Archives 4/19/05 thru 5/20/05
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Posted at 1:18pm on May 20, 2005 More on Graham
By krempasky
I mentioned a little while ago that it appears as if Lindsay Graham is becoming a problem for Senator Frist. Now I'm hearing that as word filters through the movement of folks working to get judges confirmed, no less than Focus on the Family (or one of it's affiliated groups) is pulling the trigger on a pretty massive phone banking effort to Graham's office. Those poor staff assistants - if you know anyone in his office that you'd like to talk to, I suggest ringing them now. Calls could come as early as today.
Posted in Fillibuster —
Posted at 12:40pm on May 20, 2005 Is Graham freelancing?
By krempasky
I'm hearing rumors that Lindsay Graham is becoming quite the pain in Sen. Frist's rear. The deal he's apparently pushing: All nominees with the exception of Judges Myers and Saad would get a vote -- they would either throw Myers and Saad over aboard or agree to vote against themâ₦...while the Dems will be allowed to filibuster SC nominees under so-called ââ‚Å“extraordinary circumstances". Of course, just a few weeks ago, the good Senator was singing a different tune.
Posted in News —
Posted at 10:57am on May 20, 2005 Sound Reasonable?
By AndrewHyman
As usual, Howard Bashman has a huge collection of today's filibuster news and opinion from around the country. Amidst that collection is an op/ed from Sen. Elizabeth Dole in the Washington Times, and here's part of it:
Judge Boyle, now a federal district court judge in North Carolina, was first nominated for this new appellate position some 14 YEARS ago, but â₆unbelievably â₆he has yet to receive an up-or-down vote on the Senate floor. While the Democrats cannot plausibly justify overturning more than 200 years of Senate tradition by filibustering the president's judicial nominees, let's also remember it is equally unacceptable to treat these nominees as political pinatas to further this aim.
Boyle's 14-year wait leads me to expect this offer from the Democrats: they'll give all of the nominees up-or-down votes, but posthumously. Sound reasonable?
Seriously, Judge Boyle's predicament pales in comparison to that of Justice Owen. At least Boyle's delays have resulted from the failings of the Senate majority (e.g. the majority could have expedited a vote by approving a "motion to proceed" or a "discharge motion"). In contrast, Owen has been blocked by a minority.
In other news, two old gents from old Virginia are working on a compromise that would involve teaching the young President how to nominate judges:
Byrd also suggested he and Warner were working on language where the president would pick his court nominees from a pool of suggested candidates "possibly selected on the basis of discussions with state and federal chief justices, lawyers, people from academia and so forth."
How about this: in return for the President picking his nominees from a "pool of suggested candidates," the Senate will only pass legislation from a pool of suggested White House drafts. Sound reasonable?
UPDATE: Patterico suggests another compromise, here.
Posted in News —
Posted at 10:49am on May 20, 2005 Aborting the filibuster
By krempasky
Scrappleface has the goods. It's all about trimesters.
Posted in Fillibuster —
Posted at 10:35am on May 20, 2005 Filibuster Showdown: Day Three Open Thread
By krempasky
Majority Leader Frist is scheduled to introduce a petition to invoke cloture on the nomination of Priscilla Owen this morning, which by rules will have to "ripen" for two days (consider the final vote Monday or Tuesday). Catch the action on C-Span and consider this an open thread.
Posted in Fillibuster —
Posted at 10:00am on May 20, 2005 Behind the scenes
By krempasky
The NY Times runs a profile this morning about some of the less-visible players in the filibuster fight. For me, I think I'd prefer an expose on the tens of millions of dollars funding far-left interest groups working to legislate through the courts with Democratic Senators in their pockets.
Posted in Fillibuster —
Posted at 2:38am on May 20, 2005 Looks like Tuesday's the day
By krempasky
And McCain's causing trouble, according to the Houston Chronicle.
Posted in Fillibuster —
Posted at 2:24am on May 20, 2005 Brown Profile
By DanCT
David Kravets has a nice AP piece on Janice Rogers Brown. It puts some of her quotable quotes in context, and paints a warm picture of a remarkable woman. For example:
Brown, 56, caught the attention of the Bush administration with her majority opinion in 2000 striking down a San Jose city ordinance requiring government contractors to solicit bids from companies owned by women and minorities. Her opinion traced the legal history of race in America, portraying it as ebbing and flowing on whether government should treat all races equally.
Her 40-page conclusion boiled down to this: People should be treated equally, regardless of race. Even if an ordinance assists minorities, Brown wrote, "benign motivation cannot sanction a requirement that conflicts with the proscription against discrimination and preferential treatment on the basis of race and sex."
California's chief justice concurred with her opinion "but attacked her portrayal of affirmative action as 'entitlement based on group representation,' calling it a 'serious distortion of history.'" A question for you: How is that portrayal a "serious distortion of history"?
Posted in Circuit Courts —
Posted at 2:11am on May 20, 2005 Dana Milbank's Blinkers
By DanCT
I enjoyed Dana Milbank's comic article, but one thing raised my eyebrows a little:
The debate itself may lack suspense, but the looming showdown is the only game in town on Capitol Hill this week. It has shut down Senate committees, ended any voting on the Senate floor and turned the House of Representatives into an asterisk.
"It?!" The "debate" didn't shut the committees down, Democrats shut the committees down, as part of their grand plan of retaliation to prevent the Senate from doing "the people's business."
Posted in Senate Rules —
Posted at 1:56am on May 20, 2005 Milbank is Funny and Hagel is Right
By AndrewHyman
The Washington Post's Dana Milbank evidently thinks that the whole fuss about filibusters is a tad humorous. And he would be right.
But it's not all fun and games. Senator Hagel took a principled stand yesterday, officially rejecting the compromise that is still being discussed by "The Gang of Twelve" centrist Senators:
I believe that all of the president's nominees deserve an up or down vote. . . . The agreement that has been proposed calls for three of the president's nominees not to get a vote. I could not agree to that. That is unfair and it's not right.
Bravo. The Senate's refusal to have up-or-down votes on majority-supported nominations is about as principled as would be the House's refusal to pay utility bills for the Ninth Circuit. Ever since the Estrada filibuster in 2003, the Senate has been acting like the second-greatest deliberative body on Capitol Hill.
Posted in News —
Posted at 1:50am on May 20, 2005 Hutchison on Owen on the Floor
By DanCT
Senator Hutchison (R-TX) spoke eloquently on the Senate floor yesterday about Priscilla Owen's conservative (as opposed to 'activist') and mainstream jurisprudence in 13 Texas parental notification cases and her broad-based bi-partisan support in Texas. She also provided a refreshing personal note on the legislature's intent with the parental notification law. The courts were interpreting the law so liberally that the legislature has now passed a follow-up law designed to scream to a tone-deaf court: "THIS IS A PARENTAL NOTIFICATION LAW. THAT MEANS PARENTS NEED TO BE NOTIFIED BEFORE A GIRL HAS AN ABORTION. THIS TIME DO NOT GUT THE LAW BY RUBBER STAMPING BYPASSES." In her words:
I want to look at the 13 cases from a statistical standpoint. Justice Owen is solidly in the mainstream of her court. In these 13 rulings, Justice Owen was in the majority ten times and found herself in dissent only on three occasions. She disagreed with the majority decision three times. In those 13 cases, the Texas Supreme Court required notification six times and facilitated a judicial bypass seven times. So Justice Owen voted to require parental notification in nine cases and to facilitate the judicial bypass in four. Remember no case on judicial bypass reached the Texas Supreme Court at all unless it had first been denied by two courts and by up to four judges. This is important because under our system, the trial court is charged with ascertaining the facts in a case. In other words, justice Owen is being faulted for being more willing to defer to trial court findings of fact because she knows that trial judges have the unique ability to assess a witnessââ‚â„¢ demeanor and credibility. Now, was Justice Owenââ‚â„¢s approach in the mainstream?
Citing statistics to "prove" things about a judge's inclinations should always raise your suspicions because it is so frequently done to make a political point about the judge, e.g.: "She is on the wrong team because she often sides with corporations over consumers." However, Senator Hutchison only cites the statistics to indicate that Owen is not "out of the mainstream", and that she has shown definitively. This won't be convincing to some Democrats, though, because they think that the President's beliefs are radical and out of the mainstream, as are the beliefs of the majority of Senators and Representatives. How is it that out-of-the-mainstream people are getting elected more often than such mainstream candidates as Howard Dean and Tom Daschle? "The voters are being duped by the staunchly conservative MSM, you silly!"
Hutchison certainly explains better than I do:
I am saddened to see that partisan opponents of justice Owenââ‚â„¢s nomination have attempted to portray her as an activist judge, as nothing could be further from the truth. Her opinions interpreting the Texas parental notification act serve as prime examples of her judicial restraint. I appreciated that justice Owenââ‚â„¢s opinions throughout the series of cases looked carefully at the new statute and at the governing U.S. Supreme Court precedent upon which language of the statute was based to determine what the legislature intended the act to do.
I, along with many of my colleagues, Democrats and Republicans alike, filed a bipartisan amicus curiae brief with the Supreme Court explaining that the language of the act was crafted in order to promote, except in very limited circumstances, parental involvement. Prior to the passage of the act a child could go to the doctor and have an extremely invasive procedure without even notifying one of her parents. At the same time school nurses were not even permitted to give aspirin to a child without parental consent.
Like legislators in dozens of states across America, we realized that something needed to be done to respect the role of parents that at least one parent should be involved in a major medical decision impacting their minor daughter. Because this was not an abortion bill but a parental involvement bill supported by lawmakers on both sides of the abortion debate, we were able to pass a bipartisan bill that promotes the relationship between parents and their minor daughters, and it is exceedingly popular with the people of Texas.
If Democrats can find no better example of Owen's "judicial activism" than her thoughtful deference to trial courts and the legislature in the parental notification cases, they don't have a leg to stand on. There must be five Democrats who are willing to vote for cloture on her nomination. If not, Bush's nominees will be able to pass even with 10 GOP defections after the filibuster is nuked and Democrats are crushed in '06.
Posted in Circuit Courts —
Posted at 1:01am on May 20, 2005 Distinction between Law and Politics
By DanCT
Senator Hatch (R-UT) made some excellent points Wednesday on the Senate floor about the distinction between law and politics. In the process he disrobed much of the Democrats' attack:
Politics is often about results, about winners and losers, and involves politicians asserting their will. Law is about the process of reaching results, about what the law requires, and involves judges using judgment. Politics and law are two very different things, and our liberty depends on preserving that difference. So if you hear critics of judicial nominees talking only in the language of politics, you know something is wrong.
In the last day or two, for example, critics of the nominees before us have reduced them to soundbites, checklists, and litmus tests. Senators begin sentences with phrases such as she ruled thatâ₦â₦ or she ruled forâ₦â₦. Mentioning only those results, without exploring how a judge reached those results, amounts to applying political criteria to a judicial nominee, and that is fundamentally wrong. Sometimes the law requires results we may not like, results that may even sound dramatic. Mentioning the political results without the judicial process leading to those results misleads people about what judges do and how to choose the rights ones. Or the critics will characterize what a judge said rather than tell us what she actually said. ... Or the critics will quote other critics. Imagine if the only thing someone knew about you came from what your critics or enemies said about you. That picture would be distorted, incomplete, and just plain false.... I hope our fellow citizens will be very skeptical of critics who make a political case against a judicial nominee, skeptical if the case against a nominee is limited to soundbites about results or characterizations by third parties.
Very well put, Senator.
Posted in Circuit Courts —
Posted at 12:41am on May 20, 2005 Senator Hatch's Common Sense
By DanCT
On the floor Wednesday, Senator Hatch (R-UT) made some comments that were calm and reflective, yet pointed:
Mr. President, many of our fellow citizens might be surprised to learn that the Senators they elect and send to Washington are refusing to vote on judicial nominations. They might share the sentiment of former Democratic Leader Senator Tom Daschle, when he said in 1999: ââ‚Å“I find it simply baffling that a Senator would vote against even voting on a judicial nomination.ââ‚?
A short time later, Daschle orchestrated a series of unprecedented "votes against voting". When the clamor over Daschle's innovation grew loud enough to be heard by his constituents back home, they said: "It is simply baffling that he thought we would re-elect a Senator who would vote against even voting on a judicial nomination."
Hatch continued:
Some are so desperate to claim even one, single, solitary precedent for what they are doing that they stretch, twist, and morph the word filibuster beyond all recognition. They want the word filibuster to mean so many things, that it ultimately means virtually nothing at all. ...Judicial filibuster defenders have claimed that when the Senate voted to end debate on past judicial nominations, we were actually filibustering those nominations. They want Americans to believe that ending debate then justifies refusing to end debate now. Or they claimed that when the Senate voted to confirm judicial nominations in the past, we were actually filibustering those nominations. They want Americans to believe that confirming nominations then justifies refusing to confirm them now.
Those bizarre claims focus on what happens here on the Senate floor, at the end of the judicial confirmation process. Sometimes, judicial filibuster defenders have focused instead on what happens in the Judiciary Committee, an earlier phase in the process. Some appear willing to try anything to create a precedent for their filibusters. Some even claim that any nomination which is not ultimately confirmed, no matter what the reason, no matter what the step in the process, has been filibustered.
Giving a word any meaning you want may help make any argument you want to make, but it does not make that argument legitimate. This gimmick may have some public relations punch....
Unfortunately, the raping of language for short term political gain does indeed have public relations punch. As he duly noted, the filibustering issue is completely off the radar screen for most Americans. For example, think about Bob Shmob, who just doesn't care for following politics and knows absolutely nothing about the drama unfolding in the Senate. Waiting for his plane to board, he overhears Senator Shlabotnik (D-BA) on CNN: "These arrogant Republicans are engaged in an unprecedented abuse of power. They think that just because they have a majority in the Senate, they are entitled to speak for the Senate. But the revered and 200+ year old constitutional system of checks and balances demands minority rule in the Senate when it comes to confirming judges. The traditional mechanism for those minority rights has been the filibuster. The founders gave the power to appoint judges to the Senate instead of the House because they the filibuster makes the Senate a cooling saucer, a place for intelligent debate. There is no debating in the House. Whatever the speaker says, goes. That's what the GOP wants to do now in the Senate. Look, the way the Senate is set up, the minority party actually represents MORE people than the majority party. That's why it is so important for the minority party to have the final say in appointing judges. When the Democratic party is in the minority in the Senate, blocking nominations is called the 'filibuster.' When you hear Republicans fire off all these lies about how they never filibustered circuit court nominations, it's just a bunch of poppycock. They repeatedly blocked Clinton's nominees when we were in the minority; that's why the confirmation rate for Clinton's circuit court nominees was only 86%, while the rate for Bush's judges is 95%. Yeah, some Republicans point out the irrelevant fact that only 53% of Bush's CIRCUIT court nominees have been confirmed, but judges are judges, and they should stop whining." Bob thinks, "Ya' know, this guy is full of it. Yeah, yeah, I know these arrogant Republicans are engaged in an unprecedented power grab by trying to change the 200 year tradition of minority rule in the Senate, but Democrats do the same thing. Politicians are all full of hot air. I wish those Republicans would quit whining."
Posted in Senate Rules —
Posted at 10:58pm on May 19, 2005 Senator Stevens on Byrd Option in '70s
By DanCT
On the Senate floor today, Senator Stevens, who was the minority whip in the Senate when Robert Byrd forced rules changes by threatening the "nuclear option," contrasted the restrained GOP reaction then with the hysterics of today's Democrats:
The senate has the unquestioned power to define its procedures (through rules, precedents, etc.) By majority vote. The power comes straight from the constitution. I know because Iââ‚â„¢ve seen it done. More importantly, Iââ‚â„¢ve seen the Senate repeatedly accept the legitimacy of changing the rules by majority vote.
In 1979, I was the minority whip of the senate. Seeking post-cloture and other rules changes, Senator Byrd threatened to exercise the constitutional option. He introduced s. Res. 9 on the opening day of the 96th congress, January 15, 1979, and used the constitutional option threat to leverage a time agreement, which he got on February 7, 1979. Senator Byrd expressly threatened to use the constitutional option and actually offered a motion to that effect. He stated, ââ‚Å“So, I say to senators again that the time has come to change the rules. I want to change them in an orderly fashion. I want a time agreement. But, barring that, if I have to be forced into a corner to try for a majority vote I will do it because I am going to do my duty as I see my dutyâ₦ââ‚?
Having threatened use of the constitutional option to secure a time agreement, Senator Byrd offered a motion to execute the option: he stated, ââ‚Å“I send to the desk a privileged resolution to amend the standing rules of the senate, and I move pursuant to article I, section 5 of the constitution, the senate proceed to its immediate consideration without debate of the motion.ââ‚?
Senator Baker appointed me to lead a task force to craft a republican response. Senators Hatfield, Javits, McClure and Helms were also part of the task force. The agreement provided that the post-cloture rules change provisions of s. Res. 9 would be split out for separate treatment, but if they were not agreed to by 6 pm on February 22, 1979, then the senate would proceed to consider s. Res. 9 as a whole.
Each day of session from January 15 to February 22, Senator Byrd recessed the Senate, in order to continue legislative day January 15. This kept the constitutional option looming over the senate, because Senator Byrd could say that he was making a rules change at the beginning of congress (first legislative day). The post-cloture provisions were broken out as S. Res. 61. They were considered for debate and amendment over four days. The resolution was agreed to on February 22, and per an understanding with senator baker, Senator Byrd put s. Res. 9 on the calendar and adjourned the senate, ending the threat of the constitutional option.
As a member of the minority at the time, and as one of the chief negotiators in this issue, I knew very clearly that if we did not compromise with Senator Byrd and the majority, he would institute the constitutional option. At no time did republicans threaten to shut down the senate or engage in dilatory tactics. We never challenged the legitimacy of the constitutional option or accused Senator Byrd of "destroying" the Senate. We worked it out. But in the end, Senator Byrd got his way. The rules were changed because of Senator Byrdââ‚â„¢s threat ââ‚“ this was a change of our rules.
Today's Democrats may not have an elephant's memory, but they sure know how to bray.
How could the Democrats get away with it so easily 25 or 30 years ago but Republicans are having such a hard time of it now? It's easy to carp about the GOP having no spine. Perhaps, but what the Democrats had then and still have today is the full power of the MSM on their side. E.g., imagine if Tom Delay's team had the same kind of real, honest-to-goodness ethical problems that Hilary's team is currently enmeshed in. He'd be hounded out of office in a heartbeat, but we hear barely a whisper about Hilary. The breakout of the blog, talk radio, and other alternative media is a beautiful thing, but their combined power still doesn't hold a candle to the power of the MSM.
Posted in Senate Rules —
Posted at 10:55pm on May 19, 2005 Cloture Motion to be Filed Friday
By AndrewHyman
GOP Senators have announced that they will be filing a cloture petition tomorrow (Friday) on the Owen nomination. That means the cloture vote would occur on Tuesday, as Fox News explains.
Posted in News —
Posted at 10:04pm on May 19, 2005 Justice Department Wrote to Reid and Frist Today
By AndrewHyman
Today, the Justice Department wrote a letter to Senators Reid and Frist, protesting recent mischaracterizations by various Senators of what Attorney General Gonzales once said about "judicial activism" in a case five years ago, when Gonzales served on the Texas Supreme Court with Justice Owen.
In the letter today, the Justice Department reiterated Gonzales's previous statements, such as these:
My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht. It was actually focused at me.
and
[T]his statement was not a rebuke of the dissenting justices, such as Justice Owen.
U.S. Senators are not the only ones who have been misstating the facts about this incident. Michael Graczyk of Associated Press did likewise in an article this week:
Attorney General Alberto Gonzales, who also was on the Texas court then, criticized the dissenters for trying to insert personal ideologies and take the law beyond what was written by the state legislature.
"To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism,'' Gonzales wrote in the 2000 opinion.
Gonzales has said since that he wasn't criticizing Owen, but Democrats continue to cite what he wrote five years ago in arguing their case against her.
Graczyk is incorrect to assert that Gonzales accused the dissenters of trying to insert personal ideologies, and this is clear for at least three separate reasons. First, Gonzales wrote (in the very same case) that each of the dissenters ââ‚Å“agrees that the duty of a judge is to follow the law as written by the legislature. Second, the sentence about judicial activism says that, "To construe the ... Act ... narrowly ... would be ... unconscionable," and so this sentence was not directed against the dissenters, and was not an accusation that anyone had misconstrued the Act. And third, of course, Gonzales has repeatedly explained all of this.
Associated Press really has no excuse for this error. Neither do Senators.
UPDATE: Howard Bashman says this:
If an appellate judge writes in an opinion that it would be an act of judicial activism to hold X, is not the appellate judge accusing dissenters who would have held X of seeking to engage in judicial activism? Or is the appellate judge merely saying that for him to have held X would have been judicial activism, but for his colleagues in dissent to have held X was perfectly reasonable and not an act of judicial activism? It seems that to ask these questions is to answer them.
However, Gonzales did not accuse any dissenters of attempting to hold that bypasses are eliminated. Likewise, Gonzales did not accuse any dissenters of attempting to hold that hurdles exist that are not to be found in the words of the statute.
Posted in News —
Posted at 5:36pm on May 19, 2005 Check Out the <em>Boston Herald</em> and <em>LA Times</em> Today
By AndrewHyman
The Boston Herald has an editorial titled ââ‚Å“Dems risk it all in wrong battle." Here's a bit of it:
Democrats would be beyond stupid to use the filibuster to block Owen's nomination --- and further to risk its demise for all future nominations --- the GOP's threatened "nuclear option.'"
And, the LA Times has an article by reporter David G. Savage about Justice Owen, titled "Judge Seen as Conservative, Fair."
UPDATE: Patterico comments on the LA Times article here.
Posted in News —
Posted at 3:54pm on May 19, 2005 "Why the Battle Over Filibusters?"
By AndrewHyman
Tom Curry of MSNBC has written a very informative article on the whole filibuster situation. In general, it seems like a detailed and accurate report. Here's a snippet:
There is precedent for such a rule change: on Feb. 20, 1975, by a vote of 51 to 42, the Senate lowered the threshold for ending a filibuster from two-thirds of those senators present (67 if all 100 were in the chamber) to 60 senators.
So, the Senate GOP is not plotting something as radical and diabolical as Harry Reid might want you to believe.
Posted in News —
Posted at 12:53pm on May 19, 2005 Filibuster Debate: Day Two Open Thread
By krempasky
Have at it. Trent Lott on the floor now. Don't forget to tune into C-Span.
Posted in Fillibuster —
Posted at 12:31pm on May 19, 2005 Interesting Perspective from Cato Institute
By DanCT
Roger Pilon, director of Cato's Center for Constitutional Studies, thinks that the Democrats will lose this battle over whether the courts should make public policy pronouncements, as opposed to being more restrained. Then the battlefield will shift "to the question whether the courts will give us the democratic constitution the New Deal Court invented, or the constitution of liberty the Founders set in motion. That will be one to watch." He claims that in the fight between conservative and liberal, conservative will win; and then there'll be a fight between conservative and libertarian (e.g., Priscilla Owen vs. Janice Rogers Brown).
Posted in Analysis and Predictions —
Posted at 12:22pm on May 19, 2005 Charles Fried on the constitutional issues
By Zummo
Via Real Clear Politics I caught this Charles Fried column in the Boston Gobe. To be honest, I must confess to some confusion over the conclusion Fried is trying to draw with the article. He seems to essentially support the Republican position, but he also attempts to hug the middle.Fried's thesis comes in the opening paragraph.
This is really a political, not a constitutional fight, and in figuring which side to support, the public should at least not be confused by bogus claims of constitutional principle.
Well that depends who you are talking to. I can't claim to speak on behalf everyone on this site or for the majority of conservatives for that matter, but I believe that dogfight is ultimately both political and constitutional. First of all, I hold a semi-Aristotilian view that everything is, ultimately, political. We're all political animals, and as such everything we do holds some sort of "political" meaning. But let's aside the theoretical issues here. My concern - and here I think I can speak for most conservatives - is that the current judiciary holds no deep respect for our Constitution. They have subverted the plain meaning of the Constitution through activist interpretations designed to achieve a preferred policy aim. As Andrew has stated, we disdain all acts of judicial activism that seek a policy rather than constitutional end - be it a conservative or left-wing decision. Our goal is to confirm judges who will in fact interpret the Constitution according to its framers' original meaning, and who will not invent non-sensical theories such as substantive due process, and who do not find invisible "penumbras" that they concoct in order to justify their activist decisions. We believe we need judges like this because a constitutional republic cannot long stand if its central legal document can so flippantly be altered by unaccountable justices. Once the Constitution becomes a dead letter, then we lose our basic security against government intrusion. Thus, for most of us, this is very much a constitutional as well as political fight.
Yes, this fight has been politicized by special interest groups, but those very same groups that we decry are a natural outflow of the Constitution we're fighting to protect. What must be understood is that the constitution is itself a political document. It does not necessarily assume specific policy ends, but it establishes the basic ground rules in which politics flourish. And let's not forget the very political compromises that were forged at the time of its framing. The 3/5 rule, the electoral college, a bicameral legislature with only one House based on proportional representation: these are all the result of compromises worked out because certain groups most definitely had political ends. Small states did not want the larger ones to dominate them, so they insisted on a branch of Congress wherein each state would be represented equally. I think Charles Beard's thesis in An Economoic Interpretation of the Constitution of the United States is overblown, but few would deny at least a certain inclination on the part of the Framers to protect property rights.
Perhaps I am going too far afield of Fries' basic argument. But even here he seems inconsistent. Consider this paragraph:
The Constitution does not say one word about filibusters, but it does state that ''each house may determine the rules of its proceedings." Does it speak by implication? In the case of impeachments ''no person shall be convicted without the concurrence of two-thirds of the members" of the Senate. Either house may expel a member for disorderly behavior but only with the concurrence of two-thirds of the members of that house. Treaties must be ratified by two-thirds of the senators present. The president's veto may be overridden by two-thirds of each house. And to propose amendments to the Constitution, two thirds of both houses are necessary. It is therefore a fair inference that, unless another voting rule is prescribed, in all other cases only a simple majority is required. And no other rule is prescribed for the voting on each house's rules. To say that in a democracy majority rule is at least the default rule is hardly wild speculation.
