Ramesh Ponnuru is not litigious. :-)
I'm hearing that Republicans now have at least 50 votes to change the rules--which means at least 51 if you add Cheney. Senator Byrd's hysteria helped pad the total.
And if Michael Crowley's reporting in the New Republic is correct--and I have no reason to think it isn't--the Democrats have no idea what to do about it. Senate Democrats have vowed to shut down the Senate if Republicans end judicial filibusters. But the Democrats don't want to be accused of shutting down the government or hindering national security, there aren't many Republican agenda items that they can block any more effectively than they already are blocking them, and Democrats want to get pork passed just as much as Republicans do. Crowley's conclusion: An "increasing number [of Democrats] are desperately hoping that Frist's bomb never detonates." So while the Republicans are almost guaranteed to get very bad press for ending the judicial filibuster, it's not clear whether they'll face serious retaliation from the Democrats.
So that should perk everyone up, except for you sneaky PFAW and MoveOn people sneakily sneaking into the confirmthem website. Thanks to Mike Krempasky for the heads up. By the way, the RNC is again highlighting Democratic hypocrisy on the issue of judicial filibusters, focusing today on Sen. Schumer.
NOTE: Power Line comments about the Ponnuru stuff quoted above (Paul at Power Line says "conservatives need to push to end the filibusters as soon as possible").
Posted in Senate Rules —
Posted at 1:29pm on Apr. 12, 2005 April Showers Bring May Nuclear Options?
By AndrewHyman
CNN reports that the nuclear/Byrd/constitutional option will be used in the future sometime, maybe, perhaps:
Reid told TIME Frist didn't give details, but said he would postpone a G.O.P. move to eliminate judicial filibusters until mid-May at the earliest while he works on a deal.
....
"The sooner the better," says a G.O.P. aide. In case Frist, who insiders say has his eye on the White House, didn't get the message, the aide added, "If he's serious about running for President, then this is a crucial issue."
As the previously filibustered nominees are reported out of committee, the pressure will build for up-or-down votes.
Posted in Senate Rules —
Posted at 11:45am on Apr. 12, 2005 Leahy and Reid Have Written to Bush Again
By AndrewHyman
President Bush received a letter from Senators Leahy and Reid yesterday. Here's how he might respond:
Dearest Senators Reid and Leahy:
You have offered to help me nominate judges. However, I feel that this duty belongs to the President, and therefore I would not want to burden you with it. However, I need your feedback about people who have already been nominated. Senate Rule 31, Section 1 specifies that the Senate will provide its advice by voting up or down on nominees, and I am waiting for that advice. Please stop withholding your advice.
You have offered to help me select consensus nominees who will generate strong bipartisan support. I have a counter-offer. How about if I help each of you select which legislation you will vote against, so that we can have more laws that enjoy strong bipartisan support? Each of you should never vote against legislation until you reach consensus with me, alright?
Senators, I want to do my job, and you ought to do yours. Do you think it would be constitutional for the Senate to tell me, "George, nominate whoever you want for this judgeship, but we won't vote for anyone but Jerry Springer?" Of course that would be blatantly usurping the constitutional power of the President. Surely that usurpation would not be eliminated by instead telling me that you won't vote for anyone but raunchy TV hosts, or that you won't vote for anyone but consensus nominees. Please, Senators, try to look at this from my perspective, and from the perspective of the Constitution's framers.
You will one day have a liberal President in office and liberal control of the Senate. Then you can nominate judges whom you prefer. It is essential to the rule of law that different presidents be able to shift the direction of the judiciary. That way, in the long run, the only surviving precedents will be those that are firmly based upon the objective meaning of our laws.
I do favor preserving the filibuster for legislation. But legislation and nominations are very different things. They are in different articles of the Constitution. Filibustering legislation allows a minority to preserve the legal status quo. In stark contrast, filibustering nominations allows a liberal minority to demand judges who will do their bidding.
Please Senators, don't make the GOP drop the bomb. But if it is necessary to end this judicial confirmation war, then the Senate GOP may well drop it. In the mean time, I urge you to carefully read Federalist 66 and 76, to learn how you can exercise your advice and consent function without intruding on the nomination function.
Gentlemen, your abuse of the filibuster has given me the lowest appellate confirmation rate of any president going back at least to Harry Truman. Never before 2003 was a judicial nomination rejected by filibuster, despite having clear majority support in the Senate. I hope that Senate traditionalists will succeed in restoring the Senate's constitutional role in the confirmation process --- not for my sake, but for the sake of our country in decades and centuries to come. Thank you for your kind attention.
Sincerely Yours,
W
P.S. Regarding your comments about "checks and balances," see here.
Posted in News —
Posted at 12:49am on Apr. 12, 2005 Supreme Court Nomination Filibusters Are Next
By AndrewHyman
Hugh Hewitt recently interviewed Ralph Neas and Nan Aron about their plans to support filibusters of Supreme Court nominees:
[W]hen I asked both Neas and Aron whether they would opposed a Supreme Court nomination of Judges Michael Luttig, Michael McConnell and John Roberts, and whether they would support a filibuster of any of those three, they both announced opposition to Luttig and McConnell, and Aron also opposed Roberts while Neas leaned that way. The filibuster for the first two was endorsed by Neas, and for all three by Aron.
In other words, the Republicans have to realize that this fight cannot be avoided. Either they take it on and win, and President Bush gets to nominate and receive votes on circuit court and Supreme Court nominees of his own choosing, or the Dems will filibuster those nominees. There isn't any middle ground, and there isn't any compromise worth having. Either the Constitution is honored, or the Republicans acqueisce in a tortured reading of it to support the idea that the Founders intended 41 Senators to have the power to block all judicial nominees. If Senator Frist loses this fight, the GOP has lost the last election when it comes to the courts.
From a constitutional point of view, this whole situation is classic. It may well be that it's constitutional for a Senate minority to endlessly filibuster nominations, IF the minority is not usurping the President's nomination power. For example, it's okay for the minority to block a final vote due to a nominee's string of bank robbery convictions, but not okay to block a final vote merely because the nominee is not the specific person preferred by the minority. After all, the legitimate role of the Senate is not to extort nominations it likes from the President, but rather is to weed out unqualified nominees. And this gets us back to our favorite ill-fated duelist, the late great Alexander Hamilton, who politely anticipated that a Senate minority would screw up the confirmation process:
Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.
The Senate majority needs to step up to the plate now, and stop the minority from usurping the nomination power. Reinterpret existing rules, or write a new rule, or write a new statute, or provide advice and consent by letter without a vote, or force a tied cloture vote that can be broken by the Vice President, or stage a real 24-hour filibuster, or whatever. Just do it, please.
By the way, Fred Knight of Weare, New Hampshire has a few words to say in response to filibustering Democrats: "If you don't have the votes to block a nominee in a fair and legal fashion, maybe you need to work harder at getting elected."
Posted in News —
Posted at 8:40pm on Apr. 11, 2005 Crotty Is Confirmed
By Lorie Byrd
Paul Crotty, an attorney who has worked with top Democrats and Republicans, on Monday became the first of President Bush's 20 renominated judicial nominees to win Senate confirmation.
On a bipartisan vote of 95-0, the Republican-led Senate approved Crotty for a seat on the U.S. district court in the state of New York.
(Hat tip to my fellow blogger at Polipundit, Jayson Javitz.)
Posted in News —
Posted at 5:22pm on Apr. 11, 2005 Mr. Smith Would be Filibustered
By AndrewHyman
Mark Moller of the Cato Institute writes:
In the eyes of the prospective nominee, the filibuster intensifies an inherently unpredictable process, turning more and more objections by ill-informed politicians into potential killers. When pondering how to thread the confirmation needle, savvy, ambitious nominees have greater incentive to pull punches, please as many constituencies as possible, and keep their heads down.
Which brings us back to Mr. Smith. Sure, the filibuster might give him more power to dazzle the Senate with oratory. But imagine he were a lawyer nominated to a justiceship? Could Mr. Smith get confirmed? In the world of the filibuster, the odds are grim. The filibuster selects against Mr. Smith's best qualities --- imagination, courage and vocal independence. That's bad news for minority rights: In a judiciary where those qualities are scarce, minorities can expect less --- not more --- judicial protection.
Of course, it also wouldn't help Mr. Smith that he was portrayed by a conservative Republican. The Democratic minority in the Senate is trying to get the President to stop nominating such people.
Posted in Senate Rules —
Posted at 9:30am on Apr. 11, 2005 Bond and Graham on Filibusters
By AndrewHyman
Richard N. Bond, a former Republican national chairman, has a a few words to say about filibustering judicial nominees: "[I]nstead of referring to the 'nuclear option,' Republicans ought to refer to the 'Byrd precedent' as they move toward a simple majority vote on judicial nominees. And smile when they say it."
Also, Adam Graham has a column titled "How I Learned to Stop Worrying and Love the Nuclear Option." Peter Sellers would smile. Graham writes:
By allowing the President's nominees to come up and be voted up or down, the Senate would assure that balance is restored to our nation's judicial system. The time for action is now . . . .
Also, Patterico's Pontifications criticizes an opinion piece by Drex Heikes in the LA Times. Heikes' piece includes this quaint quote from former Senate Parliamentarian Floyd M. Riddick: "The rules of the Senate are perfect," he once said. "And if they change every one of them, they will be perfect." Patterico says the Heikes piece reads like one written by a "brazen left-wing hack, who shades the truth and hides the parts he doesn't like." You decide.
Posted in Senate Rules —
Posted at 9:00am on Apr. 11, 2005 Stevens and Murkowski on Filibusters
By AndrewHyman
The two Senators from Alaska reportedly have somewhat differing views about judicial filibusters. Here's what Senator Stevens says:
"I don't like this being categorized as being a 'nuclear' solution," Stevens said earlier this year. "I look at it as conforming with the long tradition of the Senate, a return to the traditions of the Senate."
"That decision was not made until 2001, that filibusters were appropriate to any judicial nomination," Stevens said. "Now I don't think it's 'nuclear' to reverse in that period of time and go back to the policies that existed under Republican and Democratic control of the Senate since the beginning of our country."
"I don't see any reason why people elected to the legislative branch ought to be in the position of a total decision-making entity on a subject that the Constitution gives to the president," Stevens said. "The president has the right to select those nominees and we have the right to determine if they are qualified, period. I don't think we have the right to hold them up for political reasons."
"I do not believe in filibustering judges. I've not participated in one and would not participate in a filibuster against a judge," he said. "I will associate myself with anything that will bring us back to reality, doing what the Constitution says we should do. We should give our advice and consent."
Here's what Senator Murkowski says:
"The fact of the matter is that there has been an ability to filibuster judges from the day the Senate was formed," Murkowski said earlier this year. "And out of protocol, or courtesy, or just a recognition of the Senate's constitutional obligation to give advice and consent on the president's judicial nominees, filibusters weren't even considered up until the 108th Congress."
"That's where I get frustrated," she said. "I don't want to have to change the rules because now some people have decided that they can now use it to their advantage to permanently block a president's nominee."
"It may be that you have four years or eight years of judges that one side doesn't like. But then you've got eight years of judges that the other side likes, so there's an evening of the process," she said. "I don't like the nuclear option, let's put it that way, and I hope we don't get to the point where we have to institute it."
"I was asked a question by one of the Hill reporters the other day... 'Are you going to support the nuclear option,'" he said. "(I said) 'Excuse me, I don't think that we've had any judge votes up yet and as far as I know no one has threatened to filibuster anybody. Isn't this a bit premature?' And he was very befuddled and decided he didn't want to talk to me anymore."
If we have four years or eight years of the Democratic minority vetoing nominees similar to Scalia and Thomas, and then eight years of liberal judges appointed by the next president, then where is the evening of the process? Ain't none. Moreover, suppose that the Democratic minority says to Bush, "Go ahead and nominate someone for Chief Justice, but we will only allow a vote on Stephen Breyer." Does Senator Murkowski think that that would not be usurping the President's nomination power? Even if not, it seems like an awful way to choose judges, and not much different from what happened in the last congress.
Posted in News —
Posted at 1:08am on Apr. 11, 2005 Schumer's Propaganda
By AndrewHyman
On Fox News today, Senator Schumer mischaracterized the presidents' judicial nominees:
Here let me just tell you now about some of the people we've blocked. One nominee said slavery was God's gift to white people. Another said the purpose of a woman is to be subjugated to a man. One nominee said that there should be no zoning laws. If you have a nice house in a suburban community and somebody bought the house next to you and put in a factory with a smokestack that was polluting, that's not taking of property. And my favorite, one of their nominees said that the whole New Deal was a Socialist revolution, and we ought to go back to the 1890s. No labor laws, no wages and hours laws...
You wouldn't know it from Schumer's nationally televised smear campaign, but he was actually referring to only two nominees, one of whom was confirmed rather than blocked.
J. Leon Holmes is the one who made remarks about slavery and women, and he was confirmed because his remarks about slavery and women were not what Schumer claims. It doesn't take a rocket scientist to realize that any nominee favoring slavery, and favoring subjugation of women, never would have been confirmed by a majority of the U.S. Senate.
The other nominee whom Schumer is referring to is California Supreme Court Justice Janice Rogers Brown. Regarding the New Deal, Brown merely said what friends and associates of FDR acknowledged. And regarding zoning laws, Schumer is alluding to a case where Justice Brown used the word "kleptocracy" to describe how the City of San Francisco had behaved. Here's a description of the case:
In the San Remo Hotel case, the City imposed a $567,000 fee under the Hotel Conversion Ordinance (HCO) as a condition of a permit allowing tourist use of the hotel. The Field brothers, who own the hotel, spent three years in administrative proceedings followed by eleven years in both state and federal court challenging that fee. Along the way, one of five dissenting SF Supervisors called the HCO fee "organized extortion," the state Court of Appeal called the HCO fee "ransom," and one of three dissenting state Supreme Court Justices declared that the HCO demonstrated that private property is "extinct" in San Francisco and that the local government is a "kleptocracy." Nevertheless, at the end of the Field brothers' 14-year odyssey, a 4-3 vote of the California Supreme Court and the federal Ninth Circuit Court of Appeals approved the HCO fee, holding that the Board of Supervisors had a "rational basis" for adopting the HCO. (A Deputy City Attorney called the "rational basis" test a "straight face test", i.e., can a lawyer stand up in court and state the Board's reasons for adopting the ordinance without laughing.) The courts rejected the Field brothers' arguments that a more stringent test was required to prevent an unconstitutional taking and that the huge fee the City demanded was disproportionate to any harm that would be caused by the tourist use allowed by the permit.
This case does not deal with a situation where a zoning law reduces property value, as Schumer suggested. It has to do with selling variances for more than a half million dollars apiece. Let us hope that the junior Senator from New York is not learning to emulate the senior Senator.
Posted in News —
Posted at 8:14pm on Apr. 10, 2005 Help Us John
By AndrewHyman
Senator John McCain was interviewed on CBS News' Face the Nation today. Here's the relevant part of the interview:
SCHIEFFER: And with us now from Phoenix, Arizona, Senator John McCain. Senator, thank you very much for coming. Well, you heard what Senator Reid just said. Senator McCain, do you think your leader in the Senate, Senator Frist, is actually going to go through with this thing that he has threatened to do, and that is to basically overrule the idea of the filibuster? Do you think that's actually going to happen?
Senator JOHN McCAIN (Republican, Arizona): I don't know because I'm still hoping that we can sit down and work this out. Look, elections have consequences. There were a number of President Clinton's appointees that I had serious concerns about, but I believe that the American people speak every four years. And I think that we ought to remember, for over 200 years, somehow we've been able to work this issue out and we should be able to. Could I just mention, Bob...
SCHIEFFER: Sure.
Sen. McCAIN:... that I think this judges issue is a symptom of the fierce and almost bitter partisanship that exists in Washington today. And we've seen other examples of that, but we should be able to sit down, we should be able to work it out. We are in a war. We do have severe budgetary and fiscal problems. It would not be good for America to shut the Senate down. And I think that one of the reasons why you heard Senator Reid not exactly totally firm on some aspects of that is because, one, he experience of '94, but, two, will the Republicans shut down the government and also there is there are overriding issues that we should be deciding on rather than shutting down the United States Senate.
SCHIEFFER: Well, let me just ask you the question directly, because you heard Senator Reid mention your name as one of those who is thinking perhaps of breaking with your own party leadership on this. Would you oppose this if Senator Frist decides to do it, Senator McCain?
Sen. McCAIN: I would listen to my leaders. I believe that these judges should be confirmed. I think that they are good people. And as I said, elections have consequences. Having said that, the Senate is different. Wyoming has two votes andCalifornia has two votes. We have traditionally protected the rights of the minority. I remember, not with great joy, when I was with the minority in the-- with Republicans who were in the minority in the Senate and President Clinton was president. And we were able to stop some of his initiatives because we had more than 40 votes. I think that there's a problem with a slippery slope. I think that there's a problem with really changing the environment of the Senate and we are different from the House and if we don't protect the rights of the minority, someday history shows that we won't always be in the majority. And if you had a liberal president and a Democrat-controlled Senate, I think that it could do great damage.
SCHIEFFER: Well, can I just ask you the direct question? Are you opposed to doing away with the filibuster, Senator?
Sen. McCAIN: Yes.
SCHIEFFER: You are.
Sen. McCAIN: Yes, but I will listen to our leadership.
SCHIEFFER: Allright. Let me just ask you one more question. At this point, do you think your leader, Senator Frist, has the votes that would be necessary to do away with the filibuster?
Sen. McCAIN: I don't know. I think it's going to be close. People that make a living doing these kinds of counts say that it's about five or so. But all of us want to listen to our leadership. We believe--the Republicans, I'm talking about--we believe these judges should bec onfirmed. At the same time, we have these other concerns and I think they are legitimate. Suppose, Bob, that there's some overwhelming legislative issue that comes up after we've done this? This is important to the future of the country. What would keep us from taking the same tack about a legislative issue if it were some really huge issue that we're now contemplating as far as confirmation of judges is concerned?
I guess, if Senator McCain was on my talk show, things might have been handled a bit differently (no offense to Bob Schieffer). For example, regarding "slippery slopes" and the "rights" of the minority, I wish Senator McCain had been asked whether or not he believes there could ever come a point where the minority overuses the filibuster so much that they have really gone beyond what their legitimate rights are. Why is this not such a point?
Everyone on all sides of this controversy agrees that we're talking about slippery slopes. Sen. Frist and the GOP are very concerned that the slippery slope will lead to filibusters of Supreme Court nominees. It could even lead to filibuster of a vice-presidential nominee, if Mr. Cheney retires. Does Sen. McCain believe that doing all that is within the legitimate rights of the minority, and that the only people the minority would have to answer to would be their own constituents?
Speaking of slippery slopes, suppose just for the sake of argument that 45 Senators say to George W. Bush: "Mr. President, go ahead and nominate someone for Chief Justice, but we won't allow anyone to be confirmed but Stephen Breyer." Does Senator McCain really think that the Senate majority would be well-advised to just sit back and let that kind of thing happen? Wouldn't it be an infringement of the President's nomination power? When you come right down to it, that's not very different from what's happening now. Senator Schumer and friends have used the filibuster to give this president the lowest appellate confirmation rate of any modern president, going back at least to Harry Truman. They have used the filibuster for the very first time in history to defeat a judicial nominee supported by a clear majority of the Senate. Senator McCain, we are already on a slippery slope!!!
Senator McCain's primary concern seems to be how to protect the legislative filibuster. That's a legitimate concern. One way would be to modify the Senate rules by statute instead of by changing the rules directly. Another way to protect the legislative filibuster would be to change the nomination situation by simply enforcing or reinterpreting existing Rule 31 (Section 3 of which is pretty clear that nominations can only be rejected by majority vote). These are two valid approaches.
And so what if a future liberal President sends liberal Supreme Court nominees to a liberal Senate? That's his (or her) prerogative. It's incredibly important for different presidents to be able to shift the direction of the Court, so that in the long run the only surviving judicial precedents are the ones that are firmly based on the objective meaning of our laws. It's essential to recognize that judicial nominations have this and many other characteristics that distinguish them from legislative matters, which explains why they're covered in separate articles of the Constitution. Filibustering legislation allows a minority to preserve the legal status quo by preventing enactment of new laws, but --- in stark contrast --- filibustering judicial nominations allows a minority to change the legal statis quo, by insisting upon judges who will do their bidding. It would be unfortunate if Senators like McCain treat nomination filibusters just like legislative filibusters, for the sake of protecting the latter. Legislative filibusters can be protected without allowing the confirmation system to be destroyed.
Posted in News —
Posted at 7:50pm on Apr. 10, 2005 Gary Bauer on Filibusters
By AndrewHyman
It would be useful for everyone to acknowledge that there's considerable truth in these remarks:
"This is a basic question of fairness," said Gary Bauer, president of American Values, a conservative group. "The judicial nominees that are being held up by the filibuster have not been accused of any ethical problems, they haven't cheated on their taxes, nobody's accused them of anything inappropriate. The only thing they've been accused of is sharing a philosophy of the president who nominated them."
Also, Sens. Cornyn and Schumer duked it out with each other, and with Chris Wallace, on Fox News Sunday, regarding filibusters of judicial nominees.
Posted in News —
Posted at 3:57am on Apr. 10, 2005 Brownstein on Filibusters
By AndrewHyman
Ron Brownstein of the LA Times brings us up to date on the latest news:
[A]ides on both sides say neither party appears certain it has enough support to prevail if Majority Leader Bill Frist (R-Tenn.) brings the rules change to a vote. . . . Republican Senate aides . . . . argue if Democrats tried to stall the Senate, the party would face a public backlash like the GOP did in 1995 when it shut down the government during budget battles with President Clinton. . . . Frist intends to present a proposal to Democrats "within the next couple of weeks," said Bob Stevenson, his communications director. Sen. Ben Nelson (D-Neb.), a moderate facing reelection next year in a state Bush easily carried in 2004, has developed the most concrete proposal. Nelson aides said he was preparing legislation that would change the judicial confirmation process to ensure that all nominees received an up-or-down vote on the floor if any senator requested it . . . . But operatives on both sides consider a deal unlikely. "I don't think there will be a compromise," one Republican heavily involved in the party's strategy said on condition of anonymity. "Frist wants to go through the motions and say he tried. But I don't think the Democrats will agree" with anything he proposes. Congressional Democrats have scheduled a rally for Wednesday .... [and are] releasing a letter this week from a coalition they call "the unusual suspects," which opposes the rules change, said one ranking party Senate aide who requested anonymity.
Posted in News —
Posted at 11:55pm on Apr. 9, 2005 Senator Hutchison on Filibusters
By AndrewHyman
The Dallas Morning News quotes Senator Kay Bailey Hutchison:
We should change the rules to ensure that the Constitution is adhered to. There's nothing nuclear about it. If the Democrats bring down government because Republicans insist that the Constitution is adhered to, that is the Democrats' choice.
Indeed, the Constitution gives to a simple majority of the Senate ultimate authority to "determine the rules of its proceedings." The Senate has a duty to exercise that authority as needed in order to address what Senator Reid once called "abuse by an obstinate partisan minority." Neither a Senate majority nor a Senate minority is entitled to abuse the Senate's constitutional powers by extorting from the President nominees having a particular type of judicial philosophy. Senator Hutchison is correct that the Senate majority has every right and duty to prevent the Senate minority from usurping the nomination power in that way. The senatorial "advice" called for by the Constitution pertains to whether or not a nominee should be appointed, and NOT who should be nominated in the first place (e.g. see Senate Rule 31, Section 1). The legitimate "advice and consent" role of the Senate has nothing to do with extorting nominations, as Alexander Hamilton explained:
The Highway Bill may just have to wait. This whole nomination thing needs to be resolved. The Senate Rules are currently being abused so as to usurp the President's nomination power, and the Senate majority is entitled and obligated to determine rules that address that problem. The Washington Post has an article today examining precedents for modifying Senate Rules by simple majority.
Posted in Senate Rules —
Posted at 7:01pm on Apr. 9, 2005 Investor's Business Daily on Filibusters
By AndrewHyman
Senator Brownback tells Hugh Hewitt that it's a matter of when, not if.
Posted in Senate Rules —
Posted at 6:41pm on Apr. 9, 2005 Harry Reid is Full of It
By AndrewHyman
Senator Reid of Nevada delivered the Democrats' Weekly Radio Address this weekend. Here's an excerpt:
They [the GOP] are trying to eliminate a two-hundred-year-old American rule that says that every member of the Senate has the right to rise to say their piece and speak on behalf of the people that sent them here. . . . When it comes down to it, stripping away these important checks and balances is about the arrogance of those in power who want to rewrite the rules so that they can get their way.
Where to begin? Let's start with the portion in bold. Reid correctly acknowledged on January 5, 1995 that checks and balances have nothing to do with filibusters:
Checks and balances has nothing to do with protecting a small State. . . . The filibuster is uniquely situated to protect a small State in population like Nevada.
Indeed, "checks and balances" means the arrangement of governmental powers whereby powers of one branch check or balance those of other branches. Since when is the Senate minority in a different branch from the Senate majority? Maybe that happened at about the same time the Supreme Court joined the legislative branch. Anyway, Senator Reid also emphasized in 1995 that the filibuster is a privilege that is only to be used for legislation, and used sparingly:
32 filibusters in the 103d Congress compared to a total of 16 in the entire 19th century---evidences its abuse by an obstinate partisan minority. Having said all that, however, I do not support the elimination of the privilege. I say privilege because that is what I believe the filibuster to be. A unique privilege---to be used sparingly and only in those instances when a Member believes the legislation involves the gravest concerns to his or her constituents.
Senator Reid knows very well that the GOP is not seeking to eliminate the filibuster for legislation, or even seeking to limit or restrict its use for legislation. How can anyone take Reid seriously when he changes his story whenever it suits him? First he says that filibusters have nothing to do with checks and balances, but then he says they're critical to checks and balances. First he says that filibusters are to be used sparingly and only for legislation, but then he says they're to be used frequently for nominations. First he says that conducting a real, live filibuster of legislation is a privilege, but then he says that conducting a fake, silent filibuster of nominations is a right.
Each Democratic Senator ought to be allowed to speak for at least a week or so about a nomination if he or she likes, but then let's have an up-or-down vote. Senator Reid knows very well that no judicial nominee having clear majority support in the Senate was ever defeated by filibuster, until Reid and his cohorts started doing so in 2003. Talk about "arrogance."
UPDATE: If filibustering nominations has anything to do with the separation of powers, it has to do with weakening that separation rather than strengthening it, as discussed elsewhere at confirmthem.
Posted in Senate Rules —
Posted at 11:44pm on Apr. 8, 2005 John Dean on Filibusters
By AndrewHyman
John Dean of Watergate fame is not exactly turning into an elder statesman. Here's what he has to say about GOP attempts to secure up-or-down votes on judicial nominees:
In fact, the Republicans' tactics have become worse than the usual Washington balderdash, claptrap, hokum, drivel, and humbug. Rather, they are a prime example of the subject addressed by the renowned moral philosopher and emeritus Princeton philosophy professor, Harry G. Frankfurt, in his new book "On Bullshit" (which is climbing the New York Times bestseller list). As the professor states, "The ... realm of politics [is] replete with instances of bullshit so unmitigated that they can serve among the most indisputable and classic paradigms of the concept." That is precisely the case here. The nonpartisan Congressional Research Service study found that from 1949 to 2002 thirty-five presidential nominations had been filibustered, including seventeen judicial nominations.
Mr. Dean conveniently omits the fact that 32 of those 35 nominees were ultimately CONFIRMED. Of the three who were not confirmed, only one was a judicial nominee, and he was Abe Fortas. Mr. Dean incorrectly writes, "Fortas withdrew his name only when it became clear the White House could not defeat the filibuster." Actually, Republican Leader Dirksen and other Senators said that their reason for voting against cloture was that their decisions about Fortas were "still open," and further debate would ensure "exploration" of the issues. Mr. Dean is simply wrong when he says it was "clear" that the filibuster would have lasted all the way until the Fortas nomination expired. Fortas's own withdrawal letter anticipated that he could "ultimately" have obtained an up-or-down vote. The cloture vote on Fortas was 45-43, and so it was doubtful he would have won that up-or-down vote. LBJ and Fortas simply wanted to avoid what Bush and his nominees now seek: an up-or-down vote.
Posted in Senate Rules —
Posted at 9:38pm on Apr. 8, 2005 Friday Odds and Ends on Filibusters
By AndrewHyman
Hugh Hewitt interviewed Senator John Kyl on April 7, and Kyl explained that Democrats recently boycotted a Judiciary Committee meeting, and thus prevented approval of nominees at that meeting (by denying a quorum). Here's what Kyl said:
[T]here is a procedure whereby, ultimately, nominations can be moved to the floor, even if they don't go through Committee. It's ordinarily not done that way. It would give the other side something to yak about. On the other hand, if they're the reason why you can't get the nominees to the floor, because they never show up for a meeting, then I think we would be excused by going to the rather special procedure of just bringing them directly to the floor.
I don't think that special procedure ("discharge") will be needed, because probably the Dems just want their ranking member Senator Leahy to be able to attend (he's in Rome). Roll Call had an article on April 4 that is now available via the Committee for Justice. It answers the question about why the left has been doing almost all of the advertising on the filibuster issue.
As Democrats increasingly have ramped up their inside and outside efforts on the issue, the GOP's conservative allies have taken an increasingly confident approach to the issue, keeping their powder dry on advertising campaigns .... None of the groups on the right has yet joined the liberal groups on the air, and some conservative activists say they think the 51 votes are in place for changing the rules and the liberal groups are simply wasting their resources. "We're fairly hopeful about this," said Sean Rushton, executive director of the Committee for Justice, the group formed two years ago to lead the GOP media efforts on the issue. "I think they're in an absolute panic."
David Limbaugh has a piece in Townhall on the judicial filibuster issue:
I actually think this issue is so serious that it might, along with the immigration issue, eventually trigger an exodus of conservatives from the GOP. If [we] . . . can't even count on GOP politicians to safeguard the president's judicial appointment power -- then what can we trust them to do?
Although they have not felt much need to do advertising, conservative groups are staying on top of things, according to this report:
The Coalition for a Fair Judiciary (CFJ) took to Capitol Hill to lobby for an end to filibusters, while the Judeo-Christian Council for Constitutional Restoration convened a conference to call for an end to what they see as a judicial assault on faith.
Incidentally, there's extensive discussion of the Bolton U.N. nomination here, and it's still unclear if he'll be filibustered. Belatedly, here's a link to the video of an April 4 news conference held by groups supporting up-or-down votes on nominees.
Posted in Senate Rules —
Posted at 4:52pm on Apr. 8, 2005 Senate Battle Over Judges Concerns Business
By AndrewHyman
Reuters reports as follows:
Bruce Josten, executive vice president of the U.S. Chamber of Commerce, said eliminating the filibuster "is only too big a price to pay" if Democrats "shut the place down. The next question is for how long? If it's for two days, it's not too big a price," Josten said. "If it's for weeks, it's a whole different deal."
Given that the business community is somewhat concerned, here is some information that should put them more at ease.
On February 26, 2005 there was the following report about the senior Senator from Louisiana:
Landrieu said she would prefer that instead of responding to a potential GOP ban on filibusters against judicial nominees by blocking Senate action on other issues, Democrats should choose a response that is somewhere between "all-out war" and "grin and bear it."
Then on March 26, 2005 there was the following report about the two Senators from Wisconsin:
Both Kohl and Feingold said they supported a strong Democratic response to the "nuclear option," but not a virtual shutdown of the Senate. "We've never said we're going to shut the place down, nor would I, Herb Kohl, be a part of that." Feingold said the Democrats' response should "send a message," but "I certainly don't think we should bring government to a standstill or anything like what the 'Contract with America' people tried to do," a reference to the unpopular shutdown engineered by House Republicans in the 1990s.
And, on April 4, 2005 the LA Times reported as follows:
Democrats are backtracking somewhat from earlier threats to stall the Senate's operations, insisting that they will not block bills to support the troops in Iraq or that provide for other crucial government functions. They are mindful that the public blamed former House Speaker Newt Gingrich (R-Ga.) --- not former President Clinton --- for shutting down the federal government over budget conflicts in 1995. "Democrats learned their lesson from that and won't go down that road," said Jim Manley, spokesman for Minority Leader Reid. "But the Republicans will know the difference between a cooperative minority and an uncooperative minority."
If the Democrats do defy all expectations and actually shut down the government, then they will all be voted out of office in 2006, which will make the business community happy indeed (in the mean time, the GOP Senate majority would probably re-exercise the nuclear option in order to re-open the Senate).
UPDATE: See here.
Posted in Senate Rules —
Posted at 1:50pm on Apr. 8, 2005 Lessner on Filibusters
By AndrewHyman
Richard Lessner has a piece today in Human Events titled "Filibuster Fight a Crucial Test of Frist's Leadership." An excerpt:
All across America one hears the same refrain from grassroots conservatives: If we cannot get qualified, constitutionalist judges confirmed with a conservative president in the White House and 55 Republicans in the Senate, then what's the point? Why bother working hard to elect Republicans? If we cannot succeed now, we never will.
It's true that Democrats at several points in history had more than 60 Senators while a Democrat was in the White House. However, everyone knows that such an edge for either party is unlikely nowadays, because of the great political polarization in the country. When the Democrats had that huge edge, it took less than 34 Senators to filibuster nominations to death, and yet the GOP restrained itself. For more than 70% of the 20th century, the same party controlled the White House and the Senate, yet there was no hue and cry that the separation of powers was being violated. Welcome to the 21st century.
Posted in Senate Rules —
Posted at 1:14pm on Apr. 8, 2005 Can't Everyone Just Get Along?
By AndrewHyman
Ann Woolner has an opinion piece today. Here's a snippet:
April 8 (Bloomberg) -- It is tempting to join in the screaming match between Democrats and Republicans over judicial nominations, so important are the stakes and so outrageous are the claims. It would be easy, indeed, to take sides in the who-started- it argument and declare who has politicized judicial nominations the most. But it would be wrong. At least, it would be counterproductive to any hope for some sort of reasonable solution .... Bush could abandon his mission to remake the judiciary.... This wouldn't be a big concession.
Gag, choke, gasp. Sure, unilateral surrender is a reasonable solution, Ms. Woolner. No more Scalias, no more Thomases, no problem. Giving a Senate minority power to reject judicial nominations for the first time in US history would be the only productive solution. I can't imagine why I ever thought otherwise.
Posted in Senate Rules —
Posted at 12:14am on Apr. 8, 2005 Nuclear Freeze
By AndrewHyman
The Washington Post has an editorial about the filibuster situation. Here's part of it:
[President Bush] could pick nominees who are qualified and to his ideological liking and yet immune to plausible partisan challenge; even in a highly charged atmosphere, many such people exist. If he showed this kind of leadership, his demand for up-or-down votes would carry far more weight.
This is not Bush's fault. The filibuster is now being used purposely to screen nominees for ideology. The Post previously acknowledged in 2003 what it now denies:
Abraham Lincoln once said, "We cannot ask a man what he will do [on the court], and if we should, and he should answer us, we should despise him for it." Today's very different standards are remarkable and disturbing. Not only is declaring one's positions on matters of judicial controversy no longer a matter of opprobrium, 44 senators now positively demand it.
The unavoidable question is whether a minority of Senators should be allowed to demand nominees having particular positions, ideologies, or philosophies. Here's a column by Kevin McCullough answering this question in the negative.
Posted in Senate Rules —
Posted at 6:43pm on Apr. 7, 2005 Sorting out issues
By Irishlaw
James Taranto of the WSJ's Best of the Web offers some thoughts on criminal violence versus reasonable checks on the judiciary:
Someone who responds to a court action with violence should be prosecuted to the full extent of the law--and indeed with extra vigor, for such attacks are an assault not only on individuals but on the rule of law itself. This is true regardless of the substance of the case at hand. The rule of law requires that we respect the process of justice, which means the authority of judges and juries--even when we disagree with the outcome, even when the outcome is manifestly mistaken or unjust.
Some self-styled champions of the rule of law, however, are acting in counterproductive and antidemocratic ways. Although the judicial system is designed to resist the political passions of the moment, it is subject to various democratic checks. The First Amendment gives individuals the right to criticize judges and the justice system. The Constitution gives Congress the authority to change the law, to begin the process of changing the Constitution, and to impeach judges. And of course the process for selecting federal judges rests in the hands of elected politicians: the president and the Senate.
Defenders of judicial authority have, for a combination of partisan and institutional reasons, been denying the legitimacy of all these means of influence . . . . All Americans should stand against political violence, which is a serious problem though mercifully also a rare one. Standing against democracy is something else entirely.
Posted in Uncategorized —
Posted at 5:24pm on Apr. 7, 2005 Senator Warner on Filibusters
By AndrewHyman
Senator John Warner of Virginia spoke about judicial filibusters via NPR on April 5. Here's what he said:
I've got to think about if the Republicans some day wake up and they're in the minority and how could they best exercise their judgment as to the composition of the judiciary in the minority.
It seems unlikely that when the GOP is in the minority, they will want to use a filibuster to kill a judicial nomination that has the clear support of a Senate majority. The GOP has never felt any need to do that in the past when they have been in the minority, so why would they insist upon doing so in the future?
More to the point, Republicans are now waking up every day in the majority, and yet are increasingly unable to exercise their judgment as to the composition of the judiciary, because the Democrats are insisting upon a veto. If Senator Warner helps to restore the role of the majority with respect to nominations, then he will be one of the Senators deciding whether controversial nominees like Miguel Estrada, William Pryor, Priscilla Owen, and Janice Brown are confirmed or not. But if the role of the majority is not restored, then Senator Warner will not be exercising any judgment about those nominees at all, because the Democratic minority will simply reject them regardless of how Senator Warner feels.
Of course, Senator Warner is right to be looking to the long term. The minority must have an expansive right to bring out facts and debate nominations with the majority. The minority Senators should even have power to bring the Senate to a grinding halt if they feel so strongly about a nomination, but the minority should not be able to bring the Senate to a halt FOREVER. At some point, there must be a majority vote on nominations that get to the Senate floor.
There are other long-term considerations too. Do we want the US Supreme Court and lower court judges to be drawn from a narrow pool of candidates that can please both sides? That would reduce intellectual diversity on the Supreme Court, and would open the judiciary to ideological screening and control by Senators.
Also, it's important for presidents to be able to shift the direction of the Supreme Court, because that way---in the long run---the surviving judicial precedents will be the ones that are firmly based on the objective meaning of the law, instead of being based upon one ideology or another.
Endless filibusters of legislation are fundamentally different from endless filibusters of judicial nominations. The former allow a minority to preserve the legal status quo by preventing enactment of new laws. In sharp contrast, the latter would allow the minority to alter the status quo by insisting upon nominees who will do their bidding. For example, a liberal minority could refuse to confirm any nominee who believes that the Constitution fails to protect bigamy. That's just one of many examples.
I hope that Senator Warner will arrive at the same conclusion that most other GOP Senators have reached: endless nomination filibusters are very harmful to our system of government, and must not be allowed to prevail.
Posted in Senate Rules —
Posted at 3:52pm on Apr. 7, 2005 Currie on Filibusters
By AndrewHyman
Duncan Currie writes in the Weekly Standard that a showdown over the U.S. judiciary was a long time coming. Here's an excerpt:
To a casual European observer, the row over President Bush's judicial picks may seem a bit dippy. Democrats fight tooth-and-nail to block mid-level nominees. Republicans talk of a "nuclear option" to break the impasse. Democrats warn they'll bring Senate business to a halt. Republicans dare them to try. Our transatlantic friend might scratch his head and wonder, How could an ostensibly minor, non-legislative issue--who sits on a few appellate courts--implode the entire U.S. Senate?
....
The underlying threat to American self-government is not merely "right-wing" or "left-wing" judges--but the imperial judiciary itself. Yes, most judicial activism these days occurs on the social left. Conservatives are wholly justified in their high dudgeon. But when they base their arguments on a narrow critique of "liberal" judges, rather than a critique of usurping judges generally, conservatives unintentionally concede a vital point: namely, that American courts should be reaching a sociopolitical consensus for the American people. In fact, the Founders intended no such role for the courts. Divining and defining the popular will on, say, abortion, same-sex marriage, and the death penalty is properly the duty of the U.S. Congress and state legislators.
It's so important to have judges who simply follow the law as written, whether it's a liberal law or a conservative law. If legislators take a reasonable view of a constitutional provision, then courts should defer. The Supreme Court said it best:
It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.
Ogden v. Saunders, 25 US 213 (1827).
Posted in Senate Rules —
Posted at 12:30pm on Apr. 7, 2005
By Zummo
Hugh Hewitt smacks down this Washington Post article on the looming confrontation over the judicial filibuster. Hewitt discusses the Abe Fortas case and the unique circumstances surrounding the filbuster of his nomination to be Chief Justice. He notes that the Democrats, and I guess the Post as well, are using this case - illegitimately - as justification for their current obstruction. Hewitt then goes on to urge the Republicans to fight the Democratic frontal assault.
The desperation level of the Democrats is reflected in outrageous rhetoric like this speech and Senator Byrd's comparison of the GOP senators to Nazis a few weeks back. I think the Dems know they are embarked on a giant ruse, the biggest senatorial poker bluff ever. The GOP should see and raise quickly.
Next week, after John Paul II's funeral and prior to the conclave, the GOP must move to aggressively focus the public debate on the fact of the single failure to invoke cloture prior to 2003. Over and over again the point must be made that the issue before the Senate is the capture of a single Senate rule by radical Democrats intent on thwarting majority rule and 217 years of precedent. The Republican Senators must make that point from the floor an from every corner of the media. They must brush off over and over again attempts to confuse the debate and they must reject attempts to link this high debate on the president's power to nominate and receive the Senate's advice and possibly consent --the entire, collective Senate's advice and consent-- to absurd claims of "arrogance of power" or Tom DeLay's travel or stupid and crass memos written by low level aides. (Hats off to Powerline for exposing the Post's/ABC's ridiculous reliance on this memo, and for announcing prominently that the memo was in fact written by a staffer for Senator Mel Martinez, and to Mickey Kaus for refusing the Post absolution when none is deserved.)
Amen. My only fear, and here I echo Hugh, is that the GOP seems unwilling to employ such a strategy. I also fear that the Republicans have been unfortunately and unnecessarily cowed in the aftermath of the Schiavo case, and whatever motivation there was to fight hard may have been dampened in the past few weeks.
Hugh also calls for pressure to be brought upon "Republican" weaklings such as McCain, Hagel and Chafee. It's bad enough to confront these 45 Democrats in their never ending obstructionism, but when members of your own party contribute to the problem through their spinelessness and/or infatuation with sucking up to the media and the other side, then the situation becomes all the more intolerable.
Do as Hugh says and call your Congressman!
Posted in Uncategorized —
Posted at 11:28am on Apr. 7, 2005 GOP and Dems Reach Agreement on Filibusters
By AndrewHyman
Both sides agree that the other side is attempting a partisan power grab and violating its rights. This picture is from a recent Democratic protest at the Supreme Court (the boxes are supposed to be full of petitions).
A dispassionate analysis reveals that the Democratic Party, in 2003, conducted the first-ever filibuster to derail a judicial nominee who was clearly supported by a majority. They filibustered Miguel Estrada because this constitutionalist nominee "is Latino, and the White House seems to be grooming him for a Supreme Court appointment." Since then, the minority has been filibustering one qualified nominee after another. Any responsible majority party would be obligated to defend its prerogatives.
The minority did a hatchet job on Priscilla Owen, waged a campaign of distortion against Janice Rogers Brown, and filibustered other nominees for simple revenge. This whole controversy has been really unfortunate. President Bush now has the lowest appellate confirmation rate of any modern president, going back at least to Harry Truman, and the reason is these filibusters. This controversy has to do with much more than individual people, and involves vital issues regarding the rule of law, and the separation of powers, as discussed many times here at confirmthem.
As far as petitions and public opinion are concerned, you can get any results you want if the questions are slanted enough. For polls that show strong support for what the GOP is trying to do, see here and here. And please consider signing the petitions listed on the upper right of this confirmthem page.
Posted in Senate Rules —
Posted at 10:05pm on Apr. 6, 2005 Santorum: Frist Will Go Nuclear
By AndrewHyman
According to The Hill, Senator Rick Santorum says that the nuclear/Byrd/constitutional option is very much alive, and inevitably will be used if a compromise is not reached soon with Democrats. Apparently, Senators Trent Lott and Ben Nelson are negotiating a deal to present to their respective party leaders.
Suppose the deal falls through, and the mild-mannered physician from Tennessee does go "nuclear." How would that play out? It depends on the type of nuclear device we're talking about. If the result is that the minority is still allowed to debate nominations for many months (perhaps even a year) before the filibuster is shut down, then that would probably play well with the public. But if they're only allowed to debate for a few days, then it would not play well.
There is also the secondary issue of whether the rules are amended by circumventing the 2/3 vote described in Rule 22, or whether the rules are instead simply reinterpreted in a credible way. The public would probably prefer the latter. I personally think Rule 31 provides a basis for a credible reinterpretation, as debated here at confirmthem. Interestingly, the article in The Hill notes that Senator Lott is urging a solution that does not entail "a permanent change of the rules." But if a rule change is needed, then maybe the public would be supportive, whether the change is accomplished by circumventing Rule 22 or not.
Posted in Senate Rules —
Posted at 8:43pm on Apr. 6, 2005 Mr. Smith on Filibusters
By AndrewHyman
Lest anyone have any doubt about the politics of Jimmy Stewart (the star of "Mr. Smith Goes to Washington"), here's a synopsis:
In later years, he was a leading spokesman for conservative political and economic causes and a frequent campaigner for Republican political friends like George Murphy, the actor turned U.S. senator, Richard M. Nixon, and Ronald Reagan.
Nevertheless, his image and likeness are now being used in a nationwide liberal campaign supporting the unprecedented use of filibusters to derail majority-supported judicial nominations. Rush Limbaugh comments:
The Democrats can't even go to their own people in Hollywood when it comes time to make an ad; they've gotta take one of our guys! Jimmy Stewart was a huge Reaganite, big friend of Ronald and Nancy Reagan, big conservative Republican. And of course they have to distort the whole meaning of the movie, Mr. Smith Goes to Washington in order to make this ad. Here is the audio of the ad. I don't know if they got permission from Jimmy Stewart's family for this, but I do remember how they screamed bloody murder when the Republicans used JFK in an ad for tax cuts....This was a filibuster, this movie, about legislation. It's what filibusters are always about, and he actually filibustered. He stayed on the Senate floor, starving, thirsting, didn't go to the bathroom for hours, hours and hours. The Democrats are not doing what Jimmy Stewart did. They're not really filibustering. They're not really taking the floor of the Senate. They're not debating anything.
Posted in Senate Rules —
Posted at 5:09pm on Apr. 6, 2005 Filibuster Doubletalk
By AndrewHyman
Andres Martinez has an excellent op/ed piece titled "Filibuster Doubletalk" in the LA Times. The whole thing's good, so I can't pick out a best excerpt; I'll just quote his first and last paragraphs:
The NAACP is lobbying to preserve the Senate's filibuster in Washington these days. What's next for the civil rights group? A campaign encouraging Southern pride in the Confederate flag? A fundraising drive to build more of those odious monuments to Robert E. Lee?
....
The filibuster goes too far in upsetting the balance struck by the Constitution and empowering an obstructionist minority. Surely the founders didn't intend for the Senate's "advice and consent" review of presidential nominees to require a supermajority.
Of course they didn't. See, for example, Alexander Hamilton in Federalist Number 66: "[I]t could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy."
Posted in Senate Rules —
Posted at 4:45pm on Apr. 6, 2005 Zeus Was an [Expletive Deleted]?