[Emphasis mine]. Thus Fried acknowledges the inference that while the judicial filibuster is not strictly violative of the strict meaning of the Constitution, it certainly runs afoul of its spirit. So doesn't this make the issue at least partly a constitutional one?
But in the end, Fried won't let go of his central thesis.
So in the end it comes down to politics. Absent some specific prohibition, majorities have the power to vote legislation and change rules - that's called democracy. But in a democracy, power cannot be, or cannot long be, exercised without public support. And in choosing which side to support, the public should know what is really at issue - a question of politics.
This is very odd. He offers up a theoretical argument - that in a democracy majortities have the power to vote legislation and change rules - but then claims that this is a political issue. Well, I suppose everything is a political issue when we're talking about political theory. But it is also a constitutional issue. Can a determined minority of the Senate, based on the language of the Constitutional, prevent a determined majority form conferring its consent upon a President's judicial nominee. We may not all come up with the same answer, but that makes it no less of a constitutional issue.
Perhaps we should take small comfort in the fact that Fried basically supports the Republican position, even if he seems strained in doing so.
Posted in Fillibuster —
Posted at 12:15pm on May 19, 2005 Preview of SCOTUS Confirmation Fight Nastiness
By DanCT
Jeffrey Lord has a book entitled Borking Rebellion coming out in July; and he has an article in today's NRO that is a must read. Be prepared for much worse than the Bork or Thomas hearings.
Posted in SCOTUS —
Posted at 11:47am on May 19, 2005 Deal, just for argument's sake
By Quin
This is cross-posted at C-Log, the Heritage/Townhall site:
Before I begin, please note that I write this from the standpoint solely of political analysis. On principle, the constitutional option should be invoked, and all PERMANENT filibusters against judicial nominations outlawed. The reasoning should be familiar to most readers, so I won't belabor it here. For that matter, I'm anti-filibuster in general, even on legislation. I support the Lieberman 1995 proposal for a step-ladder cloture rule, starting with 60, then 57, then 54, then 51 (NOT including the V-P). ALL THAT SAID, HOWEVER, I think from a political standpoint the Dems are getting close to offering a deal that the GOP would be politically advised to accept. IF the Dems COMBINE the Salazar proposal with the Nelson proposal, as described below, the GOP will have enough of a deal to declare victory. The Salazar proposal guarantees up or down votes (no filibusters) on all judges pending before the full Senate. What I'm calling the "Nelson" proposal says votes on all but two judges, except in "extraordinary" circumstances. As Byron York at NRO explains, "extraordinary" circumstances is indeed a significant step up from merely what the Dems call "extreme" nominees. Okay, here's how to merge the two: Take the Salazar (nofilibusters on eight pending nominees); add Boyle and Kavanaugh to the no filibuster rule (since they are ready for final committee approval); then, for all future judicial nominations during this Congress, accept the Dems promise not to filibuster except in "extraordinary" circumstances. Why? Because if the GOP accepts a deal, it looks good to the American people; it belies its reputation for not being willing to compromise. And this deal guarantees fair votes for all pending nominees. It also puts real pressure on the moderate Dems not to filibuster in the future: WHICHEVER side reopens this can of worms -- ESPECIALLY on a Supreme Court nomination -- will get obliterated in public opinion. Besides, for the high court, our bench is very, very deep. Here's how I see it playing out: All pending nominees, including Pryor and Owen, get confirmed -- although Brown, Boyle, and especially Saad might be real close votes. (Pryor, freed from the filibuster fight, might actually get 60 votes for confirmation.) In July, Rehnquist and O'Connor retire. Bush nomination Judges Garza and Alito (Garza for CJ). Let the Dems even THINK about filibustering those two! No way they filibuster. In 2006, Scalia retires because he's miffed he didn't get promoted to Chief. Bush nominates Edith Jones.Dems sputter an awful lot, but how can they really complain about replacing a pro-life man with an apparently pro-life woman? It doesn't upset the balance of the court. Anyway, after that, GOP picks up a net of one Senate seat in the 2006 elections. In 2007, wanting to head off another nuclear option fight, both sides agree to something close to the Lieberman step-ladder rule FOR JUDGES ONLY. Later that year, either Stevens or Ginsburg retires. Bush nominates Edith Rutledge Clement of New Orleans. She's a good nuts-and-bolts judge, very careful. Conservative, but non-threatening (not prone to controversial statements). She gets confirmed. THe court line-up by 2008 thus becomes Kennedy, SOuter, Thomas, Breyer, Ginsburg (or Stevens), Garza, Alito, Jones and Clement. Not bad at all. -- Quin Hillyer
Posted in Fillibuster —
Posted at 11:36am on May 19, 2005 Specter Compromise?
By DanCT
In some selected comments from Senator Specter, CNN finds evidence that majority-supported nominees might be dumped without an up-or-down vote, just so Senators can save face:
"What this is really all about is saving face," the Pennsylvania Republican told CNN. "The institution of the Senate and the protection of minority rights is more important than the entire group [of nominees]."
This sounds like a remarkable break from his previous comments that what the Democrats are doing is a "constitutional revolution." Although he made this previous comment a couple years ago, I still can't imagine that he'd join the revolution, sacrifice nominees, and preserve the filibuster for judicial nominees, merely in order to give the Democrats a way to save face.
Posted in Senate Rules —
Posted at 2:46am on May 19, 2005 GOP on the Senate Floor
By DanCT
GOP Senators made some great comments in the floor debate Wednesday, but you will find very little evidence of it in the MSM (e.g., headline at foxnews.com Wednesday evening: "Dems: 'Nuclear Option' An Abuse of Power"). A few highlights are discussed below.
Frist:
I have to believe the Senate will make the right choice. We will choose the Constitution over obstruction. We will choose principle over politics. We will choose votes over vacillation. And when we do, the Senate will be the better for it.
The Senate will be, as Daniel Webster once described it: ââ‚Å“a body to which the country looks, with confidence, for wise, moderate, patriotic, and healing counsels.ââ‚? To realize this vision, we donââ‚â„¢t need to look as far back as the Age of Webster, Clay and Calhoun. All we must do is look at the recent past and take inspiration from the Era of Baker, Byrd and Dole. For 70 percent of the 20th century, the same party controlled the White House and the Senate. Yet no minority denied a judicial nominee with majority support an up-or-down vote on this floor.
Howard Bakerââ‚â„¢s Republican minority didnââ‚â„¢t deny Democrat Jimmy Carterââ‚â„¢s nominees.
Robert Byrdââ‚â„¢s Democratic minority didnââ‚â„¢t deny Republican Ronald Reaganââ‚â„¢s nominees.
Bob Doleââ‚â„¢s Republican minority didnââ‚â„¢t deny Democrat Bill Clintonââ‚â„¢s nominees.
These minorities showed restraint. They respected the appointments process. They practiced the fine, but fragile art of political civility. Sure they disagreed with the majority at times. But they nonetheless allowed up-or-down votes to occur.
Cornyn:
Richard Paez, a nominee of President Clinton, has been held up as perhaps one of the examples of our side treating a Democratic President's nominee unfairly. As this chart aptly demonstrates, if we would agree to treat Priscilla Owen exactly the way that Paez was treated, then Priscilla Owen would be sitting on the Fifth Circuit today, just as Judge Paez is now serving on the circuit court in the Federal judiciary. ...
The senior Senator from Vermont (Leahy-D), in 1998, said: "I have stated over and over on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty." I could not agree more with those comments made in 1998 from the very same colleagues who today oppose the same principle they argued for a few short years ago....
[Justice Owen] was accused of ruling against injured workers, employment discrimination plaintiffs, and other sympathetic parties on a variety of occasions. Never mind the fact that good judges, such as Justice Owen, do their best to follow the law, regardless of which party will win and which party will lose. That is what good judges do....
Mr. President, the American people know judicial activism when they see it. They know a controversial ruling that is totally out of step with a judge's accepted role in our form of government when they see it, whether it be the redefinition of marriage, the expulsion of the Pledge of Allegiance from our classrooms and other expressions of faith from the public square, the elimination of the three-strikes-and-you're-out law, and other penalties for convicted criminals, or the forced removal of military recruiters from college campuses. Justice Owen's rulings come nowhere near those examples of judicial activism that we would all recognize clearly and plainly. There is a world of difference between struggling to interpret the ambiguous expressions of a statute and refusing to obey a legislature's directives altogether, or substituting one's personal views or agenda for the words of a statute.
Allen:
Justice Owen's record in these cases is far from that of an activist. In fact, it demonstrates her judicial restraint and her understanding of the proper role of an appellate judge.
THAT is the primary reason that Democrats oppose her. She's conservative, which, ironically, is what anyone in their right mind would want in a federal judge--someone who defers to the elected branches to make policy and defers to trial courts in their findings of fact. Even PFAW agrees: "Owen has an extremely disturbing record of judicial activism on the Texas Supreme Court." Never mind that by "judicial activism" they apparently mean "she is so judicious that she doesn't do anythng to promote our favorite liberal policies", they still feel a need to mouth the words.
Allen (again):
In fact, [Justice Owen] is arguably one of the best nominees President Bush has nominated to the appellate court.
She is Supreme Court material, which is one reason why the Democrats have reserved so much venom for her. They view the Circuit Courts as stepping stones to the Supreme Court. Best to keep highly qualified conservatives as far away from SCOTUS as possible. That may well be what happened to Miguel Estrada as well.
Hutchison:
[Justice Owen] has sat quietly by as people who do not have the faintest idea what she is really like have vilified her, and distorted her opinions, and questioned her motives. I notice that many of my colleagues on the other side have declined all opportunities to meet with Priscilla Owen. They have refused to sit down with her, ask her questions, and see if she is the person that is portrayed in the propaganda being spewed out by various interest groups.
I find these comments to be the most depressing. They won't even meet with her!
Posted in Senate Rules —
Posted at 2:46am on May 19, 2005 John Warner on Filibusters
By AndrewHyman
The Free Lance-Star in Fredericksburg, Virginia has an editorial today directed toward Senator Warner:
A rare swing vote in the looming filibuster fight over judges, Mr. Warner is sure to act as his conscience dictates. In this case, friends of democracy can only hope that the order he hears it give is to side with the GOP majority, clearing Democratsââ‚â„¢ impassable roadblock from the path long trod by judicial nominees seeking the full Senateââ‚â„¢s determination of their judgeworthiness.
Posted in News —
Posted at 1:00am on May 19, 2005 Bob Dole and the <em>Washington Times</em> on Filibusters
By AndrewHyman
Former Senate Majority Leader Bob Dole has a column today in the Washington Times. Here is his conclusion:
By creating a new 60-vote threshold for confirming judicial nominees, today's Senate Democrats have abandoned more than 200 years of Senate tradition. For the first time, judicial nominees with clear majority support are denied an up-or-down vote on the Senate floor through an unprecedented use of the filibuster. This is not a misrepresentation of history; it's a fact.
Senator Dole's column goes into some detail about the Fortas nomination, which we have discussed a bit here at confirmthem.
Also today in the Washington Times, there's an excellent editorial on the subject of compromises. And, the Washington Times also reports about Sen. Lindsey Graham:
Mr. Graham said that although he would consider a deal that doesn't guarantee votes for all the filibustered nominees, he would not oppose any of the nominees. "No," he said. "I'm not going to agree to vote 'no' on somebody just to get a deal."
SURPRISINGLY, SEN. GRAHAM SEEMS WILLING TO CONSIDER LETTING MAJORITY-SUPPORTED JUDICIAL NOMINEES NEVER GET UP-OR-DOWN VOTES.
Also, Former Solicitor General Charles Fried writes in the Boston Globe that, ââ‚Å“This is really a political, not a constitutional fight...." George Weeks has a column in the Detroit News titled "Saad personifies troubled confirmation process." And, the Baltimore Sun reports on the President's role with regard to the so-called "nuclear option."
Posted in News —
Posted at 10:55pm on May 18, 2005 A Capitol Hill Fly on the Wall<strong>....</strong>
By AndrewHyman
.... has flown to ABC News with this assertion:
Hagel tells GOPers he sides with the Union Leader over the Senate but he remains mum publicly.
The Union Leader, of course, supports Leader/Sen./Dr. Frist with regard to the nuclear/constitutional/Byrd option.
How Appealing has links to lots more of the latest news about this whole controversy.
Posted in News —
Posted at 10:00pm on May 18, 2005 More Base Words from Senate Democrats
By DanCT
SENATE MINORITY LEADER HARRY REID (D-NV)
Minority Leader Harry Reid Said Janice Rogers Brown ââ‚Å“Is A Woman Who Wants To Take Us Back To The Civil War Days.ââ‚? ââ‚Å“[Reid] described California Supreme Court Justice Janice Rogers Brown, one of the Bush nominees Republicans will probably float first for approval, as an African-American opposed by the Congressional Black Caucus. ââ‚ËœShe is a woman who wants to take us back to the Civil War days,ââ‚â„¢ Reid said.ââ‚? (Erin Neff, ââ‚ËœDel Sol High School Appearance: Reid Calls Bush ââ‚ËœA Loser,ââ‚™ââ‚? Las Vegas Review-Journal, 5/7/05)
Reid Said He Believes The Presidentââ‚â„¢s Judicial Nominees Are ââ‚Å“Bad People.ââ‚? ââ‚Å“Reid took students through a primer of the five most-disputed judicial nominees, arguing some were opposed to the 1973 Roe v. Wade case legalizing abortion. He charged others with trying to dismantle government programs like Social Security. ââ‚ËœI donââ‚â„¢t want them. I think theyââ‚â„¢re bad people,ââ‚â„¢ Reid said of the nominees.ââ‚? (Erin Neff, ââ‚ËœDel Sol High School Appearance: Reid Calls Bush ââ‚ËœA Loser,ââ‚™ââ‚? Las Vegas Review-Journal, 5/7/05)
Reid Threatened To Take The Debate ââ‚Å“Behind The Pool Hall And See Who Wins.ââ‚? ââ‚Å“Noting that the only complaint he has heard from fellow Democrats is that not enough of Bushââ‚â„¢s judicial nominees were blocked in the past four years, Reid said he is prepared ââ‚Ëœto go behind the pool hall and see who wins this one.ââ‚™ââ‚? (ââ‚Å“Washington In Brief,ââ‚? The Washington Post, 2/2/05)
Reid Accused President Bush Of Lying About The Role Of The Administration In The Constitutional Option Debate. ââ‚Å“Senate Minority Leader Harry Reid (D-Nev.) accused President Bush on Friday of lying to him about the role his administration would play in a possible Senate rules change â₆the latest sign the chamber is headed for an unprecedented showdown over judicial nominees.ââ‚? (Mark Preston, ââ‚Å“Reid: Bush Lied About White House Role In Nuclear Option,ââ‚? Roll Call, 4/22/05)
Reid Also Called President Bush ââ‚Å“A Loser.ââ‚? ââ‚Å“But in the course of a discussion on filibusters and Senate rules, Washingtonââ‚â„¢s top Democrat ended up giving the 60 juniors a good lesson in partisan politics, particularly about the commander in chief. ââ‚ËœThe manââ‚â„¢s father is a wonderful human being,ââ‚â„¢ Reid said in response to a question about President Bushââ‚â„¢s policies. ââ‚ËœI think this guy is a loser.ââ‚â„¢ ââ‚ËœI think President Bush is doing a bad job,ââ‚â„¢ he added to a handful of chuckles.ââ‚? (Erin Neff, ââ‚Å“Del Sol High School Appearance: Reid Calls Bush ââ‚ËœA Loser,ââ‚™ââ‚? Las Vegas Review-Journal, 5/7/05)
SENATOR EDWARD KENNEDY (D-MA)
Senator Edward Kennedy Called The Presidentââ‚â„¢s Judicial Nominees ââ‚Å“Neanderthals.ââ‚? KENNEDY: ââ‚Å“[W]hat has not ended is the resolution and the determination of the members of the United States Senate to continue to resist any Neanderthal that is nominated by this president of the United States for any court - federal court in the United States.ââ‚? (CNNââ‚â„¢s ââ‚Å“Inside Politics,ââ‚? 11/14/03)
Kennedy Claimed He Would Not Stay Silent ââ‚Å“While The Right Wing Hijacks The Federal Judiciary.ââ‚? ââ‚Å“Senator Edward M. Kennedy of Massachusetts â₦ saying, ââ‚ËœWe cannot stay silent while the right wing hijacks the federal judiciary.ââ‚â„¢ Mr. Bushââ‚â„¢s judicial nominees, Mr. Kennedy said, ââ‚Ëœare poised to use the courts to turn back the clock on civil rights.ââ‚™ââ‚? (Adam Clymer, ââ‚Å“At Rights Forum, The Target Is Bush,ââ‚? The New York Times, 1/18/03)
SENATOR ROBERT BYRD (D-WV)
Senator Robert Byrd Compared Republican Attempts To Stop The Filibuster Against Judicial Nominees To Tactics By Adolf Hitler In Nazi Germany. BYRD: ââ‚Å“We, unlike Nazi Germany or Mussoliniââ‚â„¢s Italy, have never stopped being a nation of laws, not of men. . . . Historian Alan Bullock writes that Hitlerââ‚â„¢s dictatorship rested on the constitutional foundation of a single law, the Enabling Law. Hitler needed a two-thirds vote to pass that law, and he cajoled his opposition in the Reichstag to support it. . . . Hitlerââ‚â„¢s originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the State: the correct order of events was first to secure access to that power and then begin his revolution. Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal. That is what the nuclear option seeks to do to rule XXII of the Standing Rules of the Senate.ââ‚? (Sen. Robert Byrd, Congressional Record, 3/1/05)
Byrd Even Likened Republican Attempts To Stop The Filibuster To The Crucifixion Of Christ, The Smearing Of Columbus And The Torture Of Christians. BYRD: ââ‚Å“The Senate today is one place where, no matter what else may exist, there is still a chance to be heard, an opportunity to speak, the duty to examine, and the obligation to protect. It is one of the few refuges of democracy. Minorities have an illustrious past, full of suffering, torture, smear, and even death. Jesus Christ was killed by a majority; Columbus was smeared; and Christians have been tortured.ââ‚? (Senator Robert Byrd, Congressional Record, 3/1/05)
Ø Senator Ted Kennedy Praised Byrd ââ‚Å“For His Excellent Comments.ââ‚? KENNEDY: ââ‚Å“Mr. President, I compliment my friend and colleague from West Virginia for his excellent comments about the responsibilities of the Senate under the Constitution and the implications of a parliamentary maneuver that would effectively undermine the constitutional rights of our Members to speak in accordance with the ways our Founding Fathers intended.ââ‚? (Senator Edward Kennedy, Congressional Record, 3/1/05)
Ø Kennedy Called Byrdââ‚â„¢s Arguments ââ‚Å“Well Thought Out, Reasoned, Compelling, Legitimate, And Persuasive.ââ‚? KENNEDY: ââ‚Å“Once again, the Senator from West Virginia has spoken eloquently and passionately about this institution and about this Constitution. . . . We, once again, thank him and urge our colleagues in the Senate to pay close attention to his well thought out, reasoned, compelling, legitimate, and persuasive arguments.ââ‚? (Senator Edward Kennedy, Congressional Record, 3/1/05)
SENATOR CHARLES SCHUMER (D-NY)
At A Rally Sponsored By Radical Liberal Group MoveOn.org, Senator Charles Schumer Declared Republicans Wanted To Turn The Senate Into A ââ‚Å“Dictatorship.ââ‚? SCHUMER: ââ‚Å“The ideologues in the Senate want to turn what the founding fathers called the cooling saucer of democracy into the rubberstamp of dictatorship.ââ‚? (MoveOn.org PAC Rally, Washington, DC, 3/16/05)
During The MoveOn Rally, Schumer Warned Of ââ‚Å“Doomsday For Democracy.ââ‚? SCHUMER: ââ‚Å“They want to make this country into a banana republic where if you donââ‚â„¢t get your way you change the rules. Are we going to let them? Itââ‚â„¢ll be a doomsday for democracy if we do.ââ‚? (MoveOn.org PAC Rally, Washington, DC, 3/16/05)
SENATOR BARBARA MIKULSKI (D-MD)
Senator Barbara Mikulski Likened Republicans To Klansmen For ââ‚Å“Hiding In Processesââ‚? To Bottle Up President Clintonââ‚â„¢s Judicial Nominations. ââ‚Å“U.S. Sen. Barbara Mikulski, a Maryland Democrat, compared Republicans in Congress holding up President Clintonââ‚â„¢s judicial and Cabinet appointments to Klansmenâ₦ Mikulski, the keynote speaker, accused Republicans of ââ‚Ëœhiding in committees and hiding in processesââ‚â„¢ to anonymously bottle up Clinton appointments, then criticized Klansmen for ââ‚Ëœhiding behind hoods and white sheets.ââ‚™ââ‚? (Tom Pelton, et. al., ââ‚Å“Image Is Everything,ââ‚? The Baltimore Sun, 1/25/98)
DEMOCRAT NATIONAL COMMITTEE CHAIRMAN HOWARD DEAN
The Democrat National Chairman Recently Has Called Republicans ââ‚Å“Evil,ââ‚? ââ‚Å“Corruptââ‚? And ââ‚Å“Brain-Dead.ââ‚? ââ‚Å“Since taking over as chairman of the Democratic National Committee earlier this year, the former presidential candidate has been quoted in newspapers making unusually caustic remarks about Republicans. Dean has suggested that they are ââ‚Ëœevil.ââ‚â„¢ That they are ââ‚Ëœcorrupt.ââ‚â„¢ He called them ââ‚Ëœbrain-deadââ‚â„¢ during a stop in Toronto â₦ââ‚? (Brian Faler, ââ‚Å“A Scathing Chairman Dean Finds Republicans ââ‚ËœEvil,ââ‚â„¢ ââ‚ËœCorruptââ‚â„¢ and ââ‚ËœBrain-Dead,ââ‚™ââ‚? The Washington Post, 4/25/05)
Ø A Footnote: Reid Insists The Chairman Is ââ‚Å“Not Some Wild-Eyed, Left-Wing Nut. ââ‚Å“In the state of Vermont, they know what kind of person [Howard Dean] is. He is not some wild-eyed, left-wing nut.ââ‚? (Sen. Harry Reid, as quoted by Scott Sonner, ââ‚Å“Reid: Democrats Failed To Take Message To Rural America, Nevada,ââ‚? The Associated Press, 2/23/05)
(Hat tip: Katie Harbath)
Posted in Senate Rules —
Posted at 8:43pm on May 18, 2005 Senator Salazar's Compromise Proposal
By AndrewHyman
See here, or just look below the fold.
UPDATE: The problem I see with this deal is this part of it: ââ‚Å“We commit to vote against the so-called ââ‚Ëœnuclearââ‚â„¢ or ââ‚Ëœconstitutionalââ‚â„¢ option if it is offered during the 109th Congress."
Thus, after there are up-or-down votes on the eight listed nominees, the Democrats could go ahead and filibuster every other pending or future judicial nominee thru 2007, while the Republicans would be handcuffed â₆forbidden to invoke the so-called nuclear or constitutional option.
This flaw in the agreement could be corrected â₆it seems to me â₆by limiting the commitment to vote against the so-called ââ‚Å“nuclear option," so that the commitment only lasts until all eight of these listed nominees have had up-or-down votes. At that point, the commitment would be removed, but also removed would be the reason for invoking the so-called ââ‚Å“nuclear option" in the first place.
"05/18/2005- In an attempt to break the Senate impasse over judicial nominations, United States Senator Ken Salazar today sent the following proposal to 14 Republican and Democratic colleagues. The text of Senator Salazarââ‚â„¢s letter and proposal are included below."
May 18, 2005
FROM: Senator Ken Salazar
RE: Judges
Attached is a modified simple approach for your consideration. The agreement would simply:
1) Give an up or down vote on ALL currently pending judges;
2) Keep Rule XXII intact and avoid the nuclear option.
I will sign it. I look forward to seeing you at 1:00 pm. Thank you for including me in this effort.
We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. They have stated their negotiations are suspended; therefore, this memorandum confirms an understanding, based upon mutual trust and confidence, related to judicial nominations in the 109th Congress. This memorandum confirms an agreement among the undersigned Senators relating to judicial nominations in the 109th Congress. We have made this agreement to break the current impasse on judicial nominations. We have agreed to the following:
1) Up-Down Votes: We will vote to invoke cloture on all the following judicial nominees: Janice Rogers Brown (D.C. Circuit), Priscilla Owen (5th Circuit), Richard Griffin (6th Circuit), David McKeague (6th Circuit), Susan Neilson (6th Circuit), William Myers (9th Circuit), William Pryor (11th Circuit), and Henry Saad (6th Circuit).
2) Nuclear or Constitutional Option: We commit to vote against the so-called ââ‚Å“nuclear" or ââ‚Å“constitutional" option if it is offered during the 109th Congress. We understand the ââ‚Å“nuclear option" or ââ‚Å“constitutional option" to be any amendment to or interpretation of the Rules of the Senate which would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII as currently interpreted.
The understanding we have reached will allow the Senate to confirm the vast majority of judicial nominations presented to the Senate, while maintaining the spirit of bipartisanship needed to address other issues of concern to the American people. We firmly believe this understanding is consistent with preserving the rules and traditions of the United States Senate that we, as Senators, seek to uphold. # # #
Posted in News —
Posted at 8:08pm on May 18, 2005 Sen. Smith and <em>National Review</em> on Filibusters
By AndrewHyman
Sen. Gordon Smith of Oregon has made it official; he'll support the Senate leadership's effort to restore up-or-down votes on majority-supported judicial nominations:
I think to do otherwise has a chilling effect not only on the meaning of elections, but as to the intellectual vigor of the judicial branch of the government.
Dan Dalthorp had an interesting essay about how filibusters affect the intellectual vigor of the judiciary, here at confirmthem.
In other developments, National Review had an editorial today titled "Voting for Democracy, following up on their editorial that we discussed a few days ago. Here's how today's NR editorial starts:
The Democratic position on the filibuster comes down to this: Senators should not be allowed to vote up or down on judges, because judges have to stay in the business of keeping voters from being able to decide policy issues. Anti-democratic ends justify anti-democratic means.