By AndrewHyman
Russ Smith writes about the New York Times's biased coverage of pro-judicial-filibuster Senator Robert Byrd:
The paper's antipathy---more shrill than the mere condescension of a decade ago---toward any creature that "smells" Republican, is aptly typified by Sheryl Gay Stolberg's homage to 87-year-old Sen. Robert Byrd in the news section on April 3. The reporter's affection for the showboating Byrd is so pronounced that, again, in an honest world, the article would've been slugged at the top, "A Times Editorial." The ostensible reason for the piece is the upcoming congressional battle, with Byrd as lead gladiator, over the GOP's attempt to torpedo the filibuster so that Bush's judicial nominees are subject to a majority Senate vote rather than the 60-vote supermajority that thwarted some of them in the president's first administration.
Stolberg taps away, presumably not chuckling at the keyboard, "Christian conservatives and right-wing bloggers are unearthing [Byrd's] past as a one-time member of the Ku Klux Klan," as if that obituary-leading blot on the West Virginia legislator's record hasn't been well-reported by mainstream media outlets for years now. She goes on to describe the left-wing ... group MoveOn.org's infatuation with Byrd, claiming that at a recent rally the "crowd swooned like schoolgirls catching their first glimpse of the Beatles," when the man who has compared the Bush administration's tactics to those of the Third Reich gave a speech. And, in an interview with Byrd at his office last week, Stolberg swoons herself, saying "Mr. Byrd seemed energized, casting thunderbolts like Zeus from the mountaintop."
This is the very first time I'd ever considered that Zeus was an asshole.
NOTE: Smith's piece is also here.
Posted in Senate Rules —
Posted at 1:38pm on Apr. 6, 2005 A Rule or a Statute?
By AndrewHyman
Filibuster survivor Charles Pickering urges that filibuster reform should be accomplished by a statute, as opposed to a Senate Rule. You can see a video of his recent speech here.
A statute would make some sense. Those people who fear a "slippery slope" leading to a ban on the legislative filibuster might prefer a statute (although a slippery slope should not be a big concern, given that the legislative filibuster is quite popular). Enactment of a statute is obviously more difficult because consent of both Houses is needed, and so any risk of a slippery slope would be reduced.
Such a statute could be passed on the Senate side with or without resorting to a "nuclear" or "constitutional" option. If that option is not used, then a hard 60 votes would be required to overcome a filibuster of the statute, instead of the 2/3 of Senators "present" needed for a rule change (attaining the 2/3 might actually be easier than attaining the hard 60 if a real old-fashioned filibuster is used to attain the 2/3).
Posted in Senate Rules —
Posted at 12:48pm on Apr. 6, 2005 George Mitchell Then and Now
By AndrewHyman
Former Senate Majority Leader George Mitchell recently opined that GOP Senators want to "silence the minority" with regard to judicial nominations. On the contrary, the Senate GOP would be glad if the minority would engage in a real talkathon, instead of a fake, silent filibuster. The GOP would also be glad to go along with Mitchell's suggestion to "limit and restrict" filibusters, so that there can ultimately be a final up-or-down vote on nominations, as Mitchell described during a CNN interview on December 2, 1994:
INTERVIEWER: [W]hat is the purpose of a filibuster? What constructive purpose does it serve?
Sen. MITCHELL: It can prevent precipitous action. It's intended to permit a longer time for consideration. Like all things in life that serve a useful purpose, it can be abused, and it was abused in this Congress. . . . .
INTERVIEWER: Do its advantages outweigh its disadvantages anymore?
Sen. MITCHELL: I think we should keep it, but I think we should limit and restrict the opportunities for its use so that we keep the good and prevent the abuse.
Sen. Mitchell was prescient. He endorsed filibuster reform even before anyone began abusing filibusters to defeat majority-supported judicial nominations.
Here's the complete text of the CNN interview from December 2, 1994
available via Lexis-Nexis.
Mr. FRANKEN: You became majority leader in 1989, which raises an
interesting point. You were almost unprecedented in your ability to
overturn the Senate tradition of seniority then and move past
everybody, but Senate traditions die very hard here, to the point that
there are many people who feel that the Senate, frankly, is obsolete.
Do you think that in some ways it is?
Sen. MITCHELL: No, I don't think the Senate's obsolete. I think that
the previous restraint that senators had exercised with respect to the
rules had vanished, and as a result, the rules are being abused in a
way that obstructs and prevents action. That wasn't intended by the
men who started this country and wrote the Constitution. I think we
should have reform, but I don't think the Senate's obsolete.
Mr. FRANKEN: Well, you're talking about the filibuster.
Sen. MITCHELL: Yes.
Mr. FRANKEN: And the view that many people have is that the popular will can be overly thwarted by use of the filibuster, and you're
saying that was demonstrated this year. Why do we need the filibuster
anymore?
Sen. MITCHELL: The Senate is unique among legislative institutions in
the world, in part because of two rules - one, the unlimited right of
debate, which can become a filibuster, and the unrestricted right of
amendment.
I think we should keep them, but we should limit the opportunities
for their use much more than is now the case. To give you an example -
not just an example - to cite some facts to illustrate the need for
this, in the entire 19th Century, there were only 16 filibusters, one
every six and a half years. In most of this century, they occurred
less than once a year. In this Congress just concluded, there were 72
times that we had to file motions to end filibusters.
Mr. FRANKEN: But what is the purpose of a filibuster? What
constructive purpose does it serve?
Sen. MITCHELL: It can prevent precipitous action. It's intended to
permit a longer time for consideration. Like all things in life that
serve a useful purpose, it can be abused, and it was abused in this
Congress. I hope the next Congress doesn't act in the same way.
Mr. FRANKEN: But, Senator, when the law is written, one of the things that's always significant is it's written in a way to avoid abuse, or
else it isn't written. Here you have a procedure that is inherently
available for abuse. Do its advantages outweigh its disadvantages
anymore?
Sen. MITCHELL: I think we should keep it, but I think we should limit
and restrict the opportunities for its use so that we keep the good
and prevent the abuse.
Mr. FRANKEN: But what is the good?
Sen. MITCHELL: The good is that there are occasions in which there
ought to be a longer period for consideration, for careful
deliberation, and mature thought given to a subject, rather than
rushing it through. That's one of the advantages of the Senate. The
House moves quickly; the Senate takes longer.
Mr. FRANKEN: But one person's need for deliberation is another
person's stalling tactic.
Sen. MITCHELL: That's true, and it ought to be, ultimately, a
majority in the Senate. It's a majority of 60.
Mr. FRANKEN: Well, let's talk about the Senate, this intentionally
old-fashioned, somewhat anachronistic body in modern times. I get back
to the same question - has it, in many ways, really sort of - its
procedures - outlived its usefulness?
Sen. MITCHELL: No, I don't think so, and I think when you say
something is anachronistic and doesn't work, you have to define what
you're trying to accomplish. It's true that, with respect to a
particular bill or a particular debate, the Senate may stall, and
delay, and obstruct and it doesn't get done, but step back a little
bit and look at the broader perspective. What is the objective of our
government?
The men who wrote the American Constitution wanted, above all else,
to prevent tyranny from existing in America. They lived under a
British king. They didn't want there to be an American king, and so
they created a system with a lot of checks and balances. They made it
tough to get things done because they didn't want bad things to
happen. Looked at in that context, our system is spectacularly
successful.
Mr. FRANKEN: But the checks and balances were supposed to occur
within the separation of powers. The executive-
Sen. MITCHELL: -Sure.
Mr. FRANKEN: -on the legislative, and we all know that. Why is it,
however, that the legislative branch, whose job it is is to make laws,
among others, has become so unable to do so?
Sen. MITCHELL: Well, first, we did write a lot of good laws this
year. We didn't pass every bill, but there's nothing in the
Constitution or the heavens that says every bill introduced must pass.
Sometimes a bill ought not to pass. I think that's fair to say.
Now, I don't want to be defending the filibuster and I don't want to
be defending the obstructionist tactics that the Republicans used in
this past Congress. But I think the appropriate course is to say that
we retain those provisions which make the Senate the unique
institution it is, but we reform them in a way that doesn't lend
itself to abuse of those procedures, as occurred in this past
Congress.
Posted in Senate Rules —
Posted at 10:47am on Apr. 6, 2005 Elowsky on Filibusters
By AndrewHyman
Earl W. Elowsky of Englewood, Florida has this to say:
The president's stated reason for appointing certain individuals for the judgeships is that he wants people in those offices who will rule according to the dictates of the U.S. Constitution, not according to their personal preferences. This is what has been happening for decades. Judges have been "finding" all sorts of rights which are never mentioned in the Constitution; they have been virtually legislating on the basis of such findings.... The Senate is not about to abolish the filibuster absolutely. All some senators want is to prohibit the use of the filibuster for keeping the Senate from voting up or down on persons presented to it for federal judgeships. The Constitution does not provide that this be done by some kind of supermajority, as the liberals in the Senate minority want. This would not give the Republicans unchecked power over all three branches of government. . . . [S]aying so doesn't make it so.
Personally, I think the GOP proposal to solve this crisis should cover all nominations, and not just judicial ones. It's difficult to see any principled distinction between judicial and non-judicial nominations, either in Article II, Section 2, Paragraph 2 of the Constitution, or in Senate Rule 31. It may be tempting to narrowly focus on judicial nominations, but that would just be a huge invitation for other nominations to be filibustered into oblivion (including a nomination for VP of the U.S. if Mr. Cheney retires).
Also, if the GOP is interested in preserving Senate tradition, and in respecting precedent as much as possible, then what's wrong with continuing to allow nominations to languish and die in committee? As long as a simple majority of the full Senate is able to yank the nomination out of committee and onto the Senate floor (via a "discharge petition"), then there's nothing wrong with continuing to allow nominations to die in committee. Senate Rule 31 only requires a majority vote when a nomination is confirmed or rejected by the Senate, as opposed to being confirmed or rejected by a committee.
And, speaking of Senate tradition, what's wrong with allowing Senators to filibuster nominations? That's a great way to air grievances and extend deliberation. The main point is that there should come a point (before the nomination expires) when the filibusters must end, and a vote should occur.
Having said all that, I'm 100% for any solution that restores the tradition of confirmation for judicial nominees who are supported by a majority of the full Senate, even if only judicial nominations are covered, even if nominations can no longer be disposed of in committee, and even if judicial nomination filibusters are completely banned.
Posted in Senate Rules —
Posted at 12:04am on Apr. 6, 2005 April 5 Filibuster Stuff
By AndrewHyman
Fox News sheds some light on Senator Frist's approach to the problem of nomination filibusters:
"I think what Senator Frist has said, look, he wants to look himself in the mirror and say we tried everything we could to make sure that we preserve the precedent of the Senate," said Sen. Rick Santorum, R-Pa. Frist and Nebraska Democratic Sen. Ben Nelson are negotiating a plan to guarantee an up or down vote for the seven Bush nominees for whom Democrats have denied confirmation by requiring they receive a filibuster-proof 60-vote majority. Ten Bush nominees in all have been denied a full vote, and Democrats vow to use the filibuster again if they think a nominee is too conservative. The Frist-Nelson plan would guarantee hearings and floor votes for all future presidents' judicial nominees, something Republicans denied to dozens of Bill Clinton's nominees. Top Republicans say this will be Frist's "last, best offer" to Senate Minority Leader Harry Reid.
NPR has a backgrounder about judicial nomination filibusters. The full text of a letter from the National Coalition to End Judicial Filibusters is online. The Republican National Committee responds to a recent pro-filibuster advertisement by identifying several MYTHs that are part of the AD RHETORIC but which contradict FACT.
And, since the Judiciary Committee will be dealing with the Owen nomination on Thursday, here's a link to a previous confirmthem post describing how Justice Owen has been unfairly maligned by liberal attack dogs.
Posted in Senate Rules —
Posted at 5:10am on Apr. 5, 2005 The Letter-in-the-Mail Option
By AndrewHyman
Anyone who hasn't read this April 3 Wall Street Journal editorial should check it out. The WSJ suggests that 51 Senators can simply write a letter to the president advising and consenting to the filibustered nominees. No vote, no fuss. Indeed, if the Dems can invent a new way to reject nominations, why can't the GOP invent a new way to confirm them? What Senate rule would be violated? Incidentally, the WSJ also had some interesting stuff on April 1 regarding John Kerry's role in all this.
UPDATE: Power Line discusses a similar concept here.
Posted in Senate Rules —
Posted at 4:42am on Apr. 5, 2005 April 4 Filibuster Stuff
By AndrewHyman
Associated Press reports that Priscilla Owen is up for Committee approval on April 7. This AP article also includes some interesting quotes, starting with Sen. Domenici:
"We know someday we'll be in the minority. . . . But some of us are willing to say let it be the case for both and let us rule by majority vote with reference to judicial appointees."
And this from Senator Lott:
"If the leader decides we have no other option, I believe we'll have the votes."
And this from Sean Rushton of Committee for Justice:
"If the president is pressured by a 60-vote hurdle, he may choose an Anthony Kennedy versus an Antonin Scalia."
Wendy Long of the Judicial Confirmation Network has a letter in the New York Times, in which she points out what should be obvious:
Majority rule is the foundation of democracy. American restraints on it are a written Constitution and an independent judiciary. The judicial filibuster threatens both.
The Washington Times reports that 150 conservatives signed a letter to Sen. Frist and other Senate Republican leaders:
"[T]he unprecedented abuse of the filibuster is a device intended to undermine the prerogatives of the Presidency as well as the tradition of the Senate," they wrote. . . "You must not waver."
Also, the Times mentions that former Frist staffer Manuel Miranda says Mr. Frist has 53 votes for the maneuver.
The Hill reports that some business leaders are urging Sen. Frist not to exercise the so-called "nuclear option." But, Manuel Miranda reiterates that 53 Republican senators are in support of taking the parliamentary action, so it appears that those particular businessmen have not succeeded in persuading Sen. Frist to jump in bed with the Dems. The Hill also reports that House Democrats are not being as helpful to Senate Democrats as they might be; Minority Leader Pelosi is willing to condemn the "nuclear option" but only if Sen. Reid will condemn Congressman Delay (apparently the Democrats view this filibuster issue as a matter of high principle).
Reuters reports that "Republicans may hold fire until they obtain final passage, perhaps in a couple weeks, of a long-sought bankruptcy bill," according to Ethan Siegal of The Washington Exchange. Perhaps that will dissuade GOP business leaders from opposing the much-needed action to rein in the unprecedented use of filibusters against majority-supported judicial nominations.
Meanwhile, the Financial Times discusses the influential Gold and Gupta article that is linked at the top right of the confirmthem page.
Also, previously filibustered nominee Charles Pickering gave a speech that you can watch via C-Span. He discussed three root causes of the judicial filibuster crisis, and three potential solutions. He notes that from 1933 to 1971, there were seven constitutional amendments, but since 1971 Congress has not successfully proposed one single amendment; Pickering urges greater reliance on the formal amendment process instead of the convince-five-Supreme-Court-Justices process.
Alabama Senator Sessions takes on Professor Goldman of UMass Amherst. Goldman says that membership in the Federalist Society "raises the possibility that this person might be an extremist." Sessions counters: "That is absolutely baloney .... It's a group of thoughtful lawyers who care about America." Baloney is too kind a word. This article by Sean Reilly also mentions that filibustered nominee William Pryor is recovering from eye surgery, which is what prevented him from participating in the last en banc opinion of the 11th Circuit, in the Terri Schiavo case. (Of course, Pryor is serving temporarily as a recess appointee.) Confirmthem wishes Judge Pryor a full and speedy recover and confirmation.
The LA Times reports that Sen. Frist has offered to talk to Sen. Reid (D-Nev.) about possible compromises. But, the interest groups that pull the Democrats' strings reject any such talk:
"No, I don't see any potential compromises," said Nan Aron, president of the Alliance for Justice, a liberal lobbying group that focuses on the court system. "Judges are too important. They serve for life."
Remember, these are the same people who keep proclaiming that the filibuster is vitally important to promote bipartisan compromise. The LA Times also quotes Frist spokesman Robert Stevenson as saying, "We will continue to bend over backward and investigate every alley and basement to see if we can work this out with the Democrats." But, in view of comments like Aron's it appears Senator Hatch is right: "I think we're going to reach a point where there's no alternative." The Times article contains this very insightful analysis by C. Boyden Gray of the Committee for Justice:
"The current Democratic filibusters are not about free speech and extended debate, they are about rejection of nominees with majority support. . . . Any senator is entitled to speak all he wants regarding any nominee. . . . But once all voices have been heard, Democrats now want the additional right to block nominees from ever getting a final vote."
The Times notes that "Democrats are backtracking somewhat from earlier threats to stall the Senate's operations." Neither GOP Senators nor GOP business leaders should be quivering in their boots about Democratic retaliation. For more Democratic backtracking, see here and here.
Focus on the Family and its leader, Dr. James Dobson, are urging conservatives to Help End Judicial Filibusters. In particular, Dobson urges people to contact wavering GOP Senators, and tell them this:
If you fritter away the responsibility to reform the courts, and if you ignore the "values" that motivated those who supported you at the polls, you do not deserve the trust given to you. It's time to fish or cut bait.
Indeed it is. Dobson and Focus on the Family also say this:
"We believe that generations of Americans are called at moments to lay foundations for the future, and that this is one such moment. . . . We call for a restoration of Senate traditions, returning to the majority vote on Advice and Consent the Constitution mandates. . . . Today's filibuster crisis is an unconscionable shirking of the 'advice and consent' duty of the Senate."
ABC News reports as follows:
Sen. Bill Frist will at some point soon formally and publicly offer Democrats his "compromise" to avoid what Dems call the "nuclear option" and what Republicans call the "constitutional option" --- seeking a rules change to allow cloture (or debate stoppage) with only 51 votes. The Democratic leadership in the Senate is likely to reject the "compromise," but both sides acknowledge that there are at least a half dozen Democratic Senators and about nine Republicans opposed to the "nuclear option" who might be amenable to middle ground. Republican Hill sources say that Frist soon plans to schedule floor votes for the appellate renominations of Justices Priscilla Owen and Janice Rogers Brown for late April, with the anticipation that Brown's nomination will be the first under the new rules of consent.
The Washington Post reports that Democrats are construing Sen. Frist's offers of compromise as a sign of weakness, rather than a sincere effort to reach common ground:
Democrats predict the offer will be too flimsy to entice them to stop filibustering several appellate court nominees, but the mere fact that Frist is talking of negotiations, they say, convinces them he lacks the 51 votes he needs to change the filibuster rules in a chamber with 55 GOP members.
I hope the Democrats are misjudging Sen. Frist and the GOP.
Posted in Senate Rules —
Posted at 8:56pm on Apr. 3, 2005 April 3 Filibuster Stuff
By AndrewHyman
The Pittsburgh Tribune Review has an editorial titled The filibuster debate: Restoring the republic. An excerpt:
If Republicans found a spine with their chocolate bunnies in their Easter baskets, they'll pull the trigger and end the tyranny of the minority by allowing a simple majority to halt any filibustering. That, in turn, will give the judicial nominees what the Framers intended and what the Constitution prescribes -- an up-or-down vote on the Senate floor. . . .Republicans, it's time to act.
Also in the Tribune-Review, David B. Crouse of McCandless, Pennsylvania has some history to share:
Alexander Hamilton said in the Federalist Papers that "To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser." In other words, he was opposed to the idea of a filibuster.
Although the Democrats in the Senate may represent more voters than the Republican Senators, that difference is outweighed by the votes garnered by another player in the appointments process: the President. Meanwhile, in Time Magazine, Joe Klein has a piece titled "A New Idea for Democrats: Democracy". An excerpt:
This month, Democrats may use procedural tricks to stop all Senate business and block a Republican effort to eliminate minority filibuster rights and jam through seven federal judges proposed by the President. .... The Armageddon of confirmation battles---over the next Supreme Court Justice---will probably follow soon after, and it may cement a public impression of the Democrats as a party obsessed with the legal processes that preserve the status quo on issues such as abortion, gay rights and extreme secularism---and little else. The political damage may be considerable. Oddly, a solution to the Dems' dilemma may be on offer from liberal academia. "The hot new idea in liberal law journals is called popular constitutionalism," says Paul Gewirtz of Yale Law School. "It argues that legislatures and voters should have more control over government, and the judiciary should take a more subsidiary position." In other words, issues like abortion should be put to a vote. This is an idea unthinkable to most Democratic politicians, who believe the right to an abortion is tucked somewhere in the Constitution---and also to the more extreme religious conservatives, who believe abortion is murder. That leaves the rest of us. And I imagine most of us would prefer some good, messy legislative compromises, hammered out at the state level, with the unimpeachable imprimatur of public approval. Perhaps it is time, finally, for Democrats to embrace democracy.
John Eger of Winona, Minnesota has a letter to the editor responding to one of the thousands of duplicate letters to the editor that MoveOn placed in our nation's newspapers. Also, Eugene Hickock has an op/ed piece in the Washington Times. And, the Wall Street Journal has an interesting editorial.
Posted in Senate Rules —
Posted at 9:48pm on Apr. 2, 2005 Lobbying Heats Up on Filibuster Rule Change
By AndrewHyman
The New York Times has an article about the filibuster situation. An excerpt:
C. Boyden Gray, chairman of the Committee for Justice and the chief strategist on the conservative side of the judicial battles, said: "It is like a test vote, but it is an important test vote because the president's hands will be dramatically tied if he has to meet a 60-vote threshold. I think everybody on our side feels much better trying to resolve the 60-vote issue before a Supreme Court nomination."
The article identifies seven Republicans who may jump ship: Olympia J. Snowe and Susan Collins of Maine, Arlen Specter of Pennsylvania, John McCain of Arizona, Chuck Hagel of Nebraska, Lincoln Chafee of Rhode Island and John W. Warner of Virginia. Here's another excerpt from the Times article:
Despite the flurry of activity, however, Senate Republican leaders say they do not expect a showdown for at least three weeks. Dr. Frist intends to propose a compromise when Congress returns, they say, although details remain vague.
Mr. Gray also points out in the Washington Post that the Democrats' power grab in the nomination process will not help them at the polls.
Posted in Senate Rules —
Posted at 9:10pm on Apr. 1, 2005 FactCheck.org Has Some Facts Wrong
By AndrewHyman
In a piece titled Misstating the Issue, factheck.org correctly points out that television ads produced by People for the American Way (PFAW) are full of baloney. But the piece then goes on to provide some erroneous information:
What's actually at stake is whether a minority of 40 senators will continue to have the power to block legislation favored by a majority -- particularly the confirmation of Bush's judicial nominees.
The difference between passing legislation and confirming nominations is not complicated. The power of a minority to block legislation is not at stake at all in this nomination controversy.
Factcheck.org bills itself as "a nonpartisan, nonprofit, 'consumer advocate' for voters that aims to reduce the level of deception and confusion in U.S. politics." Their email address is Editor@FactCheck.org and their phone number is (202) 879-6700.
Posted in Senate Rules —
Posted at 6:24pm on Apr. 1, 2005 Advice for Senator Smith of Oregon
By AndrewHyman
The Albany Democrat-Herald has a recommendation for Oregon Senator Gordon Smith:
If our own Senator Smith is looking for a recommendation, here it is: Go back to requiring actual talking for filibusters, at least on judges, or vote to change the rules so that judicial nominations are not subject to the filibuster at all.
It would be easy to require real filibusters for nominations. No change in the existing Rule 22 would be needed. All the Senate would have to do is have an additional rule saying that, when there is a quorum call, a hefty percentage (e.g. 75%) of Senators who voted against cloture must be present, or else the filibuster is permanently terminated. Thus, there would be unlimited filibusters of nominations, but the filibusterers would have to actually be on the floor of the Senate instead of home asleep.
Posted in Senate Rules —
Posted at 9:16pm on Mar. 31, 2005 Filibuster Mania Spreads to Ambassadors
By AndrewHyman
Newsday reports that there is discussion of filibustering President Bush's nominee for UN Ambassador. John Bolton is opposed by many Democrats.
The success thus far of the Senate minority's attempts to use filibusters to reject judicial nominations is inexorably leading to more of the same. If Vice President Cheney retires, expect the Dems to filibuster his replacement too.
Posted in News —
Posted at 9:32pm on Mar. 30, 2005 Jimmy Stewart on Filibusters
By AndrewHyman
MSNBC reports that the group People for the American Way (PFAW) is running TV ads using clips from the movie "Mr. Smith Goes to Washington" starring the late great Jimmy Stewart, in order to promote PFAW's campaign of filibusters against judicial nominees. Of course, this ad is a gross perversion of the movie. Stewart's character filibustered an appropriations bill rather than a nomination (Stewart's character filibustered the appropriations bill because it included a ridiculous pork barrel dam project not unlike those supported by West Virginia's King of Pork). Here's an excerpt from the MSNBC article:
Even though the "Mr. Smith" scene in the PFAW ad is entirely fictional, Sean Rushton, the executive director of the Committee for Justice [CFJ], a group urging confirmation of Bush nominees, noted that the filibuster depicted in the film is a filibuster of legislation, not of a nomination.
The ad never mentions judges or the fact that the Senate Democrats have blocked confirmation votes.
Frist has not proposed changing the rule on filibustering legislation, but Neas [of PFAW] argued that a change in filibustering nominees would inexorably lead to a change in filibustering legislation, an assertion that Rushton called "nonsense."
The ad says that "America works best when no one party holds absolute power." Notwithstanding such scare tactics, the GOP isn't seeking to overthrow the Constitution, and there's nothing in the Constitution that remotely suggests that a minority party must hold any power over nominations. Indeed, for 70% of the twentieth century, the same party controlled the White House and the Senate. Jimmy Stewart would be rolling over in his grave if he knew that his image and likeness were being used in this way, to scare, confuse, and mislead the country. When that movie was made, no nomination had ever been defeated by a Senate minority, as Mr. Neas seeks to do now, nor did the movie contemplate such a thing (and, by the way, it was just a MOVIE).
The CFJ has further comments about PFAW's ad here, and Radioblogger has a few choice comments too.
Posted in Senate Rules —
Posted at 5:42pm on Mar. 30, 2005 William Rusher on Filibusters
By AndrewHyman
William Rusher has a good piece in the Decatur Daily Democrat:
[I]t is hard to imagine any future battle more important than the one they [i.e. GOP Senators] are going to wage this spring and summer. If they can't even confirm judges when they have a solid majority, what's the point of electing them at all?
A few Republicans may be concerned about eventually regretting elimination of the filibuster for judicial nominations, but really there should be no regrets. The GOP has never used that tactic to defeat a judicial nomination having clear majority support, and never should do so. It's true that we may one day have more than 50 Democratioc senators and a Democratic president, which may result in some Supreme Court appointments that the GOP doesn't like, but that's the way the system works. At least there will then be a bunch of sitting justices who were appointed by a GOP president and who outlast the Democratic president. It all balances out, and that's the way it ought to be. We shouldn't want all Supreme Court justices to be drawn from a very small pool of homogeneous candidates. If the Supreme Court undergoes shifts in philosophy, that's a good thing, because that way legal precedents will only survive in the long run if they are firmly based upon the objective meaning of the law, rather than being based upon error or flimflam.
Posted in SCOTUS —
Posted at 1:47pm on Mar. 30, 2005 Reale and Booker on Filibusters
By AndrewHyman
There are a couple interesting letters in the St. Petersburg Times today. Sal Reale of Seminole points out that, "President Bush is merely trying to balance the overwhelming liberal activist judges that are already on the bench." And, Tom Booker of Oldsmar says this about people who argue in favor of endless nomination filibusters:
It appears that you fear not that the upcoming Senate fight will cause the courts to become an ideological force but that the ideology of the judicial branch may no longer lean to the left as you prefer. I suspect that even those who disagree would have more respect for your position if it were presented in a honest, complete and consistent way instead of the pejorative and biased manner in which you chose to argue it.
Indeed, Democrats and their allies are not sticking to facts. They call their opponents Nazis who want absolute power, they distort history, and they cheapen the political process. I suppose that, if the Amercian people are dumb enough to fall for it, then perhaps we deserve to be governed more by the judiciary than by our own elected representatives.
It's nice to read letters to the editor (like the ones quoted above) that have actually been written by the people who sent them (compare these).
Posted in Senate Rules —
Posted at 1:15am on Mar. 30, 2005 Michael Crowley on Filibusters
By AndrewHyman
Crowley recently had an article in Slate titled "The Not-So-Fantastic Four: The demise of the Republican moderates." An excerpt:
The ultimate defeat of the moderates . . . would be the successful activation of the nuclear option. Scuttling the filibuster for judicial nominees is an affront to everything the moderates have tried to promote: bipartisanship, compromise, and a check on the right wing's excesses. So far, the moderates' refusal to play along---along with the nervousness of traditionalists like Virginia's John Warner about the long-term effects on the Senate---have made it extremely difficult for Frist to corral the necessary votes. But the Republicans are close, and if Frist find a way to drop the Bomb, the moderates' lack of clout will be proved. And in the all-out partisan warfare that would be sure to follow---call it nuclear winter---they'd be stuck in a bleak no-man's land. If that happens, it'll be enough to make the Fantastic Four wish they really were "in a comic book.
This analysis strikes me as way off the mark. If the "constitutional option" (also known as the "Byrd Option") succeeds, then 51 votes will thereafter be needed to confirm nominations (the way it used to be for centuries). Thus, the votes of the GOP moderates would be essential to confirm Bush's judicial nominees, and the GOP moderates would be in a position to shoot down far-right wacko nominees.
But now consider what happens if the "constitutional option" fails (perish the thought). In that case, it would take 60 votes to confirm a judicial nomination, and so the GOP moderates would no longer be the deciding voices; 41 Democrats would be enough to sideline any of Bush's nominees. Looking at things this way, it would be self-defeating for the GOP moderates to oppose the "constitutional option." They would lose power and influence. Likewise, liberal advocacy groups are unlikely to win the day by continuing to argue that the GOP moderates are "rubberstamps" for President Bush.
Posted in Senate Rules —
Posted at 12:24am on Mar. 30, 2005 Speaking of Lock-Step Obedience
By AndrewHyman
The millionaire-funded political action committee MoveOn has submitted tens of thousands of letters to newspapers during the past couple weeks, regarding the judicial nomination filibuster issue. All the letters are identical, or nearly so, and many of them are being published. See, for example, here, and here, and here, and here, and here, and here, and here, and here.
Peter Lewis and George Soros have given many millions to MoveOn, and they seem to be getting their money's worth. It's revealing that the letter is being repeated verbatim in newspapers around the country, which indicates a kind of unthinking obedience on the part of the senders. Here's what the letter says, with a few of my comments inserted in italics:
Dear editor,
Next month the Senate will most likely vote on what the Republicans call the "nuclear option." Actually, that's what the Democrats call it. Not a very auspicious start. This is about radical Republicans grasping for absolute power so they can appoint Supreme Court justices that favor corporate interests and an extreme right agenda over the rest of us. Actually, it has to do with appointing judges who respect the law as written, instead of legislating from the bench. I sincerely urge our senators to stand up for the centuries of checks and balances that have made this country great, and oppose the "nuclear option." For centuries no judge having clear majority support in the Senate was ever defeated by filibuster, until 2003.
Despite Senate confirmation of almost 95% of President Bush's nominees, radical Republicans are threatening to eliminate the filibuster to gain complete control over the Supreme Court. This figure includes district court judges. If only the more powerful appeals court judges are included, then this president has the lowest confirmation rate of any modern president. They want to use the Court to pay back big donors by rolling back worker protections, environmental laws, and privacy rights--all at our expense. If that is so, then moderate Republican Senators can vote against those nominees and thus deprive the nominees of a majority vote. No filibuster is needed.
This is not a partisan issue. Of course not. Ultimately you don't even have to oppose President Bush's judges to oppose the "nuclear option." This is about supporting checks and balances and opposing absolute power in the hands of one party. Many presidents have worked with a congress controlled by the same party (e.g. FDR, JFK, LBJ, et cetera); that was the will of the American voter, and it did not diminish our system of checks and balances at all. And that's something we can all agree on. Not exactly.
Anyway, I find it kind of frightening that a bunch of millionaires are putting words into the mouths of ordinary citizens, so as to get letters to the editor in newspapers nationwide. Here's a modest suggestion. How about if the MoveOn staffer who wrote this letter would instead send it directly to the newspapers, so the readers would see the true author?
While George Soros and friends are packing the newspapers, Hollywood producer Norman Lear is packing the airwaves, according to this article by Margaret Talev.
Posted in Senate Rules —
Posted at 7:56pm on Mar. 29, 2005 Senator Byrd's Legacy
By AndrewHyman
The Pittsburgh Tribune-Review has published a letter that says this:
The "nuclear option" is about imposing one-party rule and excluding all other forms of government, pretty much like Nazi Germany during World War II, only worse.
For more about Byrd's similar comments, see here. During 210+ years up to 2003, no judicial nomination with clear majority support in the Senate was ever defeated by filibuster. That was a healthy tradition, and restoring it would be a wise move.
Posted in Senate Rules —
Posted at 1:02pm on Mar. 29, 2005 Republicans Ahead
By AndrewHyman
Roll Call has an article from March 28 titled "Labor Enters 'Nuclear' Fray" by Paul Kane. An excerpt:
Senate Democrats and their interest-group allies are sharpening their pre-emptive attacks against a GOP effort to end judicial filibusters, launching a series of ad campaigns and expanding the coalition to include big labor.
. . . .
The most likely early targets of the ads are Maine's Republican Sens. Susan Collins and Olympia Snowe, and Sen. Lincoln Chafee (R-R.I.), a trio of moderates who have been outspoken in their displeasure with any attempt to end judicial filibusters.
In addition, Democrats believe there are 11 other possible "no" votes they could obtain, although one internal estimate showed the Republicans ahead at this point 46-45, with nine undecided GOP Senators holding the balance of power on the issue.
All 44 Democrats and Sen. Jim Jeffords (I-Vt.) are expected to vote
against the option, meaning Frist can afford to lose five GOP Senators and still win with 50 votes, plus Cheney's tie-breaker.
Technically, Frist could win with 45 votes plus Cheney's, if the other GOP senators are neutral or absent (of course, when a person does not vote, the effect is the same as if he or she voted on the prevailing side).
Anyway, I hope the GOP does prevail here. It may superficially seem like a good idea to require a supermajority to confirm judicial nominations, but there are very good reasons why that has not been the rule for the past 210+ years. Requiring a simple majority ensures some intellectual turnover on the court, so that ultimately the surviving judicial precedents will be the ones that are firmly supported by the objective meaning of the law. Similarly, a simple majority vote also allows for intellectual diversity on the court, instead of narrowing the pool of candidates who have any chance of ever pleasing 60 senators. Moreover, irequiring 60 votes for judicial nominations is kind of scary, given that the 21 least populated states comprise less than 12% of our population, and yet are represented by 42 Senators. In contrast to the Senate, the President is more representative of the national population (despite the electoral college's imperfections). A 60-vote threshold would greatly increase the chance that a minority will improperly try to extort nominees (having particular views) from the president, even though the Constitution explicitly vests nomination in the president alone (i.e. the Constitution only provides an advisory role for the Senate after the nomination is made).
It's also important to bear in mind that endless filibusters of legislation allow a minority of Senators to preserve the legal status quo. Endless filibusters of nominations, however, would allow the minority to actually change the legal status quo, by insisting upon judges who will do their bidding.
Posted in Senate Rules —
Posted at 9:58pm on Mar. 28, 2005 Pryor in the news
By feddie
Two Pryor-related pieces from the B'ham News, "Both sides find ammo in Pryor's record" and "High Court shows Pryor restraint." I especially liked the following excerpts from the latter:
Democrats knew they couldn't stop Pryor from being approved by the Senate because he had a majority of the votes, so they filibustered even a decision on the nomination. That's the hypocrisy of U.S. Sen. Edward Kennedy, D-Mass., who challenged Pryor's recess appointment. Kennedy and others argue Bush pre-empted the Senate's constitutional role of "advise and consent" on judicial nominations when he appointed Pryor. In fact, the Senate refused its advise and consent role when it failed to take up Pryor's nomination and others made by Bush.
The unfair gripe from liberals about Pryor is that Pryor is too conservative and that, as a federal judge, he'll ignore the law in favor of his personal beliefs. Pryor is pro-life and has a deep religious faith, yet his record before becoming a federal judge, and since, shows he rules on the law, not personal belief.
Remember that Pryor believes public displays of the Ten Commandments should be allowed, yet he courageously prosecuted former Alabama Chief Justice Roy Moore when Moore defied federal courts that ordered him to remove his Ten Commandments monument from the state Judicial Building.
Pryor is a principled judge - and, as he has shown time and again, his main principle is following the law.
Bush has renominated Pryor, and the hope is that the Senate will give him a fair vote. If the Senate continues to avoid its responsibility on Pryor's nomination, the 11th U.S. Circuit Court of Appeals will lose an outstanding legal mind and a promising jurist.
Posted in News —
Posted at 2:48pm on Mar. 28, 2005 Democratic Advertising Campaign
By AndrewHyman
The Democratic advertising campaign to prevent a fair up-or-down vote on nominations is increasing, according to this Washington Times article.
Posted in News —
Posted at 12:57am on Mar. 28, 2005 Senator McConnell on Filibusters
By AndrewHyman
Mitch McConnell observed on Fox News Sunday that Senate Democrats "don't want to work this out." He called the potential rule change, "The Byrd Option," after rule changes that then-Majority Leader Robert Byrd (D-West Virginia) accomplished in the 1970s. McConnell didn't "want to get too technical here" regarding how the Byrd Option would be implemented. Essentially, McConnell said, the GOP wants to "get us back to the precedents that were established prior to the last Congress." He is "confident we have the 51 votes to do that."
ADDED NOTE: The Senate will be back in session on April 4. On April 6, there will be a program at American University titled "Supreme Court Nominations: Prospects & Consequences for the Court and the Nation" (further info is at How Appealing).
SECOND ADDED NOTE: The full transcript from Fox News Sunday is here.
Posted in Senate Rules —
Posted at 1:49am on Mar. 27, 2005 Senators Feingold and Kohl on Filibusters
By AndrewHyman
The Milwaukee Journal Sentinel has an article titled, "Battle on Judges May Get Nasty." An excerpt:
Both Kohl and Feingold said they supported a strong Democratic response to the "nuclear option," but not a virtual shutdown of the Senate. "We've never said we're going to shut the place down, nor would I, Herb Kohl, be a part of that." Feingold said the Democrats' response should "send a message," but "I certainly don't think we should bring government to a standstill or anything like what the 'Contract with America' people tried to do," a reference to the unpopular shutdown engineered by House Republicans in the 1990s.
The GOP should not be petrified of the Democratic response to judicial nomination reform.
Posted in Senate Rules —
Posted at 8:34pm on Mar. 26, 2005 Senators Dole and Burr on Filibusters
By AndrewHyman
North Carolina's Senators Elizabeth Dole and Richard Burr defend the record of nominee Terrence Boyle here in the Washington Post (second letter down).
Also, Knight Ridder Newspapers has a story titled "Battle over judicial nominees likely to be ideological war" by Dick Polman. An excerpt:
Federal courts, in recent decades, have become the arbiters on abortion, affirmative action, gay rights, pornography, prayer, church-state relations - all the cutting-edge issues that pit liberals against conservatives and prompt impassioned debate over what kind of nation we want to be.
Posted in Senate Rules —
Posted at 11:23pm on Mar. 25, 2005 Terri
By AndrewHyman
Regarding the ongoing starvation of Terri Schiavo, Congress passed a law on March 20 giving the federal courts jurisdiction to make sure "without any delay" that all of her pre-existing federal rights are respected by the government of Florida. Yet, the federal courts have delayed any meaningful discovery of the relevant facts until after she dies, at which time the whole thing will be moot. The federal courts will never be able to determine, for example, whether or not she is entitled to "equal protection" from being killed. This whole tragic episode may not be directly related to judicial confirmations, but I'd like to say a few more words about it nonetheless.
The strange nature of the Florida proceedings is illustrated by the February 28 request of Terri's parents to provide food and water by natural means (orally) after removal of her feeding tube, and the Florida state court's denial of that request on March 8. How strange it is for a court to deny water to the mouth of a person dying of thirst. The parents' second amended complaint to the federal court in Tampa included all of this information, but to no avail. Terri's parents deserved the chance to try to give her water, when she was dying of thirst. If she then choked to death, then so be it. Terri can swallow her own saliva, so it's quite possible she could swallow water, especially when extremely thirsty. The official rationale for letting her die was to free her from a situation where she had to be hooked up to artificial nutrition and hydration; it appears the courts were afraid of jeopardizing that rationale by giving her a chance to drink. This is not the proper role for courts. Legislatures yes, courts no.
Everyone associated with this web site wishes Terri and her family well.
It's good for the country to focus on a particular situation like this from time to time. No matter how the Schiavo situation unfolds, perhaps reforms and improvements can come from it. Perhaps laws will be passed ensuring that people in Terri's situation will be given ample opportunity to accept nutrition orally when a feeding tube is removed, and requiring that feeding tubes never be used merely for the convenience of not having to feed a person orally, and requiring that thorough swallowing tests and swallowing therapy be available as a matter of right. Perhaps laws will be passed ensuring that qualified experts must be unanimous in giving a diagnosis that leads to withdrawal of nutrition. And, perhaps ordinary citizens will be called upon to participate in decisions like this (e.g. in the form of a jury), instead of having only judges determine the facts and determine which family member prevails in matters of life and death. Moreover, laws ought to ensure that a legal guardian does not have complete legal power to deny a person occasional sunshine and other small kindnesses offered by others, or to prevent medical testing or rehabilitation services paid for by others.
Maybe some states will now go so far as to take the unfashionable and politically incorrect step of banning the killing of people who (1) are awake every day, (2) are not dying, (3) are not in exceptional pain, (4) have not given clear instructions allowing themselves to be killed, and (5) have friends or family members who are able and eager to provide care.
Here's an excerpt from a recent news report:
In the federal court hearing Thursday, Schindler lawyer David Gibbs III argued that Terri Schiavo's rights to life and privacy were being violated. Whittemore interrupted as Gibbs attempted to liken Schiavo's death to a murder.
"That is the emotional rhetoric of this case. It does not influence this court, and cannot influence this court. I want you to know it and I want the public to know it," Whittemore said.
Of course the judge is right to avoid emotionalism, but is the comparison to murder emotional rhetoric or is it an uncomfortable statement of fact? How can the judge be sure without the "de novo" review ordered by Public Law 109-3? That law seems to me constitutional; it simply provides added procedures to protect federal rights that already exist. The courts ought to allow the facts to come out, and the facts can only come out if Terri Schiavo remains alive for a while longer.
Ralph Nader asserts that a great crime is being committed against Terri Schiavo. Also check out this piece in the Weekly Standard describing how ABC News has spread unsubstantiated rumors about GOP motives in the Schiavo matter, while ABC has also polled people after having deliberately misinformed them about Ms. Schiavo's condition.
This whole tragic episode may or may not have repercussions for the issue of judicial filibusters. The mainstream media seems to be using this incident to cast the GOP congressional majority in a bad light. On the other hand, maybe the public is smarter than they're given credit for.
ADDED NOTE: Findlaw provides many background materials.
SECOND ADED NOTE: More info about ABC, and about GOP motives in the Schiavo matter, can be found here.
THIRD ADDED NOTE: Here's a liberal professor's argument against what the courts did in the Schiavo case.
Posted in News —
Posted at 8:25pm on Mar. 25, 2005 Coburn and Staton on Filibusters
By AndrewHyman
The McAlester News-Capital reports this:
As Democrats and Republicans ready to square off on the president's judicial nominees, [Oklahoma Senator] Coburn warned that April in the capital may not be pleasant.
Also, former US Representative Mick Staton of Inwood, West Virginia had a letter recently in the Washington Times, criticizing one of his US Senators on the filibuster issue (guess which one).
Posted in Senate Rules —
Posted at 9:03pm on Mar. 24, 2005 Setting the Record Straight on Filibusters
By AndrewHyman
The Committee for Justice has just issued an interesting press release titled
Setting the Record Straight: A Brief Reply to the People for the American Way. This press release reviews the history of the "Constitutional Option." (Hat tip to How Appealing.)
Posted in Fillibuster —
Posted at 7:32pm on Mar. 24, 2005 Senate Rule 31
By AndrewHyman
Today, a distinguished professor responded to my suggestion that Rule 31 provides an excellent solution to the problem of endless filibusters of nominations.
I've often argued that a good way to deal with endless filibusters of judicial nominations would be to invoke Senate Rule 31, which says this:
3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate....
4. Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending unless otherwise ordered by the Senate.
....
6. Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President....
This rule requires a majority vote when a nomination is confirmed or rejected by the full Senate. And, I have argued that the Democrats are indeed trying to "reject" nominations by forcing them to expire at the end of the congressional session.
Here's how the above-mentioned distinguished professor responded to my suggestion:
The problem I have always had with the Rule 31 idea is that it fails to distinguish between the delay of a final vote caused by the filibuster, and the final vote specified in the Rule. There is no mandate for a final vote. There is too long a historical practice of nominations dying in committee for that to be the case.
So, I thought I'd briefly discuss here at confirmthem two reasons why I think this distinguished professor is mistaken. First, Rule 31, Section 4 clearly says that the rejection in question is "rejection by the Senate" rather than rejection by a committee. Thus, I agree that Rule 31 does not require a vote in a case where a nomination does not get out of committee to the Senate floor. Second, it is unreasonable to suggest that the "reconsideration" requirement of Rule 31, Section 3 applies to reconsideration of committee votes. In other words, Rule 31 has never been construed as imposing any reconsideration requirement whatsoever on any Senate committee, because "rejection" in Rule 31 means rejection by the full Senate rather than by committee.
Incidentally, I also believe that Rule 31 does not mandate a vote even in some situations where a nomination does get out of committee to the floor of the Senate. In particular, suppose the full Senate is preoccupied with other matters, and therefore does not get around to considering a nomination sent from committee, and subsequently that nomination lapses at the end of the congressional session; in such a case there is no "rejection" and thus no need for a vote. But, if the full Senate does consider (i.e. debate) a nomination, and pruposely puts any further consideration off until the nex congress, then Rule 31 does ordinarily require a vote before the nomination expires.
By way of analogy, suppose you apply for a job, and give the interviewer your resume. At the end of the interview, you're told that the interviewer has considered your application, but cannot offer a job at the moment, and hands you back your resume. Isn't that rejection? Of course it is.
Having said all that, I totally support any "constitutional option" that will restore majority rule to the confirmation process. It just seems like Rule 31 would be the best approach, by far. The Senate Rules would not have to be changed. There would be no issue of whether the Senate is a "continuing body." There would be no possible threat to legislative filibusters. Nomination filibusters could still occur, but they would have to end before the end of a congressional session. Thus, Rule 31 functions like various other limitations on debate (e.g. for trade agreements and budget resolutions).
Posted in Senate Rules —
Posted at 6:42pm on Mar. 24, 2005 New Poll on Filibusters
By AndrewHyman
A new Rasmussen Poll gives the following results:
Should every presidential nominee receive an up or down vote on the floor of the Senate? Yes50% No18%
Should Senate rules be changed to give every nominee a vote? Yes59% No22%
More details on this poll are available at the Rasmussen web site.
Posted in Senate Rules —
Posted at 3:18pm on Mar. 24, 2005 Some March 24 Stuff on Filibusters
By AndrewHyman
NPR's Morning Edition has some filibuster coverage today. Senator Hagel mentions that he "will vote" if there is a vote on the "constitutional option," rather than abstain. But, he doesn't say which way he'll vote.