Very ironic.
Posted in News —
Posted at 7:03pm on May 18, 2005 Distortion on the Floor
By DanCT
One of the main themes of the Democrats' debating on the judicial nominations today has been that the filibustering tactic is old hat. But that's just not true for judicial nominations. In recent years there have been many nominees who won with less than 60 votes, and none has been blocked by filibuster. Here are some examples:
President Carter:
Abner Mikva D.C. Cir. 58-31 Sept. 25, 1979
L. T. Senter N.D. Miss. 43-25 Dec. 20, 1979
President Reagan:
J. Harvie Wilkinson III 4th Cir. 58-39 Aug. 9, 1984
Alex Kozinski 9th Cir. 54-43 Nov. 7, 1985
Sidney A. Fitzwater N.D. Tex. 52-42 Mar. 18, 1986
Daniel A. Manion 7th Cir. 48-46 June 26, 1986
President Bush:
Clarence Thomas S. Ct. 52-48 Oct. 15, 1991
President Clinton:
Susan O. Mollway D. Haw. 56-34 June 22, 1998
William A. Fletcher 9th Cir. 57-41 Oct. 8, 1998
Richard A. Paez 9th Cir. 59-39 Mar. 9, 2000
A 60 vote rule is historically and constitutionally indefensible. In fact, The U.S. Supreme Court has unanimously held that, unless the Constitution expressly provides for a supermajority vote, the constitutional rule is majority vote. See United States v. Ballin (1892).
Hat tip: Don Stewart, Communications Director for Senator Cornyn
Posted in Senate Rules —
Posted at 6:52pm on May 18, 2005 Democrats Take the High Road (Not)
By DanCT
Senator Cornyn has a great feature on his website called "Name that Speaker". This site is also linked over at the right side of the confirmthem page. Cornyn's office has compiled an assortment of gems, and these are just a few:
SEN. HARRY REID: ââ‚Å“I think that [Clarence Thomas] has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice.ââ‚? (NBC Meet the Press, December 5, 2004; also see here)
SEN. TED KENNEDY: ââ‚Å“But what has not ended is the resolution and the determination of the members of the United States Senate to continue to resist any Neanderthal that is nominated by this president of the United States for any court, federal court in the United States.ââ‚?
SEN. TED KENNEDY: During jubilant post-debate comments, Sen. Edward Kennedy (D-Mass.) told reporters that the debate had failed to dent the resolve of Democrats to resist any "right-wing turkey" or "Neanderthal that is nominated by the president for any federal court." (Atlanta Journal-Constitution, November 15, 2003)
SEN. TOM HARKIN: ââ‚Å“I don't know if he is or not, but I know the people who have associated with him have called him that. They think he is some kind of a rightwing kook. . . . Is he a rightwing kook? I don't know. Some people say he is. Some people say he is scary.ââ‚? (Sen. Tom Harkin, Debate on Miguel Estrada, Congressional Record, February 13, 2003)
Posted in News —
Posted at 6:04pm on May 18, 2005 News Flash from the Texas Legislature: Owen Not Guilty of Activism (but Gonzales May Be)
By DanCT
Remember then-Justice Alberto Gonzales's "unconscionable" comment about judicial activism in the Texas parental consent case? It looks like he and a majority of the Texas Supreme Court may have been the real judicial activists. After being accused of judicial activism, the majority issued a challenge to the legislature:
If the Legislature, as a body, agrees with amici that we misunderstood their intent, it is the Legislatureââ‚â„¢s prerogative to amend the statute to give us different guidance.
Well....The Texas legislature has now taken up the challenge. According to Texas Alliance for Life director Joe Pojman, the State House has passed a new bill "to help ensure parents have a greater role." He says the judicial bypass process has become a judicial rubberstamp for bypassing parental notification. That rubberstamping is precisely what the dissenters in the "unconscionable" decision were so upset about because, unlike Gonzales and the court's majority, they understood that the elected branches intended for their law to have a greater effect.
UPDATE: Power Line revisits the "unconscionable" issue here.
Posted in Fillibuster —
Posted at 4:11pm on May 18, 2005 No, Religion Has Nothing To Do With It (yeah, right)
By DanCT
Check out moveon.org's new picture. This picture was apparently removed today from MoveOn's web site, but ConfirmThem copied it before they deleted it.
Posted in Senate Rules —
Posted at 3:30pm on May 18, 2005 Democrats' Shutdown of Senate Begins
By DanCT
It appears that the Democrats' threat to shut down the Senate has begun, despite recent assurances that they would rise above such temper tantrums. The Dems have apparently refused to allow committee meetings to proceed. Read more here.
Posted in News —
Posted at 11:47am on May 18, 2005 Bench Memos
By AndrewHyman
Just a note to confirmthem fans that National Review's new blog Bench Memos has the full text of Senator Frist's opening statement today, and they also have some pretty decent commentary, too (although they use dated words like "poppycock," the likes of which you will never find here at confirmthem).
If this whole thing does "go nuclear," one major reason will be Sen. Reid's unwillingness to allow Democratic Senators to vote their consciences on cloture motions. Reid seems to still insist that cloture voting is a matter of party loyalty. Senator Specter made this point in his speech today.
UPDATE: Michelle Malkin summarizes the situation and the blog coverage.
Posted in News —
Posted at 10:37am on May 18, 2005 It's showtime
By krempasky
Right now on the Senate floor, debate has begun on ending the filibuster for judicial nominations. Tune into C-Span 2 and consider this an open thread.
Posted in Fillibuster —
Posted at 9:56am on May 18, 2005 The real record on judges
By Zummo
Janice Rogers Brown finds a defender in a somewhat unusual place: Nat Hentoff of the Village Voice. He writes a scathing critique of the New York Times' editorial on Brown, and condemns their lack of fact-checking. After running through those opinions which reveal Brown to be much less of an extremist than the Times potrays her, he writes
None of the above were mentioned at all in the April 28 New York Times editorial skewering Justice Brown. This disdain for basic research echoes a dispute I've had previously with Gail Collins, editor of the Times' editorial page.
In a number of Voice columns, I showed how Times editorials repeatedly more than implied that then Mississippi federal district judge Charles Pickering-nominated to the Fifth Circuit Court of Appeals-was racially biased when he got the Justice Department to allow him to impose a lesser sentence in a Mississippi cross burning outside the home of an interracial couple. (That defendant was not the ringleader and his accomplices had avoided jail time.)
The Times' own reporters, Neil Lewis and David Firestone, had gone to Mississippi to get the facts on Pickering's anti-racist record in that state, and the reason he had intervened in the cross-burning case. So had The Atlanta Journal-Constitution, which did the research the Times' editorial board ignored. (Many media outlets around the country, however, ignorantly circulated "the paper of record" 's damaging characterization of Pickering.
Finally, Mike Wallace, who had read my Voice columns, went to Mississippi, and on March 28, 2004, CBS's 60 Minutes got some of Pickering's reputation back. He noted, as had I-but not the Times' editorials-that in the 1970s Pickering sent his children to the by then largely black public schools in Mississippi and had, at his peril, testified against a dangerous Ku Klux Klan leader.
Several times, I left detailed messages for Gail Collins at the Times, giving her the true facts of Pickering's record-as Times reporters had found-but I never received an answer. Dan Okrent, the Times' ombudsman, told me he would write about this journalistic malfeasance, but he hasn't.
Will Dan Okrent's successor, Barney Calame, formerly of The Wall Street Journal, dare to call to account the writer of the April 28 editorial scandalizing Janice Rogers Brown-and will he ask Gail Collins if she deigns to have a fact checker looking at the editorials she sends out as the voice of the Times?
Meanwhile, Ed Whelan has a terrific piece in yesterday's Bench Memos which, as the title of the piece suggests, puts the record of judicial nominees in perspective. In particular, he examines the record of a Clinton-appointed judge whom the Democrats consider to be the type of "stellar" judge they have in mind. Read it, it's an amazing bit of analysis.
Posted in Uncategorized —
Posted at 7:46am on May 18, 2005 Don't Look For Balance On GMA
By Lorie Byrd
I didn't think I could be surprised by MSM bias on any issue, especially on judicial filibusters, but George Stephanopoulos' comments on Good Morning America a few minutes ago made my jaw drop.
I do not yet have a link to the transcript or video, but the appearance was a triumph of misinformation. He used the Democrats' favorite label of "controversial" to describe Priscilla Owen and Janice Rogers Brown, saying among other things, that Priscilla Owen had denied a young woman an abortion because she did not see her parents. He pulled out the quote from Brown about the New Deal being this country's socialist revolution.
To top off the segment (or should I say, the reading of the Democrat talking points) he declared that what the Republicans are trying to do is to change the way the Senate has operated during its history and to create a huge shift in power. Diane Sawyer repeated his final statement about the shift in power.
(This also posted at Polipundit.)
Posted in Fillibuster —
Posted at 2:25am on May 18, 2005 Save Senator Salazar!
By DanCT
After backing off from his campaign statement that he would not join Democrat filibusters against judges, Senator Salazar is on the team of moderate Democrats still seeking compromise:
Sen. Ken Salazar, D-Colorado, is working with a bipartisan group of senators trying to avert a showdown over filibuster rules and President Bush's judicial nominees this week. Salazar has joined Sen. Ben Nelson, D-Neb., on a proposed compromise that could clear the way for votes on five of the president's nominees while three others remain blocked.
If he is unsuccessful in his search for a compromise, then he needn't worry about going back on his word not to filibuster. The GOP will save him by mustering the guts and the votes to abolish filibustering against judicial nominations.
Posted in Senate Rules —
Posted at 2:07am on May 18, 2005 Sen. Nelson's Frustration
By DanCT
It looks like Senator McCain is not the only "moderate" who is frustrated:
Sen. Ben Nelson, D-Neb., described the process of putting together a deal as painfully difficult. "I don't know who ever coined the expression herding cats. They should try senators," Nelson said.
He also said that as long as judgeships are treated as political issues in presidential campaigns, the confirmation process would be extremely partisan. "Pox on both houses on that," Nelson said.
It seems that Mr. Nelson is also getting testy about not being able to convince six GOP Senators to surrender and allow the Democrats to usurp a good chunk of the President's power to nominate the best people to the bench. Sen. Nelson is right that as long as unelected judges continue to ride roughshod over policy decisions made via the elected branches and by referenda, the confirmation process is bound to be extremely partisan.
Posted in Senate Rules —
Posted at 1:47am on May 18, 2005 A Deal Near? Doesn't Look Like It
By DanCT
The New York Times reports that "frantic but seemingly fruitless" negotiations between the moderates of each party are continuing behind the scenes while the expected showdown on the Senate floor is scheduled to begin Wednesday and culminate with a vote on the "nuclear option" likely held early next week. Senators Lieberman (D-CT) and McCain (R-AZ) have made brief statements to the press about the state of negotiations:
"While there is a lot of mutual understanding, understanding of each side's position, there is not a meeting of the minds," said Senator Joseph I. Lieberman, the Connecticut Democrat who is co-chairman of the centrists.
Earlier, Senator John McCain, the Arizona Republican who is among those trying to reach a compromise, looked exasperated as he brushed off inquiries. "I don't know, I don't know, I don't know," the ordinarily talkative Mr. McCain said as he shooed reporters. "It's a sensitive time."
Senator McCain doesn't seem to be able to persuade enough of his GOP colleagues to jump ship and hand the Democrats a major victory. It must be frustrating for him, but I read his testiness as a positive sign that the GOP wobblers are not going to be so easily lured into a saccharine surrender.
The schedule looks something like this:
the Senate leaders set a schedule for the debate on Wednesday, with the parties alternating hour by hour...For now, it seems the floor debate and rank-and-file talks will move on parallel tracks. The negotiations are fluid, including a shifting cast of senators from both parties.
Senator Reid seems eager for the fight---even if he doesn't win.
Democratic and Republican aides ... said Dr. Frist refused to rule out changing the filibuster rules for judges unless Democrats promised not to use them against judicial nominees. Mr. Reid replied that would be unacceptable, an aide said, and told Dr. Frist that he was ready to put change to a vote, predicting that Republicans would suffer politically if they succeeded.
He has expressed eagerness for the vote on several occasions this past week. A sign of confidence? Possibly, but he might just be eager to see the fireworks, even though he knows he might get burned.
Posted in Senate Rules —
Posted at 10:46pm on May 17, 2005 "Looking for a Pryor commitment"
By feddie
The B'ham News lays the smackdown on the obstructionist dems re: Judge Bill Pryor's renomination to the Eleventh Circuit Court of Appeals in this excellent editorial, noting, inter alia, that:
All Feinstein and other Senate Democrats have to do is quit relying on the distorted information of the liberal special-interest groups fighting Pryor's judicial nomination and talk to some Alabama Democrats.
. . . .
The truth is, Pryor would make a fine judge, and has shown that in his time on the 11th U.S. Circuit Court of Appeals following a recess appointment by President Bush.
Last week, the Senate Judiciary Committee voted 10-8 to recommend Pryor for a lifetime seat on the appeals court, but Democrats again are promising to filibuster his appointment. Republicans have threatened to change the Senate rules to keep a minority party from being able to stall voting on a president's judicial nominees, although Sen. Jeff Sessions, R-Ala., said he didn't think Pryor's nomination will trigger the fight.
Regardless, there's no valid reason Pryor shouldn't be appointed to the post. The Senate, in its constitutional role of "advice and consent" to the president, should confirm him.
(cross-posted at Southern Appeal)
Posted in Circuit Courts —
Posted at 10:38pm on May 17, 2005 "Federal bench can use a judge like Bill Pryor"
By feddie
The Decatur Daily has this editorial out today endorsing Judge Bill Pryor's nomination to the federal bench:
Former state Attorney General Bill Pryor displayed common sense and moderation in his first 15 months as a judge on the 11th U.S. Circuit Court of Appeals.
That may shock liberal critics who believe Mr. Pryor is biding his time as a temporary appointment, waiting until after his confirmation to a lifetime judgeship to show his true, ultra-conservative colors.
But those who have closely followed the young former prosecutor's political career know that, above all, Mr. Pryor is his own man. He has strong personal convictions and leans to the right on issues like abortion and gay rights, but, above all, Mr. Pryor believes in the rule of law.
Liberals who fear that Judge Pryor would blur the line separating church and state conveniently forget that it was Mr. Pryor, as attorney general, who prosecuted Roy Moore before the Court of the Judiciary for the chief justice's defiance of a court order to remove his Ten Commandments display from the state judicial building.
Mr. Pryor's prosecution of Justice Moore showed that he is able to set aside his personal beliefs when it comes to his responsibility to uphold the Constitution and the rule of law.
The Senate Judiciary Committee voted along party lines last week to recommend Mr. Pryor for a lifetime appointment. A partisan battle looms on the Senate floor. Democrats are threatening a filibuster to block Mr. Pryor's confirmation. Republicans have countered with a threat of the "nuclear option," a change in long-standing Senate rules that would prohibit filibusters on judicial nominees.
Both of those tactics seem too extreme in this case.
The federal courts could do a lot worse than have a man like Mr. Pryor on the bench.
(cross-posted at Southern Appeal)
Posted in Circuit Courts —
Posted at 9:27pm on May 17, 2005 Justice Owen to be Center Stage
By AndrewHyman
David Espo of Associated Press reports that Texas Supreme Court Justice Priscilla Owen will be at the center of efforts to overcome the filibusters, and California Supreme Court Justice Janice Rogers Brown would be considered next:
Republicans announced that Owen's nomination for an appeals court seat will be the vehicle for the attempt to prohibit Democrats from blocking Bush's nominees through filibuster threats that require 60 votes in the 100-member Senate to overcome, shortly after she and another stalled nominee, California judge Janice Rogers Brown, met with the president at the White House and later with Senate GOP leaders at the Capitol.
Also, James Kuhnhenn of Knight Ridder Newspapers looks at the two Justices' records. He writes as follows:
Even Democratic-leaning law professors who are familiar with their work say both deserve confirmation.
This is a very informative article. Likewise, the Mobile Register has an interesting editorial supporting Justice Owen.
Posted in News —
Posted at 9:00pm on May 17, 2005 "Democrats Against the Filibuster"
By DanCT
A wealth of great quotes from the Clinton years, compiled by Andrew Alexander a couple years ago:
"I simply ask the United States Senate to heed this plea, and vote on the highly qualified judicial nominees before you, up or down." ---President Clinton, 1998
"I have said on the floor, although we are different parties, I have agreed with Governor George Bush, who has said that in the Senate a nominee ought to get a vote, up or down, within 60 days." --Patrick Leahy (D-VT)
"Nominees deserve to be treated with dignity and dispatch--not delayed for two and three years. We are seeing outstanding nominees nitpicked and delayed to the point that good women and men are being deterred from seeking to serve as federal judges. Nominees practicing law see their work put on hold while they await the outcome of their nominations. Their families cannot plan." --Patrick Leahy (D-VT)
"...we should have up-or-down votes in the committee and on the floor." --Harry Reid (D-NV)
"A nominee is entitled to a vote. Vote them up; vote them downâ₦It is our job to confirm these judges. If we don't like them, we can vote against them. That is the honest thing to do. " --Dianne Feinstein (D-CA)
"It is true that some Senators have voiced concerns about these nominations. But that should not prevent a roll call vote which gives every Senator the opportunity to vote 'yes'' or 'no.'" --Teddy Kennedy (D-MA)
"I also respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor." --Joe Biden (D-DE)
"I thought that if the President nominated them, they had a fair hearing, and they were reported out, my only decision was whether or not they were qualified--not whether they were ideologically opposed to me or to how I feel or what I believe"--Tom Harkin (D-IA)
In the Clinton years, all the Senate Democrats were on the right side of the filibuster issue and most of the Republicans were too. (If there hadn't been many principled Republicans in the Senate then, filibustering would have been routine then as it is today because some GOP Senators were agitating for it). Has anything changed besides the party affiliation of the President?
Posted in Senate Rules —
Posted at 8:27pm on May 17, 2005 A Tidbit of Encouraging News
By DanCT
From the Washington Post:
"The White House has been encouraging key Republican senators to support a change in the rules."
No evidence or specifics are given, but, if true, it is good news. Senate Democrats are agitating for new, extra-constitutional standards for appointing judges, and that new standard threatens the power of the President in filling vacancies on the bench. The White House does need to defend the Presidency (not Bush's Presidency nearly so much as the Presidency in general). Kudos for efforts to do so.
Posted in News —
Posted at 8:14pm on May 17, 2005 Lieberman Is Historically-Challenged
By DanCT
Writing for MSNBC, Tom Curry quotes the Senator from Connecticut:
ââ‚Å“The end of the 60-vote requirement,ââ‚? said Sen. Joe Lieberman, D-Conn., would mean the end of ââ‚Å“the minimal demand that there be more than members of one party to confirm presidential nominations to our highest courts.ââ‚?
There has never been any demand that nominees get support from both parties. The only demand for confirmation has been that a majority of the Senate expresses its support. Only when the Senate and White House have been controlled by opposing parties has there been a demand that nominees get support from both parties (which only occurred for 13% of Supreme Court appointments prior to Nixon; after Nixon, though, 2/3 of the SCOTUS appointments were with split party control). Lieberman is advocating a new standard but apparently doesn't realize it. If he knew what he was doing, I don't think he'd approve.
Posted in Senate Rules —
Posted at 6:23pm on May 17, 2005 Mainstream
By AndrewHyman
MSNBC quotes Senator Frist today, regarding Justices Brown and Owen:
ââ‚Å“Are they really ââ‚Ëœout of the mainstream,ââ‚â„¢ was 84 percent of a statesââ‚â„¢ population or 76 percent of a statesââ‚â„¢ voting population really ââ‚Ëœout of the mainstreamââ‚â„¢?" Frist asked. ââ‚Å“Or is whatââ‚â„¢s ââ‚Ëœout of the mainstreamââ‚â„¢ the fact that people like Priscilla Owen and Janice Rogers Brown are denied a simple, fair, up-or- down vote"?
One reporter asked Frist why he was calling up for floor debate nominees who the Democrats see as the most provocative?
"Priscilla Owen, is she provocative?" Frist replied. "The only thing I've ever heard from the other side of the aisle on Priscilla Owen is an argument on parental consent, that she believes parents should be involved if children get abortions. That's the only thing I've ever heard."
Here's part of a May 15 Washington Times editorial:
Justice Owen was reelected to the Texas Supreme Court in 2000 with 84 percent of the vote after being endorsed by the largest newspapers in Texas's three biggest cities: the Houston Chronicle, the Dallas Morning News and the San Antonio Express-News. And while NARAL Pro-Choice America has criticized her positions on Texas's parental-notification law relating to abortions for minors, it is worth noting that Justice Owen is among the 80 percent of Americans who support parental notification.
Justice Brown is reportedly slightly less mainstream than Justice Owen:
California citizens overwhelmingly approved of Justice Brown's job performance and in 1998, reelected her with 76 percent of their vote, the highest of all four justices on the ballot that year.
As far as I'm aware, the people of California and Texas were not misinformed when they voted overwhelmingly for Justices Brown and Owen, respectively.
Posted in News —
Posted at 5:24pm on May 17, 2005 Text of Draft Deal
By AndrewHyman
Previously, we decribed a proposed deal here and here that some centrist Senators were working on. The proposed deal would dump three nominees (Myers, Owen, and Saad), and would allow each of the centrist Senators to support further judicial filibusters whenever each of them thinks the circumstances are "extraordinary." Anyway, we now have THE TEXT OF THIS DRAFT DEAL, which is pretty much as described earlier. Fortunately, this deal has NOT been agreed to, as of yet.
We already pointed out here at confirmthem that many Democrats consider three sitting Supreme Court Justices to be extreme, and thus they consider the appointment of those three Justices to have been extraordinary. Presumably, Saad, Owen, and Myers would set a precedent for what "extraordinary" means for circuit court nominees, which is silly considering their excellent records. In any event, the potential Democratic signatories to this proposed compromise would undoubtedly have an even broader definition of what Supreme Court nominees qualify as ââ‚Å“extraordinary" (seeing as how Supreme Court nominees would not be subject to supervision by any higher court).
Sen. Fristââ‚â„¢s spokeswoman says the Majority Leader intends "to satisfy the principle of the up-or-down vote." Likewise, Senator Lott says, "I donââ‚â„¢t see how compromise can be reached without allowing the seven judges that were blocked last year and the year before, the seven re-nominated judges from getting an up-or-down vote."
According to the Reuters report we mentioned earlier, ââ‚Å“Nelson was confident he had enough Democrats on board for his possible compromise, but was still working to attract a total of six Republicans, an aide said."
If Myers, Owen, and Saad are such abysmal nominees, then the Democrats should have no problem attracting a few Republicans to vote against them in an up-or-down vote. It therefore seems very strange that the Democrats would want to wheel and deal in order to prevent such a vote from ever occuring for these three nominees. And, it is discouraging to think that some GOP Senators would be willing to scuttle those three nominations even though they would ordinarily support those three nominations in an up-or-down vote.
Dumping any of these nominees would be unreasonable, and would really set a horrible precedent that the minority can complain long enough and loudly enough to ultimately defeat a majority-supported judicial nominee. A deal would be great, but only if itââ‚â„¢s fair. David Broder recently outlined a very fair deal, and so did Sen. Frist. Neither of those deals would dump any majority-supported judicial nominees.
Posted in News —
Posted at 10:28am on May 17, 2005 Some Tuesday Morning Filibuster Stuff
By AndrewHyman
You can ask Sen. Reid questions about the nomination controversy by clicking here. And, donââ‚â„¢t forget to check out ââ‚Å“Name That Speaker" today, so you can find out who said this about Justice Owen:
I don't think there's any question about your legal excellence. You've had a distinguished academic and professional career [and] the ABA ... has rated you well qualified with good reason.
Also, Sen. Frist's office has a morning message full of the latest filibuster news and commentary from leading newspapers and TV shows.
UPDATE: National Review Online has posted an interesting column about Justice Brown (by Peter Kirsanow).
Posted in News —
Posted at 10:27am on May 17, 2005 Washington Times filibuster items
By Zummo
There are a couple of items of note in the Washington Times today releated to the filibuster. The first is an editorial that uses Senator Byrd's own words and actions against him. Particularly interesting were Byrd's quotes during a 1979 showdown where Byrd threatened a rules change in order to end a legislative filibuster. During the course of debates Byrd summoned the spirit of Thomas Jefferson* in asserting, "This Congress is not obliged to be bound by the dead hand of the past."
Meanwhile, Tod Lindberg pens an op-ed on this proposed compromise: "1) The filibuster rule will not change; and 2) the filibuster will not be used to prevent a floor vote in which there is a Senate majority in favor of the nominee except in the most extraordinary circumstances. " Lindberg does not foresee an end to the increased partisan rancor, reasoning that the activist wing of both parties, but particularly the Democrats, will not allow such a compromise.
What I don't see is how any accommodation by the Democratic leadership is possible at this point. The activist wing of the party has talked itself into the proposition that the currently blocked nominees are blocked because they are simply unacceptable - unfit for the bench, regardless of how qualified the ABA says they are, each and every last one of them. When Senate Minority Leader Harry Reid floated a compromise two weeks ago that would let some through, some people on his ne plus ultra wing didn't get the memo that it was just a tactical ploy. They were horrified at the thought that any of los filibusterados would make it to the bench.
Can six independent-minded Democrats and six independent-minded Republicans make a deal? Against the wishes of their leadership and their party's base? Republicans would find such a deal easier to make than Democrats. It gets their judges confirmed and reserves the question of what "extraordinary circumstances" are and the threat of the ultimate sanction, ending the filibuster, in case of abuse. Democrats, on the other hand, have to accept that a group of judges who have become the objects of fear and loathing to those in their party most actively interested in the judiciary will indeed take seats on the appellate bench, where they will be poised for elevation to the Supreme Court.
I'm not sure I fully agree. I do not think there should be any compromise, nor does it seem that many conservatives seek a compromise resolution. In that case, it seems the base of the Republican party would be more outraged by any dealing. In point of fact it would be the Democrats who stand to gain from any sort of negotiated ploy as described above. The Republicans hold all the cards, and allowing this vague deal to go through would do little in the way of getting all of the justices who currently seem to have majority support confirmed, but it would allow the minority to hold far more sway than it justly should.
On the other hand, Lindberg does have a point. Any concession by the Democrats will anger a large segment of their own base. They will not see it as a victory.
But what will they do? Unlike the GOP, I do not see Democratic base voters turning their backs on their Party because of a perceived sellout on justices. Conservatives have been uneasy with the current administration and Congress, believing that the Party in Washington has compromised core conservative principles. Many on the right see this as an issue where the Republican Party can redeem itself for past transgressions. As such, any sort of deal will only further anger those already concerned with the GOP, and they could potentially stay at home in future elections. I doubt that left-wing activists will be quite as upset should a compromise be worked out in the Senate.
* Thomas Jefferson, at least in my view, was less concerned than other Framers in adhering to tradition. One of his most noteable quotes was that "the earth belongs in usufruct to the living," and that the dead have no rights.
Posted in Fillibuster —
Posted at 9:25am on May 17, 2005 Filibuster vote imminent
By krempasky
Or so says CBS News. What's not clear is whether or not a Bolton vote will be rushed through the Senate before hand.
And John McCain? Still a squish.
Finally, here's an MSNBC profile of Judges Owen and Brown. Extra points to commenters who identify specific hit phrases in the piece.
Posted in Fillibuster —
Posted at 9:36pm on May 16, 2005 Frist Statement
By AndrewHyman
Senate Majority Leader Frist has issued a "Statement On Judicial Nominations":
Republicans believe in the regular order of fair up and down votes and letting the Senate decide yes or no on judicial confirmations free from procedural gimmicks like the filibuster, and I hope Senator Reid and others knows our door is always open to reasonable proposals for fair up or down votes for judicial nominees.
The Hill reports that several strategies are still under consideration for securing up-or-down votes:
Even as leaders approached the brink, senators have pushed a number of last-minute efforts to find a way to stop the filibuster short of that action. ââ‚Å“I think itââ‚â„¢s all still being discussed," said McConnell.
As described by one Senate GOP aide Friday, one option includes changing the Senateââ‚â„¢s standing orders, which have virtually the same effect of rules. Another possibility would be to work out an agreement by unanimous consent, or even to pass a law. Leaders could also simply reach a ââ‚Å“formal understanding."
Or the Senate simply could invoke cloture to cut off debate on nominations. But by far the most likely option remains the so-called ââ‚Å“nuclear option," which could throw the Senate into an uproar, Democrats have warned at times.
My personal favorite approach is as follows. The Senate GOP ought to recognize that Senate Rule 19 only prevents filibusterers from being interrupted by other Senators, and does not prevent filibusterers from being interrupted by the President of the Senate. So, a simple majority could authorize the President of the Senate to interrupt. This would not change any of the Standing Rules of the Senate, nor would it create any new exception to the Standing Rules. Thus, there would not even be the slightest hint of "breaking the rules to change the rules." Nor would any decision be required about whether or not the Senate is a "continuing body."
Then, the GOP could promise to use the same tactic for overcoming legislative filibusters, UNLESS the minority agrees to support a new standing rule that protects the legislative filibuster from this tactic.
Posted in News —
Posted at 6:47pm on May 16, 2005 Reid Calls off Talks with Frist, Prefers Showdown
By AndrewHyman
Associated Press reports as follows:
Democratic Leader Harry Reid declared an end Monday to compromise talks with Republican leaders over President Bush's controversial judicial nominees, saying their fate along with the future of long-standing filibuster rules will be settled in a showdown on the Senate floor.
Talks among centrist senators of both parties apparently continue, but the Democratic centrists are demanding that three nominees (Myers, Owen, and Saad) not be given up-or-down votes, and AP also reports this additional demand:
Individual Democrats would be free to decide for themselves what constituted an extreme case for future nominees, according to officials familiar with the proposal.
As we have previously pointed out here at confirmthem, many Democrats already consider three sitting Supreme Court Justices to be "extreme." Presumably, Saad, Owen, and Myers would set a precedent for what extremism means for circuit court nominees, which seems very silly considering their solid records. In any event, the Democratic parties to this proposed compromise would undoubtedly have an even broader definition of what Supreme Court nominees qualify as "extreme," seeing as how those nominees would not be subject to supervision by any higher court. Although I respect what Senator Nelson has tried to do, this does not seem like a compromise that can fly.
NOTE: The AP article cited in this post quotes Sen. Lugar: "I'm opposed to trying to eliminate filibusters simply because I think they protect minority rights, whether they're Republicans, Democrats or other people." However, here's a Lugar quote from earlier this month: "When push comes to shove, I would not take a stand against my party's view that we should have up or down votes on judges."
Posted in News —
Posted at 5:46pm on May 16, 2005 Dems Propose Compromise to Dump Three Nominees
By AndrewHyman
Several Democrats are reportedly offering to allow votes on Brown, McKeague, Griffin, and Pryor in return for dumping Myers, Owen, and Saad. This report by David Espo of Associated Press says that the proposal has been presented by Nebraska Sen. Ben Nelson to Senators Frist and Reid. Frist's spokeswoman says the Majority Leader "is going to satisfy the principle of the up-or-down vote...."
According to a Reuters report, "Nelson was confident he had enough Democrats on board for his possible compromise, but was still working to attract a total of six Republicans, an aide said."
Here are further excerpts from the Reuters report about the increasingly likely vote to put time limits on filibusters of appellate court nominees:
Democrats said they were a couple of votes short in this struggle that could shift the balance of power between Congress and the White House.
.....
Republican leaders insist they will have the 51 votes needed to abolish such filibusters. But Democrats insist it is still too close to call.
Reid, who has been trying for more than a month to reach a compromise with Frist, said: "I don't think Senator Frist is capable of working something out on this. I think he is going to try to satisfy the radical right."
.....
Sens. John McCain, an Arizona Republican, and Ben Nelson, a Nebraska Democrat, are seeking a possible compromise of their own. Their aim is to provide six Democratic votes to win confirmation of some of the disputed nominees as well as six Republican votes to preserve the judicial filibuster.
As part of their proposed deal, many of the specifics yet to be finalized, Democrats would pledge not to filibuster future judicial nominees except in "extreme circumstances."
"The problem (is) â₦ if you use the word 'extraordinary' or 'extreme circumstances,' how would that be defined and who would make the determination," Sen. Trent Lott, a Mississippi Republican, told CNN. "That's very difficult to do."
But Lott, who has also tried to find common ground, said, "We should look at all options."
Reid and Frist had dinner on Sunday, but Reid said the conversation was limited. "The only talk last night was how good the duck was," Reid told reporters.
If Myers, Owen, and Saad are such abysmal nominees, then the Democrats should have no problem attracting a few Republicans to vote against them in an up-or-down vote. It therefore seems very strange that the Democrats would want to wheel and deal in order to prevent such a vote from ever occuring for these three nominees.
Dumping any of the nominees would be unreasonable, and would really set a horrible precedent that the minority can complain long enough and loudly enough to ultimately defeat a majority-supported judicial nominee. Personally, I have no problem if a deal is struck, if it's a fair one. David Broder recently outlined a very fair deal, and so did Sen. Frist. Neither of those deals would have dumped any majority-supported judicial nominees.
NOTE: Here's a quote from Sen. Lott on CNN's Inside Politics earlier today:
I don't see how compromise can be reached without allowing the seven judges that were blocked last year and the year before, the seven re-nominated judges from getting an up-or-down vote.
Me neither.
Posted in News —
Posted at 1:31pm on May 16, 2005 Sen. Pat Roberts on Filibusters
By AndrewHyman
Senator Roberts of Kansas issued a statement today, clarifying his position on judicial filibusters. Here's how the statement concludes:
My hope is that Senate leaders can work something out and end the stalemate that has denied President Bushââ‚â„¢s judicial nominees an up-or-down vote. But if thatââ‚â„¢s not the case, as I have stated, I would vote with Majority Leader Frist to end the judicial filibuster.
So, Senator Roberts is clearly with the GOP leadership on this. Roberts was on our list of seven undecided GOP Senators.
Posted in News —
Posted at 11:19am on May 16, 2005 Fein, WSJ, and Novak on Judicial Nominations
By AndrewHyman
The Wall Street Journal has an excellent editorial today about the judicial nomination crisis, and Bruce Fein has an equally excellent op/ed in Roll Call today, on the same subject. They're both available from Sen. Frist's office, here (along with an op/ed by Frist that we already linked to).
Also, Robert Novak says that pro-abortion-rights organizations (e.g. NARAL) are requesting unprecedented amounts of financial disclosure information about dozens of judges who may be nominated to the Supreme Court. Howard Bashman suggests that much of that sort of information is already available on the internet (from Judicial Watch). But, presumably, NARAL wouldn't have filed the requests if it could have obtained everything it wanted via the internet.
Posted in News —
Posted at 7:17am on May 16, 2005 Owen's "In re Jane Doe" Dissent and Gonzales' Activism
By DanCT
The Texas parental notification case in which Justice Gonzales famously wrote "...to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism" was a highly contentious case in which Priscilla Owen proved to be an exemplary model of a prudent, restrained, and clear-thinking judge despite an incredibly contentious court and super-heated issue before the court.
The Law: Texas law (Texas Family Code, chapter 33) requires parental notification before minors are permitted to have an abortion. A bypass, though, may be granted by a court if the minor is "mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents."
Legislative intent on hearing the bypass: The author and sponsor of the law put together a team of nine senators and forty-seven representatives to submit a lengthy amicus brief to clarify the intent of the law. They wrote that:
[i.To establish 'maturity',] the evidence is to be weighed against the long-standing presumption that minors lack the experience, perspective, and judgment critical to making sound decisions, and the presumption that parents should be involved in all medical decisions for their children.
[ii. to establish that the minor is 'sufficiently well informed',] it is important that a minor be required to show that she has either received information from a disinterested and reliable healthcare provider who is not involved in abortion advocacy and does not stand to profit from any particular choice of the minor, or that she has received information from multiple sources, at least one of which expresses a preference for childbirth over abortion...[, and
iii.] Legislators were unanimous in their characterization of the bypass as "rare" or exceptional. The examples of cases involving use of the judicial bypass given by legislators during committee hearings or floor debate involved young girls facing dire circumstances.
The Supreme Court ruling: The lower courts ruled that she was not sufficiently well informed to warrant a bypass. The Supreme Court overturned them in a flash. The reasoning? "After reviewing the record, we determined that Doe conclusively established the statutory requirements and that she was entitled to consent to the procedure without notifying a parent." In particular, they determined that speaking with a couple of friends who were glad they had had abortions and with a doctor and counselor at Planned Parenthood was sufficient to establish that she was "well informed"---no need to discuss the issue with anyone who would express a preference for childbirth over abortion, and no need to discuss any details of adoption. The Court expressed a nervous self-consciousness about its determination:
Doe did not seek information or counseling from anyone who would be against her having an abortion,...but this Court held in Doe 1(I) that a minor is not required to seek information from any particular group or viewpoint so long as ââ‚Å“she has obtained information on the relevant considerations from reliable sources of her choosing that enable her to make a thoughtful and informed decision.ââ‚?
Hmmm...Let me get this right.The abortion doctor and Planned Parenthood counselor would bring up all the "relevant considerations" that she'd need to think about before being "well informed" in the eyes of the law? There's something fishy going on here, and something that the legislature tried to prevent (see ii. above), but there is just no stopping a Supreme Court intent on thwarting the legislature's will. But I digress...
The Court overruled lower courts' findings on the matter---Doe was well informed, and "conclusively" so! The law, though, requires that the minor also demonstrate a sufficient degree of maturity. "Never mind about that! We overturned the lower courts' findings that she was not well informed. Therefore, she is entitled to the judicial bypass. There is no need to think about the issue of maturity." Strange as it may sound, that parody really is the logic the Court employed:
Doe does not have the burden of proving in this Court that she is mature. That is because, as we explain below, a minor such as Doe, who is appealing the denial of her application under the first prong of the statute, only needs to conclusively refute the trial courtââ‚â„¢s actual findings.
So, the Court now explicitly argues that the minor does not need to meet the clear requirements of the law (i.e., "mature" + "well informed") before getting the judicial bypass. This is an extraordinary argument to make. The natural conclusion to reach is that anyone who applies for a bypass should be awarded one.
Indeed, the Court does go on to argue that girls should be given a bypass except in unusual circumstances:
Senator Shapiro described an attorneyââ‚â„¢s experience who works with Planned Parenthood in Nebraska representing minors who apply for a waiver under Nebraskaââ‚â„¢s similar bypass procedure: ââ‚Å“in all of the years that sheââ‚â„¢s done this, one minor child, one, that was turned down, not only by the district court, but also by the court of appeals. And the reason this child was turned down was because she was 12 years old. Now thatââ‚â„¢s real world.ââ‚? ...Senator Shapiro emphasized in Senate floor debate that, under the comparable Nebraska bypass procedure ...ââ‚Å“ninety-nine percentââ‚? of bypasses had been granted.
This is what the Court wanted to do in Texas too and arrogantly threw down a challenge to the legisture: "If the Legislature, as a body, agrees with amici that we misunderstood their intent, it is the Legislatureââ‚â„¢s prerogative to amend the statute to give us different guidance."
Where Justice Gonzales comes down: Mr. Gonzales defends the liberal reading of law that turned the legislature's intent on its head. First, he defiantly states:
The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction.
...except that they did, and they clearly expressed so in their brief, which drew extensively on the debates in the legislature. In addition, contra Mr. Gonzales, the law really does explicitly and clearly call for a narrower interpretation than that rendered by the Court. In particular, in section 33.003(i) we read: "If the court finds that the minor is mature and sufficiently well informed...," then the court may grant a bypass. But, amazingly, the maturity issue was not considered in the Court's decision. Thus, the decision that Mr. Gonzales signed on to is far more liberal than a clear reading of the text would justify. From here he goes on to his (in)famous words: "to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism." I couldn't agree more--eliminating bypasses or reading extra ones into the law would be judicial activism. However, no one in dissent in this case has done anything of the sort! On the other hand, the six justices concurring in the decision have removed a hurdle that is clearly delineated in the statute, which, I would have to say, is an unconscionable act of judicial activism.
Priscilla Owen's dissent: In her dissent, Judge Owen points out the logical error in granting a bypass even though 'maturity' was not considered:
The Court says that a finding regarding maturity was not necessary to the judgment. The Court misunderstands the law. One basis on which a trial court may grant authorization for a minor to proceed with an abortion without notifying a parent is if she is mature and sufficiently well informed. Thus, there are two necessary elements to this ground for relief....Doe had the burden of establishing both elements of that ground fro [sic] proceeding with an abortion.
She then argues that there is considerable doubt about Doe's maturity. (NOTE: Her arguments casting doubt on Ms. Doe's maturity are well worth the read, but they are tangential and not reproduced here.)
However, her most devastating point was that:
Rather than conduct an appellate review to determine if there was evidence to support the lower courtsââ‚â„¢ determination, this Court has usurped the role of the trial court, reweighed the evidence, and drawn its own conclusions.
She argues eloquently and correctly that the role of the Supreme Court in this case is to defer to the lower courts unless compelled otherwise by the evidence:
In order for the Court to reverse and render judgment in her favor, it must examine the record to determine if there is any evidence that supports the trial courtââ‚â„¢s failure to find that Doe was sufficiently well informed...The evidence must be such that reasonable minds can draw only one conclusion. See Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978). ...Although this is a close case, there is some evidence from which a trial court could reasonably conclude that Doe was not sufficiently well informed to make the decision to have an abortion without notification of a parent.
In other words, although lower court decisions could have gone either way, the Supreme Court would not be justified in overturning the lower courts unless the lower courts were grossly in error and had no reasonable evidence to base their decision on. Admirably, she rose above the emotional tumultuousness and highly-charged political nature of the abortion issue and argued the profoundly conservative point that the lower courts should be treated with deference and not overturned willy-nilly. This is the exact opposite of a judicial activist and is characteristic of someone who deeply considers the proper role of the court in all its relations--a true judicial conservative (as opposed to a right wing activist).
There is something deeply unsettling about how fervently the majority of the court pursued this case, chasing down any piece of chaff in the wind that could help undermine the parental notification law, while overlooking the clear intent of the legislature (as described in the amicus and the legislative debates), the clear wording of the statute ("mature and well informed"), and the proper role of the Supreme Court in deciding this kind of appeal. Through her dissent, Priscilla Owen showed tremendous restraint, a cool head, and a sharp mind. She is a great nominee.
Another worrisome note from Gonzales:The three dissenting justices all expressed concern over the blatant judicial activism and apparent eagerness to overturn the lower courts. In response to the criticism, Justice Gonzales wrote:
It has been suggested that the Courtââ‚â„¢s decisions are motivated by personal ideology. ...To the contrary, every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature. ...Our role as judges requires that we put aside our own personal views of what we might like to see enacted, and instead do our best to discern what the Legislature actually intended. ...We take the words of the statute as the surest guide to legislative intent. ...Once we discern the Legislatureââ‚â„¢s intent we must put it into effect, even if we ourselves might have made different policy choices.
Dan's paraphrase: "It's just not true that we are judicial activists. Judges are supposed to put aside personal views to discern legislative intent; we are judges; therefore, we aren't judicial activists." Is he arguing that judicial activism doesn't exist, or just that the Texas Supreme court is free from it? In either case, it is unsettling that this man may be on George Bush's short list for a SCOTUS nomination. Priscilla Owen all the way!
Posted in Circuit Courts —
Posted at 12:25am on May 16, 2005 <em>The NY Times</em>, Owen, Gonzales, and Judicial Activism
By AndrewHyman
The Times has yet another story on Monday about a parental notification case that Texas Supreme Court Justice Owen and then-Justice Alberto Gonzales participated in five years ago. The Times says:
Mr. Gonzales, a Texas Supreme Court justice at the time, was in the majority and wrote that the position of the three dissenters was "an unconscionable act of judicial activism" because it would create obstacles to abortion that the Legislature did not enact. Mr. Gonzales, in interviews with The New York Times, acknowledged that his words were directed at her dissent but said that he remained enthusiastic about her nomination to the United States Court of Appeals for the Fifth Circuit.
However, the Washington Post quoted Attorney General Gonzales on May 10, 2005 as saying, ââ‚Å“Iââ‚â„¢ve never accused her of being an activist judge.
What Gonzales actually wrote in the case was that construing Texas law in a particular way "would be an unconscionable act of judicial activism."
The New York Times has managed to leave out those two words "would be" again and again.
On the following dates the New York Times has omitted the words "would be" when quoting this alleged accusation by then-Justice Gonzales against Justice Owen:
May 16, 2005; April 28, 2005; April 22, 2005; April 21, 2005; December 24, 2004; May 2, 2003; March 14, 2003; September 6, 2002; August 11, 2002; July 22, 2002; and April 7, 2002.
The New York Times has also been unwilling to print the statement by then-Justice Gonzales (in the very same case) that each of the dissenters ââ‚Å“agrees that the duty of a judge is to follow the law as written by the legislature.
Below the fold is the full paragraph that Gonzales wrote, containing the "judicial activism" language.
The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written Section 33.033(i) to make it harder to bypass a parentââ‚â„¢s right to be involved in decisions affecting their daughters. But it did not. Likewise, parts of the statuteââ‚â„¢s legislative history directly contradict the suggestion that the legislature intended bypasses to be very rare. Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so. (citations omitted)
Posted in News —
Posted at 10:41pm on May 15, 2005 Some Sunday Evening Filibuster News and Opinion
By AndrewHyman
Senate Majority Leader Bill Frist has an op/ed in USA Today, in which he says this:
So far, my Democrat colleagues have rejected all efforts at compromise, and continue to insist on a new, 60-vote standard. Such a position is unacceptableâ₦.It is my hope that, after the Senate has decided this question, we can return to a greater spirit of bipartisanship and meet other pressing priorities. At the same time, this is an issue that must be addressed, and soon.
USA Today also has an editorial on the same subject, opposing the position of Sen. Frist. The editorial would be much more convincing if it were not so obviously uninformed. Here's one example:
Attorney General Alberto Gonzales, then a fellow member of the Texas Supreme Court, said one opinion she joined amounted to "an unconscionable act of judicial activism."
Of course, in that case, Justice Owen did not join any opinion. The editorial goes on to argue that, if the nominees are really in the mainstream, then they should have no trouble picking up 60 votes, but that is just silly. We might as well raise the bar for being elected President to 60% instead of a simple majority. The White House would go vacant. Giving a minority the power to dictate what people are appointed to the bench hardly ensures mainstream judges.
Maro Robbins of the Express-News in San Antonio has an article titled, ââ‚Å“Texan Known in D.C. For One Thing. The article is all about Justice Owen and the Jane Doe case involving parental notification; the article thankfully discusses more than just the use of the term "judicial activism" in that case. The full text of the case is linked over on the right side of the confirmthem page, and you can also get it by clicking here.
Posted in News —
Posted at 7:52pm on May 15, 2005 Phone Numbers for Some Senators
By AndrewHyman
Susan Collins of Maine
Washington D.C. Office (202) 224-2523
Augusta Office (207) 622-8414
Bangor Office (207) 945-0417
Biddeford Office (207) 283-1101
Caribou Office (207) 493-7873
Lewiston Office (207) 784-6969
Portland Office (207) 780-3575
Mike DeWine of Ohio
Washington, D.C. (202) 224-2315
Xenia, OH (937) 376-3080
Cleveland, OH (216) 522-7272
Marietta, OH (740) 373-2317
Cincinnati, OH (513) 763-8260
Columbus, OH (614) 469-5186
Toledo, OH (419) 259-7536
Lindsey Graham of South Carolina
Washingotn D.C (202) 224-5972
Home Office (864) 250-1417
Greenville (864) 250-1417
Mt. Pleasant (843) 849-3887
Columbia (803) 933-0112
Florence (843) 669-1505
Rock Hill (803) 366-2828
Seneca (864) 888-3330
Arlen Specter of Pennsylvania
Washington DC Office 202-224-4254
Allentown Office 610-434-1444
Harrisburg Office 717-782-3951
Pittsburgh Office 412-644-3400
Wilkes-Barre Office 570-826-6265
Erie Office 814-453-3010
Philadelphia Office 215-597-7200
Scranton Office 570-346-2006
John Warner of Virginia
Washington Office (202) 224-2023
Roanoke District Office (540) 857-2676
Norfolk District Office (757) 441-3079
Midlothian District Office (804) 739-0247
Abingdon District Office (276) 628-8158
Posted in News —
Posted at 6:12pm on May 15, 2005 MSNBC: "Both sides claim enough votes in filibuster fight"
By DanCT
Despite the blaring headline, there is little indication in the article that Democrats are feeling confident about the vote and certainly no claim to have enough votes. The strongest evidence to back up the spin is Senator Durbin's (D-IL) statement:
We feel that there are at least four Republican senators who feel as we do and we feel that there are several who are making up their minds at the last moment.
This is simply not in the same ballpark as the confident, unequivocal statements along the lines of "We have the votes" that Republican leadership has been expressing the past few weeks--very little sign of doubt. It could be playacting on either side.
Mitch McConnell (R-KY) raises another intriguing possibility, viz. that enough Democrats will revert to some semblance of civility to break the filibuster, thus avoiding the nuclear option:
ââ‚Å“I havenââ‚â„¢t given up on the possibility that we might have 60 votes, including some Democrats whoââ‚â„¢ve been whispering in our ears that they believe that this ought to be defused.ââ‚? Sen. Mitch McConnell, R-Ky., the chief GOP vote counter, said on Fox News Sunday.
He's right. It would only take 5 moderate Democrats to defuse this entire mess. Even if they couldn't find it in themselves to vote for a particular nominee, they should at least be able to see how the routine filibustering of nominees has severely poisoned the atmosphere of the Senate.
In a gesture of decency and respect for the Senate tradition against filibustering nominees, they could vote for cloture on each nomination; then, if they saw fit, they could turn around and vote against the nominee when he/she comes up for a vote. The filibuster issue is quite distinct from the issue of a nominee's qualifications. Are there 5 Democrats who can look past the partisan advantage they derive from the filibuster and see the damage that the routine filibustering of nominees has done to the Senate? And would they have the courage to stand up against their party in defense of the Senate and its traditions? Alas, probably not.
Sheesh. Why don't we ever see this angle on the story in the MSM?
Posted in Senate Rules —
Posted at 1:44pm on May 15, 2005 Some Sunday Afternoon Filibuster News and Opinion
By AndrewHyman
"Senate on verge of meltdown; GOP leaders coming close to pulling the trigger on 'nuclear option' to keep Democrats from filibustering president's judicial picks": This melodramatically titled article appears today in Newsday. An excerpt:
Several senators seemed resigned to a showdown. Sen. Dick Durbin (D-Ill.) and Schumer backed away from earlier threats to shut or slow down the Senate should Frist pull the trigger. Instead, they said Democrats will "wrest the agenda" from Republicans to advance bills on issues like gas prices and prescription drugsâ₦. Asked what life would be like after the nuclear option, Sen. Jeff Sessions (R-Ala.) shrugged. "What has life in the Senate been like since the Democrats began their filibusters?"
The May 23, 2005 issue of Newsweek will contain an article headlined "Ready to Blow: As the Senate prepares for a showdown over judicial nominees, a few moderates hope for middle ground." This article is primarily about Sen. Specter, and hereââ‚â„¢s a sample:
Specter did not promise to vote for them on the floorââ‚â€let alone support changing the filibuster rule. He told Newsweek he viewed several of Bush's appellate-court nominees as "qualified." (Judge Janice Rogers Brown is one he says he isn't sure about.)
The Union Leader of Manchester, New Hampshire contains an editorial entitled "Big lie on filibuster: Democrats are subverting Senate role." The editorial begins and ends this way:
The misinformation being spread about the current abuse of the filibuster to block U.S. judicial nominations is awesome. Given the importance of the fight, however, it is not surprising....New Hampshire Senators Judd Gregg and John Sununu understand what is at stake here. The Democrats are trying to thwart the will of the voters, who want judicial extremism stopped. With more than one U.S. Supreme Court appointment in the offing, this is a fight that must be won now.