Also, Nathan at Brain Fertilizer wrote a piece titled "Filibustering the Nuclear Option," urging a traditional filibuster in which people actually have to get up and speak. Some people object to this idea, because they say that the minority can simply put one person on the floor to speak, while the majority must maintain 50 Senators on the floor to ensure a quorum. But it's not that simple.
Suppose, for example, that there is an attempt at a rule change, which is filibustered. Rule 22 requires 2/3 of Senators "present" instead of 2/3 of the full Senate to get cloture. It seems to me that the rule change cannot be successfully filibustered if at any time the majority outnumbers the minority by more than two to one, because a two-to-one vote of Senators present (e.g. 50 GOP Senators to 25 Dem Senators) can indisputably invoke cloture on a rule change. Thus, the Dems would apparently have to maintain at least half as many Senators on the floor as the GOP. The only problem would be that, if less than 50 Senators are supportive of the rule change, then the Dems could bolt off the Senate floor and thus deny a quorum (although the GOP could compel attendance).
And that's my speech on parliamentary procedure for today.
Posted in Senate Rules —
Posted at 12:42am on Mar. 24, 2005 Kmiec, Baker, Eastman, Ackerman, and Harrell on Filibusters
By AndrewHyman
Ross K. Baker and Douglas W. Kmiec argue for and against endless nomination filibusters at NPR. Bruce Ackerman and John Eastman debate filibusters on Radio Times in Philadelphia (hat tip to How Appealing for this info). Kenneth Harrell supports up or down votes for nominees, in the Augusta Free Press.
Posted in Senate Rules —
Posted at 12:47pm on Mar. 23, 2005 Washington Times on Filibusters
By AndrewHyman
The Washington Times reports that the GOP leadership in the Senate is still seeking the necessary support to prevent perpetual filibusters of judicial nominations. According to the Times, Senators Chafee and Snowe are firmly against the leadership on this issue, whereas the following four Senators have expressed serious concerns and are officially undecided: Collins, Warner, McCain, and Hagel. Also, no opinion has been publicly expressed by Senators Cochran, Sununu, and Voinovich.
Further comments on this news article can be found here and here and here and here and here.
Needless to say, the participants in this web site urge the undecided Senators to do what's best for the judiciary and for the country. We urge a solution that restores the ability of the Senate majority to ultimately decide whether or not to advise and consent to nominations. After a full, fair, and lengthy consideration on the floor of the Senate, a majority vote ought to occur before a nomination is forced to expire. The president ought to use his best judgment in choosing nominees, and the Senate majority ought to use its best judgment to determine whether those nominees should be confirmed, taking into account all of the arguments made by the minority.
Posted in Senate Rules —
Posted at 12:06am on Mar. 23, 2005 More Remarks By Senator Byrd on March 20
By AndrewHyman
Two days ago, Senator Robert Byrd of West Virginia delivered a major statement to the Senate regarding filibusters of judicial nominations. The following text is copied from the Congressional Record.
Mr. BYRD. Mr. President, opponents of free speech and debate claim that, during my tenure as majority leader in the United States Senate, I established precedents that now justify a proposal for a misguided attempt to end debate on a judicial nomination by a simple majority vote, rather than by a three-fifths vote of all Senators duly chosen and sworn as required by paragraph two of Senate rule XXII. Their claims are false.
Proponents of the so-called nuclear option cite several instances in which they inaccurately allege that I ``blazed a procedural path'' toward an inappropriate change in Senate rules. They are dead wrong. Dead wrong. They draw analogies where none exist and create cock-eyed comparisons that fail to withstand even the slightest intellectual scrutiny.
Simply put, no action of mine ever denied a minority of the Senate a right to full debate on the final disposition of a measure or matter pending before the Senate. Not in 1977, not in 1979, not in 1980, or in 1987--the dates cited by critics as grounds for the nuclear option. The Congressional Research Service confirms that only six amendments have been adopted since the cloture rule was enacted in 1917, and "each of these changes was made within the framework of the existing or 'entrenched' rules of the Senate, including rule XXII.''
In none of the instances cited by those who threaten to invoke the nuclear option did my participation in any action deny the minority in the Senate, regardless of party, its right to debate the real matter at hand.
Let us examine each of these so-called precedents in greater detail.
October 3, 1977--Enforcing Senate Rule XXII Against Improper Post-Cloture Delay: In 1977, the Senate invoked cloture on S. 2104, described as "a bill to establish a comprehensive natural gas policy.'' Shortly thereafter, two Senators began a postcloture ``filibuster by amendment,'' after a supermajority of the Senate had already chosen to invoke cloture (under the Senate rules) and had made clear its desire to bring debate on the bill to close. Though the Senate had voted to invoke cloture by an overwhelming vote of 77 to 17, two Senators nonetheless continued to offer amendments, to request quorum calls, and to offer amendments to amendments to preserve and extend time on the bill post-cloture. Their efforts, as confirmed by the Chair, ran directly contrary to the purpose of rule XXII, which is to limit debate.
The tactics employed were sufficiently egregious that the Senate spent 13 days and 1 night debating the bill, which included 121 rollcalls and 34 live quorums. Cloture having been invoked by an overwhelming vote, I then made the point of order that:
when the Senate is operating under cloture, the Chair is required to take the initiative under rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.
Critics have alleged that my actions in this instance "cut off debate'' and somehow constitute a precedent for ending a filibuster of a judicial nominee by 51 votes before cloture has been invoked. But that argument is erroneous.
The Senate was operating postcloture. The Senate had voted 77 to 17 to end debate. I didn't do that; the Senate took that action.
If anything, my actions clarified that rule XXII means what it says. The text of rule XXII provides explicitly that, once cloture is invoked, ``no dilatory motion, or dilatory amendment, or amendment not germane shall be in order.'' Therefore, once Members have voted to invoke cloture, dilatory amendments or actions are simply out of order. Senators still retain their hour of postcloture debate. Senators still have the right of appeal.
Some have falsely alleged that I even acted to impede debate on that appeal, but they are mistaken yet again: Under the provisions of rule XXII, appeals from rulings of the Chair were not and are not debatable postcloture.
Nothing that was done in 1977 changed rule XXII or sent a shock wave through the Senate. Nothing that was done restricted the right of Senators to wage a filibuster against a nominee or legislation before cloture is invoked. No action taken affected the fundamental right of Senators to debate the natural gas deregulation bill; they had already debated the bill and, of their own volition, had decided to end their debate by an overwhelming vote. Instead, I sought to end dilatory tactics postcloture, when such tactics were, and remain today, prohibited by the plain text of paragraph two of rule XXII. I simply sought a ruling from the Chair to enforce Senate rule XXII.
In fact, when, in 1977, my point of order was sustained, the Chair in so doing noted that the point of order was consistent with the purpose of rule XXII, which "is to require action by the Senate on a pending measure following cloture within a period of reasonable dispatch.'' When the Chair's ruling in support of my point of order was thereafter appealed, that appeal was tabled in the Senate by another overwhelming vote of 79 to 14.
No Member of the minority in the Senate lost his right to debate the natural gas deregulation bill. Their ability to debate the bill was not tampered with or impeded in any way. Each Senator retained the right to debate, under the Senate rules, the bill both precloture and in the hour that was provided to each Senator under rule XXII postcloture.
Thus, contrary to current assertions, in 1977, a strong, bipartisan, supermajority of the Senate, supported by, among others, Minority Leader Howard Baker and myself, endorsed this necessary effort to halt postcloture dilatory tactics consistent with Rule XXII of the Standing Rules of the Senate. That is completely unlike the so-called nuclear option that is currently being discussed by some in the Senate. I sought to enforce rule XXII; not to destroy it.
January 15, 1979--Enforcing Rule XXII Against Improper Post-Cloture Delay: At the beginning of the new Congress in 1979, I, as Senate majority leader, introduced a resolution to make various changes to Senate rule XXII, the bulk of which addressed circumstances postcloture. Recently, on March 10, 2005, a Senator spoke on the Senate floor and stated that this resolution serves as a precedent for the nuclear option. However, my resolution served to enforce rule XXII, not to destroy it. My introduction of S. Res. 9 was influenced by the postcloture dilatory tactics that were suffered by the Senate during its consideration of the natural gas deregulation bill during the preceding Congress.
My efforts in that regard were supported, on a bipartisan basis, by Minority Leader Howard Baker who stated in response to my introduction of S. Res. 9:
I point out, as I am sure most of our colleagues are aware and will recall, that in the case of the most recent post-cloture filibuster, it was the majority leader and the minority leader, with the distinguished occupant of the chair, the Vice President, in the chair at the time, who managed to establish a line and series of precedents that created the possibility to at least accelerate the disposition of the controversy and conflict.
The point of the matter is that this is not, nor has it been, a matter that is purely partisan in its character.......
He added:
I share with the majority leader the belief that the post-cloture filibuster, a creature of fairly young age and recent development, is one that the Senate has not focused on adequately. I am prepared to do that and I want to do that.
As the minority leader in the Senate recognized at the time, the text of rule XXII provides explicitly that, once cloture is invoked, "no dilatory motion, or dilatory amendment, or amendment not germane shall be in order.'' Therefore, once Members vote to invoke cloture, dilatory amendments or actions are impermissible. No proposal of mine in 1979 restricted the right of Senators to filibuster a nominee or a piece of legislation prior to the invocation of cloture, consistent with Rule XXII of the Standing Rules of the Senate. And the position I took at the time enjoyed support on both sides of the aisle.
November 9, 1979--Strengthening Rule XVI Against Legislation on Appropriations Bills: Opponents of free speech and debate in the Senate cite a third event as a supposed basis for their proposed ``nuclear option.'' In November 1979, during consideration of a Department of Defense Appropriations bill, Senator Stennis raised a point of order that an amendment to change the rate of pay for military personnel, which had been offered by Senator Armstrong, constituted legislation on an appropriations bill and was therefore out of order under the express terms of Senate rule XVI. Legislative amendments to appropriations bills violate Senate rule XVI. However, by precedent, the "defense of germaneness'' arose. According to this practice, which evolved outside the text of rule XVI, if the House has acted first to "open the door'' to legislate on an appropriations measure, a Senator could respond with a legislative amendment, provided that it is germane to some House legislative language. If a point of order were made that an amendment constituted legislation, a ruling by the Chair on that question would be preempted by a vote on the germaneness of the amendment to the House language. This practice was justified only if the House had included legislative language in its bill. But this practice made a mockery of the rule if the House had not included any legislative language.
When Senator Stennis raised the point of order that the Armstrong amendment constituted legislation on an appropriations bill, Senator Armstrong asserted the defense of germaneness, meaning that his amendment was germane because it was relevant to the House bill. At that point, I made the following point of order:
I make the point of order that this is a misuse of the precedents of the Senate, since there is no House language to which this amendment could be germane and that, therefore, the Chair is required to rule on the point of order as to its being legislation on an appropriation bill and cannot submit this question of germaneness to the Senate.
I was concerned that, as a threshold matter, the amendment should not be considered because there was no House language to which the proposed amendment could possibly be germane. The Chair noted that while this was a case of first impression, my point was "well taken,'' and he sustained my point of order. Senator Armstrong then appealed the ruling of the Chair, and I moved to table that appeal. My motion was adopted by the Senate.
Critics claim that my actions in this instance were contrary to the plain language of rule XVI, because rule XVI at paragraph four states, "all questions of relevancy of amendments under this rule, when raised, shall be submitted to the Senate and be decided without debate.'' But their assertion that I acted in a manner contrary to rule XVI is false.
My point of order went not to the issue of legislating on an appropriations bill, but to a different issue: The concept of "defense of germaneness.'' Nowhere in rule XVI is there a reference to the concept of ``defense of germaneness.'' The source and subsequent application of defense of germaneness and its threshold test is not rooted in any Senate rule. Instead, it dates back to a precedent, which is identified by Riddick's Senate Procedure as a "theory,'' which was "enunciated'' by Vice President Marshall in 1916, that, "Notwithstanding the rule of the Senate ..... when the House of Representatives opens the door and proceeds to enter upon a field of general legislation ..... the Chair is going to rule, but of course the Senate can reverse the ruling of the Chair, that the House having opened the door the Senate of the United States can walk through the door and pursue the field.''
Second, my efforts were to avoid the misuse of precedent and thereby enforce the express provisions of Senate rule XVI, which prohibits legislation on an appropriations bill. It is only by precedent that germaneness justified a legislative amendment on an appropriations bill, and only if the House opened the door. My goal was to preserve proper precedent and strengthen rule XVI; not to weaken it, as the nuclear option would do to rule XXII. My actions did not establish any precedent to destroy the right of extended debate in the Senate. In fact, the Senate's action affected only the ability to offer certain amendments to particular legislation, and, even then, the Senate minority's rights to appeal a ruling of the Chair were fully preserved.
March 5, 1980--Enhancing the Right of Debate of Nominations on the Executive Calendar: Critics of extended debate also reference a motion I made in 1980 to proceed directly to a nomination on the Executive Calendar. They claim that this created a precedent making a motion to proceed to any nomination on the Executive Calendar nondebatable. It did no such thing.
At the time, a nondebatable motion to go into executive session automatically put the Senate on the first treaty on the Executive Calendar. This meant that moving to the Executive Calendar required consideration of treaties before nominations, simply because the Senate's Executive Calendar prints both treaties and nominations in the order in which they are reported out of their respective committees of jurisdiction, and treaties are then printed in the first section of the Calendar.
But the placement of treaties and nominations on the Senate Calendar was not and is not based on any great precedent or legal requirement that would elevate treaties to a position of prominence greater than nominations. Instead, the placement of treaties and nominations on the Senate Executive Calendar is simply the result of a clerical printing convention. There has never been a logical reason for the Senate to distinguish between a motion to proceed to a nomination and a motion to proceed to the first treaty. Because there is no substantive reason that the Senate should have to go to treaties before being able to consider a nomination, it seemed logical that the Senate should be able to proceed directly to a nomination on the Executive Calendar.
My motion to proceed directly to the first nomination, rather than a treaty, did not inhibit or frustrate Senate debate in any way. The Chair explicitly confirmed that it did not contravene any precedent or Standing Rule of the Senate. Moreover, it also did not restrict the ability of the Senate to filibuster the nomination itself. In fact, disposition of the nomination remained, as it is today, fully debatable in several respects. A nomination remains fully debatable when it comes before the Senate, and motions to proceed from one nomination to another are also fully debatable when the Senate is in executive session.
May 13, 1987--Enforcing Rule IV Against Improper Debate of a Motion To Approve the Journal: In 1987, a Republican minority led a filibuster seeking to prevent the Senate from considering a defense authorization bill. Prior to moving to the bill, I sought unanimous consent that the Journal of the preceding day "be approved to date,'' a routine request in the course of Senate business. The Journal is the official record of the proceedings of the Senate, and under Senate rule IV, the Journal of the preceding day must be read following the prayer by the Chaplain unless, by nondebatable motion, the reading of the Journal is waived.
In this instance, Senator Dole objected to my request that the Journal be approved by unanimous consent, and the question of whether the Journal should be approved was put to a vote. Under Senate rule XII, if a Senator declines to vote during a rollcall, he or she must, at the time his or her name is called, give a reason for not voting. In an unusual occurrence, Senator Warner advised the Chair that he "decline[d] to vote for the reason that I have not read the Journal.'' Rule XII requires that if a Senator declines to vote, the Presiding Officer must put a nondebatable question to the Senate on whether it is "permissible for the Senator to decline his right to vote on the issue.''
The Chair called for the vote to determine whether Senator Warner should be excused from voting on the Journal. However, before that vote was completed, Senator Dan Quayle stated that he, too, declined to vote, because he said, "I do not believe a Senator should be compelled to vote.'' The Chair asked the clerk to call the roll on whether to excuse Senator Quayle from voting, when Senator Symms stated that he, too, declined to vote for the same reason. At this point, there were four Senate votes pending. if additional Senators in the Chamber similarly chose to decline to vote, seriatim, the process could have continued forever.
Recognizing that, just a bit over a year previously, the Senate had deliberately amended rule IV to make the motion to approve the Journal a nondebatable motion, I made a point of order that the requests of the Senators to decline to vote were not in order. I stated:
that in amending rule IV, the Senate intended that a majority of the Senate could resolve the question of the reading of the Journal. I make my point of order that a request of a Senator to be excused from voting on a motion to approve the Journal is, therefore, out of order and that the Chair proceed immediately, without further delay, to announce the vote on the motion to approve the Journal.
Through a series of subsequent motions and votes, I prevailed in rectifying what I observed at the time was an extraordinary situation illustrated by a series of, in essence, "votes within a vote.''
Contrary to erroneous allegations by some, my actions in this regard did not set a precedent that "changed Senate procedure to run contrary to the plain text of a Standing Senate Rule.'' In fact, the action I took achieved exactly the opposite result: It ensured that Senate procedure would conform more closely to both the intent and the plain text of Senate rule IV.
At the time, one Senator mistakenly stated that the Chair could not entertain a unanimous consent request to suspend the application of rule XII in this instance. But that is an incorrect understanding by a Senator who was referring to rule XII, paragraph 1--where Senators cannot seek to be added to a vote that they missed, and the Chair may not do it or entertain a request to do so, a rule that was not in question and has always been strictly enforced by the Chair--not rule XII, paragraph 2, which was in dispute at the time.
Again, the actions I took were to enforce both rules IV and XII. Should I, instead, have endorsed a procedure whereby one Senator after another could simply decline to vote and put each Senator's reasons for declining to vote to another vote? Should Senators have been permitted, one after another, to decline to vote, then force a vote on each one's reason for not voting, on what is a nondebatable question in a nondebatable posture? Had I not raised a point of order against this abusive practice, it could have been used in innumerable future circumstances, and the Senate would not be able to complete a vote on any measure or matter, ever. It would, again, have made a mockery of the Senate's rules. Keep in mind that, if the tactic were ever legitimized, it could be employed to prevent a judicial nominee from ever receiving a vote.
It should be further noted that the point of order I made applies only to proceedings on motions to approve the Journal. Both the Presiding Officer and I confirmed this specifically in response to a question from Senator Alan Simpson. As I then stated:
where Senators decline to vote on other rollcall votes in other situations--this point of order does not go to those. This point of order only goes to the unusual situation, the extraordinary circumstances, in which the Senate found itself today, when it was trying to act on a motion to approve the Journal to date, and when three Senators in succession stood to say, "Mr. President, I decline to vote on this rollcall for the following reasons.''
Elsewhere, I also expressly stated that, "for the legislative history,'' the precedential value of my point of order was "confined only to that situation in which the Senate is trying to complete a vote on a motion to approve the Journal to date ..... It is confined to that very narrow purpose.''
The Senate's decision on that day was fully consistent with the text of rules IV and XII, which provides expressly that the question of whether a Senator could decline to vote, "shall be decided without debate.'' The decision, once again, further enforced the existing rules of the Senate. This stands in stark contrast to the proposed nuclear option, which would contravene, by a simple majority vote, the express text of rule XXII, which applies to "any measure, motion, or other matter pending before the Senate,'' and which requires an affirmative vote of three-fifths of the Senators duly chosen and sworn.
Let me state, once again, that no action of mine cited by the proponents of the nuclear options has ever denied a minority in the Senate its right to full debate on the final disposition of a measure or matter pending before the Senate.
The steps discussed here have all gone toward strengthening or enforcing Senate rules, or clarifying the application of Senate precedents--not undermining them. The Senate has been the last fortress of minority rights and freedom of speech in this Republic for more than two centuries. I pray that Senators will pause and reflect before ignoring that history and tradition in favor of the political priority of the movement.
Posted in Senate Rules —
Posted at 8:19pm on Mar. 22, 2005 Rush Limbaugh Versus Barbara Boxer
By AndrewHyman
Rush takes on the California Senator here. An excerpt:
We never needed 60 votes for any of these slime ball leftist jurists that have been nominated in the course of this country's history. We didn't need 60 votes to put a KKK member on the Supreme Court or avowed racists on the Supreme Court, or absolute idiots and dunces on the Supreme Court, but all of a sudden now, with the Democrats losing power ... "Why, there's no check and balance! What we have to do is to require 60 votes to stop these mean corporate-aligned judges," blah, blah, blah, blah, blah.
Rush has a point. Presidents going back at least to Andrew Jackson in 1837 have been getting nominees confirmed with less than 60% of the Senate. Historical statistics are here.
Posted in Senate Rules —
Posted at 12:32pm on Mar. 22, 2005 Fein, Daly, Mitchell, Miller and Dionne on Filibusters
By AndrewHyman
Bruce Fein has a piece titled Jaded Political Benchmarks in the Washington Times rebutting Senator Harry Reid. Kay Daly has a piece titled "Same Story, Different Nominees," in GOP USA (also published in Opinion Editorials), blasting the uncivil treatment of nominees. Brian Mitchell has a piece titled GOP Getting Ready For 'Nuclear Option' To Confirm Judges, in Investor's Business Daily, quoting Kay Daly: "Any compromise would be entirely unsatisfactory. . . . I think [the Senate GOP] . . . would find an absolute uproar from the grass roots that they would not soon forget." And, Michael Miller of Elkhart, Indiana has this to say:
[A] portion of the minority refuses to accept the will of the people. They have turned the Constitution and more than 200 years of history on its ear. They refuse to allow a vote on a number of appointees to the federal bench and they do so on purely partisan grounds. And now they threaten a halt to Senate business should they be thwarted in their attempt to usurp the president's prerogative to appoint said judiciary. I say let them bring government to a grinding halt. They have already marginalized themselves to the majority of us. Let them alienate the remainder of the populace.
E.J. Dionne makes the point that Democratic Senators represent slightly more of the American population than Republican Senators. However, that's no reason to trash the concept of Senate majority rule in the appointment process, for a couple reasons. First, the will of the people, as reflected in the Constitution, is that the Senate represents states whereas the House membership is based upon population (and in the House the Republicans represent more people than do the Democrats). The second reason for not reading too much into the populations represented by the two parties in the Senate is that --- in the grand scheme of things --- the Senate and the President are jointly responsible for staffing the judiciary, and thus the Republicans who are involved in the appointment process actually represent more people than the Democratic Senators do. This population issue was discussed previously here at confirmthem.
Posted in Fillibuster —
Posted at 11:51am on Mar. 22, 2005 Allen: Call Democatic bluff
By Zummo
Senator George Allen (R-VA) has an op-ed piece in the Washington Times that calls for the Republicans to call the Democrats out on their bluff.
It looks to me like the Democrats are trying to play some poker. I think they're bluffing and I think Republicans need to call them on it. We also need to remind the Democrats that governing our nation is not a game.
Now is the time for Republicans in the Senate to "go for it" without timidity; we must not cower or worry about the Democrats' political reaction. The fact is, very soon we could see a vacancy on the Supreme Court of the United States. It's important that we put an end to these obstructionist tactics before we start piling up vacancies on the Supreme Court, as they are piling up in federal appellate courts around the country today.
We need to keep our promises to the American people. They expect us to act, not hide behind obscure parliamentary procedures and process. Americans voted back in November. Now they expect their senators to take a stand and vote, not to play petty, partisan process games.
Posted in Senate Rules —
Posted at 7:55pm on Mar. 21, 2005 Bruce Fein Debating Nan Aron
By AndrewHyman
Bruce Fein will debate Nan Aron regarding nomination filibusters on March 23.
The Albany Democrat Herald will be rooting for Fein, judging from their editorial:
[W]hat's wrong with voting on nominations and deciding the outcome by majority vote? Citizens for the most part thought that this is what the Senate did anyway.
Posted in News —
Posted at 4:47pm on Mar. 21, 2005 Supreme Court Lets Pryor Appointment Stand
By AndrewHyman
The recess appointment of William Pryor is deemed constitutional by the lower courts, and the Supreme Court declines to get involved.
Posted in News —
Posted at 3:47pm on Mar. 21, 2005 Newsweek Apologizes for Slanted Filibuster Poll (Not)
By AndrewHyman
In a stunning, astounding, mind-boggling, and fictional display of journalistic integrity, Newsweek magazine has issued a formal apology for its bogus poll on filibusters. In a make-believe press conference called by Newsweek's top brass, the popular news magazine frankly admitted that its poll was rigged in order to help Senate Democrats get away with their completely unprecedented filibusters of Appeals Court nominees. The news magazine acknowledged that the following preamble to its poll question was complete hogwash:
In the past, this tactic has been used by both Democrats and Republicans to prevent certain judicial nominees from being confirmed. .... Would you approve or disapprove of changing Senate rules to take away the filibuster and allow all of George W. Bush's judicial nominees to get voted on by the Senate?
More specifically, the news magazine today acknowledged at its press conference that never in the entire history of the United States has there been a filibuster of an Appeals Court nomination, and even the Fortas nomination did not have clear majority support. The Newsweek honchos also acknowledged that the poll question was intentionally written to make it seem like any rule change would not apply equally, to both the incumbent president as well as future Democratic presidents. And, the magazine acknowledged that the poll question misled people into believing that filibusters on judicial nominations would be completely eliminated, when in fact the GOP would be delighted to allow such filibusters as long as there is eventually a final vote (after a year, for example). Moreover, Newsweek promised that it would preface its next poll question on filibusters by clarifying that the Democrats' endless filibusters of judicial nominations may well violate the Constitution and/or existing Senate rules.
Immediately following the fictional Newsweek press conference, all people in attendance were so traumatized by the miraculous display of honesty, that they had heart attacks and died. Which is why you haven't heard about all of this until now.
For more accurate poll results (which isn't saying much), see here.
Posted in Fillibuster —
Posted at 12:02pm on Mar. 21, 2005 More on George Will's Filibuster Column
By AndrewHyman
There's still more "fallout" from George Will's recent filibuster column, beyond what I already described. Mark R. Levin has a piece titled, "Will on Filibusters" in National Review, rebutting Will's points one by one. Powerline also takes Mr. Will to task, in a piece titled, "George Will on the Filibusters," written by Paul Mirengoff (a.k.a. "Deacon"). Of course, my definitive response to Mr. Will is still here (and some people comment on my response here).
Meanwhile, the conservative British politician Iain Duncan Smith has an op/ed titled "Minority Rules" in the New York Times. An excerpt:
Senate Democrats need to consider if their filibustering against President Bush's judicial nominations might eventually carry too big a price. The original filibusteros were Spanish and Portuguese pirates. They demanded a heavy price for releasing hijacked ships. But it was never set too high. For if the price became too dear, the authorities would decide that it was cheaper to eliminate such banditry than to tolerate it.
UPDATE: The Art of the Blog also takes on Mr. Will.
Posted in Senate Rules —
Posted at 11:47pm on Mar. 20, 2005 Filibuster Debate on C-Span
By AndrewHyman
Elliott Mincberg of People for the American Way (PFAW) discussed the judicial nomination issue with Manuel Miranda of Coalition for a Fair Judiciary, on C-Span's Washington Journal. The full audiovideo is here.
Posted in News —
Posted at 7:12pm on Mar. 20, 2005 Weekly Standard on Filibusters
By AndrewHyman
Terry Eastland, speaking for the editors of the Weekly Standard has a piece titled "If You Were a Democrat." Eastland writes as follows:
"[T]he parliamentary procedures [that Senate Republicans are] ... contemplating using to exempt judicial nominations from the filibuster, a Senate rule that the Senate may change as it wishes, were once used by Byrd himself when he was majority leader to establish Senate precedents designed to stop filibusters and other delaying tactics...."
Posted in Senate Rules —
Posted at 5:02pm on Mar. 20, 2005 Schiavo
By AndrewHyman
Although this blog is about filibusters of judicial nominations, perhaps a brief comment about the Schiavo matter would not be too far afield.
This is a tragic situation, of course, and both sides are apparently trying to do the right thing. So any hateful rhetoric on either side is probably not appropriate.
Congress may or may not have power to intervene. It would be much better if the people and government of Florida would resolve this matter. Congress may have power, under the Comerce Clause, to regulate hospices and physicians; there's also the Equal Protection Clause, which allows Congress to require that states protect people equally from being killed. But, if Congress does have power to intervene in matters like this, it is at the outer reaches of what Congress can legitimately do. Much better for the people and government of Florida to address all of this without well-intentioned interference from Congress.
Some people say that the Supreme Court meddles in state affairs all the time, so Congress should too. But that disregards the fact that the Constitution limits the powers of Congress and the Supreme Court in entirely different ways.
So, what should the people and government of Florida do in a situation like this? In my opinion, when there is not clear evidence of a person's intent (e.g. a "living will"), then the family should be allowed to make this kind of decision to let the person die, if it is clear to courts that the person is in a permanent vegetative state. However, if the family is divided, then there should be a presumption in favor of life.
It seems very strange that the Florida legislature has not been able to arrive at this sort of reasonable conclusion.
Posted in News —
Posted at 4:04pm on Mar. 20, 2005 George Will Flops on Judicial Filibuster
By AndrewHyman
Excellent, outstanding, brilliant piece in the National Ledger (by me of course) rebutting Will's column. More disagreement with Will's piece can be found here and here.
Posted in Senate Rules —
Posted at 3:21pm on Mar. 20, 2005 Baltimore Sun on Filibusters
By AndrewHyman
The Baltimore Sun has a lengthy piece about filibusters today. It's unclear to me from their website whether the piece is meant as a simple news report, or an editorial. Clearly it does have a slant (e.g. "the change would end a time-honored Senate tradition"). However, there are also a lot of interesting quotes, starting with Senator Hatch.
"I think, more and more, we're coming to the conclusion this is the only way to resolve this for both parties - and do it in an equal way for both sides - so that neither side can do this type of obstruction ever again," said Utah Sen. Orrin G. Hatch, a Republican and past chairman of the Judiciary Committee.
....
"I was asked in the gym the other day by the distinguished minority whip [Democratic Sen. Richard J. Durbin of Illinois], he said, 'Are you fellows going to blow up the Senate? Are you Republicans going to blow up the Senate?'" Hatch recounted. "I said, 'Heavens, no.' I said, 'You guys are.'"
C. Boyden Gray of the Committee for Justice is also quoted:
"The skirmishing, which has taken place in both parties for the past 30 years, has never reached the same flat-out rejection," he said.
Senator Chuck Hagel accurately describes the important historical role of legislative filibusters:
"The United States Senate is the one body of government that protects minority rights. That's a very basic part of the United States Senate, and the filibuster is one of those tools used to do that," Hagel said recently. "I would hope we don't come to that fork in the road when the majority leader ... would feel that he would have no other option than to exercise a nuclear option."
Senator Tom Coburn is quoted as follows:
"If I wanted to get an applause line, anywhere I went in Oklahoma, whether it was solid Democrat territory or Republican territory, all I had to say was, 'I'm going to make sure we vote on the judges,'" said newly elected Sen. Tom Coburn, an Oklahoma Republican. "I kind of relish the fact that we're going to do the right thing, and I believe that history will prove that we are going to do the right course."
Posted in Senate Rules —
Posted at 3:20am on Mar. 20, 2005 William Safire and Vincent Fiore on Filibusters
By AndrewHyman
William Safire has an amusing column about the so-called nuclear option, suggesting that the "atomic option" might be more easily pronounced. Safire also reports that Senator Lott is shocked --- shocked! --- that anyone would attribute the term "nuclear option" to him:
I don't recall being the first to use the word "nuclear." This is a matter of the rules of the Senate, which sets its own rules. I prefer calling it the constitutional option. The other side is acting like we're going to blow the place up.
Meanwhile, Vincent Fiore talks about another nuclear option in The Conservative Voice:
It is time for Republicans to start acting like the majority party, and time for Democrats to accept that they are now the minority party. For Republicans to do any less invites a "nuclear option" of a different sort, namely at the ballot box in next year's midterm elections.
Posted in Senate Rules —
Posted at 10:46pm on Mar. 19, 2005 George Will Flops
By AndrewHyman
Columnist George F. Will has just come out with another piece about filibusters of judicial nominations. He's written a lot of great stuff over the years, but not this time. His first piece on this subject was excellent, but then he flipped, and now he has flopped.
On February 27, 2003 Will's first column on this subject ("Unconstitutional Filibuster") recognized the continuing dangerous and unacceptable situation in the U.S. Senate:
If Senate rules, exploited by an anticonstitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president's power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.
But then Mr. Will had a change of mind. On December 6, 2004 he advocated a different approach in his column titled "Shock and Awe In the Senate":
The president should renominate all 10 appellate-court nominees who have been filibustered, and he should vow, like General Grant, to "fight it out on this line, if it takes all summer." Norman Ornstein, a student of these things, says Senate Republicans could force Democrats to conduct the kind of filibuster Southern Democrats conducted against civil-rights legislation in the 1950s---talking around the clock, the obstructionists and their opponents sleeping on cots in the Capitol, the Senate paralyzed. There has never been such a spectacle in the era of C-Span and saturation journalism on cable 24 hours a day.
That was the flip, and now for the flop. On March 20, 2005 Mr. Will has a column titled "Why Filibusters Should Be Allowed". No more talk about violating two centuries of practice, or nullifying the president's power. No more talk about supporting people who have been renominated, or forcing filibusters around the clock. Unlike General Grant, George Will is now sprinting from the front lines. Here's some of Mr. Will's latest (with a few of my comments inserted in brackets):
Some conservatives say the Constitution's framers "knew what supermajorities they wanted" -- the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings." [And what do those Rules say? Rule 31, Section 3 says, "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration...." It stands this rule on its head to say that a supermajority can be required for confirmation.]
....
The filibuster registers intensity, enabling intense minorities to slow or stop government. [Yes, filibusters of legislation do allow a minority to protect the status quo by keeping the law as it is, but in sharp contrast filibusters of judicial nominations allow a minority to force changes in the status quo by demanding judges who will do their bidding.]
....
The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Robert Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. [Ruth Ginsburg and Steven Breyer were accepted by Republicans DESPITE their judicial philosophies. Perhaps Mr. Will could also acknowledge that another crucial change is now underway: the Democratic minority is attempting to not only reject nominees based on philosophy, but also reject them against the will of the clear majority of Senators. That's the new tradition that Mr. Will is now liberally urging upon us.]
....
The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage? [The GOP has never used a filibuster to defeat a judicial nomination having clear majority support in the Senate. Is that what Mr. Will is urging the GOP to start doing? If such a scenario as he describes were to transpire, the GOP could take great comfort in the fact that it takes more than one Supreme Court Justice to strike down a statute, and great comfort in the fact that such a decision would be reversed after voters elect a GOP president and Senate. Moreover, such a scenario cannot possibly occur if perpetual nomination filibusters are stopped now rather than later.]
....
And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal? [This is nonsense. The Panama Canal Treaty was approved by 2/3 of the Senate as all treaties must be, and that is a far greater number of Senators than the number required to end a filibuster (and keep in mind that the exact same 2/3 of Senators present can change the Senate rules however it likes). And, what's so important about being able to filibuster non-judicial nominations? It's only succeeded twice (for a Surgeon General and for an ambassador). Does Mr. Will think it would be fine and dandy if Dick Cheney retires, and then George Bush nominates a replacement, and then 42 Senators representing the least populous states demand a different nominee? Those 42 Senators represent less than 12% of the population of the United States.]
....
Exempting judicial nominations from filibusters would enlarge presidential power. [Again this is nonsense. It would prevent presidential power from being diminished, as Mr. Will wrote in his previous columns. How would it enlarge presidential power to allow presidents to keep on doing what they have been doing for more than two centuries? Does Mr. Will seriously believe that presidents from Washington to Lincoln to Roosevelt dealt with nomination filibusters? Mr. Will is simply not being factual.]
....
No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters. [Might. Even if that were a certainty, the main issue here is a long-term question about the structure of our government. Do we want to dramatically reduce the pool of candidates who will ever serve on the Supreme Court? No more Thomases, no more Scalias, only people who satisfy 60 Senators need apply. Consider that such people might not even exist. If 45 Senators have position X on an issue, and 55 Senators have position Y, and all of the Senators insist on knowing the position of the nominee, then no nominee can possibly pass muster.]
Mr. Will was on the right track, before he flip-flopped.
Posted in News —
Posted at 9:14pm on Mar. 19, 2005 Slanted Newsweek Poll On Filibusters
By AndrewHyman
55% of Republican voters see through the pollsters' slanted questions, and support putting an end to the unprecedented use of perpetual filibusters of judicial nominees. Here's the slanted Newsweek question:
U.S. Senate rules allow 41 Senators to mount a filibuster -- refusing to end debate and agree to vote -- to block judicial nominees. In the past, this tactic has been used by both Democrats and Republicans to prevent certain judicial nominees from being confirmed. Senate Republican leaders, whose party is now in the majority, want to take away this tactic by changing the rules to require only 51 votes, instead of 60, to break a filibuster. Would you approve or disapprove of changing Senate rules to take away the filibuster and allow all of George W. Bush's judicial nominees to get voted on by the Senate?
Despite the obvious bias built into this question, 55% of Republicans said "yes" and only 33% said "no." Just imagine how many more people would have responded affirmatively if the question had instead been this:
Would you approve or disapprove of putting some time limit on filibusters so that every presidents' judicial nominees can eventually get voted on by the Senate?
And imagine what the response would have been if Newsweek had given truthful background information. In the past, this filibuster tactic has been used by SOME Democrats and Republicans to TRY preventing certain judicial nominees from being confirmed, but never before until now have enough Senators actually supported this kind of thing so that the tactic would clearly be successful. It's unclear whether the Fortas nomination in 1968 would have succeeded if the cloture vote had instead been an up-or-down vote.
Shame on Newsweek. For more accurate poll results, see here.
Posted in News —
Posted at 6:54pm on Mar. 18, 2005 McCain, Collins, and Specter are Rubberstamps?
By AndrewHyman
The anti-war, George-Soros-funded, ultra-liberal group MoveOn is moving on from hosting Democratic rallies for Sen. Byrd to advertising nationwide against judicial nomination reform. MoveOn is trying to persuade moderate GOP Senators like McCain, Collins, Chafee, Snowe, and Specter to oppose reform by --- get this --- accusing those moderate GOP Senators of being rubberstamps for the White House. Keep it up MoveOn.
Posted in News —
Posted at 12:53pm on Mar. 18, 2005 Frist Is Trying to Address Democratic Concerns
By AndrewHyman
Senate Majority Leader Frist has just sent a letter to Minority Leader Reid, responding to Reid's letter, and promising to go the extra mile to avoid a confrontation:
"When we return after the Easter recess, I will offer a proposal that takes account of complaints both parties have had with the confirmation process," Mr. Frist wrote. "It will protect the Constitution, validate our duties as senators, and restore fairness to a process gone awry."
If a confrontation does happen, winning it would be a huge political plus for the GOP, and any government shutdown could only be a big minus for the Democrats. However, even if the consequences were hypothetically reversed, still the GOP would be obliged to do the right thing, and not allow the Democrats to rewrite Senate rules and tradition so that a minority can reject whatever nominees it chooses.
Posted in Senate Rules —
Posted at 2:19am on Mar. 18, 2005 Fortas No Precedent For What's Happening Now
By AndrewHyman
The Washington Post takes a historical look at the Fortas episode in 1968. The Post acknowledges that there was no clear majority for Fortas, quoting a New York Times report:
"Because of the unusual crosscurrents underlying today's vote, it was difficult to determine whether the pro-Fortas supporters would have been able to muster the same majority in a direct confirmation vote."
The Post also acknowledges that pre-Fortas history provides no precedent for what's happening now, according to The Congressional Quarterly Almanac: "The effort to block the [Fortas] confirmation by means of a filibuster was without precedent in the history of the Senate."
Comments about the Post article can be found here.
There are tons of other important differences between what happened to Fortas in 1968 and what's happening now. In 1968, Republicans AND Democrats used a so-called filibuster with respect to Associate Justice Abe Fortas, who was Lyndon Johnson's choice for chief justice. Various senators said that the purpose of that so-called Fortas filibuster was to prevent debate from being prematurely cut off, rather than to perpetually stall in order to kill the nomination. The debate on the floor of the Senate lasted a grand total of four days, until Fortas withdrew of his own volition. He himself said in his withdrawal letter that he could ultimately have obtained an up-or-down vote on the merits. The Republican leader (Everett Dirksen) said that his mind was "still open," and that cutting off debate would therefore be premature while there were further issues that needed "exploration." The Fortas debate was real, rather than fake as it is now; Senators were actually opening their mouths and conversing with each other. Fortas only obtained 45 votes for cloture (to 43 against), which was far short of a simple majority of the full Senate. The only reason that a cloture vote occurred at all was because LBJ wanted Fortas to get a slim majority vote to save face; Joe Califano has explained that LBJ already planned to withdraw the nomination long before the cloture vote, when LBJ learned that Fortas had indirectly received $15,000 from businessmen who could one day come before the Court. No Senator threatened to filibuster for "all the hours in the universe" as the Democrats now threaten. The Fortas situation is also different from the present situation in that his was a Supreme Court nomination, and moreover there was no vacancy yet because Earl Warren was still seated (also, the nomination of Associate Justice Fortas would not have given Fortas any more voting power than he already had).
Posted in Fillibuster —
Posted at 9:05pm on Mar. 17, 2005 Let Me Spell It Out
By AndrewHyman
The Senate rules say this:
When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken . . . . Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same . . .Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President . . .
How could it possibly be more clear that Senate Democrats are trying to change this rule? Here's the Democrats' latest attempt to rewrite Senate Rule 31:
"We think you oughta get 9 votes over the 51 required. That isn't too much to ask. For such a super-important position there oughta be a super-vote."
These are the words of Senator Barbara Boxer spoken on March 16, 2005. She acknowledges that only 51 votes are required, and then asks for a minority veto. Go figure.
Posted in Senate Rules —
Posted at 8:34pm on Mar. 17, 2005 Stats On Circuit Court Confirmations
By Lorie Byrd
Daly Thoughts has some telling statistics on judicial confirmations to Circuit Court. He goes back to President Truman and notes a decided trend.
Posted in Circuit Courts —
Posted at 7:11pm on Mar. 17, 2005 More Nominees Coming Out of Judiciary Committee
By AndrewHyman
A little birdie may have told me that Senator Specter has just promised reporters that he will put Owen, Brown and Pryor to a vote in the first two weeks of April (without any need for a rehearing). In January, Senator Specter said: "In general, I do not propose to have rehearings. . . . There would have to be an exceptional circumstance that would require a hearing. We've already had hearings."
The transcripts of the previous hearings can be found online for Owen, and for Brown, and for Pryor.
UPDATE: Human Events has the story.
Posted in Fillibuster —
Posted at 2:55pm on Mar. 17, 2005 York on Rush
By Zummo
Byron York, author of the article I cited below, appeared on the Rush Limbaugh program. He went over much of what he wrote about on NRO, and also added that he believes that the momentum is on the Republican side. As I mentioned in my comments, both York and Limbaugh noted that by appearing before the Moveon set, the Democrats have made Moveon much less of a fringe group and have brought them into the mainstream of the party. Moveon has become a major power broker within the party, and the Democratic leadership has essentially affirmed their important position. Again, this is bad for the country but good for the Republicans.
Some other highlights-
On Republican squeamishness to fight back loudly: Two grounds of opposition to the "nuclear" option: The practical ones who don't want to upset the Democrats, and others who fear that they will be in the minority someday and don't want the filibuster weakened.
Republicans have been successful this term on many fronts (tort reform, ANWR drilling), and the Democrats are weakening their own cause by focusing so much of their energy on blocking social security reform and judges.
It should be noted that Limbaugh intends to spend most of the rest of the show discussing this issue, so please tune in if you are near a radio.
Update: Great stuff from Rush. First, he has some words for those Senators who want to preserve the filibuster "just in case" they should return to the minority. He rightly castigates them for acting like they're not even the in the majority. Well, the fact of the matter is the Republicans ARE in the majority, and there is no point in preserving an option that the party didn't even use when they were in the minority. And, further, the way the Democrats are acting, what's to make us think they're about to return to the majority any time soon.
I would also add, as a matter of principle, that if we are to maintain that the filibuster for judicial nominees is unconstitutional or just plain wrong then why would we want to preserve it for ourselves? Those who hope to preserve the judicial filibuster "just in case" are making the Republican argument weaker because they are tacitly adhering to the notion that the filibister is a truly ethical option.
Rush also states that the Democrats' rash actions over the past few days shows that they are legitimately scared that the Republicans are actually going to do what they say they will do, and that if the leadership does not actually follow through then this will only go to strengthen Democratic resolve and allow them to call our bluff in the future.
Posted in News —
Posted at 1:41pm on Mar. 17, 2005 Myers Approved by Committee 10-8
By AndrewHyman
Click here for a report about the party-line committee vote. Background info on Myers is here courtesy of the Committee for Justice. The Washington Post is calling for a vote on the merits regarding Myers (see excerpt from the post immediately below).
UPDATE: Byron York describes the committee vote on Myers.
Posted in Judiciary Committee —
Posted at 1:00pm on Mar. 17, 2005 America on Filibusters
By AndrewHyman
David Reinhard of the Oregonian has a terrific column today expressing widespread sentiment that nomination filibusters should stop. The Center for Individual Freedom (CFIF) is urging people to FAX the Senate. The Washington Times reports:
Republican officials privately say they hope Democrats pursue their planned strategy of shutting down the Senate over judicial filibusters, comparing it to the politically disastrous government shutdown by House Republicans almost 10 years ago.
Meanwhile, Investor's Business Daily has an excellent piece today, including this:
Democrats say they're only speaking up for the "rights of the minority." But those rights don't include vetoing judicial nominees --- like one minority they didn't stand up for: Miguel Estrada, who eventually withdrew after being filibustered in 2003. We pay senators to do a job --- vote up or down on nominees, and not play games. . . .This week, a poll by the Judicial Confirmation Network found that 82% of Americans think "well-qualified" nominees deserve a vote on the Senate floor.
Additionally, Gary J. Andres wrote an essay entitled "Majority rule on judges" for the Washington Times, and Michael Reagan has penned an essay entitled "The Party of Obstruction." Also, the Washington Post has an interesting editorial today opposing a Myers filibuster while also opposing his confirmation:
The first three appeals court candidates examined by the Senate Judiciary Committee this year all present serious, though very different, concerns. One, William G. Myers for the U.S. Court of Appeals for the 9th Circuit, should be voted down on the merits. The second, Terrence W. Boyle for the 4th Circuit, should not be confirmed based on the current record. The third, Thomas B. Griffith for the D.C. Circuit, falls on the other side of the line.
Posted in Senate Rules —
Posted at 11:39am on Mar. 17, 2005 Byron York on the Democratic Party's breakdown
By Zummo
Byron York has a column up today on National Review Online which details the heated rhetoric coming out of the Democratic camp that I alluded to yesterday. You know, I don't know whether to laugh or cry after reading stuff such as follows.
Other speakers - Byrd's fellow senators - seemed comfortable with the interruptions of their colleague, but still managed to occasionally mangle the message.
Kennedy, for example, referred to Barbara Boxer as Barbara Mikulski. He referred to William Myers, the Bush judicial nominee, as William Morris. And he kept telling the crowd to "speak truth to justice," apparently confusing that with the more common liberal exhortation to "speak truth to power."
Schumer, normally one of the more forceful advocates against the president's judicial nominees, suffered a terrible case of mixed metaphors when he brought up the Founders' hope that the Senate would be the "cooling saucer" for political passions. Not anymore, Schumer said, now that Republicans want to turn the saucer into "the rubber stamp of dictatorship" and the country into a "banana republic."
Even Mrs. Clinton seemed slightly off balance, managing to commingle Marx, the filibuster, and Jimmy Stewart when she charged that Republicans planned "to consign 'Mr. Smith Goes to Washington' to the dustbin of history."
Yes folks, these are members of the upper body of the legislature envisioned by our Framers to be the more enlightened quasi-aristocracy.