The Washington Times contains an editorial entitled "Time to vote on Justice Owen" (the Times writes, ââ‚Å“Four years is long enough. Justice Owen deserves an up-or-down vote, the sooner the better"). The Times also has a "Forum" item entitled "Hispanic solons: End filibuster," in which four members of the Congressional Hispanic Conference urge up-or-down votes on nominees:
If any U.S. senators see fit to vote against a nominee, ultimately that is between them and their constituents. However, preventing a vote for judicial nominees is an affront to democracy and fairness, plain and simple.
In The Detroit News, Thomas Bray has an essay entitled "Keeping filibuster may help Republicans unseat Stabenow." Basically, Bray argues that, instead of getting rid of the judicial filibuster now, it would be better to use it as a campaign issue (again) in 2006.
In The Oregonian, columnist David Reinhard has an op-ed entitled "'Dirty Harry' Reid: The art of the smear." Reinhard writes:
After almost four years, Reid should be giving Saad a simple up-or-down vote on his nomination. Instead, he's giving him a taste of Joe McCarthy-plus.
In The San Francisco Chronicle, Tony Quinn has an op-ed entitled "Dems' filibustering of judicial nominations is just politics." Quinn writes:
Nothing is quite so tawdry as watching liberal Democrats suddenly find constitutional virtue in the filibusterâ₦.Just because a minority of senators doesn't like a judge's particular rulings is no excuse for a filibuster.
And dislike of a judge's personal viewpoints is even less of an excuse. Hat tip to How Appealing for several of these links.
Posted in News —
Posted at 9:48am on May 15, 2005 Bad Deal: Dems Allow Up-Down Votes if Repubs Vote Down
By AndrewHyman
Some fence-sitting GOP Senators are reportedly thinking about pledging to vote against certain nominees who they would otherwise vote for, merely so that Democrats will allow up-or-down votes. Hugh Hewitt discusses efforts to strike this bad deal, here. Senator Specter pretty much said what needs to be said about such a compromise:
[A] ââ‚Å“deal'ââ‚â„¢ for confirmation for any one of them is repugnant to the basic democratic principle of individual, fair, and equitable treatment and violates Senatorsââ‚â„¢ oaths on the constitutional confirmation process. Such ââ‚Å“deal-making'ââ‚â„¢ confirms public cynicism about what goes on behind Washingtonââ‚â„¢s closed doors.
Deals and compromises are fine, as long as they don't compromise basic duties.
Posted in News —
Posted at 7:07pm on May 14, 2005 LET'S GO WITH JUSTICE OWEN!
By AndrewHyman
The Senate leadership has been ambiguous about whether Justice Owen or Justice Brown will be considered first. Justice Owen has been waiting for more than four years. Let's get moving, already. Why not have a debate about Justice Owen's outstanding qualifications, and about the need for a simple majority vote, and then do it? After the Senate has decided whether or not to restore the tradition of up-or-down votes for majority-supported judicial nominees, then the other highly qualified nominees could be considered. Let's go with Justice Owen first.
UPDATE: The Washington Times agrees.
Posted in News —
Posted at 5:45pm on May 14, 2005 In Defense of the Democrats
By AndrewHyman
I previously posted the President's April 28 comments about whether or not Senate Democrats are opposing nominees because of their religion. See here. President Bush defended the Senate Democrats against that charge, and I think Bush was right.
The judicial as well as the personal philosophies of several nominees have indeed been scrutinized and scorned by Senate Democrats recently, and that is a radical and tragic departure from past Senate deliberations on judicial nominees, when the main question was whether or not the nominees were qualified (e.g. educationally and ethically). The Democrats are now wrongly opposing some of the nominees because of their judicial and personal philosophies. But, in my humble opinion, the Democrats couldn't care less whether a nominee's judicial and personal philosophies derive from the nominee's religion, upbringing, genes, or whatever.
The question used to be whether nominees could put their personal beliefs aside, rather than what those personal beliefs were. Senate Democrats are now trying to change that healthy tradition, and it would be a change for the worse. But, it is perfectly understandable given that the Senate Democrats believe judges are entitled to legislate from the bench.
There are two relevant constitutional provisions here:
#1) "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This is the first sentence of the Constitution (after the Preamble).
#2) "[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." This is in Article VI of the Constitution.
The Senate Democrats are not violating #2; but they are violating #1, and that is bad enough.
Posted in News —
Posted at 4:25pm on May 14, 2005 "It Is About Religious Belief"
By feddie
Tony Perkins of the Family Research Council has an excellent piece in the Washington Post today. Here's a taste:
Well, I agree with the president that some Democratic senators have targeted the judicial philosophy of the nominees. But that judicial philosophy has been scrutinized and scorned in several cases precisely because of the nominee's belief system or faith -- not because of his or her record. After all, it was Sen. Charles Schumer (D-N.Y.) -- not the Family Research Council -- who launched an inquiry into one key nominee's "deeply held personal beliefs." Schumer didn't challenge the nominee's "deeply held judicial philosophy," but rather his beliefs.
And what were those personal beliefs? In the case of former Alabama attorney general William Pryor, as with other filibustered nominees, it appears that it was the nominee's personal views on abortion, homosexuality and other matters on which Catholic and evangelical churches have clear positions that are contrary to those of liberal Democrats and their allies. Pryor failed the Democrats' test because he had spoken out, as a Catholic, saying that abortion is an abomination. He was also questioned about postponing a family vacation with his young children to Disney World because he found out it coincided with "Gay Days" at the park.
. . . .
Having "deeply held personal beliefs" such as these was enough to set the liberal pressure groups on edge and trigger filibusters. The pattern that has emerged is that any nominees who hold to the traditional tenets of their faith as a guide for life, whether they be Catholic, Protestant or Jewish, fail the litmus test, the liberal loyalty oath, that is being employed by some Senate Democrats. Faith is acceptable as long as it remains unknown, or is applied only to personal beliefs about such matters as poverty and capital punishment. Call this standard a litmus test on abortion, a de facto screening for religious conviction, or a demand for fealty to the Democratic Party platform -- whatever it's called, the results are the same.
The sometimes subtle, too often open, campaign against orthodox religious views is too important an issue for us to simply turn our heads and ignore the truth. Left unchecked, the climate of intimidation against religious voices will empty the public square of many of its most-needed voices. Our children, and our children's children, must never be asked to choose between publicly acknowledging their faith by teaching a Sunday school or catechism class and serving in high public office. We must never reward those whose methods of inquiry involve carrying tape recorders into private meetings, Bible study, church services and the chambers of conscience.
In their zeal to preserve an imperial judiciary, liberals have taken abuse of the confirmation process to a new low. The way out is to vote on each nominee on his or her merits.
Exactly.
Posted in Fillibuster —
Posted at 3:55pm on May 14, 2005 Hitting the Nail on the Head
By DanCT
Orson Scott Card has an essay in The Ornery American that includes a gem about why the filibustering to force compromise candidates is such a travesty:
The trouble is that the ideological lines on both sides are so clearly drawn that it is hard to think of any jurist of any ability or standing at all that could be acceptable to both sides. Either he has to be so utterly inoffensive as to be vacuous, or he has to be a "stealth" judge, who has been deliberately concealing his true beliefs in order to remain acceptable for higher office. In other words, the only people with a chance of getting approved by both of the warring sides in the Senate are judges who have done nothing, who have had no clear thoughts, or who have been such ambitious weasels they have avoided doing anything that might offend anybody.
The language is a little strong, but the point is well taken.
Posted in Senate Rules —
Posted at 12:49pm on May 14, 2005 Some Saturday Morning Filibuster News and Opinion
By AndrewHyman
Here's a sampling of Saturday morning filibuster stuff....
Former Minnesota Senator Rudy Boschwitz has a thoughtful opinion piece rebutting the Mondale-Durenberger op/ed that we mentioned previously here at confirmthem. Boschwitz begins this way:
Former Sen. Dave Durenberger and former Vice President Walter Mondale in a joint opinion piece said that if the Republicans go forward to limit filibusters of appeals court (only) judges, it will "profoundly and permanently undermine the purpose of the U.S. Senate...." (Star Tribune, May 5). Rubbish. Let me give a clearer picture.
Powerline has the text of the Boschwitz piece here, which is also available directly from the Star Tribune (but you have to fill out a form).
Associated Press has an article titled, "7 GOP Senators Key in Filibuster Fight":
The senators are Susan Collins of Maine, Chuck Hagel of Nebraska, Arlen Specter of Pennsylvania, John Warner of Virginia, Mike DeWine of Ohio, Lisa Murkowski of Alaska and John Sununu of New Hampshire.
...
For Democrats to prevail, they need the support of three of the seven undecided Republicans.
So, seven senators will decide what happens with the seven previously filibustered judicial nominees. Senator Murkowski expresses the view that is probably held by all seven senators: "our decision has to be ... [n]ot in the best interest of the Republicans, not in the best interest of the Democrats, but in the best interest of we as senators and the institution itself." But let's not forget that the judiciary and the executive will also be fundamentally impacted by the decisions that these seven senators make. This AP story notes that Senators Collins and DeWine have made up their minds, but are keeping their decisions private. UPDATE: Senator Pat Roberts of Kansas is also fence-sitting.
The New York Times profiles Senators Reid and Frist, in an article titled,
"At Center of Senate Showdown, a Boxer Takes On a Surgeon." The Times reports about characterizations of both leaders as "humorless" and "clinical." The Times also mentions that Reid called the President a "loser," which the Times says was a "flash of candor" (indeed, Reid says that he regrets only the choice of words).
Hugh Hewitt did an interview Friday with Fred Barnes of the Weekly Standard and Morton Kondracke of Roll Call. They discussed the filibuster situation, and made some predictions.
Jesse J. Holland of The Associated Press has a report headlined "Justice Dept. Enters Court Nominee Fight" that begins, "The Justice Department is edging into the Senate controversy over judicial nominees, writing key lawmakers after Democratic Leader Harry Reid publicly referred to an FBI file on one of President Bush's controversial appointees."
The Birmingham News contains an article headlined "Cheney balancing act: AU ball, judgeships; Graduation audience cheers remarks on campus life, team." Here's a quote from the article: "'I will support bringing those nominations to the floor for an up-or-down vote they deserve,' Cheney said, to loud applause."
Hat tips to Google News and How Appealing.
Posted in News —
Posted at 9:42am on May 14, 2005 Straight Party-Line Votes for Judges?
By DanCT
On the "NewsHour with Jim Lehrer," Mark Shields essentially argues that those blasted Republicans have started nominating judges that the Democrats don't like, and it is terrible that they have single-handedly politicized the nominations game. But what's really been happening? Shields says:
But I'll say this, if, in fact we have reached the point where nominees are passed on straight party to be federal judges, lifetime appointments, are passed on straight party votes, not by the traditional way of 75 or 80 or 85 votes or in Scalia's case unanimously. I'll tell you what you are going to have, the next time the Democrats have it, and they're going to win back the Senate in your lifetime, certainly in David's and mine, what is going to happen is the Democrats are going to play tit-for-tat. They are going to say okay, now we put up our guys, we don't care what you think of them; we don't care if you think they are too liberal, we're going to push them through, 51-49 - and, boy --
As I recall, Republicans did not at all like the strikingly liberal Breyer and Ginsberg nominations by Clinton, but they voted for them anyway because the nominees were competent and were not corrupt. Shields makes it sound like President Bush is being outrageous by nominating judges that the Democrats don't like.
Right now Justice Scalia is a favorite of conservatives. He was confirmed on a 98-0 vote in 1986. In today's political climate, a judge like Justice Scalia would have zero chance of being confirmed. He wouldn't even get a vote. The difference is that Democrats have wholly bought into the notion that ideology ("judicial philosophy", they call it, or, sometimes "judicial temperament") is of paramount concern in considering nominations. They used to respect election results enough to say, "We lost the White House. Republicans have a sizable majority in the Senate. Our role in the appointment process is to provide a check against cronyism and corruption in the nomination process. If the candidate is competent and clean, we will defer to the President and voters. Scalia? We don't like his conservatism, but he's a good man. 98-0." Nowadays, it would be more like, "We only lost the White House by 100,000 votes in Ohio. Even though GOP has a majority in the Senate, the Senate is set up undemocratically. Our Senators really represent 0.5% more people than the Republicans do. Our role is to provide a check against the majority party and the majority of voters they represent. One time in a private conversation the nominee said something that some might construe as advocating the archaic idea that public policy--even abortion!--should be set by the legislature instead of the courts. He's way far out of the mainstream. And did you see what's in his confidential FBI file (please, PLEASE don't notice that I shouldn't even have access to the information in his file)? Why, it would be wrong to even allow a vote on that radical."
Ahhh... the times, they are a changin'...
Posted in Judiciary Committee —
Posted at 11:12pm on May 13, 2005 Saturday Updates From the NY Times and Wash Post
By AndrewHyman
Tomorrow (Saturday), the Washington Post will have a filibuster update, and so will the New York Times.
Posted in News —
Posted at 10:25pm on May 13, 2005 Options Besides the Constitutional Option
By AndrewHyman
Senator Frist made this remark earlier today:
"We have six or seven options," Frist told a small group of reporters Friday. "Everybody assumes that the constitutional option is the only way to go. It is not."
After this whole "nuclear" thing is over and done, I guess we'll find out what all of those six or seven options were.
Anyway, here's what Norman Ornstein wrote about this subject back in 2003 regarding one particular option:
If a presiding office declared Rule XXII unconstitutional because it did not allow a majority of the Senate to come to a vote on nominations (or anything else), there would still be no provision in Senate rules to force an end to debate and a vote. Here is the relevant provision in Rule XIX on Senate debate: "No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate."
The thing about Rule XIX is that it does not forbid the President of the Senate (who is not a Senator) from interrupting. In other words, a simple majority of the Senate can authorize the VP to interrupt, without changing or invalidating the standing rules of the Senate one bit.
There may also be other methods of forcing an end to judicial filibusters, without changing the standing rules (e.g. enforce the "two-speech rule" and ban dilatory quorum calls). But, Democrats might someday use the same exact methods to get rid of the legislative filibuster. Then, you might say that the GOP would be hanged on the gallows that the GOP itself built, to use a biblical analogy. So, here's a solution: after the judicial filibusters are ended, the GOP should go ahead and use the same technique to end legislative filibusters, UNLESS the Democrats agree to a new standing rule that more fully protects the legislative filibuster.
Posted in News —
Posted at 10:00pm on May 13, 2005 Kyl on Filibusters
By AndrewHyman
Yesterday, Hugh Hewitt interviewed Senator Jon Kyl, and here's part of it:
Hugh Hewitt: Have you got the votes... if it has to go to a vote?
Jon Kyl: Yes we do. And I remember you were talking to me about this when folks were getting really frustrated and we kind of backed it up and said first of all, we have to get the people through the committee, to the floor. We have now done that, except for one person, as you noted. And so now, it's ready. It's teed up. We've got the votes, and the only thing that really we've been waiting for is to just see if there's any hope for compromise here. It appears to me that the Democrats actually want the confrontation. Bill Frist has put out the most reasonable proposals you can imagine. They've been rejected.
Not much equivocation there.
Posted in News —
Posted at 6:59pm on May 13, 2005 <em>National Review</em> Endorses Constitutional Option
By AndrewHyman
National Review is now on board with the Senate GOP in supporting the constitutional option to end the unprecedented campaign of judicial filibusters in the U.S. Senate. Here's part of their editorial:
For months, Republicans have been saying that the Senate ought to hold an up-or-down vote on each of President Bushââ‚â„¢s nominees for the federal courts. We agree. We also think itââ‚â„¢s time for senators to go on record in an up-or-down vote on that question.
....
[A] majority of the Senate must decide between upsetting tradition by setting a formal 51-vote rule or upsetting tradition by allowing an informal 60-vote rule. The Constitution does not, in our view, require it to choose one way or the other. . . . For Republicans to leave the filibusters in place now after months of demanding a change would itself be ignominious. . . . The risk that a minority of senators will be able to keep the courts in the business of imposing the Leftââ‚â„¢s agenda cannot be accepted. It is time to vote to end the judicial filibuster.
This is a very well-considered editorial, and I expect it will further unite the GOP on this issue.
Notice that National Review's editorial asserts that the Constitution does not require its conclusion, and thus NR asserts that the Senate would not be exceeding its rulemaking power by allowing endless judicial filibusters to continue. This same point was made earlier today by NR's Matthew J. Franck, who quoted Chief Justice Marshall's opinion in Brown v. Maryland: "arguments drawn against the existence of a power from its supposed abuse are illogical, and generally lead to unsound conclusions."
Obviously, a practice does not have to be unconstitutional in order to be heinously harmful and abusive, and it does not have to be unconstitutional in order for the Senate GOP to get rid of it. A practice can harm and undermine the country and/or the Constitution, without actually being unconstitutional.
I think that Sen. Frist had it about right today, when he said that an endless judidicial filibuster, "fundamentally disturbs the separation of powers between the branches." Sen. Specter has pointed out that endless judicial filibusters are thus closely analogous to abuse of the impeachment power, which can also disturb the separation of powers (e.g. that almost occurred with the impeachments of Justice Samuel Chase and President Andrew Johnson). Indeed, giving the minority veto power over judicial nominations makes it more likely that the Senate will encroach upon the President's nominating role (by dictating what types of people the president must nominate), and will also encroach upon the independence of the judiciary (by screening nominees according to how they will decide cases).
There are plenty of additional principled reasons for opposing endless judicial filibusters, having nothing to do with the separation of powers. Generally speaking, endless legislative filibusters merely empower a minority to preserve the legal status quo, by preventing enactment of new laws, whereas endless judicial filibusters empower a minority to actually change the legal status quo by demanding judges who will do their bidding. Another principled reason for opposing endless judicial filibusters is that it's important for presidents to be able to shift the direction of the judiciary from time to time, so that in the long run the only surviving precedents will be the ones that are firmly supported by the objective meaning of our laws; presidential flexibility in the nomination process thus discourages politicization of the judiciary, by rendering such politicization futile over the long term.
From a practical point of view, giving a veto to 41 senators would make fringe groups and special interest groups much more powerful. It would become easier for them to shoot down nominations, because they would not have to persuade as many senators. Senate hearings for judicial nominees would therefore be likely to get more rancorous and contentious than ever, and fewer qualified people would be willing to be nominated.
The framers of the Constitution may not have explicitly required up-or-down votes for judicial nominations, but that is certainly what they expected. Here's Hamilton in Federalist 66:
It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. . . . 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 framers never envisioned that a minority would be able to cause interminable delays in order to prevent the Senate from ratifying or rejecting a nomination.
Posted in News —
Posted at 3:47pm on May 13, 2005 Justices Owen and Brown to be Debated First
By AndrewHyman
Senate Majority Leader Bill Frist has issued a statement setting the stage for a Senate showdown on the issue of judicial filibusters. The full statement is below the fold, and here are excerpts:
Priscilla Owen, to serve as a judge for the 5th Circuit Court of Appeals, and Janice Rogers Brown, to serve as a judge for the DC Circuit Court of Appeals, will be the nominees of focusâ₦. The Majority Leader will continue to discuss an appropriate resolution of the need for fair up or down votes with the Minority Leader.
If they can not find a way for the Senate to decide on fair up or down votes on judicial nominations, the Majority Leader will seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nominees. After the ruling, he will ensure that every Senator has the opportunity to decide whether to restore the 214-year practice of fair up or down votes on judicial nominees; or, to enshrine a new veto by filibuster that both denies all Senators the opportunity to advise and consent and fundamentally disturbs the separation of powers between the branches.
The Hill has an article describing the continued discussions between the Majority and Minority Leaders.
US Senator William H. Frist, M.D.
May 13th, 2005 - Upon completion of action on the pending highway bill, the Senate will begin debate on fair up or down votes on judicial nominations. As is the regular order, the Leader will move to act on judge nominations sent to the full Senate by the Judiciary Committee in the past several weeks. Priscilla Owen, to serve as a judge for the 5th Circuit Court of Appeals, and Janice Rogers Brown, to serve as a judge for the DC Circuit Court of Appeals, will be the nominees of focus.
The Majority Leader will continue to discuss an appropriate resolution of the need for fair up or down votes with the Minority Leader. If they can not find a way for the Senate to decide on fair up or down votes on judicial nominations, the Majority Leader will seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nominees. After the ruling, he will ensure that every Senator has the opportunity to decide whether to restore the 214-year practice of fair up or down votes on judicial nominees; or, to enshrine a new veto by filibuster that both denies all Senators the opportunity to advise and consent and fundamentally disturbs the separation of powers between the branches.
There will be a full and vigorous Senate floor debate that is too important for parliamentary tactics to speed it up or slow it down until all members who wish have had their say. All members are encouraged to ensure that rhetoric in this debate follows the rules, and best traditions, of the Senate.
It is time for 100 Senators to decide the issue of fair up or down votes for judicial nominees after over two years of unprecedented obstructionism. The Minority has made public threats that much of the Senateââ‚â„¢s work will be shut down. Such threats are unfortunate.
The Majority Leader has proposed his Fairness Rule: up to 100 hours of debate, and then an up or down vote on circuit and Supreme Court nominations. Further, the Fairness Rule would eliminate the opportunity for blockade of such nominees at the Judiciary Committee. And finally, it will make no changes to the legislative filibuster.
If Senators believe a nominee is qualified, they should have the opportunity to vote for her. If they believe she is unqualified, they should have the opportunity to vote against her.
Members must decide if their legacy to the Senate is to eliminate the filibusterââ‚â„¢s barrier to the Constitutional responsibility of all Senators to advise and consent with fair, up or down votes.
Posted in News —
Posted at 12:06pm on May 13, 2005 Filibustering Nominees: Unconstitutional After All?
By DanCT
Andrew McCarthy expands on the notion that by refusing to act on nominees, the Senate is encroaching on the President's Constitutional obligation to fill vacancies in the courts and other federal offices and that filibustering a President's nominees is indeed unconstitutional. The gist of his argument is as follows:
Could the Senate, for example, make a rule that said: ââ‚Å“the Senate will only consider presidential appointments in even-numbered yearsââ‚?? After all, the Senate may make its own rules and, as with the filibuster, there is nothing in the Constitution that expressly says such a rule is impermissible. But of course, such a rule would have the effect of grinding government to a halt. It would nullify the presidentââ‚â„¢s express constitutional authority to appoint most high government officials (art. II, sec. 2, cl. 2). That is, such a Senate rule could force the president to try to govern not only bereft of the ability to choose judges but, in fact, with no Cabinet and sub-Cabinet officials.
Similarly, if in a fit of pique a rule were adopted that the Senate would no longer consider nominees to the Supreme Court, that would eventually leave the Supreme Court empty, notwithstanding that it is the repository of the judicial power and a branch made co-equal to Congress by the constitution. The branches are supposed to compete, but a construction that allowed one to dissolve anotherââ‚â„¢s powers would, in short, destroy the foundations of the Constitution.
Clearly, there must be some objective limits to the Senateââ‚â„¢s authority despite the fact that the clause granting it rule-making power does not expressly admit of any. What should our guiding principle be in determining what those limits are? I believe they ought to be (and in fact are) those points at which the Senateââ‚â„¢s powers intersect with the powers of the coordinate branches. That is, the Senate may make rules that control any matter over which it uniquely exercises legitimate authority. Beyond that, its rules must yield to the enumerated powers of the other branches.
If the Senate chooses to consider â₆or not to consider â₆health care, crime, tax reform, Social Security or any of the plethora of other areas in which it might legislate, that is for it to decide. Neither the House nor the other branches may legally force the Senate to act (although they may of course try to persuade it to do so). The Senate is well within its rights in those circumstances to determine the rules under which it will proceed. But where its powers cross paths with the recognized prerogatives of the other branches, mere Senate rules may not nullify the constitutional powers of those branches. The presidentââ‚â„¢s warrant to make appointments is such a power.
He raises a number of other interesting and important issues. A must read. Also, be sure to check out the energetic and insightful new bench memos blog at NRO.
Posted in Senate Rules —
Posted at 9:45am on May 13, 2005 Abbott defends Owen
By Zummo
Greg Abbott, the current Attorney General of Texas and former Texas Supreme Court justice, comes to Priscilla Owen's defense in today's National Review Online. He was an eyewitness to the famous abortion consent case from which liberals have misquoted Alberto Gonzales in order to characterize Owen as a judicial activist.
Few things in life are 100 percent certain, but this one is: Alberto Gonzales was not calling Priscilla Owen, or any other colleague, a judicial activist. On this point there was never one iota of intra-court confusion. My colleagues and I knew that Justice Gonzales was not targeting anyone personally but making a point of personal principle - because I interpret this imprecise statute a certain way, it would be a personal act of judicial activism to let my subjective ideology trump my detached interpretation. His concurring opinion characterized what he believed he would be doing if he interpreted the statute to mean something other than what he thought it meant, even though his interpretation may have been "personally troubling to [him] as a parent."
No doubt, the Texas Parental Notification Act is susceptible to more than one good-faith interpretation. And disagreements about what statutes mean are often contentious, even among the most collegial jurists. But no judge on my court believed for a moment that Justice Gonzales was rebuking anyone, least of all Priscilla Owen. Indeed, far from branding Justice Owen an activist, his concurrence - which not once mentions Owen or her separate dissent - noted explicitly that "every member of this Court agrees that the duty of a judge is to follow the law as written by the Legislature." This categorical declaration captures the very antithesis of judicial activism. Justice Gonzales never suggested anywhere to anyone that Owen was legislating rather than adjudicating, and he has repeatedly clarified that he never believed or intimated otherwise. He put an exclamation point on it earlier this year in sworn testimony before the Senate Judiciary Committee: "My comment about judicial activism was not focused at Judge Owen," and "the words that have been used as a sword against Judge Owen" have been distorted.
The worn-out "activism" charge from the anti-Owen forces (who always opposed parental notification anyway) has been refuted time and again by others close to the process. Indeed, the principal author of the notification law has stated unequivocally that "[Owenââ‚â„¢s] opinions interpreting the Texas Parental Notification Act serve as prime examples of her judicial restraint" and that Owenââ‚â„¢s legal analysis was focused on a solitary objective: "to determine what the Legislature intended the Act to do." Moreover, the pro-choice law professor who helped the Texas Supreme Courtââ‚â„¢s Advisory Committee draft procedures under the parental notification law supports Owen and rejects emphatically any charge of judicial activism in Owenââ‚â„¢s analysis: "Owen is not a judicial activist," and ââ‚Å“[h]er decisions do not demonstrate judicial activism. She did what good appellate judges do every day.ââ‚?
Bottom line: The Left's allegation that Gonzales accused Owen of unprincipled activism spins his words 180 degrees and is patently false. I was there, and the facts are hostile witnesses. But the charge - repeated 24/7 by liberal interest groups and a compliant, soundbite-craving media - has acquired urban-myth status.
Of course this will not stop the left from continuing to distort the truth, but Abbott's article further reveals just how far afield from reality is the view that Owen is a judicial activist of any variety.
Posted in Uncategorized —
Posted at 8:17am on May 13, 2005 Friday Filibuster Stuff
By AndrewHyman
Charles Krauthammer has a characteristically excellent column today in the Washington Post. Don't miss it. The Wall Street Journal endorses the constitutional option here. There are also lots of other Friday news stories and opinion pieces on this subject, and many of them are listed below the fold, courtesy of How Appealing.
"Frist to Begin Showdown on Judicial Filibusters Next Week": The New York Times provides this news update.
Thomas Ferraro of Reuters reports that "Senate readies for fight on judicial nominees."
Bloomberg News reports that "Frist Says He Plans to Seek U.S. Senate Votes on Brown, Owen."
Available online from the Knight Ridder Newspapers: James Kuhnhenn reports that "Parties battle over judicial nominees with one eye toward elections."
"Marriage ruling sets stage for Senate debate; Federal judge strikes down Nebraska constitutional ban on same-sex marriage, as senators gird for battle": Tom Curry, national affairs writer for MSNBC, provides this report.
"Senate Judicial Fight Heads for Showdown": The Associated Press reports here that "Setting the stage for a long-anticipated showdown, Senate Majority Leader Bill Frist announced Friday he will seek confirmation next week for two of President Bush's conservative judicial nominees blocked by Democrats."
"Sen. Arlen Specter stuck in the middle: 'Today' host Katie Couric talks with the Republican moderate about relations between the parties and his cancer prognosis." MSNBC makes available online the transcript (containing a link to video) of a segment from today's broadcast of the "Today" show.
On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained a segment entitled "Senate Readies for Filibuster Battle." RealPlayer is required to launch this audio segment.
"Harry Reid Steps Over the Line -- Again; The GOP calls his description of a Bush nominee 'deeply unethical'": Byron York has this essay today at National Review Online. The statement in question can be viewed in the Congressional Record from yesterday at this link, in the center column, second paragraph from the top of the page.
At National Review Online, Andrew C. McCarthy has an essay entitled "Confessing Error: Filibusters of presidential appointees violate the Constitution."
At National Review Online, Texas Attorney General Greg Abbott has an essay entitled "Democratic Demagoguery: The dishonest attack on Priscilla Owen."
At National Review Online, Rich Lowry has an essay entitled "Go Nuclear: There's no tradition stopping Republicans."
"Judgeship Confirmation Line Grows; A panel's party-line vote adds a fifth nominee to a list of jurists awaiting Senate approval; One of them will likely trigger a filibuster showdown": This article appears today in The Los Angeles Times.
The Montgomery Advertiser reports today that "Pryor in for Senate battle."
The Birmingham News reports that "Panel OKs Pryor for seat."
The Mobile Register reports that "Pryor braces for 2nd battle; Judiciary committee sends Mobile native's nomination back to the full Senate for possible 'nuclear' showdown."
The News & Observer of Raleigh, North Carolina contains an article headlined "Judge Boyle gets oh, so close, but..."
The Washington Times reports that "Reid cites FBI file on judicial pick."
The Philadelphia Inquirer reports that "Specter urges majority leader to avert a filibuster showdown."
The Lincoln (Neb.) Journal Star reports that "Nelson tries to broker judicial compromise."
The Detroit Free Press reports that "Michigan Republicans urge deal on judges; But GOP won't back down on vote."
The Daily Princetonian reports that "Frist filibuster packs up, moves to Washington, D.C."
In commentary, The Philadelphia Inquirer contains an editorial entitled "The Filibuster Vote: A roll call of hypocrisy."
The Providence (R.I.) Journal contains an editorial entitled "No nukes, please."
The Washington Times contains an editorial entitled "Spinning the Fortas filibuster" and an op-ed by R. Emmett Tyrrell Jr. entitled "Judgeship jousting."
In The Washington Post, columnist Charles Krauthammer has an op-ed entitled "Nuclear? No, Restoration," while columnist Richard Cohen has an op-ed entitled "Mr. Smith's Lost Cause."
In The Amarillo Globe, columnist William H. Seewald has an op-ed entitled "Republican assault on judiciary is ceaseless."
UPI provides an essay by David Cohen entitled "Save the filibuster."
At Human Events Online, C. Boyden Gray has an essay entitled "Bust Judicial Filibusters: Four Democratic Myths About Confirming Judges."
Posted in News —
Posted at 10:09pm on May 12, 2005 Gay Marriage, Federalism, Hagel, and Warner
By AndrewHyman
Today, U.S. District Judge Joe Bataillon (a Clinton appointee) struck down part of the Nebraska Constitution, which the people of Nebraska had adopted five years ago with 70 percent of the vote. Article I, Section 29 of the Nebraska Constitution said that two people in a gay relationship may be treated like two single people, but may not be treated like a married man and woman:
ââ‚Å“Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."
One of the big issues in the filibuster debate is whether the Senate minority should be able to demand judges who will go along with this kind of decision by Judge Bataillon.
Here is what Judge Bataillon said about this provision of the Nebraska Constitution:
ââ‚Å“Section 29 of the Nebraska Constitution is hereby declared unconstitutional and enforcement of the same is permanently enjoined."
The judge said that Section 29 violated the First Amendment right to petition, because it made it impossible for citizens to obtain legislation that would violate Section 29. The judge said that Section 29 violated the First Amendent right of two people to peacably assemble, because it prevented them from voluntarily associating with each other. The judge said that section 29 was a "bill of attainder" in violation of Article I, Section 9 of the Constitution, because it punished a particular group of people without a trial. And, the judge said that Section 29 violated the Equal Protection Clause in the 14th Amendment of the Constitution, because it treated the union of a man and a woman differently from the union of a man and a man, or the union of a woman and a woman.
Whether you agree or disagree with Section 29 of the Nebraska Constitution, it doesn't take a rocket scientist to see that it has been stricken down on very questionable constitutional grounds, by an activist judge who has a very expansive view of the national government's ability to tell the people of each state how to govern themselves.
Standing up for federalism does not mean approving of everything that a state does. Senator John Warner of Virginia, for example, took a principled stand against legislation to keep Terri Schiavo alive, because he felt that it was a matter for the states to decide --- and not because he agreed with what was going on in Florida. Today, Senator Chuck Hagel of Nebraska took a similar position:
ââ‚Å“I am deeply disappointed in Judge Bataillonââ‚â„¢s decision. States have always had jurisdiction over marriage laws. A federal judge has taken this right away from the people of Nebraska. I am hopeful the federal appeals court will recognize the rights of Nebraskans to determine their own laws governing marriage and reverse this decision."
The present controversy about judges is very much about whether the Democratic minority in the Senate should be allowed to demand judges who will do their bidding, in order to alter the legal landscape in ways that are neither commanded nor implied by the Constitution. Senators Hagel and Warner will have to decide whether it's acceptable for a Senate minority to use filibusters in order to dictate to the President whether or not his nominees must be activist judges.
Posted in Senate Rules —
Posted at 5:38pm on May 12, 2005 Bench Memos
By AndrewHyman
National Review has just started up a new blog, called "Bench Memos," which is focussed on judicial confirmation issues. It's now linked over at the right side of the confirmthem page.
Sean Rushton is one of the bloggers there, and he has a post on the latest derogatory remarks coming from the filibusterers. Evidently, Sen. Harry Reid is publicly referencing confidential FBI files on one of the filibustered nominees. Perhaps some day Senator Reid will pay a price at the polls for unbecoming conduct.
UPDATE: Howard Bashman notes that Senators Leahy, Stabenow, and Levin have previously remarked about unspecified allegations against Judge Saad. Bashman also notes that a closed-door discussion of those charges was once inadvertently broadcast over the internet.
Posted in News —
Posted at 4:17pm on May 12, 2005 The Fake CBS Interview of Ken Starr
By AndrewHyman
Starr is denying the accuracy of a recent CBS broadcast that purported to show him condemning efforts of GOP Senate leadership to obtain up-or-down votes for judicial nominees. We previously mentioned the CBS interview, and provided a link to it. Here's the link again: PHONY CBS STARR INTERVIEW.
Rush Limbaugh today read aloud an email from Ken Starr. According to Starr's email, CBS took his answer from a question about whether judicial nominees should be examined on their judicial philosophy as opposed to their qualifications, and made it seem as though it were an answer to a question about the so-called "nuclear option." CBS is now refusing to give Judge Starr the entire transcript of the interview.
Hat tip to the Iron Teakettle. Power Line comments here. Rush Limbaugh comments here. Courtesy of The Corner, we quote Starr's criticism of CBS below the fold.
UPDATE: Mickey Kaus is all over this brouhaha. Ramesh Ponnuru responds to Kaus here.
"In the piece that I have now seen, and which I gather is being lavishly quoted, CBS employed two snippets. The 'radical departure' snippet was specifically addressed -- although this is not evidenced whatever from the clip -- to the practice of invoking judicial philosopy as a grounds for voting against a qualified nominee of integrity and experience. I said in sharp language that that practice was wrong. I contrasted the current practice . . . with what occurred during Ruth Ginsburg's nomination process, as numerous Republicans voted (rightly) to confirm a former ACLU staff lawyer. They disagreed with her positions as a lawyer, but they voted (again, rightly) to confirm her. Why? Because elections, like ideas, have consequences. . . . In the interview, I did indeed suggest, and have suggested elsewhere, that caution and prudence be exercised (Burkean that I am) in shifting/modifying rules (that's the second snippet), but I likewise made clear that the 'filibuster' represents an entirely new use (and misuse) of a venerable tradition. . . .
"[O]ur friends are way off base in assuming that the CBS snippets, as used, represent (a) my views, or (b) what I in fact said."
Posted in News —
Posted at 2:46pm on May 12, 2005 Podesta and Agrast on Filibusters
By AndrewHyman
John D. Podesta and Mark D. Agrast have just published an essay titled, "Back from the Brink: A Conventional Alternative to the Nuclear Option." They urge President Bush to be more deferential to the Senate minority. Unfortunately, Podesta and Agrast rely upon a very shaky understanding of history. They write:
In 1792, George Mason wrote to James Madison, "The Word 'Advice' here clearly relates to the Judgment of the Senate on the Expediency or Inexpediency of the Measure, or Appointment; and the Word 'Consent' to their Approbation or Disapprobation of the Person nominated; otherwise the word Advice has no Meaning at all."
In reality, George Mason was writing to James Monroe, not to James Madison. Moreover, Podesta and Agrast have ripped the quote out of context:
I am decidedly of opinion, that the Words of the Constitution "He shall nominate, and by & with the Advice and Consent of the Senate, appoint Ambassadors" &c. give the Senate the Power of interfering in every part of the Subject, except the Right of nominating. There is some thing remarkable in the Arangement of the Words "He shall nominate." This gives to the President alone the Right of Nomination. And if the Senate were to refuse their Approbation of the person nominated (which the subsequent Part of the Clause puts in their Power) they wou'd have no Right to nominate another Person; the Right of Nomination being complete in the President. "And by and with the Advice & Consent of the Senate appoint Ambassadors" &c. The Word "Advice" here clearly relates in the Judgment of the Senate on the Expediency or Inexpediency of the Measure, or Appointment; and the Word "Consent" to their Approbation or Disapprobation of the Person nominated; otherwise the word Advice has no Meaning at all--and it is a well known Rule of Construction, that no Clause or Expression shall be deemed superfluous, or nugatory, which is capable of a fair and rational Meaning. The Nomination, of Course, brings the Subject fully under the Consideration of the Senate; who have then a Right to decide upon it's Propriety or Impropriety. The peculiar Character or Predicament of the Senate in the Constitution of the General Government, is a strong Confirmation of this Construction.
It could not be plainer that Mason regarded the Senate's constitutional advisory role as beginning after the President nominates a nominee. This principle is embodied in the Senate's own rules; Rule 31, Section 1 requires that the Senate only provide its consent to an appointment if the Senate is also willing to simultaneously advise the President to proceed with that appointment.
Podesta and Agrast have quoted George Mason out of context in order to support their notion that the Senate should be allowed to "help" the president choose nominees. I would argue that the President is under no constitutional obligation to let the Senate "help" choose nominees, much less to let a minority of the Senate do that. Podesta and Agrast seek further historical support for their thesis:
In 1869, President Grant appointed Edwin Stanton to the Supreme Court in response to a petition from a majority of the Senate and the House.
So, if a "majority" of the House and Senate petitions President Bush to nominate a judge, will Podesta and Agrast allow the filibusters to end, even if that majority is comprised of Republicans only? Somehow, I doubt it.
Podesta and Agrast pose this question:
If the president fails to seek advice, should he be surprised when senators are unwilling to give their consent?
The answer is that the President should indeed be surprised if senators are unwilling to allow their colleagues to ever have an opportunity to consent. It's one thing for a Senator to withhold his own consent, but quite another to compel others to withhold theirs. Podesta and Agrast continue:
In a recent speech at the Center for American Progress, the dean of the Senate, Robert C. Byrd of West Virginia, suggested that the White House and the bipartisan leadership of the Senate enter into a formal consultative process that would yield a list of nominees who are broadly acceptable to both sides.
â₦.
As two conservative former senators, Jim McClure and Malcolm Wallop, have written, "It is disheartening to think that those entrusted with the Senate's history and future would consider damaging it in this manner."
The only reason why McClure and Wallop expressed that sentiment is because they believe another technique can be used to shut down the outrageous Democratic filibusters of majority-supported judicial nominations. McClure and Wallop advocated enforcing the "two-speech rule" in order to end debate. Others have argued for additionally banning dilatory quorum calls, as the Senate has done in the past. McClure and Wallop most emphatically have not advocated allowing the Senate --- much less a Senate minority --- to usurp the President's nomination power and extort preferred types of nominations from the President, as Podesta and Agrast now seem to be suggesting.
UPDATE: Mark Agrast wrote to me on May 17, to answer this confirmthem post. I then recommended to him the interesting piece by Dan Dalthorp describing why the Framers vested the nomination power in a single person rather than in a group of people. Anyway, here's the May 17 response that I received from Mark Agrast. He asked me to post it here, and I'm glad to oblige....
Dear Mr. Hyman:
Thank you very much for your correction to our recent article on the judicial filibuster. It was, of course, Monroe, rather than Madison, to whom Mason wrote his famous letter, and we are grateful to you for bringing the error to our attention. The article has been corrected.
We do not agree, however, with your interpretation of the passage, or with your suggestion that by excerpting it we have distorted its meaning. Our point was that the Constitution contemplates that the Senate will give the president its advice as well as its consent, and that these are different things. Indeed, that is what Mason says. In suggesting that the Senate may offer such advice at any time, even before the nomination has been tendered, we do not suggest that the Constitution requires this; only that it permits it. Nor do we suggest that by offering its advice the Senate could compel the president to accept it; in fact, we say the opposite. Our argument is not that the president must consider the Senateââ‚â„¢s advice, but that he may do so, as was done in the historical examples we cite. There is nothing in the constitutional scheme of advice and consent that requires the process to be divisive and acrimonious, and we believe the nation would be better served by an orderly and consultative process that yields nominees who are confirmable, not by 51 votes, but by a filibuster-proof majority.
Sincerely,
Mark Agrast
Posted in News —
Posted at 1:25pm on May 12, 2005 GOP Position is Principled
By DanCT
Stuart Taylor Jr. has an interesting but misguided article in the latest issue of National Journal, entitled " Filibusters: Two Wrongs Won't Make Things Right" (subscription). His basic premise is that the filibuster battle is about politics rather than principle, and that the Democrats and Republicans are equally culpable. In pursuing his relativistic argument that everyone is equally at fault and neither is more right than the other, he attempts to appear moderate and balanced, but he misses some obvious and critical issues that form the basis of the principled GOP stand. To consider those issues would inconveniently belie his entire moderate-sounding thesis. He'd have to concede that the right is right. What, then, are the issues he misses and/or glosses over? First, Taylor explains clearly and succinctly what the Senate Democrats have been doing:
Senate Democratic Leader Harry Reid and others say that they are standing up for the right to "extended debate" on nominees. Bosh. They are standing up for the right to deny up-or-down votes, forever, to nominees who can't win the 60 votes required by Senate Rule 22 to end a filibuster.... Democrats' current use of the filibusterââ‚â€the only nominee-stopping weapon available to the minority partyâ₆represents a major escalation of the partisan warfare over judicial appointments.
These points are obvious. What is also obvious is that there needs to be a forceful GOP response to move the Senate back toward civility and dignity with regard to judicial nominations. (Did you in your wildest dreams in the early '90's think you would one day look back to the Clarence Thomas hearings as an era of civility and dignity? At least the man got a vote...)
So we begin with the profoundly conservative principle of defending the long-established tradition of Senate action on judicial nominees. I'm sure Mr. Taylor would agree that it would be unprincipled not to do something. But what? Without extreme pressure the Democrats clearly won't back away from the routine use of the filibuster against nominees that they perceive as ideologically opposed to their social agenda. So, the Republicans are threatening to use the Byrd option (i.e., changing precedent with regard to interpreting Senate rules --- something that Byrd (D-WV) did four times in the 1970s). Taylor then makes his strongest argument against the GOP stance:
A vote to muscle through a fundamental change in the filibuster rule by a narrow majority would make it blindingly clear that the same could be done to any other rule, at any time, by any 51 senators.
Nonsense! The GOP action is a direct response to atrocious treatment of the nominees. Without the "major escalation in partisan warfare" by the Democrats, there would be no talk of "nuclear option." There would be no discussions about the intricacies of Senate rules and procedures on the front pages of our newspapers. There would be no talk of the Democrats forging a "constitutional revolution". It is the gross abuse of a Senate rule that has led to calls for change. For the GOP to refuse to act would be unthinkable. If a change is made, it will not only stop the present Democrats' abuses from continuing, it will also prevent similar abuses in the future should the GOP be tempted to retaliate. That can only be a good thing.
Taylor then argues that a future majority that is motivated by strictly partisan concerns might look back to the GOP's action as precedent to change Senate rules willy-nilly to ensure partisan advantage over the minority.
...whether it be later this year, next year, or whenever Democrats regain control of the Senate, the temptation to follow the "nuclear" precedent by mowing down other minority protections would eventually become overwhelming.
Nonsense! Aside from marking a major break with tradition and aside from gross abuse of the nominees, what makes this case unique and distinct from a legislative filibuster is that the Senate's juvenile attitude of "but we don't want to play, Mommy" infringes on the Constitutional power of the President to make nominations. The purpose of filibustering a nominee is to force a compromise, "moderate" nominee from the President. However, the Constitution explicitly gives the President the sole power to nominate candidates. The framers didn't trust an assembly such as the Senate to be able to rise above partisan bickering to come up with the best candidate. Competing factions would battle each other to come up with a compromise candidate. In the Federalist papers (76), Hamilton gives the rationale: compromise nominations will result in mediocre appointments. Two centuries later, Kaus picks up on Hamilton's argument and writes:
Forcing a compromise nominee isn't a very satisfying solution. An unprincipled go-with-the-flow O'Connor/Kennedy centrist...is much more likely to emerge from a post-filibuster negotiation than a principled nonactivist.
When the White House and Senate are controlled by the same party, it is crucial to take advantage of the situation to nominate high quality people who aren't afraid to make clear, principled, non-activist decisions that may well offend a vocal minority that wants its own policies preferences enacted from the bench.
The Senate GOP is acutely aware of the Constitutional issues at stake and the carefully crafted checks and balances between the branches of government that are threatened when a Senate minority attempts to usurp Presidential authority by filibustering. There is keen awareness of the distinction between legislative filibusters (which is the Senate minding its own affairs) and filibusters of judicial nominees (which is the Senate meddling in the affairs of the President). The Senate's role in the appointment process is to either consent to the President's nominations or reject them. It is decidedly not the Senate's role to foist the will of a minority of its members onto executive branch deliberations about whom to nominate.
It is right and wholly proper for the President to protect the power of the Presidency (not his Presidency, but the Presidency in general) against the assault launched by the Senate. He has pressed the issue by re-nominating candidates that Senate refused to act on in the previous session, by making judicial nominations an issue in the Presidential campaign last year, and by giving public speeches about the importance of candidate. He would be fully justified in doing more because the issue is not simply a matter of Senate proceedures, nor a matter of strictly partisan concerns. It is also a matter of protecting the Office.
Taylor later writes:
the Republican argument that the Constitution requires up-or-down votes on all nominees rests on emanations and penumbras from the Constitution more far-fetched than any of those imagined by liberal activist justices to protect contraception and abortion rights.
Well, not nearly as far-fetched as the argument that the fourteenth amendment guarantees an unrestricted right to abortion or gay marriage, but he does raise a good point that filibustering of nominees can only be deemed unconstitutional through the sort of "emanations and penumbras" reading that conservatives so rightly rail against. The advice and consent clause reads "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appointâ₦ââ‚? It says that the President's nominees take office upon Senate consent, and there is no provision for nominees to take office if, in a hissy fit, the Senate refuses to act. The presumption was that the Senate would not abrogate its duty to act, as it consistently had acted on judicial nominees over the 200+ years prior to the recent actions of Senate Democrats.
Taylor wrongly argues that the filibustering of nominees is not fundamentally different from blocking nominees by other means:
Senate rules have long been used-ââ‚â€not least by Senate Republicans during the Clinton yearsââ‚â€-to stop thousands of nominees, many of whom could have won up-or-down votes, by denying them hearings, burying them in committee, using individual "holds," and employing other tactics of delay.
It is not an accident that Taylor does not cite a single instance when a candidate with majority floor support was blocked by procedural delays in committee and prevented from taking office. Such instances are the exception. If they weren't, the majority would use its power to override the tactics by a simple majority vote. On the other hand, when a majority blocks nominees in committee, the presumption is that the nominee would not survive a floor vote. The nomination is thus rejected in committee. Filibustering, though, is distinctly different because it is a minority riding roughshod over the majority, whose right and duty to advise and consent, to confirm or reject is denied.
To "prove" that the GOP's fight is unprincipled, Taylor then argues:
Imagine for a moment the scene that would be unfolding if the shoe were on the other footââ‚â€if Democrats had won the presidency and the Senate and were now trying to put a few crusading liberals on the bench.
Senate Republicans would be filibustering...
Hold on there, pardner! Republicans have often been in the minority in the Senate while a Democrat sat in the White House. Crusading liberals have frequently been nominated to be seated on the bench, but Republicans never responded by filibustering the nominees. As Taylor concedes earlier in his article, the filibustering by the Democrats represents a "major escalation in partisan warfare." It is interesting to note that filibustering was indeed discussed by Republicans when Clinton was nominating crusading liberals for the bench, but it rejected as being a debased tactic that wrongly infringed on the power of the President to nominate and restraining the Senate's role to confirming or rejecting.
Would they stoop to the tactic in the future? The evidence indicates that they could very well and probably would. To start, several wobbly Senate Republicans have said that they want to defend the Democrats because they want to reserve the tactic for their own use in the future. Since the Democrats have provided ample precedent, principled Republicans in the Senate would not long be able to resist the pressure to continue the escalated partisan warfare initiated by the Democrats. In fact, in the 90s they filibustered approximately two of Clinton's executive branch nominees (not judicial). Principled conservatives (like Charles Krauthammer, as quoted by Taylor) were furious: "Republicans have established a terrible precedent. Requiring nominees for high office to get not 50 but 60 votes is a bad way to run the country." He was right then, and folks that are echoing him now by saying "filibustering judicial nominees is a terrible precedent" are right today. The solution is not to continue escalating the partisan warfare by vowing payback time when the tables are turned; the solution is to find a solution. With hopes for compromise fading, the Byrd option may be the only option. So be it.
Finally, Taylor inadvertently closes with a great argument why the filibusters should be ended:
It is said that the value of a sword of Damocles is not that it falls, but that it hangs. The value of a rule allowing nominee filibusters is not that it should be used, but that it should hang over the process, and serve as a moderating influence on the president.
That is exactly why the filibuster should be eliminated, and that is exactly the argument the framers had in mind when they gave the President sole power to nominate: keep the Senate out of the nomination process so excellence rather than inoffensiveness is given primary consideration. Meandering judicial decisions written with a self-conscious desire to be moderate or inoffensive make for meandering, unsettled, muddled law. The President needs to be free to nominate whom he sees fit, while the Senate restrains its role to either confirm or reject nominees. End the filibuster now.
Posted in Senate Rules —
Posted at 12:18pm on May 12, 2005 Pryor Approved by Judiciary Committee
By AndrewHyman
Previously filibustered nominee William Pryor has been approved by the Senate Judiciary Committee on a party line vote of 10-8. Two other nominees, Brett Kavanaugh and Terrence Boyle, have been held over.
So, altogether, four previously filibustered nominees have been approved by the Senate Judiciary Committee and await up-or-down votes by the full Senate: Mr. William Myers, California Supreme Court Justice Janice Rogers Brown, Texas Supreme Court Justice Priscilla Owen, and Circuit Judge William Pryor. Judge Pryor has a temporary "recess" appointment to the 11th U.S. Circuit Court of Appeals.
At the hearing today, Senator Kennedy said this: "It's clear that Mr. Pryor sees the federal courts as a place to advance a political agenda" (which is not unlike Wilt Chamberlain accusing the Pope of promiscuity).
Senator Specter said this at the hearing today:
"If Democrats were to vote their conscience without the party-line vote, we would not have a filibuster or least not have the pattern of filibusters,'' Specter said. "If Republicans were liberated from the party-line straightjacket," then "we would not support the nuclear option."
It appears, however, that Minority Leader Reid intends to make cloture votes on majority-supported judicial nominees a matter of party loyalty.