Aside from these comical statements, there was a moment of deep revelation as Barbara Boxer - perhaps inadvertently - spoke the truth about the Democrat's views on the filibuster.
The most substantive comments of the rally came from Boxer, who made a number of notable statements in her brief time at the microphone. First, she appeared to endorse the idea of the Senate creating a super-majority of 60 votes for judicial confirmations. Since federal judges enjoy a lifetime appointment, Boxer told the crowd, their confirmation is simply too important to be decided by a mere majority vote. "For such a super-important position, there ought to be a super vote," Boxer said.
Next, Boxer expressed a certain fundamental lack of respect for the Republican chairman of the Senate Judiciary Committee, Pennsylvania Sen. Arlen Specter. Referring to Leahy, who is the ranking Democrat on the committee, Boxer said, "I call him my chairman of the Judiciary Committee, because I don't recognize anyone else" - a remark that seemed to speak volumes about the effectiveness of Specter's efforts to reach out to Democrats.
Finally, Boxer made a strong effort to address the uncomfortable fact that she once, in 1994, opposed the filibuster, back when Democrats controlled the Senate and were less concerned about minority power. Now, like Byrd - whom she called "the love of my life" - she has had a change of heart and believes the filibuster is vitally important. "I thought I knew everything," Boxer confessed. "I didn't get it."
"I'm here to say I was wrong," she continued. "I'm here to say I was totally wrong."
Much like Senator Byrd, it seems that Senator Boxer approves of the filibuster only when convenient to her and her party.
York then closes with an observation that is both troubling and relieving at the same time.
During the rally, a number of senators paid tribute to MoveOn, none more enthusiastically then Durbin, who began and ended his remarks with a spirited "Right on, MoveOn!" The message - coming after some Democratic moderates had urged the party to separate itself from MoveOn - was clear: from now on, Senate Democrats and MoveOn are a team, no matter what anyone says.
It is troubling because it does not bode well for our country when one of the two major parties so closely aligns itself with an organization so outside of the mainstream. Moveon has contributed nothing but vitriol and demagoguery to the political scene, and yet Democratic leaders have now openly embraced their warped agenda. At least now we can stop pretending that Moveon represents the fringe of the party.
Which is why I am also relieved and comforted by this open display of insanity. As a partisan Republican I welcome the Democratic party's self-immolation. Sadly, as an American, I can only shake my head in disbelief.
Posted in Fillibuster —
Posted at 11:49pm on Mar. 16, 2005 Ben Nelson on Filibusters
By AndrewHyman
Senator Ben Nelson of Nebraska is a major figure in the debate about restoring the tradition of up-or-down votes for judicial nominees, as opposed to the new practice of endlessly filibustering those nominations. Senator Nelson, in his previous job as governor of Nebraska, ended up appointing about 45 percent of the judges in that state, and now he is a major player in the federal appointment process. Nelson is up for reelection next year in a state that George W. Bush won with 66% of the vote.
The latest on Senator Nelson is that he, "does not support the use of filibusters to block judicial nominees, but he also doesn't support the use of the nuclear option as a solution . . . . He'd prefer some compromise." Unfortunately, Senator Nelson's recently proposed "compromise" would require more votes to implement (67) than would be required to overcome a nomination filibuster (60). Fat chance of that proposed compromise unblocking any judicial nominees!
Senator Nelson's hometown is McCook, Nebraska which was also home to U.S. Senator George Norris. Ironically, Senator Norris mounted a famous tallkathon against arming the nation for WWI, and so Norris was indirectly responsible for the Senate's first cloture rule in 1917. Norris is described in John Kennedy's book Profiles in Courage.
Posted in Senate Rules —
Posted at 9:13pm on Mar. 16, 2005 Hillary's Message
By AndrewHyman
Today, New York's Senator Hillary Rodham Clinton gave a speech to members of MoveOn.org, which is a political action committee opposed to letting the Senate majority give advice and consent to nominations.
Senator Clinton urged her audience to "reach out" during the upcoming Senate recess, in order to convince moderate Republican Senators that it's okay for a Senate minority to reject nominations. Basically, Senator Clinton wants MoveOn.org to reach out to those moderate Republican Senators so that there will never be any need for her to reach out to them ever again on nominations.
Whenever the 45 Democratic and Independent Senators want to defeat a particular nomination, all they have to do now is "reach out" and convince six moderate Republicans, such as Olympia Snowe, John McCain, Lincoln Chafee, Susan Collins, Arlen Specter, and one other. But Senator Clinton and the Dems don't want to have to do that anymore. Senator Clinton wants Snowe, McCain, Chafee, Collins, and Specter to back her in this judicial confirmation crisis so that she will never need their backing again to defeat a nomination. I find that ironic, and well worth a confirmthem post.
Posted in Senate Rules —
Posted at 6:12pm on Mar. 16, 2005 GOP Leadership Confident
By Lorie Byrd
Kate O'Beirne writes the following at The Corner.
A Senate Republican leadership source explains that his GOP colleagues are unmoved by yesterday's photo-op designed to display Democrats' intent to go nuclear themselves by blocking Senate business should Republicans deploy their nuclear option to prohibit filibusters on judges. He explained that there isn't much to block given the things Democrats want for themselves. He predicted that appropriations bills would be acted on - "Never stand between a Senator and his asphalt." The GOP leadership also appears very confident that they have the votes for the filibuster rules change.
Posted in Senate Rules —
Posted at 6:02pm on Mar. 16, 2005 New Democratic Party Seal
By AndrewHyman
Regarding the last line of Paul's recent post....
Of course, I do sincerely have the greatest respect for many Democrats (and for babies), but this new seal seems apt in present circumstances. :-)
Posted in Fillibuster —
Posted at 5:46pm on Mar. 16, 2005 Demagoguery on Display
By Zummo
At what point does heated political rhetoric transform from mere hyperbole to outright lying? I ask this question as I currently listen to Senate Democrats explain how minority "rights" would be threatened if the judicial filibusters are eliminated. Clearly they jest, n'est-ce pas?
It would be one thing if the filibuster provided the only means through which Senators could express their disapproval of a judicial nominee, but as we all know this is not the case. Obviously all members of the Senate will have ample opportunity to discuss and debate the merits of individual nominees regardless of whether or not they are able to filibuster. As such, their protestations that the curtailment of the filibuster is tantamount to majority tyranny rings quite hollow.
And yet, almost to a man (or woman) they repeat this silly mantra which is, essentially, an outright lie. It is not as though the Republicans in the Senate are desiring to shut off all debate, but instead are merely acting within their legislative and constitutional rights to allow the majority to act on a presidential nominee.
What's more galling and frustrating is that there appears to be no effort on the part of the Democrats to seriously defend their actions. They have chosen to make vague accusations about the supposed extremism of the judges and to fling wild charges about the "nazi-like" tactics of the majority leadership. And now Senator Reid has laid down what has to be the most futile threat in the history of Congress. And throughout all of this the Democrats have failed to justify their actions through an informed discussion about why their minority tyranny is justified by the Constitution or Senate rules. Exactly how does one defend what is basically a minority veto after having read the Constiution's advice and consent clause? Don't ask the Democrats because they cannot provide a rational answer.
It is not my contention that Republicans are completely above over-the-top rhetoric, but at some point there needs to be an argument put forward that relies on something more than careless exagerrations and extreme falsehoods. The Democratic party's words and actions over the past few days convinces me that they ought to replace the donkey as their symbol with the drawing of a child throwing a temper tantrum.
Posted in Analysis and Predictions —
Posted at 5:26pm on Mar. 16, 2005 Finally, This Is Getting Some Attention!
By Lorie Byrd
Finally the issue of judicial nominations is getting some widespread media attention and we have the Democrats to thank for it! Jayson at Polipundit wrote yesterday and Andrew Hyman has posted several items yesterday and today about how Democrat Senate leader Harry Reid is bringing the issue of judges front and center, along with some poll results that should have Reid and the Democrats plenty worried.
This is one of those issues that has made me hopping mad for years now. I have watched the confirmation hearings of so many good men and women and have seen their records distorted and their characters assaulted by Democratic Senators on the Judiciary Committee and have seen no price being paid by those doing so.
Well, there was no price paid for it because the public was unaware of it -- not because they approved of it. I think this is where Democrats made their big mistake. I think that maybe they thought that since there has been no public outrage over their behavior over the past four years, that the public either approved of it or just didn't care. Maybe in some cases the public did approve because they believed the Democrat line that the nominees were extreme and controversial. More often though, the public has been completely unaware of what was taking place. In the instances where this issue was brought to the public's attention, they have not been approving. Just ask Tom Daschle.
The more the American people see of the treatment of these highly qualified individuals, the more evident it will be that they are not "extremists." It will also become evident that this entire exercise has been about partisan power politics, and it has been at the expense of the reputations of some very good people.
I am thrilled that this issue is finally getting some attention. Now, to the Republicans in the Senate: Don't screw it up! Don't get bogged down in some arcane fight over Senate rules and constitutionality. I am not saying don't fight that fight. It is important to address those issues. I am just saying that is not what the public should be focused on, because if it is, they will lose interest.
Use the spotlight to let the public see the people being accused of being extremists. Let the public see what the Democrats have been doing for the past four years by accusing people like Charles Pickering of being racist. Show them the content of the memos that show the Democrats being manipulated by liberal interest groups and expose the real racists that would deny a nominee an up or down vote because, among other things, "he is Latino." I repeat: Don't screw it up. This is something that we need to get right.
Update: In the comments section, Andrew rightly cautions against charging racism in the case of Estrada regarding the "Latino" memo and I respond.
Posted in Fillibuster —
Posted at 3:19pm on Mar. 16, 2005 Poll Results on Filibusters
By AndrewHyman
Here's a press release from the Judicial Confirmation Network:
Overwhelming Majority Favor Senate Vote on Judges;
Eighty-two Percent of Voters Say Qualified Judges Should Get Up or Down Vote in Senate
Washington - A national, scientific survey of 800 registered voters reveals that an overwhelming majority of Americans believe that qualified candidates for our nation's highest courts deserve an up or down vote in the in the US Senate. The survey further revealed that Americans want partisan politics removed from the judicial confirmation process and that our Judges should focus on applying existing laws and not attempt to make new law in the courtroom.
"It is abundantly clear that the American people are tired of the partisan, political maneuvering and the unwarranted character assassinations against qualified candidates for the federal bench," said Wendy Long, Counsel to the Judicial Confirmation Network. "People see through these aggressive and negative attacks waged by some individuals and groups on the left and they want it to end. They want Senators to do their jobs and hold a straight, up or down vote on nominees based on their qualifications, not the baseless, negative rhetoric of the left."
"When eighty two percent of the voting public says the Senate should give these nominees a fair vote based on their qualifications, Senators need to take notice," said Gary Marx, executive director of the Judicial Confirmation Network. "We are actively communicating with thousands of citizens and dozens of grassroots organizations across the country who tell us that the Senators who play an active role in obstructing the confirmation process could well pay a hefty political price."
Highlights of the survey include:
* Eighty-two percent of voters agree that "if a nominee for any federal judgeship is well-qualified, he or she deserves an up or down vote on the floor of the Senate.
* By 78 to 12 percent, voters agree that Senators have a constitutional duty to vote on judicial nominations.
* Seventy-five percent of voters agree that "President Bush should keep his promise made during the campaign to nominate a U.S. Supreme Court justice who will apply existing law, not make new law.
* Overall, 67 percent of voters agree we should take politics out of the courts and out of the confirmation process.
Ayres - McHenry and Associates conducted the scientific telephone survey. A detailed memo from Whit Ayres to the JCN accompanies this release.
UPDATE: This poll has been reported by CNS News.
Posted in News —
Posted at 2:15pm on Mar. 16, 2005 Advice From the Nominator
By AndrewHyman
President Bush commented at a press conference today about judicial nominees and Democratic threats to shut down the government:
They're getting voted out of the committee, but they're not getting a vote on the floor. And I don't think it's fair to the candidates. I don't think it's fair to the administration for this policy to go forward. And so hopefully the Senate will be able to conduct business and also get my nominees a vote, an up-or-down vote on the floor of the Senate.
Of course, President Bush doesn't have a monopoly on wisdom, so here are some wise words from Barney Frank:
When they shut down the government, to try and force President Clinton to give in on the budget, it turned out the public didn't like it. I think the Republicans realize now that these are not good tactics. I don't know that you'll see them shutting down the government again. Gingrich? . . . His tactic of shutting the government down really backfired on him.
Can Harry Reid pronounce "backfire"?
Posted in News —
Posted at 11:15am on Mar. 16, 2005 Not Changing the Rules
By AndrewHyman
According to the New York Sun, C. Boyden Gray of the Committee for Justice disclaims any intention to change the Senate rules: "What we are doing is not changing the rules, but restoring the status quo that existed for some 200-odd years."
The same article reports that the vote on restoring the status quo may come next month, perhaps at the end of April. The Senate breaks for a two-week recess on Friday, and Senate leaders want to squeeze in as much doable legislation as possible before Congress is shut down by the Democrats.
Posted in Senate Rules —
Posted at 1:40am on Mar. 16, 2005 Blame Is Laid as Senate Sees Rift on Judges
By AndrewHyman
The New York Times has this report:
Mr. Reid called President Bush "drunk with power" and urged voters to "set aside your partisan views and oppose this arrogant abuse of power."
....
This week, MoveOn.org is buying $100,000 in air time to run television commercials depicting a giant hand using the dome of the Capitol as a rubber stamp, followed by an image of Vice President Dick Cheney with a crown on his head. A spokesman for the group said the advertisements would begin running in Washington and on CNN nationally.
....
"They are the ones who want to spend money," said Senator Trent Lott, Republican of Mississippi. "If we don't get appropriations bills and we wind up spending less money in appropriations, I like that. So who are they punishing here?"
....
Senator John Thune, Republican of South Dakota, said of the showdown: "I think it is imminent. At some point we are going to have this fight, and I am ready."
The people drunk with power here are the minority leaders who can't sober up from being in the majority all those years. They owe the Senate and President their advice and counsel --- not their dictates.
I guess we'll soon see whether the GOP is still the "Grand Old Party," and whether the GOP Senate can deal respectfully but firmly with the cantankerous minority.
Posted in Senate Rules —
Posted at 9:47pm on Mar. 15, 2005 Former Senators McClure and Wallop on Filibusters
By AndrewHyman
Wallop and McClure wrote in the Wall Street Journal today as follows (courtesy of the Committee for Justice):
Within the Senate itself, there is the two-speech rule ....It could eventually strangle an initial judicial filibuster, and it would make subsequent ones far less likely.
If they are correct, however, then it appears the two-speech rule could be used just as easily to end a legislative filibuster as a nomination filibuster.
UPDATE: The two-speech rule is also discussed in an April 5, 2005 report from the Congressional Research Service at pages 9-10. The CRS Report also discusses another technique at pages 9-10: when filibusterers ask for quorum calls, rule them dilatory and out of order. Combining these two techniques together could form quite a potent combination.
Posted in Senate Rules —
Posted at 5:30pm on Mar. 15, 2005 Dems Formally Threaten Government Shutdown
By AndrewHyman
Democrats Warn of Slowdown Over Judge Rule:
Reid, the Democratic leader, exempted military and national security legislation from the threat, and said Democrats would not block passage of measures needed to assure continuation of critical government services.
Senator Frist responded immediately to Senator Reid, as follows:
"I am committed to getting the work of the American people done in the Senate, which includes advice and consent on the President's judicial nominations as outlined in the Constitution. Never before in the history of the Senate has a nominee with clear majority support been denied an up or down vote on the Senate floor because of a filibuster. To shut down the Senate would be irresponsible and partisan. The solution is simple: return to 200 years of tradition and allow up or down votes on judges."
The Senate starts a two-week recess on Friday.
Posted in Senate Rules —
Posted at 4:33pm on Mar. 15, 2005 Myers Will Be a Test Case
By AndrewHyman
According to a Christian Science Monitor article, Senator Cornyn said this today: "We have to reinstate majority rule in the Senate. The Myers nomination is the test." A vote on Myers in the Judiciary Committee is scheduled for Thursday.
The author of this article is Gail Chaddock, who previously participated in a WBUR radio program, in which she presented inaccurate information about nominees Janice Rogers Brown and Priscilla Owen, as previously described here at confirmthem.
Unfortunately, today's CS Monitor article also contains some rather unbalanced material. Ms. Chaddock writes, "Republicans blocked dozens of President Clinton's judicial nominees by refusing to let them come to a vote in the Judiciary Committee." Ms. Chaddock neglects to mention two critical factors: (1) Republicans at that time were in the MAJORITY instead of the MINORITY; and (2) the Republicans did not block an up-or-down vote on the Senate floor to get any of Clinton's nominees out of committee (this is called a discharge vote).
Posted in Senate Rules —
Posted at 4:05pm on Mar. 15, 2005 Mr. Will Is Still Not on Board
By AndrewHyman
Columnist George Will spoke today at a conference co-sponsored by the Federalist Society and the Heritage Foundation, regarding the situation with nomination filibusters. He is an intelligent person, and he made some excellent points. However, it would be "premature," he says, to report that he supports shutting down nomination filibusters. Although Mr. Will's arguments are interesting, they do not withstand careful scrutiny.
Among other things, Mr. Will is concerned about a slippery slope that may lead to elimination of legislative filibusters. But, one could just as easily argue that the Dems have now put us on a slippery slope leading to a new minority veto of Supreme Court nominees (and perhaps of cabinet nominees too, as well as a minority veto of vice presidential nominees by dint of the 25th Amendment). It's noteworthy that less than 12% of the American population is represented by 42 senators, so the slippery slope we are on is very slippery indeed.
The point that Mr. Will is most passionate about, however, is that in our system of government the filibuster allows an intense minority to be heard and be respected. But this is a grave oversimplification on Mr. Will's part.
If a minority of 41 senators is intensely opposed to legislation, then they can filibuster the legislation and defeat it, thereby preserving the status quo. But, if a minority of 41 senators is intensely in favor of legislation, it doesn't matter in our system of government. Thus, the legislative filibuster is designed to only respect intense support for the status quo, rather than intense opposition against the status quo.
Compare perpetual filibusters of judicial nominations. This new device allows an intense minority of 41 senators to demand judges who will legislate from the bench (or uphold previous legislation from the bench), and thereby change the legitimate status quo. A supermajority of 60 senators would thus be required in order to protect the status quo. This is the exact opposite of how the legislative filibuster works. He's comparing apples and oranges.
Mr. Will does rightly observe that some of the constitutional arguments made against nomination filibusters are somewhat less than persuasive. However, very few scholars disagree with the notion that a simple majority of the Senate has power to reinterpret the Senate rules, as it has in the past.
Mr. Will is also concerned about expanding the powers of the presidency. Actually, what the Democratic minority has recently done is an attempt to reduce the powers of the presidency, and Mr. Will should not be worried about restoring things to the status quo. No one here is trying to set up a dictatorship or a rubberstamp. The Senate is full of strong-willed Republicans who can stand up to the President if he makes some ridiculous nomination. Senators like McCain, Dole, Snowe, Warner, Chafee and the rest are not pushovers.
Posted in Fillibuster —
Posted at 10:19am on Mar. 15, 2005 53 Senators Are Reported to be on Board
By AndrewHyman
The Boston Globe has the story. If the Globe info is accurate, then it appears more likely than ever that perpetual filibusters of judicial nominations will soon be overcome. If all goes well, the tradition that prevailed until 2003 will be restored.
Hugh Hewitt discusses this Globe article here (and also discusses a related op/ed by two former senators in the Wall Street Journal).
UPDATE: More headcount info here.
Posted in Fillibuster —
Posted at 2:37am on Mar. 15, 2005 Scalia and Sekulow
By AndrewHyman
Justice Scalia gave a speech yesterday. He emphasized that he tries not to be a "strict constructionist" or a sloppy constructionist, but rather a "reasonable constructionist." He also said that he considers himself an "activist judge," in the sense that he tries to actively defend and implement the principles and commands of the Constitution. He said that much of the language of the current nomination process (e.g. the term "moderate") is really applicable to lawmakers rather than to interpreters of law (in other words, there is no such thing as a "moderate" interpretation of a text or contract or statute). Lots of other interesting stuff in his speech too.
Jay Sekulow has a letter to the editor in the Washington Post explaining the obvious: that free speech in the Senate is not inconsistent with ultimately voting on a nomination.
Posted in Fillibuster —
Posted at 12:20am on Mar. 15, 2005 With Friends Like These
By AndrewHyman
David Limbaugh has a March 11 column, in which he makes some good points:
We have a president firmly in charge of the executive branch, intent on appointing constitutionalists to the federal appellate bench. But he is violently opposed by filibustering Democrats who consider jurists who believe in interpreting the Constitution as written to be extremists.
Moreover, they insist on coequal power in the president's judicial appointments rather than limiting themselves to their assigned advise-and-consent function, in which they should pass only on the competence and character of the president's nominees. Again, such behavior by congressional Democrats has now become utterly predictable.
But where are the Republicans? Senator Frist earlier indicated he would invoke the nuclear option, which is a deliberately misnamed remedy designed to restore Senate majority rule to the Senate judicial confirmation process -- without, contrary to Senator Byrd's hysterical rantings, suppressing debate. Are we going to wait until more damage is done to invoke this rule change, or delay until GOP liberal Arlen Specter gets ready to throw us half a bone?
Apparently, the business lobby is pushing its agenda before the judicial showdown deadlocks the Senate: "Frist appears eager to clear the decks of achievable legislation." Sen. Frist may try to get the following things done before the judicial nominations: the budget (including drilling in ANWR), then an energy bill (which will be easier if ANWR is already taken care of in the budget context), and a highway bill. That could also give Senator Specter enough time to get all of the previously filibustered nominees out of committee, not that much time is really needed.
Posted in Fillibuster —
Posted at 11:21pm on Mar. 14, 2005 Indignant Pennsylvanians
By AndrewHyman
Some conservative Pennsyvania bloggers are understandably ticked off that their opposition to Arlen Specter has caused Time Magazine to automatically and presumptuously lump them together with the religious right. Also, the following comment from that Pennsylvania blog is amusing:
To listen to the Dem Senators you'd think Bill Frist had rolled the Constitution into a doobie and was smoking it on the Senate floor by even thinking about changing the filibuster rule.
Senator Byrd would have been wiser to talk about doobies rather than some of the things he did talk about.
Posted in Fillibuster —
Posted at 2:14pm on Mar. 14, 2005 Legislative and Nomination Filibusters are Apples and Oranges
By AndrewHyman
Perpetual nomination filibusters are a new and unprecedented tactic in the United States. Proponents of that new tactic are trying to confuse it with the old tradition of legislative filibusters which have been around for quite awhile, in both Washington D.C. and Hollywood. Smart people should understand the differences between these two types of filibusters, and those differences go way beyond the fact that one tactic is new and the other old.
First, legislative filibusters allow a minority to defend the status quo, by preventing changes to the law. In contrast, filibustering judicial nominations allows a minority to demand judges who will change the law by legislating from the bench (or by upholding previous legislation from the bench); thus, a supermajority of 60 senators becomes necessary in order to defend the legitimate status quo.
Second, legislative filibusters are inclusive, in the sense that they bring more people and viewpoints into the system. In contrast, judicial nomination filibusters are intended to exclude people, by narrowing the pool of candidates who will ever get on the bench. No more Scalias. No more Thomases.
Third, legislative filibusters only involve the legislative branch. In contrast, nomination filibusters disrupt the way the branches interact and balance each other, while at the same time severely limiting the flexibility and influence of the executive branch. Vice Presidents Ford and Rockefeller were both confirmed by the Senate, but next time around 42 Senators representing less than 12% of the population could demand whoever they want.
Fourth, legislative filibusters arguably conform with the intentions and expectations of the framers of the Constitution. In contrast, perpetual nomination filibusters do not. For example, here's a quote from Alexander Hamilton: "[I]t could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy." Hamilton only trusted "the majority of the senate" to confirm or reject nominations.
Fifth, legislative filibusters do not erode the rule of law. In contrast, filibusters of judicial nominations dramatically erode the rule of law, by ensuring a philosophically homogenous judiciary now and in the future. This means that when judges write their opinions, they will not have to convince their colleagues or their successors, because their colleagues and successors will all be cut from the same cloth. In other words, judicial precedents will be able to survive without having to pass muster with a broad range of viewpoints, and so those surviving precedents will not have to be firmly based upon the objective meaning of the law.
One could go on and on. Confusing these two kinds of filibusters is just as mindless as confusing the confirmation rates for district court nominees with confirmation rates for appellate court nominees, or confusing temporary filibusters with permanent filibusters, or confusing a nominee's personal opinions (or clientele) with how the nominee has acted in an official capacity, or confusing the rights of political minorities with the rights of other minorities. If the American people are stupid enough to be so easily confused, then perhaps we deserve what we get.
I might add that another (sixth) key difference between nomination and legislative filibusters is that the latter are not affected by Senate Rule 31, because Rule 31 only deals with nominations. Senate Rule 31 implies that there must be a time limit for nomination filibusters. It says, "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration..." Obviously, then, the full Senate can only confirm or reject a nomination by a majority vote; in contrast, a perpetual nomination filibuster plainly amounts to "rejection" without a majority vote. Senator Hatch recently spoke about Rule 31 on the floor of the Senate. Also, the Federalist Society and the Heritage Foundation are co-sponsoring a conference tomorrow that will address Rule 31.
Posted in Fillibuster —
Posted at 11:05am on Mar. 14, 2005 Fearmongering
By Irishlaw
... and hyperbole. It's all there in this general news service article about filibusters:
Imagine no more legal abortion and affirmative action but the sight of the Ten Commandments in courthouses coast to coast.
That's what liberals fear and conservatives hope will happen if Senate Republicans carry out the "nuclear option" ...
"I've read articles that say liberals should not say 'the sky is falling.' Sometimes Chicken Little's right," said George Washington University law professor Jonathan Turley. "Without the filibuster rule, it's clear that the federal bench would tip solidly to the extreme right."
In case the reader has not grasped that the nominees are "extreme," he hears it from at least two more professors quoted in the article, along with a few quotes from PFAW and the Alliance for Justice . . . but only one more ambiguous quote from a conservative.
I'd like to see more discussion, like that from Thomas Sowell, about how the debate is not so much just between conservatives and liberals -- though the sides do tend to align -- but between those who believe in judicial restraint and those who are less cautious with interpreting laws according to their own philosophies, undermining our system.
Posted in Fillibuster —
Posted at 5:30pm on Mar. 13, 2005 Unprecedented
By NateCT
The preparations taking place in anticipation of a Supreme Court vacancy, by partisan organizations, are, in the words of Jay Sekulow, "unprecedented." Today's Washington Post looks at the strategies being employed be the respective groups.
Posted in News —
Posted at 4:05pm on Mar. 13, 2005 Sunday Stuff
By AndrewHyman
Howard Bashman runs down the latest filibuster news at How Appealing, including an interesting piece by Steven Taylor in the Mobile Register titled, "Democrats' history on filibusters belies their current stance." More of Dr. Taylor's writings can be found at his "Poliblog".
Andy McCarthy continues to argue very persuasively for the nuclear/constitutional/Byrd option at The Corner. Paul had blogged previously, here at confirmthem, about McCarthy's continuing debate with Ramesh Ponnuru on this subject.
Manuel A. Miranda has an article in the Texas Review of Law and Policy concerning Democratic memos that showed the Dems' filibuster strategy and motives.
Arlen Specter has a new name for the nuclear/constitutional/Byrd option: "Armageddon." Personally, I've never heard of a Senator intentionally voting for "Armageddon," but stranger things have happened. Specter also reports in that Time Magazine interview the good news that Justice Stevens is in excellent health. Specter further mentions that, "I think Judge Boyle has a good record, and we're going to push him." Boyle has a reversal rate of 7.5%, below the national average of 9.7%, and the American Bar Association unanimously agreed that he is well qualified.
The NAACP is calling for defeat of the Boyle nomination. "Judge Boyle twice decided that a Congressional district in North Carolina was drawn for 'racial purposes' and violated the Constitution," the NAACP's Hilary O. Shelton wrote. However, the latter case led to a Supreme Court decision that was razor-thin (see 532 US 234).
Professor Mike Rappaport has some further thoughts about the constitutionality of nomination filibusters. He had previously written on this subject.
There's some discussion here about the so-called "nuclear option" being a way for the GOP to wiggle out of the social security debate, since the Dems would shut down Congress. Baylor University Professor William Murchison urges that nomination filibusters be curtailed sooner rather than later (this piece also appeared today in the Dallas Morning News). Regarding the labelling problem (nuclear/constitutional/Byrd option), a commenter suggests the "constitutional recorded majority vote advise and consent by the democratically elected branch of government known as the senate option." Longer than Senator Specter's idea, but more accurate.
UPDATE: More from Rappaport here.
Posted in Fillibuster —
Posted at 4:28am on Mar. 13, 2005 Filibuster Argument Overshadows Heart Of Confirmation Battles
By Lorie Byrd
Andrew Hyman (who is a brilliant one man blogging machine) commented here recently about the argument that Kathryn Jean Lopez made at National Review that judicial nominees should have been made a bigger issue by Republicans in the recent elections. Andrew argued that Republicans did the right thing by not making a bigger issue out of the issue of judges. His arguments, which I hope I characterize here properly, are twofold.
First he makes the point that it is already tough enough to be a nominee without the extra grief the attention of campaign commercials featuring specific individuals would add to that ordeal.
The second, and more important, point he makes is that public attention and pressure could garner enough votes to overcome a filibuster, but that would, in some ways, make the filibuster a normal, accepted fixture of the confirmation process.
It is pretty hard to argue with either one of those points. My opinion for some time now, however, has been that the public should know what is going on in the judiciary confirmation process. I argued in May that judges should be a campaign issue and Democrats should be called to account for their behavior, and I asked if Senate candidates would run on the issue of the judiciary committee memos. As far as I am aware, none did.
In September, I agreed with Kathryn Jean Lopez's article linked to by Andrew, that judges should be a big campaign issue. In December I even suggested that a Swiftboat Vet type 527 group should run commercials to educate the public about the issue of judicial confirmations. In January, I again argued that the public should know about the judiciary committee memos. The opinions I expressed in the posts linked here are obviously ones that I have held for a while with some intensity.
While I agree with Andrew's arguments, I have an instinctive, and passionate, gut feeling about this issue. I think that the public deserves to know about what I believe has been character assassination and gutter politics on the part of many Democrats in the Senate on the issue of judicial nominations.
Now that the subject has shifted mainly to the question of the appropriateness, and even the constitutionality, of the filibuster, the arguments become legal ones. That makes it even harder for the general public to understand or connect with the subject. While questions of legality and procedure are important, they are not the story. The story is one of partisan politics and character assassination and that should not be forgotten in the debate over the filibuster.
(This is cross posted at Polipundit.com.)
Posted in Fillibuster —
Posted at 9:43pm on Mar. 12, 2005 Don't Wait for a Supreme Court Nomination
By AndrewHyman
There is a school of thought that says the GOP should let the Dems keep on filibustering appeals court nominees, without forcing a stop to it. According to that school of thought, the Senate Rules should not be brought to bear against nomination filibusters until there is a Supreme Court vacancy, at which time public opposition to the filibuster may even render such GOP action in the Senate unnecessary. Senator Smith of Oregon may be thinking along these lines.
However, that is very wishful thinking. The public will not be especially outraged at a filibuster of a Supreme Court nomination, for several reasons.
First, if there is a Supreme Court vacancy for an extended period of time due to a filibuster, the Court can function perfectly well with an even number of justices, as the Court did, for example, from 1790 thru 1806. And, the President will be able to make a recess appointment in pretty short order. So, keeping the Supreme Court fully staffed is not really an issue that will resonate.
Second, filibusters ceased to be public spectacles several decades ago, when the Senate devised a way to proceed with its other business while multiple filibusters are in progress. So, the public won't get riled up that way.
Third, by the time a Supreme Court filibuster occurs, the Dems will have already established that perpetually filibustering judicial nominations is perfectly legitimate and ordinary. So, the public would yawn at any GOP outrage on that score.
Fourth, if the Dems are smart, they will not filibuster President Bush's first Supreme Court nominee, and instead will hold their fire until the second. That way, they can advertise how "reasonable" they are, and how they only use filibusters as a last resort. The public may fall for it.
Fifth, the GOP has already begun a major push to get the filibusters of appellate nominations ended. If that fails, it will be very difficult to re-energize the GOP for a similar public-relations effort when a Supreme Court nomination rolls around.
There are other considerations too. For example, as Senator Hatch recently pointed out in his speech on the Senate floor, Democratic assertions that the full Senate can "reject" a nomination without a majority vote cannot be reconciled with various parts of Senate Rule 31. That Rule has not gotten much attention compared to the more famous Senate Rule 22, but as more people study Rule 31, it's becoming increasingly clear that the minority can't legitimately use endless filibusters to reject nominations; they can only use nomination filibusters to temporarily prolong debate. This Rule 31 argument would be surrendered if the legitimacy of endless appellate court filibusters is conceded for the sake of awaiting a Supreme Court nomination.
Also, at the beginning of this session of Congress, Senator Frist said that he did not "acquiesce" to the filibuster rules for judicial nominations. But, he will be forced to acquiesce if the GOP decides to allow the same old filibusters of appellate court nominees.
Even if it would be possible to shame the minority into withdrawing a filibuster of a Supreme Court nomination, still the minority could achieve similar results by filibustering appeals court nominees, because most Supreme Court nominees are drawn from the appellate courts.
Posted in Fillibuster —
Posted at 7:45pm on Mar. 12, 2005 Senator Levin Seeks Revenge
By AndrewHyman
Judicial nominees David McKeague, Richard Griffin, and Henry Saad were filibustered in the last congress, and President Bush recently renominated them. They were filibustered primarily at the behest of Senator Carl Levin of Michigan, but not because of their qualifications to sit on the Sixth Circuit Court of Appeals, or even because of their personal political opinions. Levin decided to filibuster McKeague, Griffin, and Saad as payback, pure and simple.
You see, back in 1996, Senator Levin recommended to President Clinton that he nominate a person named Helene White for the Sixth Circuit, and Clinton did so on January 7, 1997. Then for the next four years, the Republican majority in the Senate denied Ms. White a hearing in the Judiciary Committee. Denying a hearing was not very nice, but was perfectly legal. Her nomination eventually expired in January of 2001. During that entire four years, the Republicans were in the majority in the Senate, and so they had a right to do what they did. But now Senator Levin and the Democrats claim that they too have power to reject nominees, even though the Democrats are in the minority instead of in the majority.
Senator Levin was upset with the treatment of Ms. White, and he is retaliating in a very big way. The nominations of McKeague (nominated 11/8/01), Griffin (nominated 6/26/02), and Saad (nominated 11/8/01) have now been pending for a total of more than nine years. One wonders when Senator Levin will be satisfied.
It's true that, if Ms. White had gotten a hearing in the Judiciary Committee, then the full Senate might have approved her nomination, even though Republicans controlled the Senate. However, during the entire four years that Ms. White was waiting for a hearing, Senator Levin did not lift a finger to get the full Senate to bypass the Judiciary Committee, by filing what's called a "discharge petition." Instead of pursuing that remedy, he has chosen to retaliate against three nominees and a president who had nothing to do with the nomination of Helene White. That's fundamentally unfair, even aside from the extraordinary nature of the retaliation that Senator Levin has chosen.
NOTE: Liberal scholar Mark Tushnet has written that, "there's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules --- on scheduling, on not having a floor vote without prior committee action, etc. --- to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can�t be overridden in that way."
NOTE #2: The Tushnet quotation comes from an exchange on a listserv for constitutional law professors. Professor Tushnet was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes, and Tushnet was pointing out that there was indeed a difference.
Posted in Fillibuster —
Posted at 2:37pm on Mar. 12, 2005 Justice Brown and The New Deal
By AndrewHyman
The New York Times and others have been denouncing California Supreme Court Justice Janice Rogers Brown for a comment she made once in a speech (rather than in a judicial opinion). She said that the New Deal was a "socialist revolution." But wouldn't Franklin Delano Roosevelt have agreed with Justice Brown?
The famous futurist and author H. G. Wells (who wrote "War of the Worlds" among other things) was a renowned, self-avowed socialist, and a friend of FDR. Wells wrote of FDR's New Deal as follows:
"The New Deal is plainly an attempt to achieve a working socialism and avert a social collapse in America; it is extraordinarily parallel to the successive 'policies' and 'Plans' of the Russian experiment. Americans shirk the word 'socialism', but what else can one call it?"
I'm not saying socialism is good or bad, but am simply saying that the New Deal had many qualities of socialism, as does modern liberalism in America. It's just a fact. The New York Times and others should stop clubbing Janice Rogers Brown for merely saying that the New Deal was a "socialist revolution." After all, fans of the New Deal, like Wells, acknowledged it was. Many modern American liberals shun the word "socialist." It's fine for them to shun that word if they want to, but they should look for real things to criticize about Justice Brown, rather than criticizing Brown's New Deal characterization, with which FDR and/or his friends would have heartily agreed (and liberals should also stop criticizing Brown's use of the word "kleptocracy").
Posted in Circuit Courts —
Posted at 2:17pm on Mar. 12, 2005 "Justices should duck recess [appointment] crisis"
By feddie
Michael Kirkland has an interesting piece in the Washington Times on the speculation surrounding the pending cert. petitions challenging Judge William H. Pryor, Jr.'s recess appointment to the Eleventh Circuit Court of Appeals. Here's a taste:
The specific target of the challenges is President George W. Bush's recess appointment of William Pryor as a federal appeals court judge, but any action by the high court of course would affect all recess appointments of federal judges.
Normally, the Supreme Court considers a case behind closed doors and either accepts it for argument or rejects it. More rarely do the justices linger over a case like a stockbroker drooling over the Social Security fund.
But at least one of the Pryor challenges has survived three closed-door conferences without any action and remains in limbo.
The speculation in the Supreme Court press room is that at least one of the justices is writing an opinion and has something very serious to say on the subject, even if the rest of the justices reject review.
One theory has the high court holding on to the challenges until they're rendered moot -- no longer in dispute -- when Pryor's recess appointment expires. The justices have rejected expedited review in the case.
Even when the recess appointment expires at the end of the year, however, it won't change the facts in the cases being considered by the Supreme Court, and it would be tough, though not impossible for the infallibles, to rule that there is no longer a dispute.
What would cause shock and awe would be if the Supreme Court actually accepted the case for argument next term. That would bring the country to the brink of a constitutional crisis -- something a large majority of the justices would avoid at all costs, even if they have their doubts about recess appointments.
Pryor has had an interesting career. Democrats revile him for his conservative positions as attorney general of Alabama, and he has expressed support for displays of religious symbols, such as the Ten Commandments, on public property.
But he was also instrumental in helping to remove Alabama Chief Justice Roy Moore from office when the justice refused a federal court order to remove a massive Ten Commandments monument from the Rotunda of the Judiciary Building in Montgomery.
You can read my speculation on the likely disposition of the cert. petitions challenging the constitutionality of Pryor's recess appointment by the Supremes here.
Posted in Uncategorized —
Posted at 12:39am on Mar. 12, 2005 Kathryn Jean Lopez on Filibusters
By AndrewHyman
There's been some interesting discussion recently at the National Review website about whether or not the present filibuster crisis could have been avoided by making judicial nominations a bigger issue in the recent election campaigns (e.g. see here and here). So, I thought I'd toss in my two cents' worth, even though it's water under the bridge.
Kathryn Jean Lopez presented a persuasive argument last summer that the GOP should have made the treatment of judicial nominees a bigger issue (e.g. see her essay "It's the Judges, Stupid"). But, I still think the GOP played the issue just about right.
President Bush, for example, repeatedly blasted activist judges, and repeatedly said that judicial nominees deserve up-or-down votes in the Senate. Should he have focussed attention on particular nominees, as Lopez suggests? I don't think so, for a not-so-big reason and also for a really-big-reason.
The not-so-big reason is that being a nominee has already become enough of a hell without having to be dragged into a national political campaign that would have further politicized the judiciary --- the GOP might well have benefitted from doing that, but it would have been the wrong thing to do. That's the not-so-big reason.
The really-big-reason is that putting Estrada, Pryor, et al. into campaign commercials might have garnered enough Senate votes to defeat the filibusters. The nominees would have been confirmed with 60+ votes, and the new precedent would have been set that perpetually filibustering nominees is okay. It's much better to deal with this thing head-on, and defeat the whole idea that endless filibusters of nominees are acceptable. Such filibusters shouldn't be acceptable, because they give a minority too much power and responsibility, not to mention conflicting with tradition, the Constitution, and/or Senate Rule 31.
Also, unlike Ms. Lopez, I don't think it's really a big deal that Specter is chairing the Judiciary Committee. I may be proved wrong, but it seems that he is committed to moving expeditiously to get the nominees out of committee. He might not do it in the order that we might like, but it will be done. Additionally, giving him the chair honored Specter's seniority, and that may prove worthwhile in terms of whether or not he (as an individual Senator) ultimately supports the idea that filibusters are only legitimate for legislation. It's still unclear where he'll come down on that; he may yet realize that minority rights must not overwhelm the rights of the majority in this area.
UPDATE: There is more recent discussion of this topic here at confirmthem.
Posted in Fillibuster —
Posted at 10:41pm on Mar. 11, 2005 Molly Ivins Does Hatchet Job on Priscilla Owen
By AndrewHyman
The witty but highly partisan Molly Ivins went over the line yesterday. Writing about the judicial nominees filibustered by a minority of US Senators, Ivins said this:
Ivins is way off base. She wrongly asserts that the present Attorney General, Alberto Gonzalez, had once criticized Owen for an "unconscionable act of judicial activism." What Gonzalez actually said, when he served on the Texas Supreme Court with Owen, was this:
The full text of the case, including all of the dissents, is available here as searchable pdf.
Gonzalez was not calling the three dissenters in that case "unconscionable judicial activists," much less directing that charge at Justice Owen in particular. He was saying that if anyone (himself included) were to disregard the words of a statute, then that would be unconscionable judicial activism, and so it would be. Justice Owen explained in her Judiciary Committee hearing as follows:
If Gonzalez was alluding to any of the dissenters, it would have been to Justice Hecht rather than Justice Owen. After all, it was Justice Hecht who excoriated the majority for its judicial activism:
Ivins ought to actually read the opinions in this case. Here's the link again, in case you're listening Ms. Ivins: www.andrewhyman.com/confirmthem/janedoe.pdf.
UPDATE: At his January 6, 2005 confirmation hearing, Attorney General Gonzales was asked about this case. Here's what he said, under oath:
I served with Judge Owen on the Texas Supreme Court, and I think she did a splendid job, a superb job as a judge. I think she would make a superb judge on the 5th Circuit, and that's why her name was recommended to the president. There were a series of very contentious cases -- opinions written in connection with six cases, I think, involving four minor daughters in the year 2000 while I was on the court. It is true that the law -- the legislature made it a policy judgment that they wanted more -- they wanted parents more involved with the abortion decisions of their minor daughters. But the legislature did not make the parental rights absolute; they provided three exceptions. And most of the decisions of the court involved -- are about interpreting those exceptions, allowing a judicial bypass.
My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended, again, through the words of the statute and the way that the judicial bypass procedure would actually operate in practice.
UPDATE #2: the New York Times has an article about this on April 21, 2005. I write about it here.
Posted in Circuit Courts —
Posted at 9:54pm on Mar. 11, 2005 Senators Cornyn and Alexander on Filibusters
By AndrewHyman
Senator John Cornyn and others respond to Senator Byrd's Washington Post piece. Also, Senator Lamar Alexander has a few words to say on the same subject.
Posted in Fillibuster —
Posted at 4:31pm on Mar. 11, 2005 The President of the US Senate On Filibusters
By AndrewHyman
Mr. Cheney responded yesterday to a question from Hugh Hewitt, as follows:
[W]e believe what the Democrats have done, with respect to filibustering judges for the first time in the history of the Republic, is just fundamentally wrong. We've gone through more than 200 years of history without having the filibuster applied to judicial nominations. And if we let that precedent stand, we'll have altered, to some extent, the relationship between the Executive and Legislative, and we will have undermined the president's authority to appoint nominees to the federal bench. We think it's important that nominees come to an up or down vote. If they don't have the votes, they should be defeated. That's altogether proper. That's the way the system is supposed to work. But when we get into the situation we're in now, where they pick out an individual because of his or her views, and mount a filibuster, requiring us, in effect, to get 60 votes to confirm a nominee, we think that's just wrong. How this is going to play out in the months ahead is as yet undetermined. But obviously, I would expect to be in the middle of it as the President of the Senate and the individual who would preside over the Senate should such a rule become necessary.
Seems to me that the Senate rules allow a nomination to be confirmed with only a majority. Check out Rule 31.
Posted in Senate Rules —
Posted at 2:13pm on Mar. 11, 2005 Senator Byrd on Hannity and Colmes
By AndrewHyman
The Senator from West Virginia did an interview yesterday with Alan Colmes:
[T]he president [of the United States] is all wrong when he maintains that a nominee should have an up-or-down vote. The Constitution doesn't say that. The Constitution doesn't say that that nominee shall have any vote at all. There doesn't have to even be a vote....This is about freedom of speech. Men have lived and died for and shed their blood for centuries for that right to speak, to speak out, to speak out against the king, as it were.
After Senator Byrd and the other minority Senators have had a year or so to debate a nomination, it seems reasonable that they should be required to let other Senators --- the Senators in the majority --- speak up and announce their advice and consent, instead of muzzling those other Senators.
Senator Byrd might also take a peek at Senate Rule 31, which Senator Hatch cited on the Senate floor yesterday. The Constitution is not the only relevant law here. Senate Rule 31 says that if a nomination reaches the full Senate, then it can only be "rejected by the Senate" if there is a "majority" vote.
Posted in Fillibuster —
Posted at 1:19pm on Mar. 11, 2005 The Constitutional Option
By Zummo
Deacon, at PowerLine links to San Diego Tribune piece by Michael Rappaport and John McGinnis, (also cited by Andrew below) which explains some of the history behind the current filibuster rules, and which defends the Republican desire to change said rule. Here's the meat of their argument.
The Senate majority's power to modify the filibuster is also strongly supported by constitutional principles. Both the text and structure of the Constitution show that only one of three possible views about the constitutionality of the judicial filibuster is correct. The first view - advocated most recently by Senate majority leader Bill Frist, R-Tenn. - is that filibustering judges is simply unconstitutional. But the Constitution expressly gives the Senate the right to fashion its own rules of procedure and nowhere requires application of majority rule to confirmations.
The second view - advocated by many Democrats - is that a majority has no right to change the filibuster rule because the Senate rules still require a two-thirds vote to end a filibuster mounted against a resolution to change the filibuster. But this Senate rule conflicts with the structure of the Constitution.
The Constitution provides only a single method - the constitutional amendment process - to entrench a rule against repeal by a majority. If Democrats were correct that rules can be insulated from majority amendment, a bare majority in each House could have passed the Bill of Rights and made it our fundamental law by declaring that only unanimous votes by both Houses could pass legislation violating its principles. The Democratic view also conflicts with a principle known since before the framing of the Constitution that one legislature cannot bind subsequent legislatures.
The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option - the route contemplated by our founding document.
Posted in Senate Rules —
Posted at 12:37pm on Mar. 11, 2005 Andy McCarthy on the politics of the filibuster
By Zummo
Interesting debate on the Corner about the political fallout - if any - experienced by the Democrats as a result of the filibusters. Federal prosecutor Andrew McCarthy weighs in, opining that the filibusters have not been harmful to the Democrats politically up to now.