UPDATE: Apparently, Sen. Reid has just offered to drop filibusters against two non-controversial Michigan nominees (Griffin and McKeague), but Sen. Frist reiterates the principle that each person nominated by the President and reported to the Senate floor deserves an up-or-down vote.
Posted in News —
Posted at 11:32am on May 12, 2005 Funny Cartoon From Cagle
By AndrewHyman
Hat tip to Mike. More cartoons on this subject here and here.
Posted in Fillibuster —
Posted at 12:45am on May 12, 2005 Hugh Hewitt and Others, on Filibusters
By AndrewHyman
Hewitt points out in the Weekly Standard the inconsistency of liberal outrage over congressional proposals to impeach judges, compared with liberal happiness that the Senate has actually begun using the filibuster to permanently block nominees. It's an interesting comparison.
Meantime, the Washington Post has a profile of nominee Terrence Boyle. The New York Times has a filibuster report, including this:
[T]he Democratic Senatorial Campaign Committee plans to use e-mail to send hundreds of thousands of supporters an advertisement seeking to link Senator Bill Frist, the majority leader who is championing the rule change, with Representative Tom DeLay of Texas, the House majority leader, and his vocal criticism of the judiciary....A spokesman for Dr. Frist, Bob Stevenson, dismissed the effort to link the two leaders. "It sounds like a stretch," Mr. Stevenson said.
The Washington Times has a piece comparing Pres. Bush's confirmation rate with those of his predecessors, plus an article about how the GOP is pulling even with the Dems in the filibuster PR war, plus an article looking at the two parties' divergent views of filibuster history.
Emmett Tyrell has a column in Townhall titled, "Get Ready to Rumble," in which he writes this: "Students of American politics are about to witness a real battle royal in the Senate....My guess is that the Republicans are going to win."
Paul Escajadillo writes this (and more) in the Daily Aztec:
[W]hen a grievous abuse by the minority party continues unabated as it has, and disenfranchises the will of most of the voters who made Republicans the majority party, something has to be done. And while it is true Republicans will not be the majority party indefinitely, changing the rule will also prevent them from abusing their consent role in the event they become the minority.
And finally, for now, Marion Edwyn Harrison discusses legal issues involved in changing Senate procedures, and concludes his piece in the National Ledger by asking this question:
The political left may have achieved part of its purpose: Who, being an outstanding attorney, academic or judge, would permit his or her name to go forward with the prospect of a senseless sentence of endless delay and personal and professional vilification?
Good question.
Posted in News —
Posted at 11:38pm on May 11, 2005 The Problem With The Polls
By Lorie Byrd
Betsy Newmark links to and comments on an article in The Hill by Republican pollster, David Hill, about the problems with the polls that have been done on the subject of the judicial filibuster. One of the biggest problems is that most don't understand the filibuster issue, so it first has to be explained to those being polled.
Ask any political-science professor if heââ‚â„¢s ever been able satisfactorily to explain the filibuster to a class of daydreaming college freshmen in 50 words or fewer. Even with the specter of a grade hanging over their heads, most students wonââ‚â„¢t get it the first time. Imagine how attentive a Gallup Poll respondent must be if heââ‚â„¢s a 30-something guy watching ESPN while taking the poll, or a mother cooking dinner with a kid on her hip, or a senior citizen straining even to hear the description.
These policy polls all face the same problem. Only a handful of Americans are truly interested in issues. Public polls are fine for election trial heats such as Bush versus Kerry. Voters get that. But policy polls reveal empty heads.
After quoting an excerpt from Hill's piece about how confusing and inadequately some poll questions have been framed, Betsy Newmark makes an excellent point.
You could just as easily frame a question by saying, "As you may know, the filibuster has been used historically to block civil rights legislation. Today the Democrats are using the filibuster to block Bush's judicial nominees. Do you support or oppose the use of the filibuster?" That wouldn't be a fair framing of the question either, but it would have as much historical validity as the question Gallup did choose. Gee, who is against blocking controversial legislation? Of course, they didn't mention that much of that "controversial legislation" involved banning discrimination against blacks. Puts a whole different spin on this sacred right that the Senators all love so much when they're in the minority, doesn't it?
Wow, Betsy hit on a couple of my biggest pet peeves in one post: bogus polls, and the use of the word "controversial" when describing any judicial nominee that Democrats don't like.
Posted in Fillibuster —
Posted at 6:46pm on May 11, 2005 Looking for an Excuse to Drop a Nominee?
By AndrewHyman
Maybe it's nothing important, but I was just visiting another blog, where I learned of a possible rationale for scuttling the nomination of Texas Supreme Court Justice Owen. Here's the silly rationale: Justice Owen was the only one of the previously filibustered nominees to have been rejected by the Senate Judiciary Committee (SJC). Of course, she was later renominated and approved by the SJC, but some people seem to question the propriety of the renomination.
We're always looking for interesting stuff to write about here at confirmthem, so I may as well address this silly rationale. Now that the previous bogus excuse for criticizing Justice Owen has been completely debunked (i.e. Attorney General Gonzales clearly never accused her of being a "judicial activist"), people may want to latch on to another excuse. But this business of her renomination having been improper is completely baseless, as I explain further, below the fold.
The Owen renomination did not represent an abuse of the process, regardless of whether she had previously been rejected by the Senate Judiciary Committee (SJC). If President Bush had renominated her during the same Congress in which the SJC had rejected her nomination, then there *might* be reason to question the propriety of her renomination. Instead, an election intervened, so the President had every right to ask Congress to take a fresh look at Justice Owen.
Surely, if a piece of legislation is defeated in one Congress, it can be reconsidered in a following Congress. There's nothing untoward about that. Likewise with Justice Owen, her rejection once by the SJC should not bar her forevermore from applying for the same slot, if that slot remains open or becomes open.
Moreover, Owen was merely rejected by a committee and not by the full Senate. Surely, rejection by the full Senate would provide an even greater reason for a president to not renominate a nominee. And yet, among those rare occasions when the Senate has seen fit to reject a nominee, Presidents frequently have renominated those individuals. The following historical material I have plagiarized from the Committee for Justice.
In 1835, a majority of the Senate voted to postpone indefinitely the nomination of Roger Taney to be Associate Justice. President Andrew Jackson renominated Taney to be Chief Justice during the next Congress, and the Senate confirmed him.
In 1844, the Senate rejected John C. Spencer's nomination to the Supreme Court, but President Tyler nevertheless renominated him. That same year, the Senate tabled the nominations of Reuben Walworth and Edward King to the Supreme Court in 1844, but President Tyler also renominated them both.
In 1881, the Senate Judiciary Committee approved a motion to postpone consideration of President Hayes's nomination of Stanley Matthews to the Supreme Court and then refused to take any further action on the nomination. Yet in the following Congress, President Garfield nominated Matthews, and the Senate confirmed him by a one-vote margin.
In 1893, President Cleveland nominated William Hornblower to the Supreme Court. The committee refused to report his vote out of committee, yet Hornblower was renominated during the next session of the same Congress.
More recently, in 1997, the Senate Judiciary Committee refused to report the Justice Department nomination of Bill Lann Lee to the entire Senate. Yet President Clinton not only renominated Lee in subsequent sessions of the Senate, he even gave Lee a recess appointment in 2000 evading the Senate's advice and consent prerogative altogether without triggering substantial opposition in the Senate.
Incidentally, if a renomination were withdrawn merely because it had previously been rejected by the Senate Judiciary Committee, there apparently would be nothing to stop the President from successfully nominating the same person for a different slot. So, it's hard to see what would be accomplished for anyone by withdrawing the renomination.
Posted in Senate Rules —
Posted at 5:02pm on May 11, 2005 Senator Trent Lott on Sean Hannity Show
By AndrewHyman
Sen. Lott was interviewed Wednesday afternoon by Sean Hannity. Lott is a very engaging fellow. Living up here in Connecticut, it's nice to hear the old Mississippi accent once in a while. Anyway, getting down to the filibuster issue, Senator Lott was reassuring that he and the GOP have no intention of dumping any of the seven previously filibustered nominees. This is good to hear, because they all deserve an up-or-done vote, as a matter of principle. Lott emphasized that.
Senator Lott expects --- but cannot guarantee --- that the "constitutional option" will come to a vote next week, and he expects it to prevail. He acknowledges that it may in some ways hurt the Senate to proceed in that manner, but he says:
The institution needs to be hurt if it's doing something wrong, and what's happened to these people is wrong.
Regarding Minority Leader Harry Reid, Senator Lott mentioned some of Reid's less-than-senatorial conduct lately, and Lott remarked:
His conduct over the past year has got me missing Tom Daschle....Reid's not up for four and a half years, but his party's up every two years.
Neither California Supreme Court Justice Janice Rogers Brown, nor Texas Supreme Court Justice Priscilla Owen, will be dumped by any deal that Senator Trent Lott agrees to, nor should they be. All seven of the previously filibustered nominees deserve meaningful consideration by the Senate --- and that means an up-or-down vote.
A few weeks ago, Professor Jonathan Turley of George Washington University Law School remarked that, "All these people are more conservative than I am," but nevertheless, "You can still be a very good judge and hold views that they hold." Turley is right.
Posted in News —
Posted at 3:39pm on May 11, 2005 "Judges Fight Set For Next Week"
By AndrewHyman
Via Southern Appeal, here's part of a Roll Call article by Paul Kane, published earlier today:
Senate Majority Leader Bill Frist (R-Tenn.) set the stage Tuesday for the final showdown over judicial filibusters, declaring that he would bring up judicial nominees for floor debate next week.
Frist said that once the highway bill is cleared, which should happen by the end of this week, the chamber would begin its first consideration this year of one of President Bushââ‚â„¢s controversial judicial nominees. That would begin the process that could lead to a historic vote on a parliamentary tactic to end filibusters.
. . . .
Fristââ‚â„¢s pronouncement, which was his first public declaration of when the judicial floor battle would begin, comes as some undecided Senate Republicans and Democrats were trying to find a way to avoid a showdown, and as the Democratic leadership began its final push to deny Frist the 50 votes he needs to end filibusters.
Frist declined to say specifically which nominee would be brought up first, but he seemed to confirm media reports, including one in Tuesdayââ‚â„¢s Washington Times, that the plan would be to call up Texas Supreme Court Justice Priscilla Owen. She was the only nominee Frist cited by name at Tuesdayââ‚â„¢s weekly press conference.
. . . .
Frist shrugged off any compromise offer that didnââ‚â„¢t guarantee a straight up-or-down vote on Owen and the six other circuit court nominees who were filibustered in the 108th Congress and have been renominated by Bush this year. "Itââ‚â„¢s hard to compromise to the extent that people donââ‚â„¢t get an up-or-down vote," he said.
Democratic leaders similarly dismissed suggestions from Sen. Ben Nelson (D-Neb.), as well as several Republicans, that a deal could be reached that would virtually assure confirmation to Bushââ‚â„¢s judges, including Supreme Court nominees, except for a couple of the already filibustered nominees.
. . . .
The biggest question hanging over next weekââ‚â„¢s debate is whether Frist has the votes necessary to pull off the historic move. Two GOP Senators, John McCain (Ariz.) and Lincoln Chafee (R.I.), have stated their outright opposition to Fristââ‚â„¢s move, and a third, Olympia Snowe (Maine), has sent every signal possible that she doesnââ‚â„¢t support the effort.
That leaves several critical swing votes, including Sens. John Warner (R-Va.), Susan Collins (R-Maine), Arlen Specter (R-Pa.), Chuck Hagel (R-Neb.) and Mike DeWine (R-Ohio).
DeWine, who has remained silent about his position for the past several months, said Tuesday that he is supportive of the general concepts of the compromise solution that Sens. Trent Lott (R-Miss.) and Nelson have been working on for the past few months.
ââ‚Å“Thereââ‚â„¢s a deal to be made there," DeWine said. ââ‚Å“I think that outline makes sense. ... Weââ‚â„¢re in the ballpark there."
McCain also appeared to endorse the concept. ââ‚Å“I think thereââ‚â„¢s a deal that should be and could be made," he said.
Nelsonââ‚â„¢s attempt is designed to shut down both the nuclear option and the current filibusters by getting six Senators from each side to sign a memorandum of understanding. The six Republicans would swear off support of the nuclear option, while six Democrats would vow to support cloture on ending filibusters for judicial nominees.
The final point of contention, Nelson says, is how many of the seven filibustered nominees would be approved.
While Nelson considers a deal to be close, Lott said the filibustered nominees are proving to be a major stumbling block. ââ‚Å“You canââ‚â„¢t do a deal â₆the six-by-six thing â₆unless you have a solution for the magnificent seven," Lott said Tuesday.
In the meantime, leadership aides for Republicans and Democrats have dismissed the effort by Nelson as too little, too late.
Short of a last-minute compromise, the Senate seemed certain to see another round of Democratic filibusters begin next week or whenever Frist is forced to file his cloture motion to attempt to cut off the judicial filibuster.
. . . .
The expected scenario for the showdown is that if Democrats continue to block cloture on nominees next week, Frist will ask for a ruling from Vice President Cheney that the debate on the nominee was "dilatory."
The vice president, acting in his capacity as President of the Senate, has already indicated that heââ‚â„¢ll support that ruling. Then, Frist would move to table a Democratic attempt to over-rule Cheney.
Senate Majority Whip Mitch McConnell (R-Ky.), who earlier this spring declared that Republicans had enough votes to do it, continued to predict an eventual victory if it comes to a floor vote.
"It has been my prediction that we will have the votes if this step is taken," McConnell said.
Posted in News —
Posted at 2:35pm on May 11, 2005 Let Them Know What You Think
By AndrewHyman
Posted in Senate Rules —
Posted at 12:28pm on May 11, 2005 Enough Votes?
By DanCT
John Harwood (WSJ) says it's not clear yet whether Sen. Frist has the votes:
I think the outcome on this is still unclear. There's some talk of negotiations between the two parties to try to sort of back away from this. But Bill Frist, the majority leader, has got himself in a position where he's probably got to go for this. But he may not have 50 votes to make this happen.
I can think of some other reasons why Sen. Frist is waiting until next week to go ahead with the vote, even if he has the votes right now. The GOP really needs to go through all the political hoops in searching for the right solution. That solution may well be a "compromise", but even the "constitutional option" itself is not particularly well-defined. There are a number of ways to implement it, and it's important to get it right. Also, there are a lot of things competing for a Senator's attention (e.g. Bolton), and some Senators may not have really thought through it enough yet to make a decision. The pressure of a looming deadline (next week) tends to bring a measure of clarity and decisiveness to wobbling Senators. In addition, the Democrats may somewhat gum up the works once the vote is taken, so the GOP leadership wants to postpone it as long as possible to get some work done first.
With Chafee, McCain, and Snowe clearly defecting, Frist would need two from Collins, Warner, and Hagel. The Republican vote counters have been sounding pretty confident.
Posted in Senate Rules —
Posted at 12:03pm on May 11, 2005 Editorial From New Hampshire's <em>Union Leader</em>
By AndrewHyman
The Leader ran this on their front page today:
PRESIDENT BUSH and U.S. Senate Republicans have the far better case in the matter of Democrats refusing to allow judges to be voted on in a straightforward, up-or-down fashion. The problem is that Republicans aren't very good at public relations "spin" â₆and the Democrats have a ready ally in much of Big Media.
But if the Republicans don't wise up and have the guts to stop the Democrats' current misuse of the filibuster, they will find that a President Hillary Clinton and her pals will have no such problem in suddenly "discovering" that the Founding Fathers never intended judges or other Presidential appointments to be blocked in this manner.
â₦.
With courts being overrun by judicial activists, the voters' only recourse is to elect a President and Senate that will appoint judges who won't try to re-make the law. To let a small group of extremist Democrats block even a vote on those appointments with this legalistic trick is outrageous. We are quite sure the Presidential Primary voters of New Hampshire will be watching carefully to see how Republican senators act on this crucial matter.
Hat tip to The Corner.
Posted in News —
Posted at 3:08am on May 11, 2005 Senator Warner Wobbles
By DanCT
From the Virginian-Pilot:
ââ‚Å“We canââ‚â„¢t do damage to the Senate rules, which would come back to work against the interests of the Republican Party when weââ‚â„¢re in the minority,ââ‚? Warner said in an interview this week. ââ‚Å“And believe me, you can look at history, that day will come.ââ‚?...
Warner said Wednesday that he wishes Democrats would voluntarily end the debate and permit an up-or-down vote on the nominees. When Republicans were in the minority, he recalled, he voted against Democratic appointees he considered too liberal but refused to join efforts to kill their nominations by filibuster.
Warner said he canââ‚â„¢t go along with changing Senate rules to allow a simple majority ââ‚“ 51 senators ââ‚“ to force action. And a spokesman indicated Thursday that Warner also would be unwilling to support Fristââ‚â„¢s call Thursday for a rule setting a 100-hour limit on debates over Supreme Court and appellate court vacancies.
Sen. Warner says in one breath that he wants to preserve the filibuster so his party can use it to block Democrat nominees in the future, but in the next breath recalls his own role in the GOP's refusal to use the debased tactic in the past (for the very reason that it is debased) --- and elsewhere argues that the filibuster against nominees is simply wrong ("Without question, though, I am strongly opposed to the use of the filibuster to block judicial nominations." Washington Times, 3/23/2005). And then the Senator virtually announces his intention to support the continued filibustering of judicial nominations when it comes to a vote.
Either the filibustering of judicial nominees is wrong (in which case one should vote against it); or it is just fine (in which case one should vote to allow it to continue). However, please do not say the practice is wrong and then vote to support it.
An article in the Augusta Free Press begins on a more promising note about where Senator Warner stands:
Depending on whom it is that you're talking to, Virginia Sen. John Warner is either solidly in favor of the Senate Republican plan to end judicial filibusters, or he is at least open to possible persuasion by those who would like to see the filibuster option preserved.
When it came to the discussion of how reliable Senator Warner is on the issue, though, it's tough to find much comfort in the solidity of Warner's support to return dignity and tradition to the Senate:
Manuel Miranda, the chairman of the Washington, D.C.,-based National Coalition to End Judicial Filibusters, said he isn't worried at all about how Warner will cast his lot. "We see Warner as being in the same class as (Nebraska Republican Sen. Chuck) Hagel and (Arizona Republican Sen. John) McCain. We refer to them as the 'too cool for school' group," said Miranda, the former nominations counsel to Senate Majority Leader Bill Frist, R-Tenn., who has been leading the anti-filibuster effort. "If something isn't their issue, they tend not to weigh in on it or get involved in the public debate. But when it's time for a vote, they either follow the senior member from their home state or the party leadership," Miranda told the AFP. "That's what I see happening here. He (Warner) has never given me pause, so I don't really pay him much mind at all," Miranda said.
So, Warner is as reliable as McCain and Hagel. Great.
Posted in Senate Rules —
Posted at 11:33pm on May 10, 2005 Harris, The Hill, McConnell and Feinstein on Filibusters
By AndrewHyman
Lee Harris has an article on filibuster history that actually contains a lot of interesting and fresh material. Also, The Hill has an editorial peering into the future of the filibuster:
Predicting the future in politics is dangerous work. But the chances of a bipartisan compromise that sticks are slim or none.
The Wednesday issue of the New York Times has an article titled "Democrats Reject a Compromise on Judicial Nominees." Among other things, the article discusses the idea of dumping some of the nominees:
Senator Mitch McConnell of Kentucky, the No. 2 Republican in the Senate, indicated that Republican leaders would oppose any compromise that falls short of allowing all the currently blocked nominees a vote. Mr. Reid has offered to allow some of the disputed judges to advance, and others are negotiating a similar trade-off, with a decision to be made later on which judges get floor votes and which do not. "To this point, any suggested agreement by the other side involves a kind of random slaying of good people," Mr. McConnell said.
Good for Senator McConnell. In the same NY Times article, Senator Feinstein poses a question:
Senator Dianne Feinstein, Democrat of California, held the floor for more than an hour Tuesday as she went through the histories of several judicial nominees in the Clinton administration who were denied votes by the Republican majority, some because of secret "holds" put on nominations by a single senator.
"Which is better," Mrs. Feinstein asked, "a filibuster by 40 members on the floor openly declared, publicly debating an individual's past speeches, an individual's temperament, character, opinions? Or a filibuster in secret when one doesn't know who or why?"
I'd like to answer Senator Feinstein's question. A secret "hold" on a nomination is much much much better than an endless filibuster by 40 members on the floor. An explanation is below the fold.
A ââ‚Å“hold" is an informal practice by which a Senator informs his or her floor leader that the Senator does not wish a nomination to reach the floor. The Majority Leader need not follow the Senator's wishes. And, even if the Majority Leader does follow the Senator's wishes, a hold can be overcome by making a ââ‚Å“motion to proceed." It takes only a simple majority to approve a motion to proceed. The motion to proceed is usually --- but not necessarily --- offered by the Majority Leader, and it can be openly debated on the floor, even if the Senator who placed the ââ‚Å“hold" remains anonymous.
So, the key thing is that a secret ââ‚Å“hold" on a nomination can be overcome by the Majority Leader, or by 51 Senators voting for the motion to proceed. In contrast, when 40 Senators on the floor endlessly filibuster a nomination (or filibuster a motion to proceed to consider a nomination), that floor filibuster normally cannot be overcome by either the Majority Leader or by 51 Senators, and instead 60 Senators are normally required. Thatââ‚â„¢s why a hold is so much better than an endless filibuster by 40 Senators on the floor --- the hold can be more easily overcome, by a simple majority. For lots of useful definitions, see the Senate's own glossary.
Posted in News —
Posted at 9:56pm on May 10, 2005 Ken Starr Interview on CBS News
By AndrewHyman
Click here if you would like to see a very heavily edited and highly ambiguous CBS News interview with Ken Starr, regarding judicial filibusters. What else have you got to do?
And, if you have time left over, you may want to read a funny but important speech by Senator Hatch, addressing the "top ten" most ridiculous judicial filibuster defenses. Hatch's speech is also available here (hat tip to Mike for this second link).
Posted in News —
Posted at 5:49pm on May 10, 2005 Reid Statement
By AndrewHyman
Below the fold is a statement by Sen. Harry Reid, regarding judicial filibusters. Here are what seem the most pertinent parts:
This fight is not about seven radical nominees; itââ‚â„¢s about clearing the way for a Supreme Court nominee who only needs 51 votes, instead of 60 votes. They want a Clarence Thomas, not a Sandra Day Oââ‚â„¢Connor or Anthony Kennedy or David Souter.
â₦.
But I want to be clear: we are prepared for a vote on the nuclear option.
....
If it does come to a vote, I asked Senator Frist to allow his Republican colleagues to follow their consciences. Senator Specter recently said that Senators should be bound by Senate loyalty rather than party loyalty on a question of this magnitudeâ₦.In return, I pledge that I will place no such pressure on Democratic Senators and I urge Senator Frist to refrain from placing such pressure on Republican Senators.
â₦.
[A]llow the Senate to consider changing the rules without breaking the rules. Every one of us knows that there is a right way and a wrong way to change the rules of the Senate; the nuclear option is the wrong way. Senator Dodd will go to the floor this afternoon to expand on the way the Senate changes its rules.
â₦.
It takes 67 votes to change the rules. If Senator Frist canââ‚â„¢t achieve 67 votes, then clearly the nuclear option is not in the best interest of the Senate or the nation.
It could hardly be more obvious that Senator Reid is seeking to choose the people whom President Bush may nominate for the Supreme Court. There is only one word for that: UNCONSTITUTIONAL. For a better understanding of Sen. Reid's attitude toward Justice Thomas, see this January 3, 2005 column by James Taranto.
As I said, Reid's complete statement is below the fold.
Two weeks ago, Bill Frist and I exchanged proposals in an attempt to avert a vote on the nuclear option.
One proposal allowed for up or down votes on all but four judges - which many of us on both sides of the aisle considered to be the goal of this hyped battle over judicial nominations.
It also took the "nuclear option" off the table, which even Ken Starr said yesterday was damaging to the Senate as an institution and "amounts to an assault on the judicial branch of government." This compromise would break the gridlock over these seven judges, and allow us to get back to doing the people's business.
Senator Frist's proposal does nothing to end the judicial impasse, as it would wipe away the very checks and balances that have prevented an abuse of power for more than 200 years.
That result is unacceptable.
I still consider this confrontation entirely unnecessary and irresponsible. The White House manufactured this crisis. Since Bush took office, the Senate confirmed 208 of his judicial nominations and turned back only 10, a 95% confirmation rate. Instead of accepting that success and avoiding further divisiveness and partisanship in Washington, the President chose to pick fights instead of judges by resubmitting the names of the rejected nominees.
This fight is not about seven radical nominees; it's about clearing the way for a Supreme Court nominee who only needs 51 votes, instead of 60 votes. They want a Clarence Thomas, not a Sandra Day O'Connor or Anthony Kennedy or David Souter. George Bush wants to turn the Senate into a second House of Representatives, a rubberstamp for his right wing agenda and radical judges. That's not how America works.
I believe there are two options for avoiding the nuclear showdown, which so many of us believe is bad for the Senate, and bad for America.
But I want to be clear: we are prepared for a vote on the nuclear option. Democrats will join responsible Republicans in a vote to uphold the constitutional principle of checks and balances.
If it does come to a vote, I asked Senator Frist to allow his Republican colleagues to follow their consciences. Senator Specter recently said that Senators should be bound by Senate loyalty rather than party loyalty on a question of this magnitude. But right wing activists are threatening primary challenges against Republicans who vote against the nuclear option. Senators should not face this or any other form of retribution based on their support for the Constitution. In return, I pledge that I will place no such pressure on Democratic Senators and I urge Senator Frist to refrain from placing such pressure on Republican Senators.
I also suggest two reasonable ways to avert this constitutional crisis.
First, allow up or down votes on additional nominees, as I addressed in my proposal to Frist two weeks ago. If this is about getting judges on the courts, let's get them on the courts.
Second, allow the Senate to consider changing the rules without breaking the rules. Every one of us knows that there is a right way and a wrong way to change the rules of the Senate; the nuclear option is the wrong way. Senator Dodd will go to the floor this afternoon to expand on the way the Senate changes its rules.