This claim is most often made in connection with the defeat of Sen. Daschle. But the suggestion that his very narrow defeat in a state that is not a bell-weather was somehow akin to a national disapproval of the filibusters is wishful thinking at best. Daschle was beaten because of an overall sense that he was a phony on many issues -- a senator who pretended to be a moderate bridge-builder when speaking with the home folks but who was shown to be a vigorous partisan obstructionist in Washington. The filibusters were part of that, but they weren't close to being all of it. Had Daschle won, which he came very close to doing, could it really credibly have been said that this signalled that the filibusters were a a winning Democratic strategy? We would have scoffed at such a contention, and I don't think the counterclaim is any more persuasive just because he lost.
My general impression before and after the election, fwiw, was that the administration had done a poor job making the judicial nominations a consequential political issue. I agree that the filibusters are a matter that could and should resonate with the American people, but I don't see evidence that the issue has been exploited. I don't know what Democrats other than Daschle we are talking about when we say they have "paid a price." Had the national election actually raised the profile of the filibusters issue in any meaningful way, Sen. Specter's assumption of the Judiciary Committee chair would have been much more controversial than it actually was. (That's not a comment on Sen. Specter's stand on filibusters; just an observation that more people would have cared about who was put in charge of the Judiciary Cmte.) The argument after the election was about whether voters had primarily been swayed by national security concerns or social issues like gay marriage. The judiciary, which should be an issue of similarly weighty dimension, simply was not one.
He later adds, "I wish I could be more optimistic, but the only realistic way this becomes a high-profile political issue is if the senate Republicans pull the trigger on the "nuclear"/"constitutional" option. "
Shannen Coffin later responded to McCarthy, noting the issue was important in the Daschle-Thune race, and the narrow defeat could be attributed in part to Democratic obstructionism. The Democrats thus lost their Senate leader due to their actions on the filibuster.
I understand McCarthy's point, and to a large extent I must reluctantly agree with him. The confirmation battles have frankly not reached the public consciousness in the same manner as other issues, and thus the Democrats have a greater amount of freedom to act as obstructionists on this issue. My main contention has been that if there is going to be any fallout, it will likely hurt the Democrats much more than President Bush and the GOP.
Americans may not fully endorse the conservative philosophy as regards the federal judiciary, but it is also highly unlikely that they would take to the streets in anger over the appointment of a Sclalia-clone. What does seem to annoy the public is the appearance of unfairness, and I believe many - if they paid closer attention - would be upset over the apparent lack of fairness in these proceedings. People like to see "things get done," and the filibuster is a tool that prevents things from getting done. The more the Democrats stand in the way, the more public heat they will face, and eventually they will have to relent.
But this issue will not garner significant public attention until a Supreme Court vacancy must be filled, and even then it will not be as public a spectacle as many envision. Still, if the Democrats filibuster a Supreme Court nominee, then they will truly lose public support on this issue. Their only hope is to demonize the nominee, whoever that might be, but with the blogopshere, talk radio, and other forms of communication available, they will not be as successful in a smear campaign with Bush's nominee as they were with Bork.
Harry Reid claims he wants a showdown. I say, bring it on.
Posted in Senate Rules —
Posted at 11:52am on Mar. 11, 2005 NYT is Back and Still Unworthy
By AndrewHyman
The New York Times has an editorial today titled, "They're Back, and Still Unworthy." The editorial is as much about mudslinging as anything else. William Myers is supposedly "a mining and ranching industry flunky" (evidently, whenever an attorney represents a client then the attorney is the client's "flunky"). Terrence Boyle supposedly has an "extraordinarily high reversal rate" (actually it's 7.5 percent, which is below the national average of 9.7 percent, according to the Administrative Office of the Courts). And, Thomas Griffith is supposedly an "archconservative" (which I suppose is slightly better-sounding than "archenemy" or "Archie Bunker").
Meanwhile, The San Diego Tribune has a piece by law professors Michael B. Rappaport and John C. McGinnis titled, "Confirming judges: The constitutional option." They conclude as follows:
[T]he Constitution prevents the Democratic minority from blocking the Republican majority's decision to embody its principles in the rules of the Senate.
One might add that the Constitution also prevents the minority from blocking the majority's reliance upon --- and enforcement of --- the principles already embodied in the existing rules (such as Rule 31 which was cited by Senator Hatch yesterday, and which is also being discussed by the Federalist Society).
Posted in Fillibuster —
Posted at 2:25am on Mar. 11, 2005 Sinister Goings-On
By AndrewHyman
The extremely sinister Federalist Society will be sponsoring a conference on March 15 in D.C. regarding filibuster reform.
Also, the sinister-sounding blog Villainous Company has an interesting essay called "Fulminations on the Filibuster." One of the main points is that perpetual nomination filibusters deny the free speech rights of Senators who want to announce their advice and consent.
Posted in Senate Rules —
Posted at 6:41pm on Mar. 10, 2005 If it works for drilling . . .
By Zummo
While we continue to urge the Republicans to squash the confirmation filibusters, it looks like they have finally taken our advice . . . only instead as it related to drilling in Alaska.
Democrats trying to head off the opening of an Alaskan wildlife refuge for oil exploration lost the year's first skirmish Thursday as the Senate Budget Committee voted to clear the way for drilling.
By a 12-10 vote, the Republican-led panel voted to forbid Senate filibusters against legislation later this year allowing drilling in the Arctic National Wildlife Refuge. Filibusters, a procedural delay, require the votes of 60 of the 100 senators to end - a margin that drilling supporters would probably find difficult to achieve.
Okay, maybe someone with a little more inside knowledge of the Senate can answer this for me. If a Senate committee can nix filibusters for drilling in Alaska, why can't they do the same for judicial nominations?
Update:Well, it looks like I found the answer to my own question here:
Under Senate rules, non-budget items must have at least 60 votes to end a filibuster, or nonstop debate.
But the budget resolution can be passed in the Senate with only 51 votes, which is why the Republican leadership inserted an oil-drilling measure in a budget bill.
Hmmm, maybe we should just put attach the judicial nominees as riders to these bills.
Yes, I am kidding. Just trying to think outside the box here.
Posted in Fillibuster —
Posted at 5:47pm on Mar. 10, 2005 Orrin Hatch and Robert Byrd on Filibusters
By AndrewHyman
Senator Hatch has just given a speech on the floor of the Senate responding to the speech last week of Senator Byrd. Sen. Hatch's speech is also available here. It pretty much speaks for itself.
Meanwhile, Senator Byrd has just delivered another speech on the subject. Senator Byrd is an elder statesman, and no doubt has at heart the best interests of his state and the country. However, he said this: "It is ridiculous to suggest that mere superiority of numbers in the Senate should, alone, guarantee confirmation." Yet that is exactly what has always guaranteed confirmation, after a full and fair debate. Saying a thing is ridiculous does not make it so. Senator Hatch spoke about Senate Rule 31, and that Rule requires a "majority" vote in order to confirm or reject a nomination.
Senator Byrd also said that he dislikes "activist judges of any stripe." Most Senators probably feel the same way. However, there is a powerful minority of Senators who do not feel the same way, and that is one major reason why majority rule is so important in this process. For example, Senator Biden recently said that he would only vote for a Chief Justice who believes in unenumerated rights that can be fashioned by the judiciary, even though they are not listed in the Constitution. Why must the President and a Senate majority bow to that kind of demand? Not all "rights" are good (e.g. the right of person A to enslave person B), and the judiciary does not --- and should not --- have carte blanche to create them.
Here's part of Sen. Hatch's speech:
In his op-ed piece in the Washington Post last week, the Senator from West Virginia ignored our tradition regarding judicial nominations in another way. He argued that by preventing a confirmation vote through a filibuster, the Senate had formally rejected these judicial nominations. How can it be a rejection of judicial nominations when a majority of Senators support confirmation of each one? Each nominee on whom cloture was not invoked remained on the Senate's executive calendar. Our own Rule 31 states that nominations that are "neither confirmed nor rejected" shall be returned to the president. Each of those filibustered nominations was indeed returned to the president when the 108th Congress adjourned. By definition, common sense, and by our own rules, that means they were not rejected. The Senator from West Virginia cannot, on the one hand, claim these nominations were rejected but, on the other hand, claim that these filibusters are about deliberation and debate.
As Senator Hatch suggests, rejecting a nomination without a majority vote would violate Senate Rule 31. Yet, that is precisely what the minority is trying to accomplish.
Posted in Senate Rules —
Posted at 12:04pm on Mar. 10, 2005 Ed Koch on Filibusters
By AndrewHyman
Ed Koch, the Democratic former mayor of NYC, comments in the Jewish World Review about the filibuster situation:
Senators have an important role under the Constitution's mandate to vote on the judicial nominee and provide their advice and consent to the President. The Constitution does not give them the right to frustrate the President by preventing a vote.
Meanwhile, there is a humorous movement afoot to get J. Lo and Oprah onto the high court --- no word yet about whether Ed Koch or the filibusterers approve.
Posted in Fillibuster —
Posted at 8:15pm on Mar. 9, 2005 Ramesh Ponnuru on Filibusters
By AndrewHyman
At National Review's "The Corner," Ramesh Ponnuru explains why he does not support the nuclear/constitutional/Byrd option:
The reason I'm not for a formal restriction on judicial filibusters is not that I'm pessimistic about what the Democrats will do in retaliation. It's that I'm optimistic about the politics of a Supreme Court nomination. I think, first, that Bush is likely to nominate a conservative rather than to pre-empt the liberal filibusterers by nominating a squish. I think, second, that a Democratic attempt to filibuster a nominee to the Supreme Court will go down very badly with the public. Democrats have already paid a price for filibustering appeals-court nominees, and I suspect that they will pay a higher one when it comes to the Supreme Court (since more people will be paying attention). Finally, I think we'll be in a better position to appoint conservative judges in the future if the Democratic filibuster fails in a high-profile fight and is seen to inflict damage on the party than if Republicans make a procedural change that prevents a Democratic filibuster from failing and being seen to fail.
This line of reasoning seems odd to me. On the one hand Mr. Ponnuru argues that filibustering judicial nominees should be accepted as a legitimate tactic, while on the other hand he expects that for some reason people should remain outraged by that tactic. I don't understand. Fortunately, a majority of the Senate seems to have a different attitude than National Review's. For example, see Senator Cornyn's letter in the March 10 NY Times.
If the profound new precedents of the last couple years are allowed to stand, then henceforth it will become routine for a Senate minority to reject whatever nominees they don't like. That includes Supreme Court nominees, lower court nominees, cabinet nominees, and even vice presidential nominees (e.g. both Ford and Rockefeller had to be approved by the Senate).
Even if people like Ponnuru see no constitutional issue with perpetual nomination filibusters, why is it wise to transfer such a huge amount of power to a minority? And why is it reasonable to expect that the Senate minority won't use that power, once it has been legitimized, to reject whatever nominees they dislike? Likewise, why is it reasonable to expect that the public would be upset when the Senate minority uses its legitimate powers, particularly given that filibusters no longer involve showy spectacles that disrupt the operations of the Senate? Surely National Review doesn't want the president to select judicial nominees based upon extortion by a Senate minority. But that is the road we are on.
If the recent precedents stand, then the pool of possible candidates for the supreme and lower courts will shrink dramatically. The fluctuation of judicial philosophies on the Supreme Court will come to a screeching halt, and so judicial precedents will not have to survive the wide-ranging scrutiny that they have in the past. There will be no more Justice Thomases or Scalias, not to mention other renowned but controversial Supreme Court justices. The influence of the executive branch on the nomination process will shrink rapidly, as the influence of the Senate minority swells.
I just don't see how National Review can sit back and let all that happen, without even really giving any good reason for why perpetual judicial filibusters are so important. Even PFAW recognizes that, if the appeals court renominees are filibustered, and the effort to defeat those filibusters fails, then the Senate minority will have clear sailing to influence the subsequent Supreme Court nominations. Why that is not apparent to National Review mystifies me. If by some miracle the Supreme Court remains immune from perpetual filibusters (the Fortas debate having lasted all of four days), still most Supreme Court Justices previously served as appeals court judges.
Finally, the point that baffles me the most is why people who see no constitutional problem with perpetual nomination filibusters also see no inconsistency with the Senate rules. Clearly, if the Democratic minority prevails in this crisis, then it will be able to reject whatever appellate court nominees it pleases. In other words, if they don't like a nominee, then the nomination will be forced to expire. Yet, Senate Rule 31 explicitly says that "when a nomination is confirmed . . . . or rejected by the Senate" then there must be "voting in the majority." Very simple.
Posted in Fillibuster —
Posted at 10:31am on Mar. 9, 2005 Balance of power shifting?
By Irishlaw
Kathryn Lopez quotes a "knowledgeable D.C. source" as suggesting that Sen. Frist is going to act on the 51-vote option next month regardless of Sen. Specter's opposition. Anyone know more?
Posted in Senate Rules —
Posted at 10:25am on Mar. 9, 2005 Griffith hearings
By Irishlaw
AP report on the hearings of Thomas Griffith yesterday. I'm concerned less about the charge that he is "hostile toward Title IX" than the real problem of letting his DC bar membership lapse for a time while he also didn't get his Utah license. Still, to the extent that they were honest mistakes I don't agree with Senator Leahy that these facts constitute a "conscious and continuous disregard of basic legal obligations."
Posted in Judiciary Committee —
Posted at 10:17am on Mar. 9, 2005 Time to act
By Irishlaw
Nice column from Thomas Sowell on the judicial battle here, emphasizing what's at stake. It's about which view of judicial authority we are going to embrace in this country: free-wheeling abstracted activism or limited rulings on the law? Sowell also has some pointed words for Specter:
Short of Constitutional confrontations, however, a less dangerous option would be putting on the judicial bench people with a track record of supporting judicial restraint rather than activism. But this approach is being blocked by liberal Senators -- mostly Democrats but with a big assist from Republican Senator Arlen Specter, Chairman of the Senate Judiciary Committee.
Liberals understand the enduring high stakes in these judicial nominations. But do the Republicans?
Posted in Uncategorized —
Posted at 2:52am on Mar. 9, 2005 WBUR Radio Program
By AndrewHyman
WBUR in Boston had a lengthy radio program today on the filibuster situation, featuring interviews with Gail Chaddock who is a reporter with the Christian Science Monitor, Jeffrey Toobin of The New Yorker, Senators Byrd and Cornyn, Andrew McCarthy of National Review, and Perry Lange of PFAW. Chaddock was very inaccurate and biased, as I'll explain.
Cornyn emphasized that the vote this week on William Myers in the Judiciary Committee will be an important barometer of whether he'll be filibustered. Byrd, of course, did not see many similarities between what the GOP is now planning, as compared to his own actions as Majority Leader.
Gail Chaddock, who was billed as a "reporter" with the Monitor, gave an unflattering and incorrect portrayal of nominees Janice Rogers Brown and Priscilla Owen.
Chaddock criticized Brown's characterization (in one of Brown's speeches rather than in a judicial opinion) of the New Deal as a "socialist revolution," even though FDR himself might have found that a rather flattering and accurate characterization of social security and all the rest. Chaddock also said that Brown once labelled government in general as a "kleptocracy," but Brown actually had only used that term in a judicial opinion to criticize a particular action of the city of San Francisco, which Brown said conflicted with the letter of the Takings Clause of the Constitution (the case was San Remo Hotel v. San Francisco). It is true that Brown had previously used the term "kleptocracy" in a speech, but only to describe what government would be transformed into if it had no limitations. I personally am somewhat concerned that Brown might be tempted to enforce what she sees as the "spirit" of the law rather than the letter of the law, but she indicated in her Judiciary Committee hearing that she is against judges rewriting the Constitution, using it as a blank check, or inserting their own politics into it.
Ms. Chaddock was just as inaccurate with regard to Texas Supreme Court Justice Owen. Chaddock wrongly reported that the present Attorney General, Alberto Gonzalez, had once called Owen an "unconscionable judicial activist." What Gonzalez actually said, when he served on the Texas Supreme Court with Owen, was this:
Gonzalez was not calling the three dissenters in that case "unconscionable judicial activists," much less directing that charge at Justice Owen in particular. He was saying that if anyone (himself included) were to disregard the words of a statute, then that would be unconscionable judicial activism, and so it would be. The disagreement in that case was about the meaning of the words in a statute, and not about whether those words should be disregarded. Justice Owen explained in her Judiciary Committee hearing as follows:
He [Gonzalez] said if anybody, including himself, were to do that, would do that, that would be judicial activism, and I agree with that.
So, in this WBUR radio program, Gail Chaddock really did not present accurate information about California Supreme Court Justice Brown, or about Texas Supreme Court Justice Owen.
UPDATE: More confirmthem stuff about Owen here. More confirmthem stuff about Brown here.
Posted in Fillibuster —
Posted at 10:31pm on Mar. 8, 2005 Limbaugh Deftly Analyzes the Situation
By AndrewHyman
Rush Limbaugh on the radio today:
Whoever it is that beats back this filibuster and this judicial tyranny business of the Democrats is going to stand tall. That person is going to be respected and loved and supported like you can't imagine. . . [I]t's one thing to get away with it when they're in the majority but when they're in the minority and they still tyrannize the place by breaking the rules like on these judicial nominations and so forth, it's time they were beat back, and it's gone on long enough. I mean, we've had three years of threats now to invoke the "nuclear option" and it's never done. Either stop talking about it or do it. You know, it's one of the two things. The words don't mean anything anymore. Action is what's going to be judged.
Rush is right.
Posted in News —
Posted at 6:10pm on Mar. 8, 2005 MMFA Misleads About Novak
By AndrewHyman
Media Matters for America (MMFA) is a web-based research center that purports to be dedicated to correcting conservative commentary. Today, MMFA posted an item titled, "Novak misled on judicial nominees," which is itself highly misleading. Here is an excerpt:
Syndicated columnist and CNN host Robert Novak falsely claimed that the number of President Bush's appellate court judicial nominees that have been blocked is "unprecedented" and added that the only reason Democrats opposed the nomination of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit was because they "didn't want a Hispanic nominated."
The falsity in this MMFA statement is evident from a Democratic memo that was made accessible to Republican Senate staffers. That memo describes a meeting between Senator Kennedy and representatives of various advocacy groups. The memo plainly shows that race was a factor:
The groups....identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.
People who met with Kennedy on that day are as follows: Ralph Neas (People For the American Way), Nan Aron (Alliance for Justice), Wade Henderson (Leadership Conference on Civil Rights), Leslie Proll (NAACP Legal Defense & Education Fund), Nancy Zirkin (American Association of University Women), Marcia Greenberger (National Women's Law Center), and Judy Lichtman (National Partnership for Women and Families).
It appears from the memo quoted above that there were other reasons in addition to race for those advocacy groups to oppose the Estrada nomination. MMFA wrongly claims that Novak said race was the "only" reason. According to Novak, Democrats were also afraid of "a guy who might go on the Supreme Court." Indeed, it appears from the memo quoted above that the advocacy groups were not just racially motivated, but (as Novak indicated) were also afraid that --- as Judge Estrada --- he might create a paper trail that could reflect well on himself, so that he would ultimately be appointed to the Supreme Court. Thus, MMFA paints a highly misleading picture. As for Novak, he has ample grounds for believing that race was a major factor in the rejection of Miguel Estrada.
Regarding MMFA's assertion about the number of President Bush's appellate court judicial nominees that have been blocked, it is true that appellate court nominees of other presidents have been blocked. However, Novak was obviously referring to blockage by filibuster. That never happened until the blockage of Miguel Estrada. As liberal scholar Mark Tushnet has written, "There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules --- on scheduling, on not having a floor vote without prior committee action, etc. --- to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can't be overridden in that way."
Note #1: MMFA is run by conservative-turned-liberal David Brock, and employs ex-Democratic staffers.
Note #2: MMFA also suggests that Estrada refused to provide documents requested by senators. Again, this was sheer partisan politics on the part of the Democrats, because they knew that the particular documents they requested were confidential attorney-client materials, as explained in this letter.
NOTE #3: The Tushnet quotation comes from an exchange on a listserv for constitutional law professors. Professor Tushnet was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes, and Tushnet was pointing out that there was indeed a difference.
Posted in News —
Posted at 8:53am on Mar. 8, 2005 "Pryor avoids new hearing on his judicial nomination Headline"
By feddie
The Mobile Register has this report, which notes, inter alia, that:
Specter has not scheduled a vote to move Pryor's nomination out of the committee to the full Senate. The committee chairman's decision was first reported Monday by the online version of the conservative weekly Human Events.
Spokesmen for U.S. Sen. Jeff Sessions, R-Mobile, and Democrats on the Judiciary Committee had no comment.
But Kay Daly, president of the Coalition for a Fair Judiciary, a Washington, D.C.-area advocacy organization that supports Pryor's nomination, said a new hearing would have served little point. "What's left to ask him -- his favorite color?" Daly asked.
Bush recently renominated Pryor for the lifetime seat on the 11th Circuit after Democrats blocked his candidacy in the 2003-04 session of Congress. Pryor's temporary appointment to the court will expire late this year.
Specter, citing opinions that Pryor has written while on the appeals court, has expressed hope that his nomination might fare better this time. So far, however, Democrats have shown no sign of rethinking their opposition.
Elliot Mincberg, legal director at People for the American Way, a Washington, D.C., organization opposed to Pryor, speculated that Specter has concluded that Democrats won't change their minds.
"It's hard to know what else to think of it," Mincberg said.
And a little bird tells me the SJC should be acting on the Pryor renomination in the near future. Stay tuned.
Posted in Uncategorized —
Posted at 10:21pm on Mar. 7, 2005 "Pryor Won't Face Senate Judiciary Inquiry"
By feddie
That's the word on the street according to Human Events:
"The senator signaled today he does not intend to hold a rehearing on Pryor now," a Judiciary aide told HUMAN EVENTS. "That was someone he had mentioned in the past he might consider holding a hearing on. He has since made the determination that Pryor has been heard and will not need a rehearing."
. . . .
Specter has yet to schedule a vote on Pryor, and one would almost certainly not take place until April at the earliest, following the two-week congressional recess.
Posted in Uncategorized —
Posted at 9:53pm on Mar. 7, 2005 Specter In No Rush
By AndrewHyman
Senator Specter says that there will be a hearing tomorrow for Thomas B. Griffith, a vote on William Myers on Thursday, and a hearing for Brett Kavanaugh next week. Neither Griffith nor Kavanaugh had previously been filibustered. Specter reportedly has "no willingness to accelerate an anticipated partisan showdown over judicial nominees."
Besides Myers, the other previously filibustered renominees are William Pryor, Janice Rogers Brown, Priscilla Owen, Richard Griffin, Henry Saad, and David McKeague. No word on when their committee votes will be, although Specter says that Pryor will not need another hearing.
Posted in Fillibuster —
Posted at 9:26pm on Mar. 7, 2005 Hendrik Hertzberg in the New Yorker
By AndrewHyman
Hendrik Hertzberg, writing in the New Yorker, says that Democrats need not feel guilty about filibustering nominees, because the Senate Democrats actually represent more people than the Republicans do:
[T]he present Senate is the product of three elections, those of 2000, 2002, and 2004. In those elections, the total vote for Democratic senatorial candidates, winning and losing, was 99.7 million; for Republicans it was 97.3 million. The forty-four-person Senate Democratic minority, therefore, represents a two-million-plus popular majority---a circumstance that, unless acres trump people, is at variance with common-sense notions of democracy.
However, George Bush defeated John Kerry by a vote of 62 to 59 million, so --- if you're counting --- that means the Republicans actually represent more voters in this appointment process than do the Democrats. Assuming Hertzberg's Senate figures are correct, we could write instead:
The present Senate and Presidency are products of three elections, those of 2000, 2002, and 2004. In those Senate elections, plus the 2004 presidential election, the total vote for the Democratic candidates, winning and losing, was 158.7 million; for Republicans it was 159.3 million. The Democratic minority, therefore, represents a popular minority, but nevertheless seeks a veto over nominations---a circumstance that is at variance with common-sense notions of democracy.
Of course, the United States is not a pure democracy, and so the present crisis is really about constitutional and legal principles, rather than about numbers of voters. But by either standard, the present filibustering of judicial nominees is improper and unprecedented.
Posted in Fillibuster —
Posted at 3:13pm on Mar. 7, 2005 Wall Street Journal Endorses "The Byrd Option"
By AndrewHyman
Today's WSJ includes an editorial favoring the nuclear/constitutional/Byrd option to restore the nomination process to its pre-2003 condition. An excerpt:
Mr. Bush's nominees aren't merely being delayed; they are being denied a vote. It may well be that the filibuster flap will cause Democrats to raise the roof and use Senate rules to obstruct other legislation. But the alternative is for Republicans to let a Senate minority dictate who can sit on the federal bench--even after two elections in a row in which Democrats lost Senate seats in part because of the judicial filibuster issue. Elections ought to mean something. If Republicans allow a repeat of the last two years, their own voters will start to hold their timidity against them.
An excellent editorial.
Posted in Senate Rules —
Posted at 2:14am on Mar. 7, 2005 The Latest From the Senate Leadership
By AndrewHyman
Here are a couple recent statements from Sen. Frist's office:
"Nobody likes where we are, but I think that there is understanding that we have to uphold 200 years of precedent and get back to a yea-or-nay vote," says Bob Stevenson, chief spokesman for Dr. Frist, as quoted in a New York Times article today. The article also reports that the GOP and the Dems in the Senate are intently preparing for a showdown.
"We will not let these unprecedented Democratic filibusters deny judicial nominees the vote that they deserve," says Dr. Frist, as quoted yesterday by Knight Ridder in New Hampshire.
Meanwhile, Bob Novak explains the problem of bringing William Myers to the Senate floor before any of the other renominees. The Washington Times editorializes against Senator Byrd. And, National Review has a historical piece by John Barnes describing how the House of Representatives eliminated the "silent filibuster."
Posted in Senate Rules —
Posted at 1:28am on Mar. 7, 2005 Will Bush and the Republicans Continue to Fight?
By Lorie Byrd
Daily Pundit has posted extensive quotes from Orrin Hatch, Dick Morris and Bruce Fein which seem to indicate the willingness of the Bush administration to sacrifice the confirmation of conservative judges in return for "bipartisan" assistance in passing legislation such as social security reform, tort reform and environmental legislation by not waging an all out fight against the filibuster. I really hope this reading of the administration's strategy and intentions is incorrect. If President Bush has learned anything in the past four years it should be that he has not gotten one vote in the Congress by giving in on anything.
I remember reading stories similar to this one several times over the past four years, but instead of President Bush giving up on his nominees and consulting with Democrats about "more acceptable" options, Bush renominated those he nominated originally and vowed to fight for them. Hopefully that will continue to be the case. (Link above via Ace of Spades.)
Posted in Fillibuster —
Posted at 9:50pm on Mar. 6, 2005 BREAKING NEWS: New York Times Condemns Socialism
By AndrewHyman
Today, the New York Times published an editorial stating as follows:
The Senate has confirmed the vast majority of President Bush's choices. But Democrats have rightly balked at . . . . Janice Rogers Brown, who has disparaged the New Deal as "our socialist revolution."
Calling something "socialist" is now an insult, according to the Times. Will wonders never cease?
Justice Brown's tiny remark about socialism was made in a speech to law students (not in a judicial opinion) years ago. The Times is now bothered by the mere suggestion that FDR's New Deal might have been the slightest bit "socialist." So much so that the Times wants anyone having that personal opinion to be kept off the federal bench at all costs, even if the U.S. Senate must be destroyed. Bravo to the Times for proving yet again that only their news is "fit to print."
Justice Brown is one of two nominees whom the Times cites as evidence that the filibustered nominees are all unacceptable. The other nominee smeared by the Times (in order to smear the rest of the nominees) is Bill Myers. But the Times neglects to mention what it knows about Myers that Cecil Andrus (Jimmy Carter's Secretary of the Interior who has endorsed Myers) doesn't know. Apparently, the Times thinks it would be appropriate to destroy the U.S. Senate merely because a Bush nominee fails to exceed the environmental standards of the Carter administration. Go figure.
Posted in Fillibuster —
Posted at 2:42pm on Mar. 6, 2005 Cokie Roberts and Steve Roberts On Nomination Filibusters
By AndrewHyman
Cokie Roberts and her husband Steve had a very partisan op/ed published fittingly in the Decatur Daily Democrat recently. Their email address appeared at the end, so I sent them a response, which they kindly acknowledged, and then I told them that I was posting an edited version of my response here.
To Cokie Roberts and Steven V. Roberts:
I would like to comment about your recent op/ed piece titled, "In judicial picks, will Bush unite or divide?" which appeared in the Decatur Daily Democrat on March 4, 2005.
You argue that, when a vacancy occurs, President Bush should pick up the phone, talk to the Senate Democrats, and find a Supreme Court nominee who is "acceptable" to the Democrats. But when has a president ever bowed to the wishes of the Senate MINORITY in making judicial appointments? The only time I know of where a president deferred to a Senate minority was when President Clinton consulted with Senator Hatch regarding Ruth Ginsburg and Stephen Breyer (and therefore did not nominate Bruce Babbitt). That incident was highly unusual, and it's obvious that Senator Leahy and his fellow Democrats would not defer today in any way remotely like Senator Hatch and his fellow Republicans did with respect to Clinton. It's worth bearing in mind that the framers of the Constitution purposely placed the nomination power and responsibility squarely with the president, because they did not trust a numerous body like the Senate to make responsible nominations. Only after someone is nominated does the Senate have a constitutional role of advice and consent.
President Bush might or might not be wise to listen to whatever the Democrats have to say about nominees, but you go one step further and say that he should nominate people "acceptable" to the Dems. Why? Because the Dems have hijacked the Senate with the first-ever filibusters of appeals court nominations? Because of Senator Reid's completely ignorant comments about Justice Thomas?
What you're really getting at is that you personally don't want "archconservatives" like Antonin Scalia and Clarence Thomas to be appointed to the courts ever again.
You say that changing the filibuster rule would severely damage the system of checks and balances that is the very core of the country's democratic structure. On the contrary, a vitally important check and balance is now being destroyed by the Democrats: traditionally, presidents have generally been able to appoint judges (especially when the same party controls the Senate) sharing the presidents' respective judicial philosophies, so that in the long run the only surviving judicial precedents are those that are firmly based on the objective or widely-accepted meaning of the law. Under your proposal, judges will have to be selected from a much narrower pool of candidates; and, they will not have to worry that their judicial opinions must persuade their colleagues or their successors, because their colleagues and their successors will all be cut from the same cloth. Your plan represents a radical shift from the past, and will bring us ever closer to judicial oligarchy.
In 1968, Republicans AND Democrats used a so-called filibuster with respect to Associate Justice Abe Fortas, who was Lyndon Johnson's choice for chief justice. Why did you not mention the many Democtrats who filibustered against Fortas? Could you perhaps be trying to mislead your readers?
And the purpose of that so-called Fortas filibuster was to prevent debate from being prematurely cut off, rather than to perpetually stall in order to kill the nomination. As you well know, the debate on the floor of the Senate lasted a grand total of four days, until Fortas withdrew of his own volition. He himself said in his withdrawal letter that he could ultimately have obtained an up-or-down vote on the merits. The Republican leader (Everett Dirksen) said that his mind was "still open," and that cutting off debate would therefore be premature while there were further issues that needed "exploration." The Fortas debate was real, rather than fake as it is now; Senators were actually opening their mouths and conversing with each other. As you must know, Fortas only obtained 45 votes for cloture (to 43 against), which was far short of a simple majority of the full Senate. The only reason that a cloture vote occurred at all was because LBJ wanted Fortas to get a slim majority vote to save face; Joe Califano has explained that LBJ already planned to withdraw the nomination long before the cloture vote, when LBJ learned that Fortas had indirectly received $15,000 from businessmen who could one day come before the Court. No Senator threatened to filibuster for "all the hours in the universe" as the Democrats now threaten. The Fortas situation is also different from the present situation in that his was a Supreme Court nomination, and moreover there was no vacancy yet because Earl Warren was still seated (also, the nomination of Associate Justice Fortas would not have given Fortas any more voting power than he already had). You have completely mischaracterized what happened in 1968.
During the Clinton presidency, SOME of the same Republicans who are now so incensed at Democratic tactics did indeed shelve dozens of judicial nominees. They didn't use a formal filibuster because they didn't have to. You know why they didn't have to? Of course you do: the Republicans were then in the MAJORITY, a small detail which you conveniently hide from your readers.
Sen. John McCain (R-Ariz.) did recently say to writer Jeffrey Toobin that, "We Republicans are not blameless here. For all intents and purposes, we filibustered Clinton's judges, by not letting them out of committee." But as Professor Mark Tushnet has written, "There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules --- on scheduling, on not having a floor vote without prior committee action, etc. --- to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can't be overridden in that way." Would you say that Tushnet is right on this point, or McCain? Of course you know Tushnet is right.
During Bush's first term, you write, several hundred judicial appointments sailed through the Senate, but 10 were blocked by the Democrats, and it's those 10 that really alarm the White House. You completely ignore that the Democrats have targeted appellate court nominees, whereas your statistics include district court judges. During his first term, Bush had the lowest appellate confirmation rate of any modern president: 69% (compare that to Bill Cinton's 74% including two Supreme Court justices). You have completely slanted your statistics to fool your readers.
You say that the great test of democracy is not majority rule, but the protection of minority rights. Let's be honest: you support majority rule when it suits you, and oppose it when it might enhace the positions of people with whom you disagree. For example, you would undoubtedly oppose legislation giving a minority of Supreme Court justices power to veto any exercise of judicial review (i.e. striking down a statute). If such legislation came to a vote in Congress, both of you would undoubtedly be howling from the rooftops that it violates majority rule.
You write that the Republican Senate majority is trashing minority rights in the U.S. Senate. If the Republicans allow one year of debate on each and every nominee, that would be trashing the rights of the minority? Please, give me a break. You know as well as I do that the Republicans would be delighted if debate were limited to one year on nominations, so that finally there could be a vote on the merits. What you want is to eliminate the rights of the majority, have debate last for centuries and millennia, and completely hand over all of the majority's rights to the minority.
You say that the Republicans who think changing the filibuster rule is a clever idea should remember that no majority is permanent. Well, seeing as how the Republicans have NEVER used a perpetual filibuster to defeat a judicial nominee (the Fortas filibuster having lasted all of four days), why would the Republicans ever want to conduct an endless filibuster of a nominee? The only reason I can think of is to get revenge for what the Democrats are now doing.
By the way, are you both aware that less than 12% of our population is represented by 42 Senators? And you want those 42 Senators to be able to veto any nomination to the Supreme Court, the Cabinet, and even the Vice Presidency. What an unwise form of government you are promoting.
Sincerely,
Andrew Hyman
NOTE: The Tushnet quotation comes from an exchange on a listserv for constitutional law professors. Professor Tushnet was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes, and Tushnet was pointing out that there was indeed a difference.
Posted in Fillibuster —
Posted at 12:33pm on Mar. 6, 2005 More On Byrd's Statements
By Lorie Byrd
Stephen Taylor at Poliblog has more on the recent statements of Senator Robert (I promise I am not related to him) Byrd on the Senate rules and filibusters here and here.
Posted in Uncategorized —
Posted at 11:50am on Mar. 6, 2005 Byrd's Senate Rules Flip
By AndrewHyman
Hugh Hewitt points out (on March 5 via CBS and the Weekly Standard) that Senator Byrd's recent statements clash with his prior statements regarding Senate rules. Even putting aside Byrd's remarks comparing the GOP to the Nazis (remarks which were heartily praised by Senator Ted Kennedy as reported here), still the rest of Byrd's speech had not much substance at all (and ditto for Byrd's follow-up op/ed in the Washington Post which mercifully omitted the Nazis). If the GOP does opt to change the text of the Senate rules (which is only one of several options), then Senator Byrd will have laid much of the groundwork, says Hewitt.
Posted in Senate Rules —
Posted at 1:58pm on Mar. 4, 2005 Senate Smackdown?
By krempasky
It's Byrd v. Cornyn on the filibuster and Senate rules.
Posted in Senate Rules —
Posted at 11:03am on Mar. 4, 2005 Domenici Boosts Republican Odds of Success on Judges
By AndrewHyman
The CFJ website has the full text of this encouraging article from Congressional Quarterly:
Senate Republicans appear to be closing ranks behind Majority Leader Bill Frist on the sensitive subject of using the "nuclear option" to stop Democratic filibusters of judicial nominees. On Wednesday, Sen. Pete V. Domenici, R-N.M., an influential senior lawmaker, came out firmly behind Frist's efforts. Domenici's declaration helped give Rules Committee Chairman Trent Lott - Frist's point man on the issue - the confidence to declare that the majority party has enough votes to force the president's nominees to the floor for up-or-down votes.
Posted in Senate Rules —
Posted at 7:45pm on Mar. 3, 2005 Familiar charges
By Irishlaw
Via The Corner, comments from Senator Leahy suggesting he's going to continue fighting against judges like Bill Pryor because, apparently, they wouldn't be independent. Or something:
Well, I felt that Priscilla Owen from Texas is so far out of the mainstream. Her opinions -- even the very conservative Texas Supreme Court has criticized her as being out of the mainstream . . . . Well, just it is almost a knee-jerk reaction, corporations can do no wrong.
If Leahy is obliquely referring here again to the concerns he raised three years ago about Enron, those questions have long since been answered by the White House and even by Democratic former Texas Supreme Court justices. If the "out of the mainstream" charge is a reference to her opinions in the Texas parental notification cases, that charge was also somewhat of a misrepresentation. In the cases at issue (a series of In re Jane Doe opinions), Justice Owen was construing a state notification statute, and while the opinions in the cases were split, her opinions were joined by other justices and related only to construction of the statute, not the constitutionality of abortion in general. Nothing in the opinions suggest she is so far "out of the mainstream" to be unfit for the federal bench, and her unanimous "well-qualified" rating from the ABA also goes to indicate that Leahy needs to stop complaining and give her a fair hearing.
(The senator also appears to be hoping to find cause -- as if he thought he needed it before -- to filibuster Judge Pryor in his opinions since he's been on the 11th Circuit. Good luck.)
Posted in Circuit Courts —
Posted at 12:57pm on Mar. 3, 2005 Difficulties for Boyle
By Zummo
Here's another piece from the Washington Post today. This one discusses Boyle's confirmation hearings and how he might face a difficult battle.
Several liberal groups oppose Boyle, a onetime aide to retired senator Jesse Helms (R-N.C.), saying he is unacceptably conservative on workplace discrimination and voting rights questions. Republicans say he has proved his independence and fairness in his 20 years on the federal bench, and deserves the long-awaited advancement.
Today's hearing may help Senate Democrats decide whether to add Boyle to a short list of appellate court nominees they hope to block with filibusters, contending that the appointees are outside the political mainstream. The impasse has set GOP and Democratic senators on an apparent collision course unless a truce is reached in the next few weeks.
. . . Boyle "has the worst reversal rate of all the district court judges nominated [to appellate courts] by President Bush, and his rulings reflect a judicial philosophy that is very damaging to the rights of average Americans," said Ralph G. Neas, president of People for the American Way. Wade Henderson, executive director of the Leadership Conference on Civil Rights, said Boyle is unfit for the higher court and has "demonstrated a sustained hostility to civil rights."
But a number of prominent North Carolina lawyers, some of them Democrats, have praised Boyle's record as a judge. A recent editorial in the News and Observer of Raleigh -- which often feuded with Helms -- said Boyle "is well qualified and respected by many lawyers and other judges, but he was caught in the crossfire of partisan warfare."
Boyle's critics often cite a 1998 North Carolina congressional redistricting case in which he struck down a district drawn to include a large number of black voters. Boyle ruled that the state legislature had relied too heavily on racial factors in shaping the district.
The Supreme Court, in an opinion written by Justice Clarence Thomas, overturned the ruling. It said Boyle erred in finding that race was "the predominant factor" in the process.
Posted in News —
Posted at 12:53pm on Mar. 3, 2005 Byrd takes some heat
By Zummo
Looks like Robert Byrd is taking some well-deserved flak for his silly comparison of the Republicans to Nazis. The Washington Post reports.
Abraham H. Foxman, national director of the Anti-Defamation League, said Byrd's remarks showed "a profound lack of understanding as to who Hitler was" and that the senator should apologize to the American people. He called the comparison "hideous, outrageous and offensive."
"With his knowledge of history and his own personal background as a KKK member, he should be ashamed for implying that his political opponents are using Nazi tactics," said Matt Brooks, executive director of the Republican Jewish Coalition.
Spokesmen for Byrd have tried to excuse his rhetoric by claiming that his screed "was meant as a warning to heed the past and not as a comparison to Republicans." But no matter how you cut it, Byrd's unfortunate comparison seriously cheapens the Holocaust and what the Nazis stood for. There is absolutely no justification for such absurd hyperbole, and considering the Senator's own personal history of Klan membership and opposition to civil rights, this is a topic he would be wise to avoid.
Posted in News —
Posted at 7:16am on Mar. 3, 2005 "Pryor Impressions--Alabamians want to know why Bill Pryor is being filibustered in the Senate"
By feddie
Quin Hillyer has a most excellent opinion piece supporting President Bush's renomination of Judge William H. Pryor, Jr. in the WSJ. Here's a taste:
[In Alabama], the Republican Pryor--at age 42, now serving a mere temporary appointment to the 11th Circuit--is the darling not just of right-leaning editorial boards. He enjoys near-universal support even from newspapers that endorsed Al Gore and John Kerry, from elected officials both Democrat and Republican, black and white--and even from the Democrat who Mr. Pryor defeated for attorney general.
. . . .
Why do Alabamians so strongly back Judge Pryor? Because they've seen him in action defending Democratic lawmakers against Republican lawsuits, defying the Republican governor (Fob James) who appointed him, and spending countless hours establishing a youth mentorship program through the attorney general's office. They know him, up close, as a man of integrity and compassion.
. . . .
Judge Pryor would say, correctly, that his jurisprudence aims at helping neither victims nor powerful interests, but merely at following precedent and the Constitution. In his closing arguments against the judicial vigilantism of Alabama's then-Chief Justice Roy Moore, he said: "In our system, a judge must follow the final decision of other judges, even when he is convinced they're wrong. . . . The answer this court must provide to every judge in Alabama is that no judge is above the law."
That's why, against his own personal predilections, he refused, as attorney general, to enforce part of a new state law against partial birth abortions: because that section contradicted clear U.S. Supreme Court precedent. That's why, against his own predilections, he enforced the very portion of the Voting Rights Act that he and his Georgia Democratic counterpart opposed. And that's why the leader of Alabama's top black, Democratic organization endorsed him as a judge who "will uphold the law without fear or favor," while former Democratic AG Bill Baxley said Judge Pryor always acts "without race, gender, age, political power, wealth, community standing, or any other competing interest affecting his judgment."
Yes, we in Alabama proudly support Bill Pryor. His career--as public intellectual, successful prosecutor, cultural-bridge-builder and man of conscience even at his own political peril--represents many of the traits the national media has always said Alabama lacks. Until he came along, our most famous exemplar of such character was the fictional Atticus Finch. Now that we can offer a real-life Atticus, we're more than a little angry that the Washington elites want to reject him.
Wow. Well done, Quin.
This piece ought to be introduced by one of the Republican senators at Pryor's upcoming rehearing before the SJC.
(cross-posted at Southern Appeal)
Posted in Uncategorized —
Posted at 5:55pm on Mar. 2, 2005 Reply to Salazar's Letter
By AndrewHyman
As already mentioned in this blog, Senator Salazar has written a letter calling upon President Bush to withdraw his renominees, lest Senator Salazar or some of his fellow senators feel "animosity" toward the president (presumably that excludes Senator Byrd who already feels animosity). Certainly President Bush should write a response, and this is one blogger who thinks he ought to do so in the form of an official letter to the entire upper house of Congress.
The president's letter to the Senate could reassure senators like Salazar that the president has made up his mind to LOVE congress, no matter how much animosity comes from that direction. "Life appears to me too short to be spent in nursing animosity, or registering wrongs," wrote Charlotte Bronte in Jane Eyre. So true. (And let's not forget how much less animosity there would be in the world if the U.S. Supreme Court hadn't yesterday commuted the death sentences of our country's most animosity-filled 16- and 17-year-olds.)
Most importantly, the president's letter to the Senate ought to spell out for the Dems that he firmly and irrevocably has made up his mind not to withdraw the renominees before the Senate decides whether to advise and consent. Period. Then any rational court of law in the United States, and any rational presiding officer of the Senate, would have to acknowledge that the continuing endless Democratic delay is purely a tactic to reject the nominations by forcing them to expire, in plain and obvious violation of US Senate Rule 31 (which says that a majority vote must occur "when a nomination is confirmed .... or rejected by the Senate"). The Constitution gives the president a pocket veto for legislation, whereas the Senate minority has no legitimate pocket veto for nominations.
Posted in Senate Rules —
Posted at 3:01pm on Mar. 2, 2005 Do they even realize what they're saying
By Zummo
This Reuter's article quotes Senator Ken Salazar (D-Col) as saying that the President is "playing a high-stakes game of 'chicken' that could bring the Senate to a near halt." As disconcerting as Salazar's sudden about-face from his campaign promise to be a centrist may be, I found this quote from Chucky Schumer to be particularly enlightening:
His (Bush's) renomination of seven of the 10 circuit court judges that we blocked in the last Congress is a thumb in the eye of bipartisanship.
Okay, let's parse this one. The good Senator from my former home state is acknowledging that the Democrats "blocked" the nominees, a tacit admission that they were not rejected but instead blocked by a cabal of partisan Democrats intent on derailing Bush's court picks. And yet in the very next breath he accuses Bush of "thumbing the eye of bipartisanship." Once again, the Senator proves the saying that to Democrats bipartisanship means that Republicans do what they want them to do.
Update: As Andrew helpfully noted, it was Schumer who made the "Game of chicken" comment, not Salazar. Of course Salazar had some unkind words of his own on the re-nomination process, thus my comments regarding him still stand.
Posted in Fillibuster —
Posted at 12:56am on Mar. 2, 2005 The Power Shift That's Happening
By AndrewHyman
The United States may be on the verge of permanently giving a minority of 41 senators power to reject presidential nominees. That would mean senators representing the 21 least populous states could demand whoever they want to serve on the courts, in the cabinet, or even as vice president if a vacancy should arise. The senators from those states represent less than 12% of the population of the United States. Senator Edward Kennedy says that GOP action to restore the nomination status quo might make it difficult for the Senate "to function in any meaningful way for the rest of the session." What a small price to pay in order to maintain the checks and balances that have worked for over two centuries.
Whether or not this impending shift in power is constitutional, it certainly is unwise, and would greatly shrink the pool of candidates who will have any chance of being successfully nominated to high office. This impending shift in power also plainly violates Senate Rule 31, which requires a majority vote "when a nomination is confirmed or rejected....by the Senate." Make no mistake about it: the minority is now seeking power to "reject" nominees. Just as the president of the United States can use a "pocket veto" to reject legislation by inaction, so too the Senate minority now wants the full Senate to reject nominations by inaction, thus forcing nominations to expire at the end of session (this is dramatically different from a nomination that expires merely because the full Senate has not gotten around to considering it). Everyone recognizes that the Fortas nomination in 1968 was debated for less than a week, and was voluntarily withdrawn, instead of expiring at the end of the session.
The Senate minority now wants the full Senate to reject judicial nominees without an up-or-down vote. While it is true that Senate Rule 28 allows the Senate to "reject" certain conference reports without an up-or-down vote, such a treatment of judicial nominees has never occurred prior to the present presidential administration. It is therefore incorrect for the minority to say that they are simply doing their traditional duty.
If the Senate minority won't be content with filibustering for a week or a month or a year on each nomination, and instead demands power to filibuster forever, then the minority will have effected a silent coup. The Senate rules, fairly read, allow unlimited debate but with exceptions, and one of those exceptions is that unlimited debate cannot be used to intentionally force rejection of a nomination by the full Senate. Let's hope that the Senate majority will either change the Senate rules by simple majority, or will start enforcing the rules already on the books.
As for questions of constitutionality, former Carter and Clinton White House Counsel Lloyd Cutler was right when he said that a Senate Rule requiring more than 51 senators to be present to do business violates the Quorum Clause of the Constitution. Then there is also the constitutional question of whether the Senate's rulemaking power includes power to make rules for the Senate's executive business that have the effect of diminishing the power of the executive branch (while abrogating the tie-breaking power of the vice president with respect to that executive business). Plainly, the Senate Rules should be construed to avoid such a thing if at all possible, and that is an additional reason for understanding Rule 31 in the way I've described.
Posted in Senate Rules —
Posted at 11:26pm on Mar. 1, 2005 Some observations re: Pryor's recess appointment and recent renomination
By feddie
First, the fedster predicts that the Supremes will deny each of the three remaining cert. petitions challenging the constitutionality of Judge Pryor's recess appointment. Indeed, methinks our black-robed masters tipped their collective hand by: (1) refusing to expedite consideration of the issue; (2) denying cert. in Lofton v. Secretary, Florida Dept. of Children and Families (i.e., the Florida gay adoption case); and (3) granting cert. yesterday in Senn v. U.S., but remanding the case for reconsideration in light of the Court's Booker decision. What do the Lofton and Senn cases have in common? Well, in each case the Supreme Court declined to address the issue of whether Pryor's recess appointment is constitutional or refrain from ruling in those cases until such time as the issue had been resolved. As Lyle Denniston noted a while back over at the SCOTUS Blog:
The Lofton appeal had been closely watched, not only for signs of the Court?s view about gay rights in the wake of Lawrence, but also because it is potentially one of the most important case likely to be affected by the dispute over President Bush?s use of recess appointments to get controversial judges seated on federal courts. A recess appointee, Circuit Judge William H. Pryor, Jr., was on the Eleventh Circuit when the Lofton case came up on a request for a vote on en banc review in July. The full Circuit Court denied review by a 6-6 vote, with Pryor casting the sixth vote opposed to en banc review. A tie vote denies such review. Had Pryor been ineligible to vote, en banc review presumably would have been granted by a 6-5 vote. That perhaps still could be the case, if his recess appointment ultimately were found to be invalid.
Thus, the attorneys who filed the Lofton appeal asked the Supreme Court to avoid acting on their case until after it had resolved the continuing constitutional challenge over Pryor?s temporary appointment. By denying review outright, the Court on Monday appeared to ignore that suggestion.
The Court, in another of its orders on Monday, refused to expedite its consideration of the recess appointments question in the specific case in which the Eleventh Circuit rejected the challenge to Judge Pryor?s appointment. That action only involved the motion to expedite, and not the underlying appeal in Evans v. Stephens (04-828). The Court took no action on that petition, or on another that raises the issue ? Franklin v. U.S. (04-5858). There now are four petitions awaiting the Court?s attention on this question. It will likely be clear on Friday, however, whether the Court intends to tackle the question. The Justices have listed two of the petitions - Franklin and Miller v. U.S. (04-38) - for Conference this Friday, and if past practice holds the Court will issue its orders granting certiorari that day. The fourth case is Senn v. U.S. (04-7175), not yet scheduled for action; the government reply in that case is due today.
So, what are we to gather from all of this? Well, it seems to me extremely unlikely that the Court will grant cert. in one or all of the three remaining cases challenging the constitutionality of Pryor's recess appointment. Indeed, these cases have been scheduled for conference on numerous occasions, and the earliest possible time they will come up for consideration again is probably sometime in April [The Court announced yesterday that it will be in recess from March 7th until March 21st].
What all this strongly suggests to me is that one of the lefty judges is in the process of drafting a dissent from denial of cert. [Tom Goldstein seems to think this is a distinct possibility]. And who knows, maybe Scalia or Thomas is drafting a rejoinder as well. This is all speculation on my part, of course, but the foregoing scenario strikes me as highly probable. Think about it folks, if the Court hasn't decided whether to grant cert. in one of the remaining "Bush is the devil for giving Pryor a recess appointment!" cases, then why not wait to ding the Lofton cert. petition? Why the haste in remanding the Senn case for reconsideration? And why not expedite the issue? If the Court were planning on granting cert., then why wait to do so when every day that passes increases the number of decisions involving Pryor; decisions that will ultimately be challenged, in part, on that basis (assuming cert. is eventually granted in one of the cases challenging Pryor's recess appointment). Finally, it is worth noting that the Supreme Court's docket for this term is already full, and therefore if these cases are ever docketed and considered, Pryor's recess appointment will have long since expired. That does not mean, of course, the issue becomes moot; but allowing these cases to drag on makes little sense if the votes to grant cert. are there. To me, this leaves only one reason why the Court has failed to rule yet on these cases: there is/are opinion(s) being drafted/circulated to go along with the denial of cert. But that's just my opinion (read: speculation), I could be wrong. Any thoughts?
Second, the Pryor-haters are once again attempting to have it both ways with their criticism of his performance on the bench thus far. On the one hand they suggest Judge Pryor has been rendering "progressive" judicial opinions in hopes of being confirmed by the Senate, and on the other hand they rake him over the coals for his vote to deny rehearing en banc in Lofton (i.e., the gay adoption case from Florida). So which is it? If Pryor is really using each and every case that he participates in to enhance his prospects of being confirmed, then why not vote to grant rehearing in Lofton? Does anyone really believe Pryor failed to realize that voting to deny rehearing in that case would hurt his chances of being confirmed? So, why not just vote for rehearing, and then rule in favor of the state law prohibiting gay adoptions after being voted on by the Senate (assuming his term had not yet expired)? Could it possibly be that Pryor's so-called progressive opinions and vote in Lofton simply reflect his honest interpretation of the law in those cases? Nah, it couldn't be that, right?
(cross-posted at Southern Appeal)
Posted in News —
Posted at 9:55pm on Mar. 1, 2005 Salazar Predicts Animosity, Byrd Predicts Lost Water Rights
By AndrewHyman
Senator Salazar of Colorado wrote to President Bush today:
The decision to re-nominate these individuals will undoubtedly create the animosity and divisiveness between the President and the United States Senate as an institution that is not helpful to our Nation and will sidetrack our collective efforts to work on other crucial matters.
Surely the junior senator from Colorado is not anticipating that he himself will have animosity toward the president. Perhaps he is referring to Senator Byrd, who gave a speech today which included the following pessimistic remarks:
If we restrain debate on judges today, what will be next: the rights of the elderly to receive social security; the rights of the handicapped to be treated fairly; the rights of the poor to obtain a decent education? Will all debate soon fall before majority rule? Will the majority someday trample on the rights of lumber companies to harvest timber, or the rights of mining companies to mine silver, coal, or iron ore? What about the rights of energy companies to drill for new sources of oil and gas? How will the insurance, banking, and securities industries fare when a majority can move against their interests and prevail by a simple majority vote? What about farmers who can be forced to lose their subsidies, or Western Senators who will no longer be able to stop a majority determined to wrest control of ranchers' precious water or grazing rights? With no right of debate, what will forestall plain muscle and mob rule?
Yikes, I didn't know that limiting debate on each judicial nominee --- to, say, one year of debate apiece --- might imperil all those other things. It's curious that Senator Byrd didn't object to "fast track" limitations on debate for trade agreements that were put in place long ago; those debate limitations might actually impact the things the senator listed in his speech today. Oh, by the way, Byrd also compared Senator Frist to Hitler.
Posted in News —
Posted at 3:35pm on Mar. 1, 2005 SCOTUS short list: Michael McConnell
By krempasky
John Hinderaker at Powerline writes about attending a lecture by Judge Michael McConnell of the 10th Circuit Court of Appeals. For more on McConnell, here's his official (short version) bio. For what it's worth - the lefties at PFAW really, really didn't like McConnell when he was nominated by President Bush. Byron York wrote at NRO that the Democrats didn't even try too hard to stop him, which is pretty funny since he was described as the "most dangerous Bush administration judicial nominee yet to come before the Judiciary Committee"
Posted in SCOTUS —
Posted at 1:04pm on Mar. 1, 2005 Myers Will Likely Be Confirmed
By AndrewHyman
Today, William Myers is testifying before the Senate Judiciary Committee, and a live view is available on the internet. Myers will obviously be approved by the Judiciary Committee. However, his nomination need not then proceed directly to the floor of the Senate. Instead, the Senate leadership could wait until any other nominee clears the Judiciary Committee, and then bring that other nominee to the floor first (or jointly with Myers and/or jointly with other nominees).
If Myers is brought to the floor first, it seems likely that he will be confirmed, which could take steam out of the effort to stop the perpetual filibusters of other nominees. This is because --- testifying today --- Myers heaped praise on the Supreme Court's line of "privacy" cases, calling them "bedrock" as he did in his previous hearing. His controversial environmental record means little to many liberal Senators, as compared to that praise for the privacy cases. Of course, liberal Senators would say that they finally voted for cloture on Myers because the Ninth Circuit is a liberal circuit that could use some balance, whereas actually Myers would provide balance primarily on environmental issues as compared to other issues.
Myers surely ought to get an up-or-down vote in the Senate. But, there's no reason why he should get it before all of the other nominees. Incidentally, everyone with a speck of good sense believes in respecting other people's privacy, and there does appear to be a limited right to privacy in the Fourth Amendment, but not an unlimited one.
Posted in Senate Rules —
Posted at 9:19pm on Feb. 28, 2005 Chuck Schumer's Proposed "Bipartisan" Group
By Lorie Byrd
Power Line addresses the idea put forth by Chuck Schumer of creating a "small, bipartisan group" of senators that "should meet with the president sometime in the next few weeks and eventually even make joint recommendations to the president of nominees that are highly qualified and could get broad, bipartisan support in the Senate."
I agree with Power Line that this is a bad idea that holds little or no good for the President or Republicans. First, there is no need for a group to recommend nominees to the President. He has already nominated people of high quality character and experience. Second, you will see a truly "bipartisan" group voting in favor of those nominees if the Democrats would only allow an up or down vote on each.
If the Democrats had acted in good faith over the past four years, and the Senate was deadlocked, then I might feel differently. However, if they had acted in good faith , there would be no reason for this small, bipartisan group in the first place. They have committed character assassination by painting the highly qualified nominees put forth by President Bush as rightwing extremists, and even as racists and religious zealots. If the media ever starts covering these nominees by reporting their qualifications and backgrounds, rather than labeling each as ultra conservative, or "controversial" then the Democrats will have no choice but to confirm them or risk being seen playing petty partisan politics.
Posted in Judiciary Committee —
Posted at 10:48am on Feb. 28, 2005 GOP Senators May Let Dems Get Away With It
By AndrewHyman
Jefferey Toobin writing in the New Yorker, on Feb. 28:
Senator John McCain, of Arizona, seems likely to oppose the idea. "We Republicans are not blameless here," McCain told me. "For all intents and purposes, we filibustered Clinton's judges, by not letting them out of committee. Making this change would put us on a slippery slope to getting rid of the filibuster altogether. It's not called 'nuclear' for nothing." Several other Republican senators also expressed reservations about the idea, often using similar language. Chuck Hagel, from Nebraska, said that he was undecided, and added, "I think the judges deserve up-or-down votes, but the filibuster is an important tool for the minority in the Senate." Susan Collins, a moderate from Maine, who is also undecided, said, "It's wrong for the Democrats to filibuster judges, but I'm concerned about the effect on the work of the Senate if the constitutional, a.k.a. nuclear, option is pursued." John Sununu, a first-termer from New Hampshire, and Lamar Alexander, Frist's junior colleague from Tennessee, have not made up their minds, either. Even Lindsey Graham, a Republican from South Carolina who supports the rules change, seemed to speak for many when he said, "Nobody wants to blow the place up."
....
One day outside the Senate chamber, I saw John Warner in an uncharacteristic pose for a politician. He had squeezed himself up against one of the old stone walls in an attempt to remain out of camera range while another senator talked to the press. In the first few years following his election in 1978, Warner was known more for being Elizabeth Taylor's sixth husband than for any legislative achievements. (The marriage lasted from 1976 to 1982.) But Warner, who is now seventy-eight, patiently moved up through the ranks, and today chairs the Armed Services Committee and is an important source of institutional memory for the Senate. "When I came to the Senate, I studied the history of the filibuster," he told me, "and unlimited debate has been an essential part of what we do since the inception of the body. Of course, the Democrats have pushed too hard and stopped too many judges, and I still don't know what I'll do if this thing comes up for a vote. I'm worried about it, and I'm worried about what's happening to the Senate. You see, I'm a traditionalist. That's my party."
No one seems to be acknowledging that filibusters on nominations could still be allowed, for example up to a year's duration, before being ruled out of order. This thing is not black and white. Here's some of Rush Limbaugh's commentary beginning with a quote from the Toobin article:
"Susan Collins, a moderate from Maine, who is also undecided [about the nuclear option], said, "It's wrong for the..." Now, get this quote from her. "It's wrong for the Democrats to filibuster judges, but..." Wait a minute, why the qualifier? If it's wrong, it's wrong, right? Oh, no, no, no, no. "It's wrong for the Democrats to filibuster judges, but I'm concerned about the effect on the work of the Senate if the constitutional, a/k/a nuclear option is pursued." Concerned about the effect of the work of the Senate? The work of the Senate is a bit funny right now on this whole thing. There is no provision for filibustering judicial nominees! There is no constitutional provision that says these nominees need 60 votes to be confirmed. What about the effect of that on the Senate? Where are these people? They're being screwed left and right and they don't even act like they know it. "John Sununu, first-termer from New Hampshire and Lamar Alexander, Frist's junior colleague from Tennessee, have not made up their minds, either. Even Lindsey Graham, a Republican from South Carolina who supports the rules change, seemed to speak for many when he said, 'Nobody wants to blow the place up.'" The place is blowing up now, Senator Graham! The place has been bastardized now with what's happening on these judicial nominees. It's time to fix this.
Powerline also has some comments about the Toobin article.
Posted in Senate Rules —
Posted at 6:21pm on Feb. 27, 2005 Senators on Sunday Interview Shows
By AndrewHyman
Senators McCain and Biden discussed judicial nominations on separate Sunday talk shows. Senator McCain spoke about the nomination situation on Fox News Sunday, Feb. 27:
WALLACE: Senator, another issue, the Senate is about to reconsider one of the president's judicial nominees.
If it comes to a vote on the so-called nuclear option, the idea that you would change the rules and require only 51 votes to end the filibuster, if it comes to that, how will you vote?
MCCAIN: I'm very concerned about the nuclear option, because I'm afraid it's going to shut down the United States Senate, and we have a lot of things to do. I'm still hoping that we could sit down between Harry Reid and Bill Frist and work out some kind of agreement.
Really, Republicans did hold up some Democrat nominees. They held them up in committee.
But this is one that's going to be a very close call for me.
WALLACE: So you're not prepared to say at this point that you would vote "no" on the nuclear option?
MCCAIN: I'm leaning against, "no," but if the leaders of my party and the president want to talk to me about it, I will certainly listen carefully, because I do believe that elections have consequences and presidents should be able to appoint their nominees and carry them with a majority vote. But I'm worried about the consequences of it.
Senator McCain would probably be more comfortable with ending the nomination filibusters if he would take a look at Senator Landrieu's comments, described in the next post below.
Even if the Dems were to shut down the government, that is not exactly an approach that voters have favored in the past, so McCain perhaps shouldn't worry about that so much. Although Republicans did hold up some Democratic nominees in committee during the Clinton administration (as McCain pointed out), it's worth noting that the Republicans were in the majority at the time, rather than being a minority as the Dems are now (and the full Senate could have always used a "discharge petition" to get nominees out of committee). Also, that situation in the 1990s never escalated anywhere near to the point of the full Senate essentially being forced to reject a nomination without a majority vote (which in my view violates Senate Rule 31).
Senator Biden was also on the tube today. At Meet the Press, Biden said he'd vote against a promotion of Justice Scalia to Chief Justice, because Scalia "thinks there are no such thing (sic) as unenumerated rights in the Constitution." Evidently, if the President's Supreme Court nominees all agree with Scalia (and me) on this point, then Biden will vote against them all. What a distortion of the nomination process --- and the more so if Biden were to filibuster as well.
Some reporter ought to ask Biden whether he would oppose a Supreme Court nominee who agrees that there ought to be "unenumerated rights in the Constitution," but who nevertheless honestly believes that those unenumerated rights have not yet been put in the Constitution. Don't hold your breath waiting for that question, much less an answer.
Posted in Senate Rules —
Posted at 6:52pm on Feb. 25, 2005 Reid Threatening to Go Gingrich
By AndrewHyman
Hugh Hewitt anticipates that if the Democrats shut down the Senate, then that would benefit the GOP. Indeed it could. The Times Picayune reports on Feb. 26 that Senator Landrieu would prefer a more muted Democratic response, "somewhere between 'all-out war' and 'grin and bear it.'"
Posted in Fillibuster —
Posted at 11:59pm on Feb. 24, 2005 Specter on Minority Rights
By AndrewHyman
Senator Arlen Specter said this today:
I think historically if you were to flash ahead 100 years from now, this controversy over judges would be minuscule. It would not be a major matter in the life of the country. But minority rights are.
There's no denying that minority rights are a critical feature of any successful democracy. Who would deny that the Bill of Rights is a wonderful thing? But by Senator Specter's logic, it seems that we would have to give a minority of Supreme Court justices a veto over every decision of that court.
Minority rights are vital, but the minority should not dictate every decision of our government. The Senate minority has some rights, doesn't have other rights, and the challenge is figuring out which are which.
For example, the 25th Amendment, Section 2 says that when there is a vacancy in the vice presidency, the president must nominate a vice president who is then confirmed by "a majority vote" of both houses. Does anyone seriously think a minority of Senators would be entitled to filibuster such a nomination FOREVER? That would violate an express right of the majority, enshrined in the Constitution. If Senator Specter is so avidly in favor of minority rights, he should at least acknowledge one or two majority rights as well, like that one in the 25th Amendment. Majority rights aren't always such a bad thing.
And if the Senator is willing to honor the majority rights in the 25th Amendment, how about the majority rights in US Senate Rule 31, Section 3?
Here's an excerpt from the 25th Amendment:
2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Here's an excerpt from Rule 31:
3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken. . . . 4. Nominations confirmed or rejected by the Senate shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider the same. . . . 6. Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President.
A BLITHERING IDIOT could see that both of these laws forbid a minority of the full Senate from rejecting a nominee. Not that I'm accusing anyone of being a blithering idiot, of course. It is worth keeping in mind, by the way, that stuff can be "rejected" by the Senate without a formal vote (e.g. see Rule 28). Likewise, presidents have been rejecting stuff for centuries by exercising a "pocket veto" (which essentially involves doing nothing).
The main question in the present situation is whether the Democratic minority has intended that these nominees be "neither confirmed nor rejected" which would be entirely legitimate, or instead whether the Democratic minority has intended that these nominees be "rejected by the Senate" which would be entirely illegitimate. The best people to answer this question are the minority leaders.
The Congressional Record shows that on November 6, 2003 Senators Reid and Leahy said the following:
Mr. REID. "Madam President, I direct a further question to my friend. Is he telling me then, in the waning days of this legislative session of the National Legislature that we are spending time on a vote that has already been taken--there will not be a single vote changed--when we have appropriations bills to complete, we have Internet taxation, and many other items we are trying to complete in a matter of days; that we are, for lack of a better description, wasting the Senate's time on a nomination that has already been rejected by the Senate?"
Mr. LEAHY. "Madam President, the senior Senator from Nevada is absolutely right."
Likewise, the Congressional Record shows that on January 6, 2005 Senator Durbin said the following:
Mr. DURBIN. "The majority leader did not mention this critical statistic when he spoke on Tuesday. I also take issue with his statement that `I seek cooperation not confrontation.' If he truly meant that, he would not threaten to change the Senate rules and traditions next month. If he truly meant it, he would have urged the White House not to re-nominate those nominees who were rejected by the Senate last Congress."
Senator Schumer is also on record, saying that, "To nominate judges previously rejected by the Senate is wrong." These statements show a plain intent to, in effect, violate Rule 31. IMHO
Posted in News —
Posted at 5:46pm on Feb. 24, 2005 Hearing on Myers Next Tuesday
By AndrewHyman
NY Times reports today as follows.
Senator Arlen Specter, the chairman of the Senate Judiciary Committee, said today that his panel would hold confirmation hearings next week for two of President Bush's nominees for federal judgeships, who had been blocked earlier by Senate Democrats.
Mr. Specter said the committee would hold a hearing on Tuesday for William G. Myers III, a nominee for the Court of Appeals for the Ninth Circuit, and on Thursday for District Judge Terrence W. Boyle, a nominee for the Court of Appeals for the Fourth Circuit.
There had been speculation that Brown, Pryor, or Haynes might be up first, but it now looks like Myers and Boyle will be the first out of committee. Myers was the seventh Bush nominee filibustered by the Democrats. He made it out of committee the first time around, and then the cloture vote was 53 to 44 (note Senator Biden voted for cloture). The previous hearing report on Myers is online as text and pdf. Boyle had previously been nominated, but (unlike Myers) never reached the Senate floor. Recent news stories about Myers are available here. Immediately after Senator Specter announced the upcoming Myers hearing (while emphasizing that Myers would provide balance on the Ninth Circuit), Senator Schumer signalled another filibuster, as Human Events describes. Further information about Myers is available from the Committee for Justice (pdf).
Posted in Judiciary Committee —
Posted at 2:56pm on Feb. 24, 2005 SCOTUS short list: Michael Luttig
By krempasky
Thanks to Hugh Hewitt and Powerline for bringing out attention to the depths to which Democrats seem prepared to sink in order to trash a prospective nominee. Apparently, if you belong to a family victimized by violent crime - you are incapable of enforcing the law. For shame.
Posted in SCOTUS —
Posted at 1:59pm on Feb. 24, 2005 The Advice Clause of the Constitution Has Been Ignored?
By AndrewHyman
It's clear that Senator Specter has a perfectly good reason for saying stuff like, "The advice clause of the Constitution has been largely ignored," at his Washington Post interview.
Obviously, what happened at his interview with the Washington Post was this. Specter must have asked for a copy of the Constitution, and the Post must have inadvertently given him the Leahy-Broder copy of the Constitution, instead of the real thing. The real Constitution says that the president:
"shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges"
However, the Leahy-Broder version of the Constitution says that the president:
"shall seek the Advice of every Senator who wishes to help nominate, and by and with the Consent of the Senate, appoint ... Judges"
You see, this is all just a big misunderstanding. If the Post had given Senator Specter the actual, real Constitution, then Senator Specter obviously would have agreed with what Senator Cornyn has written (very accurately and eloquently) on this subject:
Some Senators are now even claiming that they should have a role in selecting the next nominee to the Supreme Court. The president, of course, is entitled to consult with whomever he wants, but cooperation is a two-way street, and one can certainly understand a president's reluctance to take advice from those who have obstructed his finest nominees.
Moreover, the Constitution is clear: The president, alone, nominates judges. The Senate has an important advice-and-consent function, but that function applies only to the confirmation, and not the nomination, of judges. Much has been made of the word "advice," but as early Senate practice teaches, the Senate's constitutional function is simply to "advise" whether it considers a particular appointment to be a good idea and, separately, to "consent" to that appointment regardless of the Senate's own advice. (For example, when the Senate, for the first time, exercised its advice-and-consent function with respect to a treaty, it resolved "[t]hat the Senate do consent to the said convention, and advise the President of the United States to ratify the same.")
Doubtless the Post also gave Senator Specter a faulty copy of US Senate Rule 31, Section 1, which in reality makes it crystal clear that the Senate is supposed to give its "advice" as the final step of the confirmation process.
Posted in News —
Posted at 11:16am on Feb. 24, 2005 More words of advice from Specter
By Zummo
Arlen Specter has some (in his mind, at least) sage advice for the President. From the Washington Post:
President Bush would be wise to "pick up the phone" and consult with Democrats before choosing a new Supreme Court justice. "The advice clause in the Constitution has been largely ignored." If there is a vacancy on the high court, "the far right is going to come hard at a nominee if it is not a nominee of their choosing. But I think there's a much broader base in America than the far right." Changing the Senate rules to prohibit filibusters of judicial nominees -- the "nuclear option" -- could have deleterious short-term effects and run the long-term risk of eroding the rights of the minority. "If we go to the nuclear option . . . the Senate will be in turmoil and the Judiciary Committee will be hell."
The article goes on to note that
If you thought that his brush with losing the committee chairmanship had chastened the legendarily contrarian Specter, if you thought his recent diagnosis of Hodgkin's disease might have tempered his approach -- well, that wasn't the Specter on display in a visit with The Post editorial board yesterday. Instead, the discussion featured Specter Unbound: the Specter who voted against Robert H. Bork rather than the one who rallied to the defense of Clarence Thomas.
You know, I could swear someone here warned about this happening. Anyway, the Post is right, Specter has not given any indication of being remotely chastened by either his narrow primary victory or the failed Judiciary Committee coup.
Of course Specter's comments, while not endearing him to conservatives, did inspire the Post to gush about this oh-so-brave soul.
This may be the Specter conservatives feared -- but it also seems like the chairman the committee (and the country) needs.
Indeed. Surely the country needs a duplicitous, self-serving RINO chairing the committee which plays a vital role in shaping the judiciary, an individual with absolutely no loyalty to his party or president and who is seemingly committed to sinking true-blue conservatives before they breach the sanctity of our Courts, and who is well-trained in the John McCain school of kissing up to the press.
Hat tip to Kathryn Lopez.
Cross posted at: The Political Spectrum.
Posted in News —
Posted at 1:27am on Feb. 24, 2005 The Senate As a Cooling Saucer
By AndrewHyman
People like Senator Schumer of New York have tried to justify their unprecedented filibuster campaign against judicial nominees by pretending that there is some basis in American history for what they've been doing. Perhaps Schumer's most annoying habit has been to repeatedly assert that James Madison called the Senate a "cooling saucer," which somehow is supposed to justify Schumer's efforts to prevent a final vote on nominees. But Schumer is wrong on multiple counts.
First of all, Madison had nothing to do with this story.
Second, this story has nothing to do with nominations, and only refers to legislation.
Third, the entire story about the "saucer" is probably apocryphal.
Fourth, the idea is to cool an issue down, "but not freeze it into an ice cube," as Senator Chambliss has put it. If Senator Schumer truly wanted to cool things down, then he would allow eventual votes on the nominees, instead of trying to completely freeze out the nominees he dislikes.
Fifth, this "saucer" story has nothing whatsoever to do with filibustering, as C-Span has explained:
[T]he Senate was designed to protect against the popular passions of the moment. Senators stand for election every six years. Moreover, only one-third of its membership runs for re-election at any one time. This continuity and the longer term are meant to enable Senators to resist the pressure of immediate popular opinion and be able to serve as a restraining influence -- or a court of appeals -- for House action. The framers expected Senators to be older, wiser, and more deliberative than Representatives and thus able to offer a long-term view of what makes good public policy.
Speaking of older and wiser Senators, Orrin Hatch talked to The Hill today about nomination filibusters. Also, former Senator and Senate President Fritz Mondale did an interview tacitly supporting up-or-down votes on judicial nominees, provided "the traditional ability of the Senate to ventilate these issues" is preserved.
Posted in Fillibuster —
Posted at 1:04pm on Feb. 23, 2005 SCOTUS Candidate: John Roberts
By krempasky
Via The Corner, Legal Times has written a profile of possible short-lister John Roberts. I'll leave it to the lawyers on this site to weigh in on the substance of Mr. Roberts' legal career..
Posted in SCOTUS —
Posted at 6:25pm on Feb. 22, 2005 Putting Everything Into Perspective
By AndrewHyman
In 2001, long before the first nomination filibuster in American history that ever lasted all the way to the end of a congressional session, the following was written about the Senate's advice and consent role.
In more than 200 years of advice, consent, dissent, libel, slander, character assassination, and other senatorial courtesies, countless nominees have had their sanity questioned, their private lives dissected, their families scrutinized, and their honeymoon videotapes broadcast as one group or another sought to torpedo their nominations.
It's an ugly, gruelling, unfair, and extremely entertaining process, but, like everything else in this best of all possible worlds, it's all for the best and couldn't possibly be any better. By giving nominees this test of fire, the stupidest, weakest, and most dangerously demented of them are weeded out, and only the cleverest and most deceitful bastards are granted senatorial consent. We certainly need clever and deceitful bastards in the Executive and Judicial Branches if they're going to have any hope of holding their own against the nutjobs we elect into the Legislative branch.
But now, the Democrats elected to the Senate have seriously outdone themselves.
The Senate rules allow nominations to be filibustered, but the minority Democrats now use that as a loophole to REJECT a nomination, by filibustering all the way until the nomination is forced to expire at the end of a session. In actual reality, however, Senate Rule 31, Sections 3 and 4 say that "when a nomination is confirmed or rejected" by the full Senate it must be by MAJORITY vote. So, when Harry Reid promises a filibuster that will last not a few days nor a few weeks, but instead will last "all the hours in the universe," he is indicating that Rule 31 will be broken. It's that simple.
Nominations that have reached the Senate floor have sometimes legitimately lapsed when there has not been time to fully consider them, or when the Senate has wanted to start fresh the next session, or when other pressing matters have arisen. But nominations do not legitimately lapse when a minority simply decides to kill them. I'm not making up Rule 31, Sections 3 and 4. Go take a look. While you're at it, take a look at Rule 28, Section 2, which shows that the word "reject" does not have some narrow, technical meaning that presumes a formal vote of the Senate has occurred.
So, it looks like either Rule 31 needs to be enforced, or the text of the Senate Rules needs to be amended.
Posted in Senate Rules —
Posted at 11:49am on Feb. 22, 2005 Strategy to appease the moderates?
By Zummo
Nathan beat me to the punch on linking to the York piece, so I will just add my own comments. I am not as confident as Nathan that this is a good strategy, though I am willing to concede the Senate Republicans might be better political strategists than yours truly. On the surface this may appear like a smart strategy, for after all the Republicans will need every vote possible to thwart a filibuster. But one has to question whether or not this is a futile gesture. As much as we question the allegiance of the so-called RINO's, I am not certain that they are the problem. If they are committed to joining the Democrats on a filibuster, then attempts to look like the GOP is playing nice are not going to sway them. Now, it might persuade a few moderate Democrats, but again I suspect that largely symbolic gestures such as this are not going to really convince those that have even remotely strong ideological motivations to move away from the obstructionist side.
More importantly, the Republicans have tried to play nice and have been burned before. George Bush practically let Ted Kennedy write the "No Child Left Behind Act," performed a large show of playing nice with the Senator, and look at the result. Moreover, the Democrats are absolutely committed to preventing President Bush from getting his nominees on the bench because they know the Courts are their last refuge. Until the Republicans get a 60-seat majority in the Senate - an unlikely occurence - the Democrats will continue to use the filibuster to block justices as long as it is a means at this disposal. The only sure-fire means of moving these names is to get down and dirty and make it a street fight. The article Andew just cited hardly instills one with confidence that the GOP is prepared to do just that, at least not yet. But it's time that Senate leadership removed the scales from their eyes and realized that playing nice is not going to get these distinguished individuals on the Courts any faster.
Posted in Fillibuster —
Posted at 11:44am on Feb. 22, 2005 Guinea Pig, Or A Way To Save Face?
By NateCT
Byron York pens an excellent essay, at NRO, looking at the new GOP strategy re: judicial nominations (one I think might just work). Basically, Specter's offering an olive branch to the Democrats by way of holding hearings for some of the judges who President Bush recently re-nominated. One of those nominees is none other than Judge Pryor.
National Review Online has learned that the first of those hearings will be held next month on the nomination of William Pryor, President Bush's filibustered choice for a seat on the Eleventh Circuit Court of Appeals. The hearing will also consider the nomination of William Haynes, the president's pick for a place on the Fourth Circuit Court of Appeals.
Both men had hearings before the committee when they were nominated in the president's first term. Both were approved by the committee. Pryor's nomination was filibustered by Democrats, while Haynes's nomination was never brought to the Senate floor.
Pryor, the former attorney general of Alabama who, after the Democratic filibuster, was given a recess appointment to the Eleventh Circuit by President Bush, is a favorite of social conservatives. By all accounts, he made a strong showing at his hearing in June 2003 (see "The Nominee Who Won't Back Down"), where he stood behind his statement that he considers Roe v. Wade "the worst abomination in the history of constitutional law."
...
The decision to hold hearings for Pryor and Haynes appears to be a concession to Democrats. Republicans, who now hold a 10-to-8-vote advantage over Democrats on the committee (it was 10-to-9 before last year's election), had hoped to approve the nominations quickly without having to reenact hearings that had already taken place.
...
The Republicans say that Specter and his GOP colleagues are shaping a strategy in which they, the Republicans, will offer hearings and other procedural concessions to Democrats in an effort to determine whether Senate Minority Leader Harry Reid plans to continue his predecessor Tom Daschle's strategy of stopping Republican nominees at all costs.
"It's an opportunity if they want to back off one or two of [the filibusters]," says the second Republican source, "so they have a way of saving face."
"This is kind of an olive branch to them, saying, hey, I'll give this guy hearings," says the first Republican. "If they turn it into a circus, [Specter] can say, screw it, I'm not going to put the other guys through that."
...
Pryor and Haynes will be the guinea pigs in the new Republican experiment. They were chosen carefully; both are candidates who, given the situation that exists in the Senate, will be difficult for Democrats not to filibuster. Pryor's statements on abortion alone virtually guarantee continued Democratic opposition, while Haynes seems destined to be portrayed as Mr. Abu Ghraib. If that is the case, and especially if Democratic attacks on them are strident, then Republicans feel they will be able to build the base from which to launch an attempt to break through the Democratic filibusters.
Sounds like there will be more to March Madness than basketball.
Posted in Judiciary Committee —
Posted at 11:07am on Feb. 22, 2005 Some Have a Sinking Feeling
By AndrewHyman
In today's Washington Times, Bruce Fein criticizes the Bush administration for supposedly sinking its judicial agenda in order to keep its legislative agenda afloat. Meanwhile, New Hampshire's Union Leader calls on the Senate minority to stop sinking the president's nominees before they even get up or down votes.
Posted in Senate Rules —
Posted at 4:05pm on Feb. 21, 2005 Whose History is Correct?
By AndrewHyman
Yesterday, the Washington Times editorialized as follows: "before 1949, nominations could be -- and occasionally were -- talked to death by a filibuster." But on May 9, 2003 Sen. Frist wrote this: "For almost all our nation's history, filibustering nominations was unheard of and unknown. It was unknown when the cloture rule was adopted in 1917. It was unknown when the rule was extended to nominations in 1949." Anyone know which is correct?
UPDATE: A couple of knowledgeable sources have emailed me that Frist is correct. That's one demerit for the usually very reliable Washington Times.
Posted in Fillibuster —
Posted at 3:36pm on Feb. 20, 2005 Senate Showdown
By AndrewHyman
Hugh Hewitt writes (Feb. 18, in "World Magazine") that a few GOP Senators are uncomfortable with the goal of ending nomination filibusters, or with the strategy for achieving that goal. Of course, that doesn't mean a rule change or parliamentary ruling won't happen. Hewitt says it just means the vote would be close. Clearly, the GOP has power to change the rules, especially when the rules are unconstitutional, as Robert Sargent explains (Feb. 21, in "Enter Stage Right"). I hope that happens soon.
There may also be other ways to restore the traditional role of the majority in the nomination process --- ways that would be attractive to wavering Senators, that would follow the existing Senate Rules, and that would not pose any risk to legislative filibusters.
For instance, a parliamentary ruling could acknowledge that filibustering a nomination can sometimes amount to "rejection" of the nomination. Such a ruling could explain precisely when filibustering improperly crosses the line and becomes rejection.
It is a myth that a filibuster cannot conceivably amount to "rejection" of a nomination. Rejection is the inevitable result of permanently and definitely depriving Senators of a chance to vote up or down. This myth is not spelled out in any Senate rule, so there's nothing to stop the Senate from doing away with it. Then these rejective filibusters could be reined in by Rule 31, Section 3, which requires a majority vote whenever a nomination is "rejected."
The presiding officer of the Senate could, for example, address a situation where three failed cloture votes on a nomination were spaced at least a week apart, and more than fifty Senators voted for cloture each of those three times, and the presiding officer could say that, in such a case, the failure to have an up-or-down vote by a week before the end of the session would signify an attempted "rejection" (absent any resolution to the contrary). That way, Rule 31, Section 3 would then allow an up-or-down vote, and it would be out of order to filibuster so as to prevent that final vote. This kind of ruling would make good sense, because if there have been multiple cloture votes over an extended period of time, supported by a clear majority, then it's very likely that a minority is trying to kill a nomination rather than just discuss it.
The "rejection" language of Rule 31, Sections 3 and 6 evolved over many years, most notably the years 1843, 1868, and 1877. That was long before the Senate adopted its first cloture rule in 1917, arguably extended cloture to nominations in 1949, and allowed multiple simultaneous filibusters in 1975. So, it's not clear how the nineteenth-century framers of Rule 31 would have applied the word "rejected" to present circumstances. It's very clear, though, that the plain meaning of this word "rejected" describes what the minority in the Senate has recently intended to do to various filibustered judicial nominations. It's also very clear that --- so far --- the minority's power grab has been succeeding.
Posted in Senate Rules —
Posted at 10:13pm on Feb. 19, 2005 Standing by my prediction--Pryor will be confirmed
By feddie
In honor of the one-year anniversary (tomorrow) of Judge William H. Pryor, Jr.'s recess appointment to the Eleventh Circuit Court of Appeals, I thought it would be appropriate to repost the following excerpt from the Southern Appeal archives ("Why Pryor will eventually be confirmed by the Senate," posted on February 21, 2004) here at Confirm Them:
I believe Pryor will eventually be confirmed by the U.S. Senate. First, recent polls notwithstanding, it is far more likely than not that President Bush will be re-elected to a second term. Second, two years is a looooong time. Passions will wane, and Judge Pryor will be able to demonstrate his steadfast commitment to the rule of law in a judicial capacity. Third, the Eleventh Circuit has one of the heaviest case loads in the country. The judges on that circuit desperately need a brilliant, energetic, hard working judge to assist them in this regard. And on that count, Pryor is exactly what the doctor ordered. Judge Pryor is also extremely personable. While I am sure that some of the more liberal to moderate judges on the Eleventh Circuit have mixed feelings about Pryor's recess appointment, mark my words, he will win them over.
Having served as a federal appellate clerk for two years, I can tell you that, ideological differences notwithstanding, there is a great deal of collegiality between the judges at that level. I would not be the least bit surprised if, after a year or so on the bench, Judge Pryor's colleagues unanimously voiced their support of him (for purposes of Senate confirmation). This may not sway Patrick Leahy et al., but it is likely to influence more moderate, fair-minded dems. And if the Republicans pick up three to four seats this November, Pryor won't need much dem support to override the filibuster.
I stand by this prediction. Judge Pryor will be confirmed by the Senate.
Posted in Uncategorized —
Posted at 3:08pm on Feb. 19, 2005 "Bill Pryor's second chance"
By feddie
The B'ham News also has an outstanding editorial out today on Judge Pryor. Here's a taste:
Perhaps it's fair enough to argue that Pryor has an incentive to temper his behavior while he is awaiting Senate approval. But to buy that, you'd have to disregard the rest of his legal career, which is wholly consistent with his actions as part of the 11th Circuit.
No, Pryor isn't perfect, and this newspaper hasn't agreed with him on every issue. But even people who have found themselves opposite Pryor can agree he is a conscientious public official who respects and follows the law - even when he disagrees with it.
At the very least, Pryor is entitled to a vote of the full Senate. And if they look at Pryor's record objectively, senators will gladly confirm him as a federal appeals judge.
(Cross-posted at Southern Appeal)
Posted in News —
Posted at 10:06am on Feb. 19, 2005 Bill Pryor's record shows judicial quality
By feddie
The Mobile Register has an excellent editorial in today's paper supporting President Bush's renomination of Judge William H. Pryor, Jr. Here is a taste:
IN HIS first year on the 11th Circuit U.S. Court of Appeals, Mobilian Bill Pryor has done virtually nothing to justify the fears liberals had about him, not to mention the smears they spread about him -- and he has done everything necessary to make his backers proud . . . .
The truth, though, is that the adjective that best describes Mr. Pryor's jurisprudence has no political connotations at all. His record isn't conservative or liberal, moderate or progressive: It's deferential. Judge Pryor consistently defers to the proper authority.
He defers, absolutely, to the authority of the Supreme Court. He refers, for guidance but not authority, to other appellate courts. He takes under advisement the opinions of legal scholars. He defers to legislative bodies when legislative intent can be ascertained.
And he never gives evidence of an agenda of his own, other than a commitment to follow the law with precise attention to detail.
A formidable intellect, a compassionate man of integrity and a scholar of the law, Bill Pryor already is a terrific judge. It's time for the Senate to release him from legal limbo and give his nomination a final vote by simple majority.
(cross-posted at Southern Appeal)
Posted in News —
Posted at 12:09am on Feb. 17, 2005 How to Get a Parliamentary Ruling
By AndrewHyman
If you want a parliamentary ruling that endless filibusters of judicial nominees are out of order, then forget about the Constitution. Here's why, according to Senator Hatch:
Most of the speculation about this approach posits a question of order raising a constitutional issue such as Rule 22 is unconstitutional, at least as applied to judicial nominations. Under longstanding precedent, however, this approach requires the presiding officer's favorable ruling on a question of order framed in NON-CONSTITUTIONAL terms and a majority voting to table the ensuing appeal of that ruling.
In other words, you've got to argue that these endless filibusters violate SENATE RULES. And what Senate Rule are you going to rely on?
The best rule to rely on is Rule 31, which governs nominations, and which has absolutely nothing to do with legislation, or with filibusters of legislation. And what does that Rule say about majority control of the nomination process? It says this:
Rule 31, Section 3: "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration..."
What's critical here is the IMPLICATION of this rule. It would be absurd for a losing Senator in the majority to be able to seek reconsideration, while a winning Senator in the minority cannot, so Rule 31 must mean that the winning Senator is in the majority. Thus, when a nomination is confirmed or rejected, it must be by majority. Voila! Senate Rule 31 contains every majoritarian principle that you could possibly hope to find in the Constitution. It would be twisting Rule 31 to say that it allows a minority to reject nominations.
Isn't Rule 31 great? But now some of you want to go and ruin everything by saying that endless filibusters don't amount to rejecting a nomination! Have Reid, Durbin, and Schumer driven you out of your minds? Of course an endless filibuster amounts to rejecting a nomination! Just because Chuck Schumer and Harry Reid and Dick Durbin say the same thing doesn't mean it's wrong. These nominations were indeed rejected --- unfairly and unlawfully --- by the Democratic minority.
It's in Schumer's and Reid's interest to provoke Republicans into denying that the nominees were previously "rejected." That way, Rule 31, Section 3 couldn't be used against them.
Even if the nominees had been rejected by a majority instead of by a minority, President Bush would still be fully entitled to renominate them. For example, James C. Matthews was nominated by President Cleveland, defeated by a majority of the Senate, later renominated, confirmed, and appointed.
Who cares if these Democrats want to go around complaining that these nominees were already rejected, and complaining that the GOP is wasting the Senate's time by rehashing old issues? The retort should be: yes the nominees were rejected, and you Dems broke the Rules by forcing the Senate to reject these nominees.
Skeptics might think that the word "rejected" is some technical term that implies there must have been an up-or-down vote. Think again. Senate Rule 28 deals with conference committee reports, and says the Senate can "reject" a conference report by a point of order decided by the presiding officer, with no vote needed. The idea that "rejected" has a narrow technical meaning is also contrary to the legislative history of Rule 31 (on Jan. 17 and Feb. 18 of 1843). As everyone knows, the dictionary says that "reject" means "refuse," and certainly the filibustered nominations were refused, obstructed, and blocked all the way until the nominations expired. Rule 31 emphatically does not say "formally confirmed or rejected." Moreover, this interpretation of Rule 31 would moot any question about constitutionality, which is an additional reason for adopting this interpretation.
Of course, nominations can be filibustered, in order to extend debate, convince the other side, explore issues, and the like. Nominations can also lapse, for example if the Senate simply doesn't get around to considering them. But Rule 31 pretty clearly says that a minority can't filibuster a nominee just to reject the nominee by admittedly running out the clock. By the way, that's a completely different situation from when the MAJORITY decides to let a nomination languish forever in committee or on the calendar, but even in those cases a floor vote might be the most appropriate thing to do.
Again, best wishes from all of us bloggers to Senator Specter for a speedy recovery.
P.S. There is another solution to this whole problem besides a parliamentary ruling, as Senator Hatch describes, and that is to amend the text of the Senate rules. I don't mean to criticize that option at all, but merely point out that a parliamentary ruling could be obtained instead.
Posted in Senate Rules —
Posted at 8:59pm on Feb. 16, 2005 Specter ill
By Irishlaw
Specter announced today that he has Hodgkin's disease. While this blog may often be critical of the senator, I know we certainly all wish him well in facing this illness.
Posted in News —
Posted at 8:05pm on Feb. 16, 2005 A Stroll Down Memory Lane
By Lorie Byrd
Last night on Joe Scarborough's MSNBC show, he did a short segment on the upcoming judicial confirmation battles with guest, Nancy Zirkin, Deputy Director of the Leadership Conference On Civil Rights. The transcript can be viewed here, and the discussion referenced took place in the last few minutes of the show and can be found near the end of the transcript.
The discussion itself was short and covered no new ground -- for example, when Scarborough asked why the Democrats who used to be against the filibuster for judicial nominees were now for it, Zirkin brought up Jesse Helms and the Fourth Circuit. Scarborough, however, did quote some interesting statements from Pat Leahy and Ted Kennedy from the Clinton days. These statements may have been quoted here before, but they are certainly worth repeating.
"I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported . . . ." (Senator Patrick Leahy, Congressional Record, 6/18/98)
"We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote." (Senator Ted Kennedy, Congressional Record, 2/3/98)
Reminded of these quotes last night, I spent a few minutes and found many similar ones from Barbara Boxer, Joe Biden, Harry Reid, and many others (Google is a wonderful thing). Instead of listing them all here now, I will save them to compare to the 2005 statements of the distinguished Senators at the appropriate time during the upcoming confirmation hearings.
Posted in Judiciary Committee —
Posted at 4:55pm on Feb. 16, 2005 Cornyn responds to Reid
By Zummo
Once again Ramesh Ponnoru has the latest, this a response to Senator Reid's comments about a "60-vote threshold" always having been in place.
FACT CHECK: There has NEVER been a 60-vote threshold for judicial nominations
At his stakeout today, the Minority Leader, Harry Reid, made some interesting, if inaccurate comments about judicial nominations.
In particular, he said:
ââ‚Å"Renomination is not the key. I think the question is, those judges that have already been turned down in the Senate. And unless there's something that is new that I'm not aware of with each of these men and women, we will vote the same way we did in the past.ââ‚Â
That charge, though, is inaccurate. NONE of President Bushââ‚â„¢s judicial nominees have ââ‚Å"been turned down in the Senate.ââ‚ None. The nominees he referred to were denied a vote altogetherââ‚â€despite the fact that they all had (and have) bipartisan majority support. ALL would be confirmed if a partisan minority of the Senate would allow an up-or-down vote. Itââ‚â„¢s a little difficult to ââ‚Å"turn downââ‚ a nominee if he or she never gets an up-or-down vote on the Senate floor.
Sen. Reid also mentioned what he characterized as Republican obstruction of Clinton nominees. In particular, he singled out Judge Richard Paez. But thereââ‚â„¢s just one problem: Richard Paez was confirmed by the Senate; he had an up-or-down vote and is now a sitting judge.
The 10 nominees filibustered by Sen. Reid and others during President Bushââ‚â„¢s term, however, are still waiting to be treated as ââ‚Å"poorlyââ‚ as Judge Paez.
Sen. Reid also claimed that there has ââ‚Å"always beenââ‚ a 60-vote threshold for judicial nominations:
ââ‚Å"It's always been a 60-vote for judges. There is --nothing change. Go back many, many, many years. Go back decades and it's always been that way.ââ‚Â
But we did ââ‚Å"go back decadesââ‚ and look. It hasnââ‚â„¢t always been that way. Many nominees, including Paez, were confirmed with less than 60 votes. In fact the Senate has consistently confirmed judges who enjoyed majority but not 60-vote support â₆including Clinton appointees Paez, William Fletcher, and Susan Oki Mollway, and Carter appointees Abner Mikva and L. T. Senter.
Of course there has been some debate on this very blog over the accuracy of Senator Reid's version of history. In my view, strictly speaking, these nominees were never rejected. I understand's Andrew's point about certain not-voted upon legislation as being rejected because a clear majority would not accept it. However, in this case, there is no evidence that the judges in question would have been rejected by a majority of the Senate. In fact it is quite likely that had the full Senate been allowed to offer a simple up-or-down vote, that most - if not all - of the nominees would have been approved.
Of course Andrew's larger point about Rule 31 is significant and hopefully there are Republican Senators out there paying attention. I think we're all in agreement that Democratic behavior on this issue has been abhorrent, and Republicans are supported by both the Constitution and Senate rules to force a vote. It is in that light that my kudos go to Senator Cornyn for his diligence and tireless efforts on this matter.
Posted in Fillibuster —
Posted at 12:31pm on Feb. 16, 2005 The First Test
By NateCT
It appears judicial nominees Terrence W. Boyle and William Gerry Myers III will be the first to appear before the Senate Judiciary Committee on or about March 1. Myers has been down this road once before, whereas Boyle has faced a long battle just to get to this stage.
Democrats have promised to filibuster the Bush nominees again if they feel that they are too conservative. "Unless there's something that is new that I'm not aware of with each of these men and women, we will vote the same way we did in the past," Senate Democratic leader Harry Reid said Tuesday.
"They both will have a tough row to hoe, but Myers will have the toughest because we've already voted against him," said Sen. Charles Schumer, D-N.Y.
With a Senate comprised of 55 Republicans, 44 Democrats and a Democrat-leaning independent, Democrats still have the 40 votes necessary to uphold a filibuster.
"Either of these nominees would provide an early test for our colleagues across the aisle: Will they be tempered by the results of the last two elections or will they continue to obstruct the president's most well-qualified judicial nominees?" said Sen. John Cornyn, R-Texas.
Posted in Judiciary Committee —
Posted at 10:13pm on Feb. 15, 2005 Reid's Version of Senate Rules
By AndrewHyman
It's not Reid's version of history that I'm worried about. It's his version of Senate rules that is the main problem, as described in a letter to the Washington Times yesterday.
Reid claims that the previously filibustered judicial nominees, "have been turned down by the Senate." I don't think Reid was lying. He was just repeating what other Democratic Senators (like Durbin and Schumer) have already admitted. These nominees were rejected. And, they were rejected in a way that completely violated the Senate's own rules.
In the case of these nominees, they were rejected, but NOT by majority vote. The GOP Senators ought to wake up and enforce Rule 31. The Democratic Senators who voted against these nominations did not intend to further explore the merits, or further try to convince the other side. Instead, they voted against cloture in order to kill the nominations.
That kind of behavior might be all well and good when the Senate is considering legislation, but Senate Rule 31 forbids it for nominations.
Posted in Senate Rules —
Posted at 8:43pm on Feb. 15, 2005 Reid's unique version of history
By Zummo
Ramesh Ponnuru in The Corner notes Harry Reid's response to Bush's re-nominations.
Harry Reid today said that the people President Bush just renominated for judgeships "have already been turned down in the Senate." He also said that there has "always been a 60-vote [threshold] for judges": "Go back decades and it's always been that way."
Wow. Simply wow. It is astounding that the Senate minority leader can play so fast and loose with historical facts. First of all, it is a blatant lie to claim that these nominees "have been turned down by the Senate." No, Senator, they were never voted upon. No action has been taken because your party refused to allow a vote to take place.
What's even more astounding is that the next claim is an indirect admission that the first one is a falsehood, and of course is an even more blatant lie at that. I am not sure what historical textbooks Senator Reid is reading, but 60 votes has never been the threshold. Unless he holds in his hand the magical copy of the Constitution written with disappearing ink - the one that only liberals have copies of, the one with all sorts of penumbras about rights to privacy and abortion - but it seems to me that a simple majority will do.
We have reached a point beyond mere obstructionism. Senate Democrats are now willing to blatantly distort history and the Constitution to make illegitimate claims about the nomination process. The very same people who so callously accuse the President of lying about social security are now engaging in the rewriting of American history. Orwell would be proud.
Posted in Fillibuster —
Posted at 11:40am on Feb. 15, 2005 A package deal
By Irishlaw
New Jersey Democratic senators Corzine and Lautenberg are planning to oppose the nomination of NJ candidate Peter Sheridan, who wasn't confirmed last term -- but the opposition is subject to a "nomination package" deal being worked out with the White House. Just wondering -- what deal is this?
Posted in News —
Posted at 11:02am on Feb. 15, 2005 The Cot Test
By NateCT
In an essay at National Review Online, Robert Moran says Sen. Frist needs to step up to the plate and take control of the Senate, in an effort to rebut the Democrats obstruction tactics.
Harry Reid has 45 votes at his disposal. (I count Vermont turncoat Jeffords as an adjunct to the Democrat caucus.) But Reid, who is already talking tough on filibustering "privatization," has several members up for reelection in 2006 that may not be easy to keep on the reservation. Sure, he can hold his caucus together on a gentlemanly filibuster, but can he hold them together through an actual filibuster, the grueling 19th-century test of wills with cots in the Senate for sleepy elder statesmen? Will the vulnerable red-state Democrats in his caucus (Bill Nelson, Ben Nelson, Kent Conrad) really want the lasting image of their careers to be vote-blocking, 3 A.M. nonsense-talking, and a grinding standstill?
Wishful thinking?
Posted in Fillibuster —
Posted at 8:50am on Feb. 15, 2005 "Battle renewed: Bush again nominates Pryor for court"
By feddie
The Mobile Register has this report.
Posted in News —
Posted at 2:36am on Feb. 15, 2005 Video Of Gonzales Ceremony
By Lorie Byrd
Video of the ceremony where new Attorney General, Alberto Gonzales, was sworn in can be viewed at Jackson's Junction. The video includes President Bush's call for renewal of the Patriot Act and for all judicial nominees to receive a prompt hearing and an up or down vote in the Senate. The Washington Post report of the event can be found here.
Posted in News —
Posted at 2:24am on Feb. 15, 2005 Can Anyone Answer This Question?
By AndrewHyman
Senate Rule 31 says that, "When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration" It seems blindingly obvious from this Rule that rejection of a nomination must be by majority vote, and that attempts to violate this Rule are out of order. So here's the question: I entirely support amending the text of the Senate Rules by simple majority, but why is that huge step necessary, as opposed to, say, merely implementing Rule 31 via a new standing order?
Notes: Senator Schumer says: "To nominate judges previously rejected by the Senate is wrong." Senator Durbin says: "nominees ...were rejected by the Senate last Congress." Thus, they admit the nominees were "rejected." Even without those admissions, everyone knows they were rejected; the Democrats were not merely trying to further explore the merits of the nominations. It would be wrong to interpret the word "rejected" in Rule 31 in some technical or formal way. Moreover, the framers of Rule 31 purposely decided not to use the phrase "acted upon," and instead wrote "confirmed" or "rejected." This view of Rule 31 is supported by Rule 13, which deals with reconsideration of legislation; instead of the word "majority," Rule 13 uses the words "prevailing side," in recognition that the vote might not be by majority. The provision of Rule 31 dealing with reconsideration of nominees was discussed at length by the US Supreme Court in United States v. Smith, 286 U.S. 6 (1932). Of course, it would be completely absurd to suppose that the authors of Rule 31, Section 3 wanted a losing Senator in the majority to be able to seek reconsideration, while barring a winning Senator in the minority from seeking reconsideration; in other words, the authors must have meant that a Senator in the majority would be on the winning side.
Posted in Senate Rules —
Posted at 11:45pm on Feb. 14, 2005 Bill Pryor renominated by President Bush
By feddie
The Alabama AP has this report:
President Bush again nominated former Alabama Attorney General Bill Pryor to a federal appeals court Monday. Pryor received a recess appointment on the 11th Circuit Court from Bush after Democrats blocked his nomination. That appointment expires at the end of this year.
US Senator Jeff Sessions of Alabama says he is pleased but not surprised by Bush's decision. He says the earlier opposition to Pryor was "driven by misinformation and politics."
Pryor had support from a majority of senators. But he fell short of the 60 votes necessary to avoid a Democratic filibuster that blocked his floor vote because of their concerns about his stances on abortion and gay rights.
Pryor was among 20 judicial nominees Bush sent to the Senate Monday.
Posted in News —
Posted at 7:45pm on Feb. 14, 2005 Bush Sends Senate 20 Judicial Nominees
By AndrewHyman
The Associated Press reports that President Bush has resubmitted the previously filibustered judicial nominees to the Senate.
Posted in Judiciary Committee —
Posted at 5:14pm on Feb. 14, 2005 A Riddle
By AndrewHyman
Section 6 of US Senate Rule 31, says this:
?Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President.?
As a practical matter, everyone knows (and the Democrats have admitted) that the minority during the last Congress "rejected" various nominees. Why, then, was there any need for the president to resubmit these nominations to the Senate? After all, Rule 31, Section 6 (quoted above) only applies to nominees who have not been rejected, right?
Perhaps the answer to this riddle is that rejection of nominees by a minority is inconsistent with Rule 31. After all, Section 3 of Rule 31 says that a nomination is supposed to be rejected by a majority vote:
"When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration..."
I'm all for changing the text of Senate rules if need be, but perhaps Rule 31 is adequate to render perpetual filibusters out of order.
This Rule 31 issue may boil down to the meaning of the word "rejected." Does Rule 31 mean it in the ordinary, practical sense, or instead in a formalistic sense? If this word "rejected" in Rule 31 has its ordinary, practical meaning, then there's a very good argument that Rule 31 bars perpetual filibusters that are intended to defeat nominees.
The framers of Rule 31, Section 6 left some evidence of their intentions. The draft Rule from 1843 originally used the phrase "not acted upon," but that was changed in the final version to "neither approved nor rejected." Thus, the framers of Rule 31 may well have meant "rejected" to mean "rejected in any way and not just by a formal explicit act." I know of no definite evidence or precedent the other way. Absent definite evidence, the Senate is entitled to decide what this word means in Rule 31. Generally speaking, there must be a good, solid reason for attributing a technical or formalistic meaning to words in statutes, as distinguished from their ordinary, practical meaning.
Posted in Senate Rules —
Posted at 1:48pm on Feb. 14, 2005 Debate in Human Events
By AndrewHyman
In Human Events today, Michael Hammond argues that changing the text of Senate rules would eventually destroy the legislative filibuster, and Hammond contends that existing Senate procedures are adequate for forcing votes on nominees. In the same issue of Human Events, Manuel Miranda also advocates forcing votes on Senate nominees, but he asserts that choosing what method to use is a relatively trifling matter.
I entirely agree with Mr. Miranda's sense of urgency, and also agree with Mr. Hammond that existing rules can be used to force votes on Senate nominees (perhaps in combination with new interpretations of those existing rules, or in combination with new Standing Orders to implement those existing rules). Changing the text of the Senate's rules is indeed a valid option as Mr. Miranda says, but so is implementing existing rules, such as Rule 31.
The headline on Hammond's piece is somewhat misleading: Should Senators End Filibuster of Nominees? NO: Do Not Abandon Measure Once Used To Halt Liberal Agenda. After all, in the piece, Hammond writes: "Existing procedures can force votes on Senate nominees."
Posted in Senate Rules —
Posted at 3:52am on Feb. 14, 2005 Transcript of Interview With Sen. Frist
By AndrewHyman
The Washington Times conducted an interesting interview with the Majority Leader on February 9. Here's an excerpt.
Q.: If you have to resort to the nuclear option ?
A: Constitutional option. The nuclear option is what they did to me last year when they changed the precedent.
Q: The constitutional option is going to, nonetheless, be upsetting to the other side. How concerned are you about having the comity be disrupted right now and do those concerns make you want to put off these nominations?
A: No, but the implication is right. The judicial nominees we'll take back through committee. And, so, although the president's past nominees --- or the majority of them --- have been resubmitted, they do have to go back through committee so it's an issue that needs to be addressed early on. The comity and the working together and the commonsense approach we've taken on class action, I hope, and will work hard to see that it happens, continues through many other bills, whether it's the bankruptcy bill as well as consideration of the judges. Now, to me, that means: Let's restore the tradition of 200 years, the tradition we had up to the last Congress, which is the precedent. So I will continue to appeal to the other side of the aisle in that regard. Let's extend the good working relationships we have and vote against them if you want to but give us the opportunity to vote them up or down.
Q: Do you have the votes for the constitutional option at this point?
A: Yes.
Q: The 51?
A: I can't say that with certainty because I don't know exactly what it will be but I'm confident.
Q: Do you have a timeline for when the judges will go to the floor?
A: The focus, as you can tell, has been very much on that Judiciary Committee so they're going all out. But the judges will start coming soon. I just don't know what the timeline is.
Q: You still plan on the first filibuster against a judge being the cue for the Constitutional option?
A: That's probably an over-simplification because ... everybody will be just waiting for that first judge and who the first judge is. There have been a lot of people telling people what my strategy is but I've not told anybody. So, everything that you've seen is not coming from me. My appeal ? I make little tiny moves everyday in comments to Democrat colleagues, including the Democratic leadership, for example, today, and that is we really need to be talking and discussing the judges and what is reasonable. And that really is where we are today. But, you're exactly right, I'm keeping the door open. I made it very clear that I found it unnecessary to, on day one, which would have been an option, to change the rules. So, the specific decision has not been made. I've got some pretty clear alternatives to use and, again, I'll just continue to appeal to the other side to be reasonable.
Posted in Senate Rules —
Posted at 5:33am on Feb. 13, 2005 Endless Filibusters of Judicial Nominees Violate Senate Rules
By AndrewHyman
This essay (published here, here, here, and here) may help people better understand the issues:
A Democratic minority in the U.S. Senate filibustered ten of President Bush's judicial nominees, during his first term. It's likely that there will be similar efforts in the second term, probably extending to filibusters of Supreme Court nominees.
This filibuster situation has prompted much legal and historical analysis and debate, because never before in history had any judicial nominee been derailed notwithstanding clear majority support for the nominee in the Senate. For example, Abe Fortas mustered only 45 votes in 1968, and President Johnson immediately withdrew his nomination. Fortas publicly acknowledged that he could have ultimately obtained a vote on the merits, whereas today's filibusterers proudly declare that the nominees will never receive any vote on the merits.
Whether or not the present nomination filibusters violate the Constitution, they plainly do violate the rules of the Senate. In particular, the press and public have paid little attention to Senate Rule 31, which governs nominations.
Senate Rule 31 says that nominees can only be "confirmed or rejected" on condition that there is a vote on the question of advice and consent, which means a simple majority vote. If for some reason there is no simple majority vote, then the lapsed nomination is "neither confirmed nor rejected," says Rule 31.
Thus, an attempt to reject a nomination by a minority filibuster is against the Senate Rules. Of course, filibusters can be used to extend debate about nominees, but Rule 31 makes very clear that a nominee can only be rejected by a simple majority vote.
The recent Democratic filibusters were a brazen attempt to reject the president's judicial nominees, in direct violation of Senate Rule 31. The Democratic filibusterers did not claim, as Republican Leader Everett Dirksen did in 1968, that "there are other things that need exploration." On the contrary, Senator Dick Durbin, the current Minority Whip, boasts that the "nominees...were rejected by the Senate last Congress." Chuck Schumer echoes that theme: "To nominate judges previously rejected by the Senate is wrong." Durbin and Schumer might as well be signing a confession, because Senate Rule 31 unambiguously forbids a minority from either confirming or rejecting a nominee.
Nominations are different from legislation, and that is why the Senate Rules treat them differently. The relevant provisions of Senate Rule 31 were written a long time ago, in 1868, but they have not been significantly amended since then. The Senate ought to enforce those provisions, and soon.
Citizens and senators alike should think beyond the passions of the moment, to the long-term consequences of this current crisis. Abandoning the clear meaning of Senate Rule 31 threatens to ultimately damage or even destroy the rule of law in the United States.
These filibusters are aimed at rejecting judicial nominations instead of merely prolonging debate. If they are allowed to continue, then judges will have to be chosen from a smaller pool of candidates, having a relatively narrow and homogeneous range of viewpoints, in order to satisfy both the minority as well as the majority parties. This would mark a sharp break from the past.
For centuries, different presidents have nominated judges sharing their very different judicial philosophies. Thus, over the long run, the only surviving judicial precedents have tended to be those that are firmly grounded in the objective meaning of our laws. Abandoning Rule 31 would mean that judges will be less constrained by the need to persuade their colleagues, and by the need to persuade their successors, because judges will be more alike in viewpoint and temperament. This would be dangerous for the appeals courts, catastrophic for the Supreme Court, and apocalyptic for the rule of law.
Senate Rule 31 is not just some obscure little regulation. Much of it was written by the same people who wrote the Fourteenth Amendment of our Constitution. This rule also reflects the wisdom of the original founders of our country.
Alexander Hamilton's language is a bit old-fashioned, but his message is loud and clear, if we have an inclination to listen: "[I]t could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy." Hamilton and his contemporaries trusted a majority of the Senate to properly screen the president's nominees, and from his day to ours that system has worked pretty well. I seriously doubt that perpetually filibustering judicial nominees will be an improvement.
NOTE: I wrote a followup piece for the National Ledger, responding to an editorial by George Will.
Posted in Senate Rules —
Posted at 2:31am on Feb. 13, 2005 Senate's New Math May Aid Stalled Judicial Nominees
By feddie
The always delightful Neil A. Lewis has an article in tomorrow's edition of the NYT, in which he notes, inter alia, that
When the battle over judicial nominations resumes in the next few weeks, President Bush may have a good chance of winning confirmation for some of his previously blocked candidates, Democrats and Republicans said this week . . . .
One reason for that view is that the new chairman of the Senate Judiciary Committee, Senator Arlen Specter, has been quietly building a strategy that could break the logjam over judicial nominations.
Mr. Specter, the Pennsylvania Republican who became chairman over the objections of many conservatives, has been lobbying Democratic senators on behalf of some of the Bush nominees in order to obtain the needed 60 votes to foil a filibuster. He said in an interview that part of his approach was to begin with the nominees he believed had the best chance of attracting Democratic support first.
"I'm going to put up these nominees up in a particular order," he said.
He said the nominee he intended to bring up for a vote first, in a move he hoped would end the divisive partisan battle over judges, was William G. Myers III . . . nominated for a seat on the United States Court of Appeals for the Ninth Circuit . . . . Next in line, he suggested, would be William H. Pryor Jr., the former Alabama attorney general who was put on the United States Court of Appeals for the 11th Circuit, in Atlanta, temporarily by Mr. Bush during a Congressional recess, after Democrats blocked his confirmation . . . .
Mr. Pryor, the former Alabama attorney general, was criticized by Democrats who blocked his nomination last term as someone who would be unable to divorce his strong personal views from his role as a judge. They cited his strong opposition to legalized abortion and his advocacy of a greater role for religion in government . . . .
Although Democrats on the Judiciary Committee objected to Mr. Pryor's rhetoric before he went on the bench, Mr. Specter said, "he has written about a half dozen moderate to progressive opinions on the bench which show a judicial temperament and judicial disposition that would be admired by anybody."
Mr. Specter recently circulated a memorandum to Democratic senators outlining five of Judge Pryor's decisions, asserting that they showed he stood up to corporations, protected immigrants and upheld a sex discrimination claim.
Mr. Lewis, being the dispassionate journalist that he is, ends his piece with this factually inaccurate (and no doubt intentionally so) sentence, "Although it was not included in the memorandum, Judge Pryor also provided a critical vote upholding Florida's law against adoption by gay couples."
Actually, Mr. Lewis, Judge Pryor did no such thing. What he did was vote to deny a petition seeking a rehearing of a three-judge panel's decision upholding the constitutionality of Florida's law prohibiting adoption by gay parents. And while Judge Pryor's vote in this regard may have had the effect of "upholding" the decision of panel, I fail to see how any senator can speculate as to his reasons for doing so.
Moreover, Mr. Lewis makes a huge gaffe in his article by asserting that Judge Pryor's "recess appointment expired recently." Oh really? I am sure this will come as a surprise to Judge Pryor, who is apparently under the "mistaken" impression that his appointment lasts until the end of this year. Who fact checks your work, Mr. Lewis? Jayson Blair?
(Cross-posted at Southern Appeal)
Posted in News —
Posted at 1:20pm on Feb. 11, 2005 Not Enough Hours in the Universe
By AndrewHyman
This country recently witnessed its first filibusters of judicial nominees who are supported by a clear majority of Senators, and also witnessed its first filibusters of judicial nominees that lasted all the way until the nominations expired. The new Senate Majority Leader, Harry Reid, has been in the lead from the start. When Senator Robert Bennett suggested that Democrats and Republicans each receive 10 hours to debate Texas Supreme Court Justice Priscilla Owen's qualifications, Reid said: "There is not a number (of hours) in the universe that would be sufficient."
The question now is, will the Republican majority put its stamp of approval on this kind of obstructionism, which never occurred before in the United States?
On January 15, 2005 the Washington Post described which key senators may be leaning in Reid's favor (i.e. leaning against longstanding Senate tradition with respect to judicial nominees, and arguably leaning against the Constitution). I have inserted links providing the respective senators' contact information, into the following excerpt from the Post's article:
In recent weeks, four moderate Republicans have criticized the nuclear option in published remarks that their offices confirmed or did not challenge on Friday. Sen. Olympia J. Snowe (Maine) told the Portland Press Herald, "I just don't see how it's going to benefit us, even in the majority, to change it to a simple majority [vote] because ultimately it could create more wedges and political wounds." Sen. Susan Collins (Maine) "doesn't think the nuclear option is a great idea," her spokeswoman, Jen Burita, said.
Sen. Lincoln D. Chafee (R.I.) has said "I'm not in favor" of the option. And Sen. John McCain (Ariz.) recently told CQ Today he would not support the option because "the Senate should not be like the House."
Meanwhile, Sen. John W. Warner (R-Va.) said in a statement Friday: "I have not reached a firm view on the matter. However, I tend to be a traditionalist, and the right of unlimited debate has been a hallmark of the Senate since its inception. Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations." He said, "I remain to be persuaded that the seriousness of the problem merits such an extraordinary solution," but "the Senate may be forced to take some action to preserve the president's Constitutional obligation to fill [court] vacancies."
Sen. Chuck Hagel (R-Neb.) also has questioned the wisdom of eliminating the minority's right to filibuster, citing times when Democrats ruled the Senate.
At least three GOP senators -- Thad Cochran (Miss.), Ted Stevens (Alaska) and John E. Sununu (N.H.) -- have declined to take public stands on the issue. Democrats hope veterans such as Cochran and Stevens, who have served in the minority, will vote to preserve the filibuster tradition even though they like Bush's nominees.
Senate Democrats, on the other hand, may suffer a defection if Frist tries the nuclear option during a filibuster of an appellate court judge. Sen. Ben Nelson (D-Neb.) did not support last year's filibusters of appellate judge nominees, his spokesman, David DiMartino, said, "But when it comes to a Supreme Court nominee, he reserves the option to do so based on the nature of the nominee."
The other key Senators who may determine the outcome of the judicial filibuster crisis are: Sen. Lisa Murkowski (Alaska), Sen. Richard Lugar (Indiana) , Sen. Charles Grassley (Iowa) , Sen. Pat Roberts (Kansas) , Sen. Pete Domenici (NM) , Sen. Mike DeWine (Ohio) , Sen. George Voinovich (Ohio) , Sen. Gordon Smith (Oregon) , and Sen. Arlen Specter (Penn).
Posted in Fillibuster —
Posted at 4:25pm on Feb. 10, 2005 More Specter
By Zummo
Gotta love that Arlen. From an e-mail to Kathryn Lopez in The Corner.
Yesterday - - Wednesday - - the Senate voted on what will turn out to be the critical amendment in its class action reform debate. It was an amendment by Senators Feinstein and Bingaman that would have gutted the bill and which would have eliminated the long negotiated "clean" Senate bill that the House of Represnetatives could accept without having to send the bill back to the Senate.
One, one, Republican voted with the bill's opponents. Was it the almost always against legal reform Richard Shelby? -- no. The one Republican was the new Chairman of the Senate Committee on the Judiciary, Arlen Specter.
Just what does this say about so many future legislative issues and the judicial confirmation process? It could get very ugly.
Why does the good Senator do everything in his power to confirm the suspicions so many of us had of him over a year ago?
It is getting clearer and clearer from interviews, speeches, and other public statements that Senator Specter has not even been remotely humbled or cautioned by the attempts of conservatives to have him removed as the chair of the Judiciary Committee or to defeat him in the primary. The adminsitration's obstinate refusal to play hardball has not caused him to mellow in the slightest. Instead, it seems Specter has learned that there's really nothing the party can do to him. He's been re-elected for another six-year term, was able to overcome a purge attempt after the election, and realizes that an attempt to do anything to him now could very well backfire. From this rather comfortable position Specter can continue to be a thorn in the side of the party, and one with little fear of a substantial blowback.
Now to be fair, Specter may have had substantive issues with this bill. It might be hasty to declare that this one vote is an indication that he will be an obstructionist when it comes time to confirm judges. However, the pattern over the past few months hardly comforts those who prayed for Toomey's victory in the primary.
What's especially agonizing is that Specter every now and then hints that he's willing to work to get the President's justices confirmed. These occasional blips in what has been an otherwise consistent career of being a general nuisance have succeeded in suckering otherwise intelligent people into giving him another chance. Like the abused wife who gives her husband just one more chance, the Republican party's reluctance to finally cast off its least reliable Senator is going to cost them on what is the most important issue of the day.
We who have consistently spoken out against Specter absolutely do not want to see the day come when we say, "we told you so." But . . .
Posted in Uncategorized —
Posted at 2:58pm on Feb. 10, 2005 Neas Has Everything Upside Down in "The Nuclear Option"
By AndrewHyman
Ralph Neas wrote a February 1 essay titled "The Nuclear Option", republished at Alternet yesterday. He says that revoking the ability of 40 Senators to filibuster judicial nominees, "would enable a GOP President with a 51-vote Senate majority to appoint Pat Robertson to the Supreme Court." Neas left out the fact that allowing 40 Senators to extort whoever they want as judges would let the minority insist Jerry Springer be appointed to the Supreme Court.
If President Bush were to nominate Pat Robertson (which is a manufactured hypothesis that is very unlikely to actually occur), then a majority of the Senate would be entitled to reject the nomination, or confirm the nomination. That?s what the founders of our country clearly intended. As Alexander Hamilton wrote, "[I]t could hardly happen that the majority of the senate would feel any other complacency towards the object of an appointment, than such, as the appearances of merit, might inspire, and the proofs of the want of it, destroy." Hamilton's language is a bit old-fashioned, but the message is clear.
Both Democrats and Republicans ought to welcome the fact that liberal presidents can appoint judges confirmed by 51 Senators, and conservative presidents can appoint judges confirmed by 51 Senators. That way, in the long run, the only surviving judicial precedents will be those that are firmly grounded in the objective meaning of our laws. For over two centuries, this system has tended to preserve the rule of law, instead of the rule of judges.
If it were acceptable for the Supreme Court to act as a life-tenured super-legislature, then Neas would be right; it would then make sense to require a super-majority for confirmation. But that's not how the courts should function. Judges are supposed to be our servants and not our masters, and are supposed to simply say what the law is, rather than what it should be. The Constitution does not give judges carte blanche, and that includes the Due Process Clause of the Constitution.
Neas just wants to lock in place the overreaching judicial philosophy of the last few decades. He wants to stop the pendulum where he likes it. If perpetual filibusters of judicial nominees were truly as vital to our country as Neas suggests, then why was such a filibuster never carried out ONCE, prior to 2003, to defeat a clear majority of Senators? Answer: judicial nomination filibusters are not vital in the least, and Neas is turning everything upside down.
Posted in Fillibuster —
Posted at 5:04pm on Feb. 9, 2005 Pryor's First Year on the Bench
By feddie
Jonathan Ringel has an excellent and balanced summary of Judge Bill Pryor's tenure on the bench thus far--entitled "One Year Later: Pryor's Record on the 11th Circuit"--in today's edition of the Fulton County Daily Report. Here are some of the more interesting excerpts from the article (which is currently only available to subscribers):
A Daily Report analysis of Pryorââ‚â„¢s 48 published decisions on the court suggest he fits comfortably within the broad majority of the 11th Circuit, considered one of the countryââ‚â„¢s most conservative courts. In no case has he been on the dissenting side, and all of his three-judge panels have resulted in unanimous decisions.
. . . .
In several cases, Pryor has taken positions seemingly at odds with Republican stances and his record as Alabama AG, proving that heââ‚â„¢s a judge who "seeks to do that which is right in the law," said Sen. Jeff Sessions, the Republican from Alabama who was the chief sponsor for Pryorââ‚â„¢s nomination.
Sessions, for whom Pryor worked when the senator was Alabama attorney general, cited Pryorââ‚â„¢s ruling, as part of a three-judge panel, in favor of an illegal alien who challenged his deportation. The plaintiff, a Mexican, had come to the United States illegally, been deported and returned illegally a month later. He married a U.S. citizen and became a permanent U.S. resident, after which Congress passed a law declaring aliens who had been deported ineligible for resident status until they had spent five years away.
. . . .
Another case fitting that description is Brown v. Johnson, 387 F.3d 1344, in which Pryor wrote for Judges Gerald B. Tjoflat and Joel F. Dubina in favor of an HIV-positive inmate who claimed prison officials stopped giving him his medication . . . . [T]he inmate, John Ruddin Brown, was a convicted robber who already had filed three suits against prison officials that had been deemed meritless. A lower court judge had dismissed Brownââ‚â„¢s latest case because the federal Prison Litigation Reform Act bars prisoners who have filed three meritless suits from bringing new cases unless they are in "imminent danger of serious physical injury."
But last October, Pryor wrote for the panel that Georgia officials "wisely do not deny that Brown has serious medical needs." He declared that the prisonââ‚â„¢s alleged withholding of Brownââ‚â„¢s HIV treatment was sufficient to trigger the exception.
. . . .
Accounts from four 11th Circuit judges contacted for this story say that Pryor is settling in wellââ‚â€each saying Pryor is hard-working and smart.
Pryor, 42, apparently is serving his time in legislative limbo in stride.
"Heââ‚â„¢s loving the job," said a lawyer friend in Birmingham, where Pryor moved with his wife and two daughters from Montgomery, Alabamaââ‚â„¢s capital.
Tjoflat, who has served with Pryor on 14 published cases, said Pryor does not appear to be bothered by his unique statusââ‚â€as the only federal appeals judge in America without life tenure.
"I think his attitude is just do it one day at a time and let nature take its course," said Tjoflat, whose 1975 confirmation took just 17 days.
Birch, whose 1990 confirmation took 50 days, said he has joked with Pryor that losing the confirmation fight could be the best thing that ever happened to him. With experience as a state attorney general and a federal judge, Pryor "could write [his] own ticket," Birch told his new colleague.
. . . .
Challengers from the Sierra Club, in another case, claimed Pryorââ‚â„¢s temporary appointmentââ‚â€and pending consideration from the Senateââ‚â€subjected him to political concerns and therefore threatened his impartiality.
As a result, Nan Aron of Alliance for Justice, another critic, suggested Pryor "may have pulled his punches."
Tjoflat calls that claim "just baloney."
Noting his outspoken nature as AG, Tjoflat said nothing in Pryorââ‚â„¢s background suggests he would do such a thing.
On a scale of one to 10ââ‚â€with one being "a saint" and 10 being "a judge who votes strictly to advance a political agenda," Tjoflat said heââ‚â„¢d rate Pryor at a two.
My hope is that law.com will make the entire article available to the general public in the near future.
(Cross-posted at Southern Appeal)
Posted in News —
Posted at 8:27pm on Feb. 8, 2005 Article By Gold and Gupta
By AndrewHyman
For anyone who has not yet read the article by Martin Gold and Dimple Gupta, it's very informative. They conclude (at page 271) that attempts to change the text of the Senate's Standing Rules---in a way that violates the supermajority requirement of the Standing Rules---have been debated since 1917, but have never been carried through (sometimes because the mere threat was enough to force action). Gold and Gupta also point out, in their conclusion, that the operation of the Standing Rules has been repeatedly altered by simple majority, without amending the actual text; and, in my opinion, that's exactly what the Senate could do here.
For example, suppose a nomination has clear majority support, and suppose that a cloture vote occurs soon before the nomination is due to expire. That cloture vote is obviously intended to decide whether or not the nomination succeeds. The cloture question can therefore be viewed as a "final question," not only in the political and practical sense, but also in the chronological sense of being the last question submitted to the Senate, and (if it fails) having been the last question voted on by the Senate. This potentially creates a conflict with Rule 31, which provides an entirely different "final question" for nominations. Therefore, the Senate rules could now be interpreted as requiring that a nomination filibuster end in time to give the Senate the option of voting on the Rule 31 final question. After all, when the Senate extended Rule 22 to all "pending matters" in 1949, the intent was to amend the right to debate under Rule 19, rather than to amend Rule 31 in any way. Rule 31 dates back to 1868, when a revised set of rules was adopted by the Senate, and it appears (e.g. from Rule 29 of 1868) that the authors of the 1868 rules would not have objected to the notion that cloture questions are potentially "final questions." Certainly Senator Schumer is in no position to object to that notion. ("To nominate judges previously rejected by the Senate is wrong"). Nor is Senator Durbin in a position to object to that notion ("nominees ... were rejected by the Senate last Congress").
If need be, it would alternatively be a good idea to amend the text of the Senate Rules, by simple majority, either as an "action-forcing mechanism" (as happened in 1917, 1959, 1975, and 1979), or for real. Such a rule change could either implement the diminishing cloture vote concept already approved by the Senate Rules Committee, or alternatively it could conform Rule 22 to the Quorum Clause of the Constitution (by requiring 3/5 of Senators "present" to terminate a filibuster instead of requiring a quorum of 60 Senators).
Another option that would be appropriate: Republicans could force an evenly divided cloture vote, and allow the Vice President to decide the outcome. After all, the language of Rule 22 does not unmistakably abrogate the presumptive constitutional power of the Vice President to decide evenly divided cloture votes. Note that nominations fall under Article II of the Constitution, and the VP is the only Article II officer in the Senate, and so the Senate's rulemaking power is at its most tenuous in this area. This option would involve interpreting Senate rules, rather than deeming any rule (or application of a rule) unconstitutional.
All of these four options have a solid basis. How politically palatable they are is another question. Hopefully, one of these options will be exercised.
UPDATE: For more about Rule 31, see here.
Posted in Senate Rules —
Posted at 3:42pm on Feb. 8, 2005 Schumer Will Switch On Myers?
By AndrewHyman
Senator Specter must be kidding himself (or us) when he says that Senator Schumer might change his mind about filibustering former Interior Solicitor William Myers. See the previous post by Nathan for Specter's comments. Schumer voted against cloture on the first Myers nomination, and here are some miscellaneous quotes that indicate Schumer's opinion of Myers:
Confirming Myers would put "the fox in charge of the hen house ... when it comes to environmental cases."
Myers' writings are "hardly reflective of the moderation and temperament we look for from judicial nominees."
Sure Schumer will oppose filibustering Myers. And Orrin Hatch will sing at half-time in the next superbowl. :-)
Seriously, I am not unsympathetic to Senator Schumer's concerns about the environment. However, Schumer will never be satisfied voting against Myers on the merits---Schumer wants cloture to be the final question voted on.
My hunch: Senator Specter is focusing on Myers in order to avoid having to take a position on Senator Hatch's interpretation of Judiciary Committee Rule IV, discussed previously.
Posted in Judiciary Committee —
Posted at 12:17pm on Feb. 8, 2005 Not So Fast
By NateCT
Sen. Specter said, in an interview with the Washington Times, that the "nuclear" option should be one of last resort, after all negotiations fail. Specter failed to commit to such a tactic, stating "I'm not going to jump off that bridge until I come to it, and I hope I don't come to it." As an example of his type of negotiations, which he seeks to employ regarding filibustered judicial nominees, the WashTimes reported:
Mr. Specter said he's studied the filibustered nominees and thinks he can find ways to pick up Democrats on them.
He will begin with Department of Interior Solicitor William G. Myers, nominated to the 9th Circuit U.S. Court of Appeals, for whom he said he can get support from Democratic Sens. Joseph R. Biden Jr. of Delaware and Charles E. Schumer of New York.
Former Alabama Attorney General William Pryor â₆nominated to the 11th Circuit U.S. Court of Appeals and serving a temporary term on that bench â₆has "written a half dozen very moderate-progressive opinions," Mr. Specter said. "I've circulated those among all the committee members and asked them to take a fresh look at Pryor.
"So, one by one, I'm going to try to peel them off."
Posted in Judiciary Committee —
Posted at 10:40am on Feb. 8, 2005 With friends like Arlen...
By krempasky
Think the President's nominations are going to get much support from Arlen? Think again, and check out the beating that the AnkleBiters give the senior senator from Pennsylvania.
And get this - he brags about working with Tom Harkin to fund some of these worthless programs. Mr. President, with all due, respect - you really blew it when you supported this clown who didn't even help you carry Pennsylvania.
Posted in Judiciary Committee —
Posted at 3:17am on Feb. 8, 2005 How About Myers?
By AndrewHyman
Senator Specter says that previously filibustered nominee William G. Myers will be first up in committee (not Janice R. Brown). He was nominated to the 9th Circuit Court of Appeals, and was the seventh Bush nominee to be filibustered by the Democrats. He made it out of committee the first time around, and then the cloture vote was 53 to 44 (note Senator Biden voted for cloture and Senator Schumer against). The hearing report is online as text and pdf.
There could be some turbulence if Senator Specter were to deviate from the interpretation that Senator Hatch gave to Judiciary Committee Rule IV in 2003 (see last few paragraphs, under subheading "Hearing Focuses on Debate over Rule Interpretation"). Specter probably won't face that decision with the Myers nomination, because Biden is unlikely to vote against Myers in committee. Nevertheless, if Senator Specter does reinterpret Rule IV with respect to any other nomination, then the full Senate could consider "discharging" the Judiciary Committee (see p. 944 of Riddick). This "discharge" technique can also be used if the Judiciary Committee merely moves too slowly. Discharge is apparently subject to filibuster and a cloture vote.
Posted in Judiciary Committee —
Posted at 4:07pm on Feb. 7, 2005 Why Brown?
By Quin
Not to be a spoilsport, but I am a little nervous about making Janice Rogers Brown (see Novak yesterday) be the first test case on the constitutional option. It looks too much -- not it it IS, mind you, but it looks like -- like a brazenly calculating bit of racial politics. And regardless of whether it is fair or not to Justice Brown, the whole debate over her, if she is the first, will be tinged with black-white issues. I think we need the first nomination to be "clean" of all extraneous issues and focus JUST on the underlying unfairness of the filibuster AND the underlying qualifications of the nominee. Oh -- and also on the philosophical justification for an jurisprudence of originalism, close textual analysis, and restraint. Much of that would get lost if the FIRST, and thus biggest, fight is filled with racial tensions and questions -- which it will be EVEN MORE SO now that Justice Brown has written her most recent opinions concerning bias against black women in jury selection. I say we should kill the filibuster first, and then move forward with Justice Brown so she can then be considered on her considerable merits alone. -- Quin
Posted in Uncategorized —
Posted at 1:44pm on Feb. 7, 2005 Let Them Filibuster For One Year Tops
By AndrewHyman
Previously, I posted regarding the idea that, according to Senate Rule 31, a nomination filibuster must end in time for an ultimate vote on the merits, i.e. must end before the nomination expires. I'm not disputing that nominations can be filibustered, and am not disputing that Rule 31 allows a nomination to lapse without any vote at all.
The idea that a nomination filibuster need not end until close to the nomination's expiration would require some patience, but remember that a recess appointment could be made in the mean time. Also, if the Dems know that they will ultimately have to surrender at the end of the session, then they might not filibuster in the first place.
Moreover, patience would only be required for less than a year. According to Riddick's Senate Procedure (p. 946), the rule about nominations lapsing at the end of each one-year session is often "suspended or waived by unanimous consent agreement" so that nominations do not lapse until the end of the entire two-year congress. In other words, the GOP can simply refuse to grant unanimous consent, and thus force a vote on the merits by the end of the first session (or even by an earlier date if the Senate takes a recess of 30+ days during its first session). On the other hand, if the GOP would prefer a nomination to lapse (not likely), then the way to do that would be to avoid any cloture vote and any vote on the merits (so that there is no final vote).
Posted in Senate Rules —
Posted at 11:53am on Feb. 7, 2005 Turning up the heat on Sen. Reid
By Zummo
Roll Call (subscription required) has a story todayon the RNC's attempts to Daschle-ize Senator Reid, attempting to weaken his support at home and nationally.
Drawing on a blueprint used succesfully against former Senate Minority Leader Tom Daschle (D-S.D.), the RNC will send a 13-page research document today to roughly 1 million people - a group that includes journalists, donors, and grass-roots activists - detailing Reid's alleged obstructionism among other topics.
The document evidently will attack Reid for his obstructionism on judges, social security reform, and the creation of the Department of Homeland Security.
As the article points out though, there are significant differences between Reid and Daschle. Reid is not up for re-election until 2010, his state is not nearly as red as Daschle's South Dakota, and Reid is slightly more conservative than the former Minority Leader. But clearly the Republicans would like to make an early start at chipping away at Reid's public image.
This is a smart move, I believe. Reid is trying to portray himself as a soft-spoken moderate willing to work with the administration. But it is also clear from comments that he has made, noted on this site and elsewhere, that he will pursue basically the same strategy as his predecessor. Republicans need to press the offensive to mitigate Reid's disingenuous public appeal to moderation.
Posted in Uncategorized —
Posted at 5:41am on Feb. 5, 2005 Justice Brown Going Nuclear
By AndrewHyman
Robert Novak reports that California Supreme Court Justice Janice Rogers Brown will be renominated soon, and that her new nomination will become the focus of parliamentary maneuvers to overcome an anticipated filibuster. Byron York had a good article about Justice Brown's committee hearing last time around, in 2003. Her judicial philosophy was discussed here. See which Senators voted for cloture. The hearing report from October 22, 2003 is online as text or pdf.
Posted in News —
Posted at 5:30am on Feb. 4, 2005 Senator Hatch Predicts Backlash
By AndrewHyman
Senator Hatch says "that if Democrats insist on filibustering judicial nominees, they invite a public backlash that will make them a permanent minority." It's unclear if Senator Hatch is correct, but he may be. Perhaps the Republicans would be inviting a backlash if they fail to make it more difficult (or impossible) to filibuster judicial nominees.
Posted in Analysis and Predictions —
Posted at 12:53am on Feb. 4, 2005 Hearings again
By Irishlaw
Quin poses the question: why not have the filibustered nominees go through more hearings, to stand up for themselves again in a public setting?
Viewers root for the underdog, root for the guy being mistreated by the big powerful senators. And these people are good lawyers, for goodness sakes â₆they are SUPPOSED to have a history as effective advocates. Why canââ‚â„¢t they be allowed to be their own advocates, as a way, once and for all, to make the Dems crumble?
I see quin's point. In response to hostile questioning, Judge Pryor's forthrightness and dedication to his principles showed him to be a truly admirable man, for those of us who had not been acquainted with him (publically or personally) before. But the Dems are going to spread their misrepresentations and insinuations (such as, something was wrong with not releasing confidential SG memos from Estrada, or with Pryor staying away from Disney World on its LGBT day) regardless of whether we have new hearings -- and as quin said, the media tends to favor their side. So I'm not sure we could win with the media either way. In the meantime, even nominees who would be adept at defending themselves to the Committee can't look forward to spending more time there. They've already been waiting for years and have gone through the process, which isn't easy on them or their families. While they could handle it, why should they have to?
Posted in Judiciary Committee —
Posted at 9:02pm on Feb. 3, 2005 A Very Nice Solution?
By AndrewHyman
OK folks, try this on for size. People have been talking all about US Senate Rule 22, but what about US Senate Rule 31?
Check it out. Right there in black and white, we have this requirement:
"[T]he final question on every nomination shall be, 'Will the Senate advise and consent to the nomination?'"
That means --- or very plausibly means --- that the question of whether cloture shall be invoked cannot be the "final question" voted on by the full Senate.
Thus, the Senate would now be justified in not changing the Senate rules one whit, but instead simply interpreting those rules so that the cloture question is not allowed to replace the Rule 31 "final question" with respect to a nomination. I would suggest that, shortly before a nomination lapses at the end of a session, a vote on the merits is finally in order. This would prevent a cloture question from having been the final question.
According to this interpretation, a vote on the merits would not be required, but it would at least become possible. Filibustering nominations would not be prohibited, but it would at least not last all the way up until the last minute of a session of Congress.
This interpretation relies upon the language of Rule 31, and so would not apply to legislation, apparently. Also, this solution would avoid the uncomfortable precedent of a simple majority changing the text of the rules at will.
Posted in Senate Rules —
Posted at 6:42pm on Feb. 3, 2005 Resource: filibusters
By krempasky
Another fine resource - a 63-page analysis of the Senate rules surrounding the filibuster of judicial nominees.
The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster
authored by Messrs. Martin Gold and Dimple Gupta
Posted in Senate Rules —
Posted at 6:38pm on Feb. 3, 2005 Backgrounder on filibuster rules
By krempasky
Before 2003, no judicial nomination with clear majority support was defeated by a filibuster.
Full text below the fold - prepared by Senator Orrin Hatch. It's a useful primer on the background of the filibuster and the crisis it has created.
Solving the Judicial Nomination Filibuster Crisis
The Crisis
During the 108th Congress (2003-04), the Senate voted on 20 motions to end debate, or invoke cloture, on 10 different judicial nominees. The average tally was 53-43, enough to confirm them but less than the 60 votes Rule 22 requires to invoke cloture. Opposition to cloture on each vote was completely partisan. Before 2003, the Senate took 15 cloture votes on 14 different judicial nominees, and 13 of those were confirmed (three after a cloture vote failed). The 1968 nomination of Abe Fortas to be Chief Justice was withdrawn, at the nomineeââ‚â„¢s request, the day after a failed cloture vote indicated he did not have clear majority support. Opposition to cloture, and to the nomination, was almost evenly bi-partisan.
Before 2003, no judicial nomination with clear majority support was defeated by a filibuster.
Senate Rules
Rule 5.2 ââ‚Å"The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.ââ‚Â
Rule 20.1 ââ‚Å"A question of order may be raised at any stage of the proceedingsâ₦and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senateâ₦.and every appeal therefrom shall be decided at once, and without debate; and any appeal may be laid on the table without prejudice to the pending proposition, and thereupon shall be held as affirming the decision of the Presiding Officer.ââ‚Â
Rule 20.2 ââ‚Å"The Presiding Officer may submit any question of order for the decision of the Senate.ââ‚Â
Rule 22.2 passage of ââ‚Å"a motionâ₦to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished businessââ‚ requires ââ‚Å"three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and votingââ‚Â
The Constitution
Article I, Section 5 ââ‚Å"Each House may determine the Rules of its Proceedingsââ‚Â
Article II, Section 2 ââ‚Å"The Presidentâ₦shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appointâ₦Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided forââ‚Â
Historical Notes
The first Senateââ‚â„¢s Rule 8, adopted in 1789, allowed a simple majority to move the ââ‚Å"previous questionââ‚ and had been used by the British Parliament and Continental Congress. Though there is no evidence that Americaââ‚â„¢s founders contemplated what we today call a filibuster, dropping Rule 8 in 1806 at least made filibusters possible because ending debate then required unanimous consent. The first filibusters in the 1830s sparked a continuous effort at filibuster reform. In 1917, public criticism of a filibuster blocking a bill for arming merchant ships prompted the Senate to pass Rule 22, which required two-thirds of Senators present and voting to invoke cloture on a ââ‚Å"pending measure.ââ‚ In 1949, coverage was broadened to include any ââ‚Å"matter pendingââ‚ before the Senate and the threshold raised to two-thirds Senators chosen and sworn; motions to amend Senate rules were exempt. The debate over this rules change included no mention of nomination filibusters. In 1959, the threshold was reduced to two-thirds of Senators present and voting, including on motions to amend the rules, and the statement added to what is today Rule 5 that Senate rules continue unless amended according to the rules. In 1975, the threshold was reduced to todayââ‚â„¢s level of three-fifths of Senators chosen and sworn except for motions to amend the rules, still subject to the two-thirds present and voting requirement.
Solving the Crisis
Amending Rule 22. Since the crisis arises from abuse of Rule 22, the most direct solution would be to amend Rule 22. The Senate implicitly determines its rules by operating under existing rules, re-adopting them ââ‚Å"by acquiescence.ââ‚ The Senate explicitly determines its rules by amending them, as it has done to Rule 22 in the past. A new amendment could change the cloture threshold, affect only nominations rather than to legislation, and its effect on future nominations would be relatively certain, determined by the new text of the rule. While a simple majority can adopt an amendment, invoking cloture depends on its timing.
ââ‚¢ During a congressional session. Rule 22 requires two-thirds of Senators present and voting.
ââ‚¢ At the beginning of a congressional session. Before the Senate acquiesces to existing rules, its constitutional authority to determine its rules trumps existing rules and allows a simple majority to invoke cloture on a rules change. In 1957, Vice President Nixon ruled: ââ‚Å"It is the opinion of the Chair thatâ₦the right of a current majority of the Senate at the beginning of a new Congress to adopt its own rules, stemming as it does from the Constitution itself, cannot be restricted or limited by rules adopted by a majority of the Senate in a previous Congressââ‚ (Congressional Record, 1/4/57, p.178). He (CR, 1/8/59, p.96) and Vice President Humphrey (1/14/69, p.593), reaffirmed it.
Seeking a parliamentary ruling. The second approach does not amend Rule 22 but seeks a parliamentary ruling to allow a vote on an individual nomination. Democrats can appeal a favorable ruling on a ââ‚Å"question of orderââ‚ but a motion to table that appeal requires only a simple majority. Tabling the appeal effectively affirms the ruling. If the presiding officer instead submits the question to the full Senate for decision, it would be debatable (Congressional Record, 1/18/67, p.919; CR, 2/20/75, p.3839), requiring 60 votes for cloture. As such, this approach will work only if the presiding officer decides rather than submits the question of order.
Most of the speculation about this approach posits a question of order raising a constitutional issue such as Rule 22 is unconstitutional, at least as applied to judicial nominations. Under longstanding precedent, however, the presiding officer submits to the full Senate questions of order raising constitutional questions, and has consistently done so in the specific context of efforts to change Senate rules. Vice President Nixon ruled in 1957 that ââ‚Å"under Senate precedents, a question of constitutionality can only be decided by the Senate itself, and not by the Chairââ‚ (Congressional Record, 1/4/57, p.178). He reaffirmed this ruling in 1959 (CR, 1/7/59, p.9), as did Vice Presidents Johnson (CR, 1/28/63, p.1214; 1963 Congressional Quarterly Almanac, p.375, saying this tradition dates back to 1803), Humphrey (CR, 1/18/67, p.918; 1/14/69, p.594), and Rockefeller (CR, 2/20/75, p.3837). To avoid a filibuster, this approach requires the presiding officerââ‚â„¢s favorable ruling on a question of order framed in non-constitutional terms and a majority voting to table the ensuing appeal of that ruling. The question of order, and the ruling sustaining it, will determine whether this approach has a limited or substantial effect on future confirmation procedures.
Only the Senate can solve this filibuster crisis, and each of these approaches requires a vote of the Senate, either a vote to amend Rule 22 or a vote to affirm a parliamentary ruling. In doing so, the Senate will be exercising its constitutional authority to determine its own rules, a constitutional solution to a constitutional crisis.
Prepared by the Office of U.S. Senator Orrin G. Hatch, 104 Hart Senate Office Building, Washington, D.C. 20510
Posted in Senate Rules —
Posted at 6:02pm on Feb. 3, 2005 Pryor review?
By Quin
In The Hill today (I lost the link, unfortunately), Byron York reports that the filibustered judges again must go through FBI background checks because they have waited so long, and also probably be reconfirmed by committee. He discusses how the GOP at least hopes they can get an immediate committee vote, though, rather than another hearing for each one.
But here's a thought: WHY wouldn't we want another hearing? If a nomination goes straight to the floor, it just lets the Dems spread their misrepresentations about the nominees with reckless abandon, while relying on the GOP senators to defend the nominees. It's a he-said she-said king of thing, and the media will of course favor the Dems.
But if at least the first nominee or two were somebody adept at defending themselves, then -- just as with Clarence Thomas, who was wonderful, and with Ollie North (who actually has some real flaws, but that's a different story) -- the odds are the Dems would look like unreasonable bullies and the nominee would look like a would-be victim turned into hero for standing tall against slander. That's how it almost always works. Viewers root for the underdog, root for the guy being mistreated by the big powerful senators. And these people are good lawyers, for goodness sakes -- they are SUPPOSED to have a history as effective advocates. Why can't they be allowed to be their own advocates, as a way, once and for all, to make the Dems crumble? After all, it was only at his hearings that Bill Pryor became not just a good nominee, but a nationally known conservative hero. He is so sincere, so earnest, so honest, so direct, and so principled that he really made the Dems stumble, so much so that they did NOT return for more scheduled questioning after lunch, and so much so that John Edwards vamoosed before taking Pryor on.
In short, the way to defeat the Dems, in terms of public opinion, is to confront them, not just try an end-run and then yell about how unfair they are.
The nominee, of course, would have to be willing to run the gauntlet again. But would Judge Pryor be willing to be publicly reviewed again? Would Janice Rogers Brown? One of them, I would guess, might welcome the opportunity. "Senator," Pryor could say, "you brought up the RAGA issue the first time, and you used and misrepresented stolen documents to question my activities. But you conducted your own inquiry and found not a soul who contradicted my account, while several dozen, reportedly, backed me up. My name was unfairly vilified by those baseless charges, and you know it. That's one reason I have been supported by so many Democrats in my home state, including so many African American Democratic leaders, and why my former colleague in the AG ranks ((a black Democrat from Georgia) also supported my nomination, and why...."
Etcetera....
Posted in Circuit Courts —
Posted at 6:02pm on Feb. 3, 2005 Sooner or Later
By NateCT
Byron York, writing in The Hill, looks at the scenarios surrounding the renomination of President Bush's judicial nominees in the new Congress. They'll be renominated, he writes, but not in the immediate future.
At the moment, there are a few logistical problems. Their original nominations have been holed up in the Senate so long that they are now having to undergo new FBI background checks before their names can be resubmitted.
And once the president renominates the filibustered judges, theyââ‚â„¢ll have to go through the Senate Judiciary Committee again. While that wonââ‚â„¢t mean new hearings â₆at least hopefully it wonââ‚â„¢t mean new hearings â₆it will mean that the nominees will have to be put on the committee agenda for a vote, which can be routinely delayed by Democrats.
And then, after they are finally approved by the committee â₆on party-line votes, of course â₆it will be up to Sen. Bill Frist (R-Tenn.) to decide which nomination will be brought to the floor first.
Thereââ‚â„¢s been a lot of debate in Republican circles over who that first nominee should be. There was some talk about bringing up someone who was delayed by Democrats the last time around, but not filibustered.
Check out the entire article.
Posted in Fillibuster —
Posted at 2:19pm on Feb. 3, 2005 Snow's Taking Questions
By AndrewHyman
Hi, thanks mike for inviting me, and this is my first blog entry (ever). Secretary of the Treasury John Snow will be answering questions about last night's State of the Union Address at 3 PM EST. Questions are now being accepted. Just go to whitehouse.gov. That's "gov," not "org," and certainly not "net."
I may ask Mr. Snow a question of my own: does the president expect to finally get some up-or-down votes on his renominated judicial candidates this month?
UPDATE: nuffin bout judges.
Posted in News —
Posted at 12:36am on Feb. 3, 2005 Bush's words on justices
By Zummo
He did it! He devoted a paragraph of the speech to this very important issue. Here are Bush's words regarding federal judges:
Because courts must always deliver impartial justice, judges have a duty to faithfully interpret the law, not legislate from the bench. As president, I have a constitutional responsibility to nominate men and women who understand the role of courts in our democracy and are well qualified to serve on the bench, and I have done so.
The Constitution also gives the Senate a responsibility: Every judicial nominee deserves an up or down vote. Because one of the deepest values of our country is compassion, we must never turn away from any citizen who feels isolated from the opportunities of America.
Good to see the President throw down the gauntlet, and from what Herry Reid has said, it looks like we are on for a major fight.
Posted in Uncategorized —
Posted at 12:04am on Feb. 3, 2005 Yeah, that's right, 8-ball
By feddie
Here is Senate Minority Leader Harry Reid's oh-so-classy response to Senate Majority Leader Bill Frist's threat to make use of the "nuclear option"--i.e., a rules change in the Senate that would prohibit a filibuster of judicial nominees:
"They can threaten the nuclear option," he said. "If they feel that's great for the institution and the country, let them do it." Noting that the only complaint he has heard from fellow Democrats is that not enough of Bush's judicial nominees were blocked in the past four years, Reid said he is prepared "to go behind the pool hall and see who wins this one."
For some strange reason, I have a feeling that Senator Reid wouldn't fare too well "behind the pool hall."
Posted in Fillibuster —
Posted at 10:08pm on Feb. 2, 2005 Thought about tonight
By Zummo
I am curious to see if the President alludes to the judges or the Courts in general in some way tonight. I know that it is not really a State of the Union-y type of topic, but since he has the Nation's ear, it might not hurt to mention it.
Posted in Uncategorized —
Posted at 10:02pm on Feb. 1, 2005 "Bill Frist Got the Bomb"
By feddie
From today's Wall Street Journal Editorial Page (email subscription), courtesy of Melanie Kirkpatrick:
It looks like Majority Leader Bill Frist is really going to do it. Pull the trigger on the "nuclear" option, that is, in order to stop Democrats' unprecedented filibuster of President Bush's appeals-court nominees.
Mr. Frist said last month he would bring one of Mr. Bush's re-nominated candidates to the floor in February. If Democrats filibuster, he would seek to change Senate Rule XXII to the effect that filibusters of judicial nominees can be stopped by a majority vote. (Right now, a super-majority of 60 Senators is required to close debate and allow a floor vote on judges.) Senator John Cornyn, a Republican member of the Judiciary Committee, tells us his party has the 51 votes necessary to implement the rule change and that Mr. Frist is getting ready to do just that.
One sign that Mr. Frist is serious is the panic on the left. The ultra-liberal People For the American Way announced yesterday that it's leading a national effort to "protect" the judicial filibuster, which the group pretends is an artifact of "more than 200 years" of Senate history. In a memo to journalists yesterday, President Ralph Neas does his best imitation of Winston Churchill when he says that defeating the nuclear option "will take every ounce of effort, skill, focus and perseverance that the progressive community can muster." General Neas's war room is PFAW's "2,500-square foot conference room" outfitted as a "nerve center." "Hundreds of organizations" will be deployed to "save the judiciary," he claims.
In particular, Mr. Neas threatens to target Republican and Democratic Senators who might support Mr. Frist's rule change. Perhaps he's forgotten that one of the reasons Republicans now have a 55-seat majority in the Senate is that voters who were reminded of Democratic obstruction of the President's judicial nominees ended up electing Republicans last November.
Posted in Uncategorized —
Posted at 8:34pm on Feb. 1, 2005 Waiting
By Quin
I don't have a link, but I read earlier today where Harry Reid basically promised that the Dems would again filibuster any truly conservative nominees. He effectively said: Bring them on. He promised a battle royale, and again threatened dire consequences if Frist tries the constitutional option. All of which is to say, he's spoiling for a fight, so I think we should give him one. Roll over him like he's Play-Doh next to a steamroller. The problem is: How long must we wait? How long until the first appellate nominee actually comes up? How long before a Supreme Court opening? I'm eager to see how this plays out. (Eager, that is, on the appellate level; not eager to see CJ Rehnquist, that brave patriot, step down.) Patience is a virtue, but Quin possesses it not.
UPDATE: (Krempasky) - Quin is right, and here's the link.
Posted in Fillibuster —
Posted at 4:35pm on Feb. 1, 2005 Speaking of the stakes
By krempasky
Erick at RedState has penned a quick review of Mark Levin's new book, which suffers from a bit of overexuberance on the title, but nevertheless seems to capture the damage that runaway judges have done quite well.
Posted in SCOTUS —
Posted at 8:25pm on Jan. 31, 2005 On the filibuster feud
By feddie
Kevin Drum makes some fair points in this opinion piece he penned for WaPo*, but the bottom line is this: Regardless of any past injustices, each and every person nominated by the president to serve on the federal bench deserves an up-or-down vote on the senate floor; or, at the very least, those who wish to filibuster a particular judicial nominee ought to be forced to actually conduct a real "Mr. Smith goes to Washington"-filibuster.
*BTW, my hat is off to Mr. Drum for quoting one of my favorite lines from one my very favorite movies, "A man for all seasons."
(Cross-posted at Southern Appeal)
Posted in Fillibuster —
Posted at 8:05pm on Jan. 31, 2005 A word about comments
By krempasky
Note to readers: If you have trouble posting a comment here, please note that the system which (tries to) stop spam also restricts you to one hyperlink per comment. If you have more links in your comments, your post will not appear. Sorry for the inconvience.
Posted in Administrative —
Posted at 5:09pm on Jan. 31, 2005 Fed Society Gets Active
By NateCT
The Washington Times reports, today, that the Federalist Society has hired the media firm Creative Response Concepts (CRC), which was responsible for the ads used by Swift Boat Veterans For Truth, to prepare for the battle over the next Supreme Court Justice. CRC will be used to counter Ralph Neas's group, People For the American Way, which has already started preparing for the pending battle.
[CRC] has been hired into the judicial battle by the Federalist Society, the influential conservative judicial organization from which many of Mr. Bush's nominees have been picked.
"This doesn't surprise me," Mr. Neas said of the Federalist Society's hiring of CRC. "It just proves the point I've been making for years: It's a right-wing organization that is very political and very partisan."
Mr. Mueller[, president of CRC,] said the Federalist Society's role in the nomination fight will be to "educate people" about the possible nominees. To that end, the society has created a list of legal analysts to talk to reporters.
"All the people on the list are seasoned legal minds," he said. Many on the list, Mr. Mueller said, are former clerks to Chief Justice William H. Rehnquist, Justice Antonin Scalia or Clarence Thomas â₆all conservatives after whom Mr. Bush has said he will model any Supreme Court nominees.
Posted in News —
Posted at 1:53pm on Jan. 31, 2005 Pack the court
By Zummo
Meanwhile, Bruce Fein urges President Bush to pack the Supreme Court with philosophically conservative justices. Here's a taste:
President Bush would mock the peopleââ‚â„¢s verdict on Supreme Court justices in last Novemberââ‚â„¢s balloting if he neglects to appoint justices in the mold of Scalia, Thomas, and Bork. Bush unequivocally promised the same in his presidential campaign. In contrast, his defeated opponent, Senator John Kerry, pledged to appoint justices precommitted to celebrating the outlandish invention of a constitutional right to an abortion in Roe; and a homonymic interpretation of the Constitution epitomized by the same-sex marriage ruling of the Massachusetts Supreme Judicial Court in 2003 (i.e., the words sound the same as when they were adopted, but mean something different whenever the justices feel a compulsion to issue a moral encyclical).
Hat tip: Real Clear Politics.
Posted in Uncategorized —
Posted at 9:57am on Jan. 31, 2005 Changing the rules
By Irishlaw
Kevin Drum in the Post today on why Republicans shouldn't be changing the internal rules on filibusters: essentially, turnabout should be fair play.
Posted in Senate Rules —
Posted at 7:26pm on Jan. 28, 2005 No new hearings?
By Irishlaw
Maybe Specter's backing off a little:
"In general, I do not propose to have rehearings," Specter said. "There would have to be an exceptional circumstance that would require a hearing. We've already had hearings."
Posted in Judiciary Committee —
Posted at 10:15am on Jan. 28, 2005 Roe on the merits
By Irishlaw
Responding to Paul: I've done a bit of research on Norma McCorvey's motion over the last two years. Here was my evaluation of the motion, to give some background: In 2003, with the help of the Justice Foundation (a pro-life legal group), McCorvey filed a Rule 60 motion to have the decision overturned -- Rule 60(b)(5) providing for parties to an action to have a decision overturned after the fact, if "it is no longer equitable that the decision have prospective application." In this case, McCorvey was trying to prove that that the judgment in Roe is no longer just or equitable by making three arguments:
(1) Affidavits from 1300 post-abortive women show that abortion is devastating and harmful to women;
(2) Scientific evidence not available in 1973 now shows conclusively that life begins at conception; and
(3) Texas (the state in which the case originally arose) now has a ââ‚Å"Baby Drop Offââ‚ law under which the state takes responsibility for all unwanted children, substantially reducing the burdens of childcare on pregnant women.
If this evidence proved that the judgment in Roe was unjust, the court could overturn it. The district court dismissed the motion after two days, saying the motion hadn't been filed in a "reasonable" time -- the reason I was originally afraid the whole case would sink. But it can plausibly be argued that the timing is reasonable in light of when the affidavits were gathered, the scientific evidence was discovered, and the new Texas law was passed. The Supreme Court has overturned decisions on 60(b)(5) motions before, such as in Agostini v. Felton -- a 12-year-old precedent -- but 12 years is different than 30, especially since this particular Court has several times ruled on abortion cases in part on the grounds that society now relies on the availability of abortion (that is, they have specifically affirmed this precedent just because it is precedent). Agostini just involved separation of church and state issues in education.
As it turned out, the 5th Circuit agreed that it is at least plausible that 30 years isn't too long, but it didn't rule on the "time" part of the rule but rather (similar to what Paul thought) on mootness grounds. Judge Jones wrote a concurring opinion that, while agreeing with the mootness conclusion, strongly criticized the Supreme Court's jurisprudence on the subject. Summarizing much of McCorvey's evidence about the harm abortion does to women and the way science and society have changed, Judge Jones wrote:
In sum, if courts were to delve into the facts underlying Roeââ‚â„¢s balancing scheme with present-day knowledge, they might conclude that the womanââ‚â„¢s ââ‚Å"choiceââ‚ is far more risky and less beneficial, and the childââ‚â„¢s sentience far more advanced, than the Roe Court knew.
This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe. But the problem inherent in the Courtââ‚â„¢s decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court . . . .
The perverse result of the Courtââ‚â„¢s having determined through constitutional adjudication this fundamental social policy, which affects over a million women and unborn babies each year, is that the facts no longer matter.
But Judge Jones couldn't think of any conceivable way in which the Court might ever be able to revisit the underlying facts of the issue. I agree that it's not likely the Court will hear the issue in this guise. So what's the answer to Paul's question? I think the only way to force the issue might be for a state (like South Dakota has proposed doing) to outlaw abortion and then wait for Planned Parenthood to sue. If they listed evidence like McCorvey's as part of the "findings" section of such a bill, the Supreme Court might consider the evidence. Of course, the fear would be that the Court would issue another resounding endorsement of Roe, or of what's been called "the worst constitutional decision of all time," in Casey. Or maybe we'd get another call for defining our own concepts of existence. Still, even if it may not prudent to force the issue now, I think a state passing a law is the likeliest way to cause the Court to act.
Posted in SCOTUS —
Posted at 1:47am on Jan. 28, 2005 Roe revisited?
By Zummo
I'm throwing this one out there for my more legally trained co-bloggers. Norma McCorvey, the woman known to us all as "Jane Roe," is pretitioning the Supreme Court to overturn Roe vs. Wade.
Norma McCorvey, whose protest of Texas' abortion ban led to the 1973 ruling, contends in a petition received at the court Tuesday that the case should be heard again in light of evidence that the procedure may harm women.
"Now we know so much more, and I plead with the court to listen for witnesses and re-evaluate Roe v. Wade," said McCorvey, who says she now regrets her role in the case.
The politically charged issue comes before the court as both sides gird for a possible bitter nomination fight over Chief Justice William H. Rehnquist's replacement should the ailing justice retire this term. At least three justices, including Rehnquist, have said Roe v. Wade was wrongly decided and should be overturned.
Two lower courts last year threw out McCorvey's request to have the ruling reconsidered.
But in a strongly worded concurrence, 5th U.S. Circuit Court of Appeals judge Edith H. Jones criticized the abortion ruling and said new medical evidence may well show undue harm to a mother and her fetus.
As little as I know about the technicalities of the law, I do know that that the question of standing immediately comes to mind. Even clearing that hurdle, it is extremely doubtful that Court will seek to revisit this issue in the near future.
So my question that I would propose to all of you is, even assuming that we are successful in getting to the bench those individuals that we all here are fighting for, can we realistically expect Roe to be revisited at any point in the near future? Or, more aptly, under what consideration will the Court take a case that will address the issue of Roe? The current case does not seem a likely foil, so what type of case or issue do you believe will cause four Supreme Court justices to reopen the pandora's box of abortion?
Posted in SCOTUS —
Posted at 11:53am on Jan. 27, 2005 Salazar
By Zummo
Not that I disagree at all with anything quin said in his post about Mary Landrieu, but I would also add the name of Ken Salazar to the mix as a Democrat who could play a more moderating role in the confirmation debates. As The Corner discussed yesterday, Salazar has shown a penchant thus far for playing nice. (Though John Miller does not qute share the optimism) He was the one who introduced Alberto Gonzalez before his confirmation hearings, and proceeded to have nice things to say about him. As has been noted, he was the only Democrat to win an open-seat race in a red state last year, and he is no far-left moonbat. Moreover, he might have long-term national aspirations, and it would behoove him to play a centrist role. It is quite conceivable that, at the very least, he would be loath to filibister an Hispanic or minority candidate.
Unfortunately, Miller adds:
I was astonished to hear him speak repeatedly in his stump speech about fighting "the forces of evil." He wasn't talking about Osama bin Laden, but Karl Rove.
That of course could be simple rhetoric to fire up the base, but it does suggest he might deem himself to be on a quest to fight the forces of evil in the Bush administration. Again, though, his enthusiastic support of Gonazalez belies that interpretation to a significant extent.
It's far too early to accurately predict what kind of Senator Salazar will turn out to be, but there is room to be cautiously optimistic that he could be another voice of Democratic reason.
Posted in Analysis and Predictions —
Posted at 11:09am on Jan. 27, 2005 Political posturing
By Irishlaw
The Hill looks at the current Specter flaps, and shows that while at least the senator's staffers are on the defensive, conservative alarm isn't fazing him personally:
A GOP committee aide defended Specterââ‚â„¢s desire not to take up immediately the nominees whom Democrats stopped in the last Congress as an effort to heal raw relationships on the committee.
ââ‚Å"Senator Specter looks to accomplish a lot this session and tone down the hostile atmosphere that existed, not only in the committee, and have a well-founded relationship with the White House,ââ‚ said the aide.
I really just don't get this. Why were there "raw relationships" in the first place? Because the committee Democrats were blocking and otherwise acting hostile without any good reason toward qualified, professional nominees like Estrada, Owen, Pryor and Pickering. Putting liberal NAACP lawyers on staff isn't going to "tone down the hostile atmosphere"; for the Dems, the only "compromise" position would be not to renominate these candidates at all. Assuming we aren't interested in such a compromise, Specter would do better to go ahead and hire conservative, Republican staffers for his Republican-controlled committee, and focus more carefully on that relationship with the White House instead of with Leahy et al.
I was willing to give Specter the benefit of a doubt after I thought he was appropriately chastened by the conservative campaign against his chairmanship in the fall. It's not now looking much like that was warranted. The best thing he could do now to start salvaging things is not to insist on new committee hearings for the filibustered judges.
Posted in Judiciary Committee —
Posted at 9:51pm on Jan. 26, 2005 Watch Mary Landrieu
By Quin
Whenever the first judicial nominees come up, I urge conservatives and all who care about fair play to watch Mary Landrieu closely, and to try to reason with her. Why? Because she should be a real bellwether as to the Dems' plans to press the multi-filibuster strategy. Some background is in order....
Sen. Landrieu is, I believe, a liberal posing as a moderate because she represents a center-right state. I've watched her for her entire career; I grew up in the state legislative district that neighbored hers, and I've crossed her path in person a number of times, always cordially, and conversed with her, once, at some length. She is no radical, and she proved as LA State Treasurer to be a reasonably responsible public official. She's a political animal, through and through, hardly averse to hardball, but she and her family have earned reputations as people with a sense of decency as well. (Her aunt, Phyllis, is a particularly fine lady, gracious and kind, who had the guts to openly support Bob Livingston for governor of LA one year). If not provoked otherwise, Mary Landrieu will act with as much fairness as she can, all other things being equal.
As far as purely political calculations go, she is in a cross-current. If she wants to run for re-election in 2008, after barely squeaking by in her two previous races, she cannot move too far left or look too obstructionist. Her best play, locally in LA, would be to vote against a number of nominees but not filibuster them. Vote for cloture, but then against on final passage. On the other hand, I believe she has national ambitions, maybe as a V-P choice in 2008 if Hillary crashes and burns for the top spot. If so, she can't afford to cross the liberal interest groups too flagrantly -- which means that she has reason not to stick out as one of the only anti-filibuster Dems. On the other hand, there are plenty of other ways to please the interest groups -- she has four years to do so -- while enhancing a reputation as a moderate by not filibustering (while still opposing the nominees themselves). It's all a game of positioning.
I truly believe, though, that the main thing that impelled her towards filibusters in the last Congress is the nasty campaign run against her in 2002. In truth, even her 1996 campaign, where she eked out a win in a disputed race on the basis of extraordinary New Orleans black turnout paid for by gambling interests to approve a ballot initiative for a casino, was a bruising affair that SHE probably thought featured cheap shots against her. But the GOP charges against her then were fairly standard hardball (although I have no idea of how accurate they were or weren't, as I was just an observer from DC, trading in campaign gossip like anybody else), and she gave as good as she got.
But in 2002, I thought the attacks against her wer WAY below the belt, on several fronts. The GOP Senatorial Committee brutalized her, and her opponent, Suzie Terrell, who I've known well and liked for many years, became quite shrill in debates and even had the gall to say she was "a better Catholic" than Landrieu was, based on their public stances on abortion.
First, that's an extremely personal way to approach the issue. Second, Mary KNEW that Suzie was hiding a past as a middle-of-the-road, split-the-difference on abortion person -- NOT the hard-line pro-lifer that Suzie claimed to be during the campaign. Result: Mary Landrieu entered the last Congress in a rage that her faith was directly and unambiguously questioned, especially by somebody whose former abortion stance was only shades apart from Landrieu's own -- and in a rage, in general, because the whole campaign against her was so nasty. Hence, her openness to filibusters -- and her lamentable, and unfair, decision to join the filibuster against Miguel Estrada.
Even so, when Bill Pryor's nomination in particular came up, my sources say she was on the fence not just about filibustering him, but even about confirming him. Pryor had gone to college and law school in LA, and had clerked for a legendary civil-rights federal appeals judge, and Landrieu had plenty of people from back home telling her he was okay. Then came the CFJ "No Catholics Need Apply" ad, concerning Pryor. In context, the ad actually was fair. It did NOT accuse Dems of deliberate anti-Catholic bigotry. It made the point that a number of Demo lines of questioning of Pryor put him in a box where it was clear that his strict Catholicism was, IN EFFECT, being held against him, whether by deliberate design or not. By the standards of those lines of questioning, almost no strictly orthodox Catholic could indeed be confirmed. The Dems were crying crocodile tears when they said their own faiths, their own status as Catholics, was being assaulted by the CFJ ad. Or at least most Dems were. Their complaints were utterly bogus.
But for Mary Landrieu, just off a campaign where her own faith had been DIRECTLY attacked, the CFJ ad really did seem like a continuation of a nasty slander against her.
Hence her decision (and, I believe, John Breaux's decision in support of her) to filibuster Pryor, less because they found Pryor so offensive than because they found the GOP tactics so offensive.
But now time has passed. Daschle has lost, clearly in part because of the filibusters. Her own state went, for the second straight time, strongly for Bush. It also elected a GOP senator for the first time since Reconstruction. And John Breaux retired, so the position as the "go-to" deal-maker in the Senate is hers for the taking if she wants it. She thus has many reasons to be amenable to fair-minded appeals to her own fair-mindedness. Maybe to support some filibusters, but not others. Maybe to let Pryor through, because she knows he is a man of integrity and decency, etc. Who knows?
The point is, she is in a position where she may be amenable to honey rather than worthy of political two-by-fours across her scalp. She has a good staff. She represents a conservative-leaning state. She learned from her legendary father, the New Orleans Mayor and HUD Secretary, and then from John Breaux, the fine arts of how to cut political deals for the greater good. When I last sat down with her, circa 1999 or so, she was charming. Yes, she's a liberal, and yes, she's tough as nails. But she's a practical pol, and she has worked hand in hand even with strong conservatives like Jeff Sessions in the past. I urge conservatives to try all in our power to reach across the aisle to her, to see if there is any way of getting her to help avoid a massive filibuster conflagration. Appeal both to her better angels and to her political instincts concerning her opportunities as John Breaux's heir. Give her a chance. Treat her with respect. For conservatives, she'll never be an ally, but she doesn't have to be an enemy. And maybe, just maybe, she can help lead Mark Pryor and Blanche Lincoln of Arkansas, and others, to a middle ground.
Posted in Analysis and Predictions —
Posted at 9:04pm on Jan. 26, 2005 Zogby poll on Chief Justice favs
By feddie
Chief Justice Rudy Giuliani? Chief Justice Fred Thompson? Silly lay people.
Posted in SCOTUS —
Posted at 6:04pm on Jan. 26, 2005 Charming Nino
By NateCT
Following the inauguration, Time looked at the two current Justices who have been mentioned as a replacement for Chief Justice Rehnquist. Particularly, Justice Scalia. However, according to Time, Scalia doesn't have a "lock on the job" because he's not viewed as a people person, or a consensus maker. Thus, what has the "reclusive" Justice been doing as of late?
[T]he famously dyspeptic Scalia has become a merry mainstay on the A-list Washington social circuit of late. At parties ranging from a charity dinner at the Kuwaiti embassy two weeks ago to an Inaugural lunch at D.C.'s chic Cafe Milano, guests have been surprised to find the once reclusive Scalia mixing with the city's power brokers, making small talk and telling jokes. "Lately, I've been running into Nino everywhere," says a friend and fellow lawyer. "He's showing that he actually can be charming and gregarious. It's a sign that he's really interested in the job."
Hey, whatever it takes.
Posted in SCOTUS —
Posted at 2:17pm on Jan. 26, 2005 Dems & Libs, "please don't do that"
By krempasky
Thanks to Howard Bashman, I noticed that both Sen. Patrick Leahy (D-USSR) and People for the American Way have both come out against the so-called "nuclear option" to deal with filibusters. (In other headlines, "Experts Agree: Water is Wet")
Leahy, in The Hill.
PFAW, in hysterics.
Posted in Fillibuster —
Posted at 12:18pm on Jan. 25, 2005 Hello, folks
By Quin
Just getting back after a brief sojourn out of town, so I'm playing catch-up at work. But I should have a post today or tomorrow on a key Democratic player in the confirmation wars. Meanwhile, just wanted to say hello, and welcome to the site, and thanks to Mike for inviting me to be part of this. -- Quin Hillyer
Posted in Uncategorized —
Posted at 12:00pm on Jan. 25, 2005 If only there were leaders...
By krempasky
Republicans had their chance to stop Arlen Specter from becoming Chairman of the Senate Judiciary Committee. We sure warned of the impending disaster once he got the gavel. Those who stood up and opposed Specter enjoyed a heaping share of criticism, even from our own.
Boy, it never felt so lousy to be so right.
Let's see what dear Arlen has actually done since he swore fealty to Republicans back in late November:
- He hired, for the purposes of managing nominations on the committee, Hannibal G. Williams II Kemerer the assistant general counsel of the NAACP. The NAACP on nominations...gee - that would be the same group that conspired with Teddy Kennedy to delay the confirmation of a nominee to a court before which the NAACP was arguing litigation, fearing that it might adversely affect their chances of success. (It should be pointed out that as soon as the hiring was announced, Specter backtracked and assigned Kemerer other duties - including tort reform)
-
He declared that all candidates re-nominated to the bench must go through another round of confirmation hearings before the "Specter" Judiciary Committee - EVEN THOSE previously voted to the floor of the Senate. A magnificent waste of time and taxpayers' money that serves only two purposes - 1) to give committee Democrats another shot to tear down the nominees, and 2) to further increase the size of Arlen's cranium.
- Wait - there's another bad hiring decision to be made! How about choosing for your General Counsel the wife of a former Democratic Congressional Candidate? And as an extra-added bonus, let's make her a big fan of abortion and a donor to Hillary Clinton's campaign for the US Senate.
We're here to support the confirmation of the President's nominations to the federal bench. It's just too bad the Chairman seems to be doing all he can to put roadblocks in our way.
Posted in News —
Posted at 11:03am on Jan. 25, 2005 Getting Daschled
By NateCT
Although this essay is from a week or so ago, it still rings true as the Senate gears up for judicial nomination battles.
Daschle, the former senator from South Dakota, has become the poster child for a number of groups that rallied together in order to defeat him. Very few people anywhere in the country thought Daschle could be defeated, yet a convergence of issues led to his political demise and resulted in a new addition to the Washington political lexicon.
"Getting Daschled" is now a real concern for many liberal members of Congress in both political parties, but especially for Democrats. Yet, because their base is so left-wing, liberal Democrats also fear getting "primaried," that is, losing to another liberal in their party's primary.
Such is the political quandary that many liberal Democrats find themselves in as they prepare to address a series of issues that took down Daschle. Foremost among those issues will be the handling of nominees to the federal judiciary.
This is my hope, that Senate Democrats will realize it's a waste of what capital they have, to keep well-qualified judicial nominees from the bench.
Posted in Fillibuster —
Posted at 7:49pm on Jan. 24, 2005 March for Life
By carney
I was just down at the March for Life as it passed before the Supreme Court. When I asked marchers an open-ended question about the prospects of the pro-life movement, almost all of them spoke strictly about whom Bush would nominate. They were all also supportive of a nuclear option.
As I reflected on the values vote, and the renewed enthusiasm of pro-lifers, I began to suspect that without the filibusters (combined, of course with the Massachusetts Supreme Court and the 9th Circuit), Bush might not have won those new voters in Ohio and Iowa.
Posted in Administrative —
Posted at 1:00pm on Jan. 24, 2005 WSJ editorial
By Zummo
The Wall Street Journal weighs in this morning with an editorial discussing Senate leader Bill Frist finally drawing a line in the sand on judicial filibusters.
It's been a long time coming, but we now have an approximate date for a confrontation in the Senate on judicial nominations. Majority Leader Bill Frist has announced that if Democrats filibuster the nominations he expects to bring to the floor next month, he'll take action.
The Journal continues to explore the history of the filibuster, and notes that Frist's proposal is not all that radical.
Which brings us to the proposed change in Senate precedents that Democrats call the "nuclear option" to make it sound radical. If the Democrats filibuster again, Mr. Frist would ask for a ruling from the presiding officer that under Senate Rule XXII only a simple majority vote is required to end debate on judicial nominations. Assuming 51 Senators concur, the Senate would then proceed to an up-or-down floor vote on the nominee. . .
Democrats inclined to cry foul would benefit from studying Senate history. They could start by querying their own Senator Robert Byrd who, during his years as Majority Leader, employed the same tactic four times to reinterpret Senate precedents. Martin Gold and Dimple Gupta detail this history in an essay in the current Harvard Journal of Law & Public Policy.
The history of the filibuster itself also bears noting--particularly by those Republicans who are worried about "giving up" a useful tool when they return to the minority. No one was more concerned with checking majority passions than the Founders, but even they never felt the need for a super-majority Senate voting requirement. The filibuster first appeared in the 1830s during the debates over the Bank of the United States and by 1917 had gotten so out of control that the Senate passed its first "cloture" rule limiting debate. It's been modified numerous times since then, and only in recent years has it evolved to where just about anything that passes (save the annual budget) needs 60 votes.
We're finally getting closer.
Posted in Fillibuster —
Posted at 5:19pm on Jan. 22, 2005 The stakes
By Zummo
A half-century ago William Buckley observed that conservatives' role in the political world is to stand athwart history yelling, "STOP!" Though conservatives have failed more than we would like to admit in stemming the rise of the state, the present situation offers us an opportunity to at least stop the activism of the Courts, an activism that allows the left to institute policies by judicial fiat that it otherwise could not legislatively, and which further erodes the value of the Constitution.
The difference in judicial philosophy was highlighted a week ago in the debate between Justice Scalia and Justice Breyer over the role that foreign judicial decisions should have, if any, over US Supreme Court jurisprudence. Sclia argued that they had absolutely no relevance; Breyer argued that they could at least inform the Court's actions. Here, in a nutshell, is the heart of the debate between those who believe that the Constitution should be interpreted according to the original intent of its Framers, and those who believe that the Constitution is a "living, breathing document" that should easily adjust to the times, and that court decisions ought to include extra-constitutional factors. In other words, it is a battle between those who believe in eternal standards and the rule of law and proponents of a standardless, ever-evolving and inconsistent judicial tyranny.
Chief Justice John Marshal wrote that our Constitution and respect for its customs made us a nation of law and not of men. George Bush and the Republican-controlled Senate must do all within their power to guarantee the appointments of men and women to the Courts who will uphold our Consitution and not invert Marshall's words. There is nothing less at stake in this battle than the continuance of our nation as a respecter of the rule of law.
Posted in Uncategorized —
Posted at 1:39am on Jan. 21, 2005 The show must go on
By Irishlaw
"Supreme Court to Break Up If Rehnquist Leaves" -- well, at least that's the report from The Onion : )
At an informal hearing held in Justice Steven J. Breyer's kitchen in December, the Supreme Court voted 7 to 1 in favor of breaking up, with Justice Antonin Scalia abstaining from the vote. Rehnquist was the sole dissenting voice.
"Bill kept arguing that no matter what happened, the Supreme Court should continue," Justice Sandra Day O'Connor said. "It was touching to see how much faith he has in us, but I think the majority opinion is in favor of quitting while we're on top, rather than muddling through a bunch of mediocre judicial sessions and becoming some sort of kangaroo court."
. . . Although the associate justices have yet to announce their plans following the dissolution of the Supreme Court, [Supreme Court fanzine publisher] Tomaine said he believes that many will continue on with solo judiciary projects.
Posted in SCOTUS —
Posted at 9:32am on Jan. 20, 2005 Handicapping Bush's Judicial Nominations
By feddie
T.R. Goldman of the Legal Times has this report, which contains this interesting excerpt:
"Republicans want to get a lock on Congress for the next generation or two," explains Goldman, the University of Massachusetts professor, "and anything they can do to play to their base, they will do."
Several nominees appear to be in that camp, all of whom would likely be filibustered again . . . .
Former Alabama Attorney General and 11th Circuit nominee William Pryor Jr., who has called Roe v. Wade "the worst abomination of constitutional law in history," is viewed with even more suspicion by Democrats.
But Pryor holds a trump card: After Republicans failed to break two filibusters against him in 2003, he was given a recess appointment by President Bush on Feb. 20, 2004. Although this ensures that Pryor will remain on the bench at least until the end of this year, supporters say his record so far shows that he's not the radical his detractors paint him as.
Specter, for one, is ready to push for him. "Pryor has handed down some very, very good opinions in the time he's been on the bench," he says.
Posted in Fillibuster —
Posted at 6:52am on Jan. 20, 2005 From the "Gee, I never saw that coming" file
By feddie
You may recall the controversy that arose when Elaine Jones, the head of the NAACP Legal Defense Fund, was revealed to have asked Ted Kennedy to delay the confirmation of some of President Bush's judicial nominees in order to affect litigation in which her organization was involved. Jones ended up resigning during that controversy.
Now Arlen Specter, in one of his first acts as chairman of the Judiciary Committee in a Republican Senate, is hiring one of the NAACP's top lawyers. Specter wanted Hannibal G. Williams II Kemerer, who has been the group's assistant general counsel, to handle nominations for the committee. There has been resistance to that idea, however, and Kemerer appears likely to take over other duties on the committee.
Perhaps Kemerer was some sort of dissident at the NAACP, and is not bitterly hostile to most Republicans and their ideas. It's always possible. But here's a friendly description of a speech he gave in 2003: Kemerer "roused the more than 150 people present to a new sense of awareness with a focus on the 'new racism' that is now prevalent in the United States. A racism that hides behind civility, persuasive code words and black faces." That's not very encouraging.
[SA contributor] Kay Daly of the Coalition for a Fair Judiciary remarks, "I don't think Senator Leahy is calling Manny Miranda" with job offers.
So tell me again, why President Bush and Senator Santorum supported this twit over Toomey?
Update: Ponnuru goes on to note in a subsequent post that:
It should also be noted that Specter has made some reputedly conservative hires at committee chairman. Some observers will be inclined to cut the senator slack as a result; others will take the hiring of conservatives by a Republican-majority Judiciary Committee as conservatives' due, and still be appalled by the Kemerer hire.
Uh yeah. You can throw me in with the "others."
Posted in Judiciary Committee —
Posted at 11:32pm on Jan. 19, 2005 You'll rue the day I tell you
By Zummo
Ed Morrisey at Captain's Quarters reports on Harry Reid's appearance on ABC's This Week.
The Senate's Democratic leader said Sunday that Republicans "would rue the day" if they try to make it harder for Democrats to stall judicial nominees who could not get a vote last year. ...
Reid also went on to note that only 10 of Bush's 204 nominees had been "turned down."
Tough talk from the Democratic Senate leader, though perhaps Dirty Harry should consider that the only ruing that has taken place lately is that of the obstructionist Tom Daschle.
It's also difficult to decipher what Reid means when he says "Republicans will rue the day" if they try to go nuclear. If he means there will be electoral fallout, he is sadly mistaken. I do not see voters rising up in rebellion if the Senate leadership attempts to curtail the filibuster. I think that, politically speaking, the Republicans have much to gain and the Democrats much to lose over the issue of obstructionism, and rather than being seen as bullies, voters would welcome a Republican attempt to force a vote on the justices.
If Reid is speaking of a political fallout that would occur if the Democrats regained majority status, again I believe he is being somewhat naive. Any attempts at payback would be seen as childish, and would probably wind up backfiring on the Democrats. Besides, who is to say that if the Republicans ever lose the majority again it will be the Democrats that would be the ones to gain power?
Posted in Fillibuster —
Posted at 8:30pm on Jan. 19, 2005 NELA Strongly Opposes the Nomination of Brett Kavanaugh to the D.C. Circuit Court of Appeals
By feddie
Well, thank goodness we finally know what the National Employment Lawyers Association thinks about the Kavanaugh nomination.
I am sure that Brett will lose sleep tonight over the NELA's opposition.
Posted in Circuit Courts —
Posted at 11:12am on Jan. 18, 2005 The Test
By NateCT
Senator Richard Shelby (R-AL), a former Democrat, claims that one of the reasons the Democratic party has employed the filibuster, is that it has moved too far to the left. Furthermore, he stated, in a town-hall meeting, that judicial nominations would be the test, to determine whether or not Democrats are willing to work with Republicans in the Senate. With regard to the President's plan to re-nominate the filibustered nominees from last year, he had this to say:
"The President's responsibility is to nominate competent, conservative judges that will be confirmed. I know he's going to do that. And I believe we will confirm them. If John Kerry had been elected the Supreme Court would have shifted back the other way - with more liberal judges that might be more activist. The President is going to nominate conservative judges that will likely follow what the Constitution says."
...
"I wish we had 60 (Republicans) in the Senate," he said. It takes 60 votes to force an end to a Senate filibuster. "Republicans have never used a filibuster to hold up a judicial nominee. But I believe we'll be able to confirm those nominees like (Alabama's) Bill Pryor."
Posted in Fillibuster —
Posted at 10:33pm on Jan. 16, 2005 Talk the talk
By Irishlaw
The Post takes a historical look at the filibuster here in today's Outlook.
Posted in Fillibuster —
Posted at 10:49am on Jan. 14, 2005 Michigan judges get manufacturer support
By Irishlaw
Led by former Michigan governor John Engler, the National Association of Manufacturers said it's going to be throwing its weight behind the Michigan nominees to the 6th Circuit. The group says it has millions (!) of dollars to spend on lobbying, and plans to use it if necessary to get presumably more pro-business judges on the court.
The Michigan nominees have been actively blocked by the state's two Democratic senators, who are still upset about a few Clinton nominees that didn't make it through. They've got this bland statement in response to NAM's plans:
Levin and Stabenow issued a joint statement Wednesday calling for a bipartisan comprise [sic], "an idea that Gov. Engler supported when he was in office, and we will keep working to achieve that result."
But what bipartisan compromise is there to be reached for these particular nominees, I wonder, when George Bush is doing the nominating for the next four years -- and he already nominated a few of the last Clinton appointees when he originally took office? Is a compromise for Stabenow and Levin one in which no conservative nominees from Michigan come up at all?
Posted in News —
Posted at 10:43am on Jan. 14, 2005 Welcome to confirm them, pardon the dust
By krempasky
We're just about ready to make our splash - and welcome to all the fine authors that have joined us. Please pardon the dust around here, we're using a new version of Wordpress and trying to tweak it just right (you'll notice that some content in the sidebar has gone the way of the dodo, but it'll be back.)
Posted in Administrative —
Posted at 10:42am on Jan. 12, 2005 Changing the rules
By Irishlaw
Sen. Orrin Hatch makes the case on NRO today for changing Senate rules or procedure in order to prevent filibuster of judicial nominees. He offers a few different options. Thoughts?
Posted in Senate Rules —
Posted at 7:16pm on Jan. 9, 2005 Pryor supporters debate timing of confirmation vote
By feddie
The Tuscaloosa News has this report.
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