I suggest that Senator Frist introduce his proposal as a resolution. If he does, we commit to moving it through the Rules Committee expeditiously and allow for a vote on the floor. It takes 67 votes to change the rules. If Senator Frist can't achieve 67 votes, then clearly the nuclear option is not in the best interest of the Senate or the nation.
Either of these options offers a path away from the precipice of the nuclear option. But if neither of these options is acceptable to you, let's vote.
Posted in News —
Posted at 5:18pm on May 10, 2005 Maybe This Lott Info is Relevant, Maybe Not
By AndrewHyman
Sen. Trent Lott of Mississippi, a staunch supporter of military facilities in his state, said he's not done trying to halt this year's planned closure of domestic bases even though President George W, Bush thwarted his latest attempt. "I have options on unrelated issues," said Lott, a Republican, issuing a veiled threat to the administration. "Everything in the United States Senate relates to everything else."
Hat tip to Rush Limbaugh.
Posted in News —
Posted at 5:04pm on May 10, 2005 The Talk About Lott
By DanCT
We have heard precious little in the past few days from Senator Lott about the rumors of his deal-making. Two weeks ago he spoke strongly against the kind of deal that Roll Call and Dobson report that he is nearing:
[Reid] indicated that his proposed compromise would require Bush giving Democratic senators ââ‚Å“a meaningful sayââ‚? in picking judicial nominees who would serve in their home states. Sen. Trent Lott, R- Miss. a key vote counter on the filibuster issue, emphatically rejected the idea of giving Democrats some say in picking Bushââ‚â„¢s judicial nominees. ââ‚Å“Hey, man, we had an election. Did they miss it?ââ‚? Lott asked. ââ‚Å“Their man lost, Bush won, and weââ‚â„¢re not going to start letting pools (of nominees) be presented from which the Senate will choose. No, under the Constitution the president makes that recommendation, he alone.ââ‚?
It is time for Senator Lott to quash the rumors by making another strong statement in favor of preserving the founders' vision of the balance of powers between the Senate and Presidency and to explicitly and personally deny that he is working to undermine Senate GOP leadership in looking for ways to preserve the filibuster for use against court nominees.
Posted in Senate Rules —
Posted at 4:01pm on May 10, 2005 Reid Writes Letter to Frist
By AndrewHyman
AP is reporting that Sen. Reid has sent a letter to Sen. Frist.
"I want to be clear: We are prepared for a vote on the nuclear option," Reid said in a letter to Frist, referring to the GOP threat to change the filibuster rules. "Democrats will join responsible Republicans in a vote to uphold the constitutional principle of checks and balances."
â₦.
Reid, in his letter, reiterated his offer to help confirm Griffith as a bonus to his previous proposal. He suggested allowing confirmation for three nominees --- Michigan nominees Richard Griffin, David McKeague and Susan Neilson --- plus one of the four most controversial nominees: Owen, Brown, Myers and William Pryor. The others would be dropped.
He also suggested that Frist push a previous plan to reduce the number of senators needed to break a filibuster. Although that plan would required 67 senators' agreement, "I don't think that is an insurmountable obstacle for some improvements in the process by which the Senate considers judicial nominees," Reid's letter said.
He again rejected Frist's compromise offer to allow up to 100 hours of debate for each appeals court and Supreme Court nominee, followed by a guaranteed confirmation vote requiring only a simple majority. "Your proposal simply places a delayed fuse on the nuclear option," Reid said in his letter to Frist.
For whatever it's worth, I think that Senator Reid is incorrect about checks and balances. You can't just jump up and say that more checks and balances are needed whenever you lack the votes to prevail. Never before 2003 did a Senate minority permanently check the ability of a Senate majority to join with the President in confirming a judicial nominee. Clinton nominees bottled up in committee were always subject to discharge by a simple majority vote, and likewise Abe Fortas did not have a clear majority of the full Senate lined up in 1968 for confirmation, when his cloture vote occurred (the vote was 45 to 43 for cloture). If Senator Reid's new-fangled "check" is legitimized, it will distort the carefully crafted checks and balances in the Constitution, and will place both the executive and the judiciary under greater control of the Senate --- and a Senate minority at that. Fringe groups will have greater power than ever before to shoot down nominations. It is not a pretty picture.
Regarding the purported deal reported by Agape Press, here is a followup press release from Dr. James Dobson of the group Focus on the Family.
UPDATE: The full text of Reid's letter is below the fold.
May 10, 2005
The Honorable William Frist
Majority Leader
United States Senate
Washington, D.C. 20510
Dear Bill:
I have reviewed your April 28 letter to me regarding the current impasse over judicial nominations. In essence, you propose to eliminate the role of the Senate minority in considering judicial nominees. The rules changes you suggest would hand the President the power to make lifetime appointments to the federal courts without the check of meaningful Senate review. That result is unacceptable.
I still consider this confrontation entirely unnecessary and in this letter will suggest two options for avoiding it. But I want to be clear: we are prepared for a vote on the nuclear option. Democrats will join responsible Republicans in a vote to uphold the constitutional principle of checks and balances.
I call on you to allow your Republican colleagues to follow their consciences on this historic question ââ‚“ as Senator Specter recently said, Senators should be bound by Senate loyalty rather than party loyalty on a question of this magnitude. But at least one right-wing activist has threatened to sponsor primary challenges against Republicans who vote against the nuclear option. Senators should not face this or any other form of retribution based on their support for the Constitution and the integrity of the Senate. I pledge that I will place no such pressure on Democratic Senators and I ask for your commitment not to place such pressure on Republican Senators.
Turning to your April 28 letter, I want to thank you for recognizing that ââ‚Å“some of President Clintonââ‚â„¢s nominees were blocked in committee" and therefore ââ‚Å“both parties have significant complaints about the process by which the Senate exercises its responsibility to advise and consent." It is disingenuous for Republican Senators to insist that every judicial nominee is entitled to the courtesy of an up-down vote when 69 Clinton nominees were denied that very courtesy by the Republican-controlled Senate. Historians can debate whether President Hayesââ‚â„¢s 1881 nomination of Stanley Matthews to the Supreme Court was filibustered (it was), but you and I donââ‚â„¢t need to debate whether dozens of Clinton nominees were rejected by the Senateââ‚â„¢s inaction ââ‚“ we served in the Senate during those years and we know that they were.
You now propose two changes to Senate procedure that would eliminate Democratic influence over President Bushââ‚â„¢s judicial nominees by abolishing the same senatorial prerogatives that Republicans used to exert influence over President Clintonââ‚â„¢s judicial nominees. Aside from the merits, your proposal is objectionable because it would enable the Republican majority to profit from its own overreaching during the Clinton years. The Senate rules should only be changed to improve the institution, not to achieve momentary partisan advantage. Neither of your proposed rules changes meets that standard.
First, you propose to streamline consideration of nominees in the Judiciary Committee. Unfortunately, this reform is unnecessary. Over the course of President Bushââ‚â„¢s first term Chairman Hatch unilaterally eliminated each of the tools, such as the blue-slip process, by which the Senate minority traditionally exerted influence over judicial nominations. Your proposal would merely codify the current unfair practices.
These now-discarded Judiciary Committee procedures had the beneficial effect of encouraging White House consultation with the Senate minority and with home-state Senators in order to resolve disputes before nominations are presented to the Senate. Over the last four years President Bush too often failed to seek the advice of the Senate before making unwise nominations, and Democrats lacked any means short of a filibuster to carry out our duty under the Advice and Consent Clause of the Constitution. Consensus nominations are good for the Senate and good for the judiciary. If anything, we should reestablish the blue-slip process rather than formalize its demise.
Second, you propose to abolish minority rights on the floor of the Senate, replacing the 60 vote threshold established by Rule XXII with a new 51 vote threshold following 100 hours of floor debate. I cannot agree to this proposal because it denies the Senate minority a meaningful voice in confirming nominees and is therefore inconsistent with constitutional checks and balances. The principle at stake here is not the length of debate -- it is the role of the Senate minority to serve as a check on executive power. Your proposal simply places a delayed fuse on the nuclear option.
Incidentally, I am baffled by your suggestion that minority rights be terminated with respect to circuit court and Supreme Court nominations but not district court nominations. Surely appellate court nominees deserve greater scrutiny than trial court nominees, and in any event all nominations are governed by the same Advice and Consent Clause of the Constitution. I can only conclude that your real goal is not to vindicate a constitutional principle but to establish a 51 vote threshold for President Bushââ‚â„¢s nominations to the Supreme Court.
Your proposal would embolden the President to nominate an extreme Supreme Court nominee, the last thing our country needs. The best thing for our country would be a consensus Supreme Court nominee of great stature who could command the support of a vast majority of Senators.
Even though your April 28 letter does not present an acceptable resolution of our current dispute, we should not stop trying. Our colleagues have implored us to work this out, and we owe them, the Senate itself and the American people our best efforts to negotiate a settlement. Let me summarize two ways to avoid a showdown:
Option 1: Up-Down Votes for Additional Nominees
The Senate has already confirmed 208 of President Bushââ‚â„¢s nominees and yesterday I proposed that the Senate take up a 209th nominee -- controversial D.C. Circuit nominee Thomas Griffith -- under procedures that would guarantee him an up-down vote. In addition, as I have previously discussed with you, the Democratic caucus would be willing to debate and vote on four of the disputed court of appeals nominees -- the three Sixth Circuit nominees other than Henry Saad and one of the other four nominees who were previously filibustered. This additional concession would be contingent on your commitment to abandon the nuclear option for the remainder of the 109th Congress and reinstatement of the blue-slip process in the Judiciary Committee.
I have been faulted by some of my allies for making this offer because it would amount to Democrats yielding on our principled opposition to each of these nominations. I have responded to these critics by saying that Senate leaders must sometimes compromise, even on matters of principle, for the good of the Senate and the country.
Option 2: Allow the Senate to Consider Changing the Rules without Breaking the Rules
There is a right way and a wrong way to change the rules of the Senate; the nuclear option is the wrong way. While I personally oppose the rules changes you propose in your April 28 letter, I am willing to facilitate their consideration by the Senate under the well-established procedures for amending the Senate rules. I suggest that you introduce your April 28 proposal in the form of a Senate resolution, or reintroduce your similar proposal (S. Res. 138) from last Congress. When that resolution is referred to the Rules Committee, I would work with Ranking Member Dodd to ensure its full, fair and expedited consideration. And if the resolution is referred to the full Senate as I expect it would, I pledge that Democrats would approach it in good faith through the ordinary legislative process.
While Rule XXII establishes a 67-vote threshold for amendments to the Senate rules, I donââ‚â„¢t think that is an insurmountable obstacle for some improvements in the process by which the Senate considers judicial nominees. I assure you that Democrats would be more receptive to rules changes presented in this way than in the form of the nuclear option, in which the Senate majority would break the rules to change them.
Either of these options offers a path away from the precipice of the nuclear option. Either would avert this confrontation and instead allow the Senate to continue working in a bipartisan way on matters of real concern to the American people. But if neither of these options is acceptable to you, letââ‚â„¢s vote.
Sincerely,
HARRY REID
Democratic Leader
Posted in News —
Posted at 3:48pm on May 10, 2005 Report of a Deal
By AndrewHyman
Agape Press is reporting that a deal has unexpectedly been arranged:
[T]he senior senator from Mississippi has arranged a deal that would effectively prevent Majority Leader Bill Frist from invoking the constitutional option --- sometimes referred to as the "nuclear option" --- to stop the Democrats' continued filibuster against the president's conservative judicial nominees.â₦ Lott and five other GOP senators will join six Democrats in the arrangement. "The deal, which Senator Lott vigorously denied yesterday, proposes that four of the ten filibustered judges would be confirmed -- but that the filibuster would remain intact," the Focus on the Family founder says.
Personally, I have no problem with striking a deal, if it's a fair one. David Broder recently outlined a very fair deal, and so did Sen. Frist. Neither of those deals would have dumped any majority-supported judicial nominees.
Posted in News —
Posted at 2:30pm on May 10, 2005 Showdown Next Week
By AndrewHyman
Jesse Holland of Associated Press has this report:
Frist, in his weekly news conference with reporters, said he hopes the Senate finishes a highway bill and an emergency spending package to fund military operations overseas this week. "And then we need to turn to 100 United States senators and move to the issue surrounding judges," he saidâ₦.Frist suggested that the nomination of former Interior Department lawyer WILLIAM MYERS for the 9th U.S. Circuit Court of Appeals in San Francisco could be the first test voteâ₦.Senate Judiciary chairman Arlen Specter, R-Pa., suggested Monday the Senate should take up nominees in the order that his committee moves them for approval. "I think it's time to do that," Frist said, referring to Specter's remarks.
That means if Democrats don't filibuster Myers again, former Senate lawyer Thomas Griffith's nomination to the U.S. Circuit Court of Appeals for the District of Columbia would be next, followed by Texas judge Priscilla Owen's nomination to the 5th U.S. Circuit Court of Appeals and California judge Janice Rogers Brown's nomination to the D.C. circuit, according to the Senate calendar.
Pravda introduces Russians to our latest tempest, this way:
In an institution that prides itself as a last bastion of civility, the Senate's new Democratic leader has on occasion turned to playground taunts and name-calling in his four-month tenure.
After accusing President Bush of lying about his role in a fight over judicial filibusters, Sen. Harry Reid last week called the president a "loser." And Federal Reserve Chairman Alan Greenspan? He's a "political hack," according to the formerly soft-spoken Nevada Democrat.
I suspect that there is method to the madness of the Senator from Vegas.
Posted in News —
Posted at 12:58pm on May 10, 2005 Strange Spin in the "News"
By DanCT
The Washington Post/LA Times just published an article with their partisan take on the debate about filibustering judicial nominees. Andrew mentioned that article this morning as well (as did Hugh Hewitt) and there is plenty more to talk about:
The president, who initiated the conflict by renominating judges whom Democrats had blocked during his first term and demanding new votes this year, is essentially guaranteeing a showdown that is as much about the power of the presidency as about Democratic obstinacy
Hmmm.... "The President...initiated the conflict"? Aside from that peculiar perspective, the authors (Jim VandeHei and Charles Babington) do surprisingly get it close to right. Really, though, the battle is more about the power of the Presidency than it is about Democratic obstruction --- not Bush's presidency, but the office of the President in general. The politics of the day will change quickly, but change in the long-practiced balance of power between the Senate and Presidency (which the Democrats are aggressively pursuing by their use of the filibuster in the confirmation process) will be lasting and, ultimately, much more important than current political winners and losers.
Earlier, I had been critical of the President for appearing not to defend his Office against the Senate Democrats' assault. However, by re-submitting the previously filibustered nominees, he is indeed actively engaged in the fight to preserve the balance of power between the executive and legislative branches. Kudos, Mr. President, for engaging the fight (but certainly not "initiating" --- the Democrats' filibusters were the initiation of this particular battle).
The framers explicitly and unambiguously gave the President the power to nominate and the Senate the power to confirm or reject. They gave the President sole power over nominations because they reasoned that assemblies are too prone to deal-making and compromise to appoint outstanding jurists. They argued that because outstanding jurists tend to make clear decisions and clear decisions are bound to offend some factions, compromise candidates would likely be "moderate", mediocre, unwilling to make clear decisions. That's why Hamilton warned against giving the Senate a say in nominations (as distinct from their veto power in the confirmation process after the President makes a nomination). Despite Hamilton's warning and the clear text of Constitution, Senate Democrats are using the filibuster to allow a minority of Senators to muscle their way into the nomination process (as distinct from the confirmation process). The strategy is outlined nicely by People For the American Way, who promote the filibuster to force the President to "engage in the kind of consultation and compromise that would result in the nomination of more moderate nominees." In this way, Senate Democrats are aggressively encroaching on the just and reasonable, Constitutional power of the President. The President does recognize the Senate's power grab engineered by the Democrats (and People for the American Way) and has properly engaged in the fight by re-nominating a slate of previously filibustered candidates, by publicly speaking about the issue, and by behind-the-scenes discussions between high-level administration officials (in particular, Rove, Cheney), but it does appear to be time for the President himself to get more personally active in the discussions because the stakes go well beyond the nomination of a few judges.
They continue:
This is being done to ... help a president achieve what he wants to achieve," said former Rep. Mickey Edwards, R-Okla., now a scholar at the Aspen Institute. "It's a total disavowal of the basic framework of the system of government. It's much more efficient [for Bush], but our government was not designed to be efficient."
No. The basic framework of the system of government was to give the President the power to nominate and the Senate to act to either confirm or reject, not refuse to act on executive branch business. If the President refuses to act on a piece of legislation that congress sends him, the bill automatically becomes law. Why on earth should the Senate then be allowed to block the President's business by inaction? The answer is that it should not be. Historically, the Senate had never refused to act on judicial nominations on the floor until this current crop of aggressively partisan and Constitutionally-challenged Democrats began to routinely filibuster nominees with whom they had ideologically differences.
The article continues:
If the filibuster is eliminated for judicial nominations, Bush would enjoy greater latitude in filling vacancies on appellate courts.
Eliminating the filibuster for judicial nominations would restore to the President the power to nominate judges and return the Senate to its power to advise and consent (rather than its current, inflated power that gives a minority the power to block nominees by preventing the majority from acting).
And:
"It certainly has the potential to reduce the Senate's power vis-à-vis the president," said Carl Tobias, a University of Richmond law professor. "It's one less restraint."
It would be well to reduce the artificial, counter-constitutional power that the Senate now exercises over the executive branch to the time-tested balance envisioned by the framers and practiced for two centuries before the Senate's recent assault on Presidential power.
Posted in Senate Rules —
Posted at 11:28am on May 10, 2005 How to Spot a Bogus Filibuster Argument
By AndrewHyman
As a blogger here at confirmthem, I've tried to keep up on all the arguments for and against the use of filibusters to defeat judicial nominations. There have been interesting arguments from both sides. But there have also been some really lousy arguments, and it's easy to spot the lousy ones without much effort. There's a trick to it.
Here's how it's done. You quickly scan through the argument for numbers, like these in former Senator George Mitchell's piece today in the New York Times:
208 of the president's 218 judicial nominees have been approved. That's right: the Senate has confirmed 95 percent of Mr. Bush's judicial nominees. That's a higher percentage of approval than any of his three predecessors achieved.
Mr. Mitchell --- like so many other sly politicians trying to pull the wool over the eyes of the people --- is purposely mixing together district court nominations and appellate nominations. If he had more intellectual honesty, he would acknowledge that filibusters have caused this president to have the lowest appellate confirmation rate of any president going back at least to Harry S Truman.
So, once you spot that bit of misguidance, it's really not worth reading the rest of the piece. Some liberal writers do have the decency to treat readers as intelligent human beings rather than fools, but those writers are the exception. However, I will give Senator Mitchell credit for frankly acknowledging that his 77-word quote from the great Senator Margaret Chase Smith of Maine is completely out of context ("circumstances are obviously different" he says), which makes me wonder why he included the quote in the first place (other than as a transparent plea to Senators Snowe and Collins). As far as Sen. Mitchell's remarks about Justice Fortas are concerned, see here for a previous confirmthem post.
Posted in News —
Posted at 10:48am on May 10, 2005 How to Fix the Problem Going Forward
By AndrewHyman
Byron York at National Review Online has a good article based on interviews with three ââ‚Å“well-connected" but anonymous Republicans (A, B, and C). Letââ‚â„¢s start with Yorkââ‚â„¢s conclusion:
It is entirely possible that neither side will budge and Frist will end the filibusters with the nuclear/constitutional/Byrd option. But the process is not at that point yet. In fact, it is safe to say that, despite the enormous amount of attention paid to the subject recently, many Republican and Democratic senators have not yet thought hard about what they would actually do to end the stalemate. They know some sort of resolution is coming, but it's not quite here yet, and they haven't gotten to the point where they clear away all other concerns and concentrate on the filibusters. But that time is coming soon.
When it becomes clear that Frist is ready to act on the filibusters, then Republicans and Democrats will start thinking hard. Seventy-two hours before such a deadline â₆and 48 hours before, and then 24 hours before â₆lawmakers will begin the kind of intense thinking about the subject that many have not done up to now. "The prospect of a deadline will sharpen the mind," says Republican C. And even though Frist has no obligation to announce the day and hour he might take action, that will likely become clear enough. "The sound of the waterfall will be so great," says Republican B, "that everybody will know when we're approaching the edge."
Here are a few of Yorkââ‚â„¢s other major points:
Republicans genuinely, and deeply, believe that Democrats have abused the system by their unprecedented filibusters of an entire slate of judicial nominees. To use the phrase heard most often in discussions with them, Republicans want to "fix the problem going forward," that is, to break through not only today's stalemate but prevent future ones.
â₦.
Frist's 100-hour proposal is a substantial deal. While it would end filibusters, it would mean that Democrats could still effectively block some nominees. "Senate floor time is very precious," says Republican A. "If you have a lot of guaranteed debate time, then effectively leadership will not be able to bring forward every nominee if the minority insists on going through every procedure that is there. If [Democrats] said, 'We want 100 hours on all of them,' then realistically all of them would not come up."
â₦.
More importantly, some in the GOP appear willing to abandon the position that all Bush nominees must have an up-or-down vote â₆if that would ensure that future nominees would not face filibustersâ₦.It is important to remember that Democrats already have killed three nominationsâ₦.Any count of Republican concessions to Democrats would begin with the number three.
But keep in mind that none of those three were withdrawn at the President's initiative. The nominees themselves wanted to withdraw, and understandably so.
UPDATE: Paul Mirengoff comments on York's piece, over at Power Line.
Posted in News —
Posted at 3:21am on May 10, 2005 Lindberg and Specter on Filibusters
By AndrewHyman
Tod Lindberg has a partly amusing and partly serious opinion piece in the Washington Times today. Here's a sample:
On March 29, 2015, when President Obama is in the White House and Karenna Gore is Senate majority leader, I fully expect to read a New York Times editorial containing a passage along the following lines: "Now, at last, it's time for this extraconstitutional, undemocratic tool of obstruction to go once and for all. A decade ago, this page retracted a position against the filibuster we had taken a decade before. We were wrong then and right the first time. We hope that acknowledging our own error of 10 years ago, embarrassing though it may be, will give others the strength to review and overturn outmoded positions that do not speak to the circumstances of today."
Getting rid of the filibuster for judicial nominees would indeed be an escalation in partisan conflict. But wholesale derailing of potential Supreme Court nominees at the appellate level by filibuster was also an escalation, and it's unacceptable. So, Republicans might as well act like the Senate majority they are, and, by majority vote, make sure that judicial nominees who make it out of the Judiciary Committee get an up-or-down vote on the Senate floor.
Might as well. Senator Specter's full speech from yesterday is below the fold.
Mr. SPECTER. Mr. President, I seek recognition to urge my colleagues to explore ways to avoid a Senate vote on the nuclear or constitutional option. It is anticipated that we may vote this week or this month to reduce from 60 to 51 the number of votes required to invoke cloture or cut off debate on judicial nominations. If the Senate roll is called on that vote, it will be one of the most important in the history of this institution.
The fact is that all, or almost all, Senators want to avoid the crisis. I have had many conversations with my Democratic colleagues about the filibuster of judicial nominees. Many of them have told me that they do not personally believe it is a good idea to filibuster President Bush's judicial nominees. They believe that this unprecedented use of the filibuster does damage to this institution and to the prerogatives of the President. Yet despite their concerns, they gave in to party loyalty and voted repeatedly to filibuster Federal judges in the last Congress.
Likewise, there are many Republicans in this body who question the wisdom of the constitutional or nuclear option. They recognize that such a step would be a serious blow to the rights of the minority that have always distinguished this body from the House of Representatives. Knowing that the Senate is a body that depends upon collegiality and compromise to pass even the smallest resolution, they worry that the rule change will impair the ability of the institution to function.
I have repeatedly heard colleagues on both sides of the aisle say it is really a matter of saving ``face''; but, as yet, we have not found the formula to do so. I suggest the way to work through the current impasse is to proceed to bring to the floor circuit nominees one by one for up or down votes. There are at least five and perhaps as many as seven pending circuit nominees who could be confirmed; or, at least voted up or down. If the straightjacket of party loyalty were removed, even more might be confirmed.
For the past 4 months since becoming Chairman of the Judiciary Committee, my first priority has been to process the nominees through committee to bring them to the floor. As a starting point, it is important to acknowledge that both sides, Democrats and Republicans, have been at fault. Both sides claim that they are the victims and that their party's nominees have been treated worse than the other's. Both sides cite endless statistics. I have heard so many numbers spun so many different ways that my head is spinning. I think even Benjamin Disraeli, the man who coined the phrase, ``there are lies, damned lies and statistics,'' would be amazed at the creativity employed by both sides in contriving numbers in this debate.
In 1987, upon gaining control of the Senate and the Judiciary Committee, the Democrats denied hearings to seven of President Reagan's circuit court nominees and denied floor votes to two additional circuit court nominees. As a result, the confirmation rate for Reagan's circuit nominees fell from 89 percent prior to the Democratic takeover to 65 percent afterwards. While the confirmation rate decreased, the length of time it took to confirm judges increased. From the Carter administration through the first 6 years of the Reagan administration, the length of the confirmation process for both district and circuit court seats consistently hovered at approximately 50 days. For Reagan's final Congress, however, the number doubled to an average of 120 days for these nominees to be confirmed.
The pattern of delay and denial continued through 4 years of President George H.W. Bush's administration. President Bush's lower court nominees waited, on average, 100 days to be confirmed, which was about twice as long as had historically been the case. The Democrats also denied committee hearings for more nominees. President Carter had 10 nominees who did not receive hearings. For President Reagan, the number was 30. In the Bush Sr. administration the number jumped to 58.
When we Republicans won the 1994 election and gained the Senate majority, we exacerbated the pattern of delaying and blocking nominees. Over the course of President Clinton's presidency, the average number of days for the Senate to confirm judicial nominees increased even further to 192 days for district court nominees and 262 days for circuit court nominees. Through blue slips and holds, 60 of President Clinton's nominees were blocked. When it became clear that the Republican-controlled Senate would not allow the nominations to move forward, President Clinton withdrew 12 of those nominations and chose not to re-nominate 16.
After the 2002 elections, with control of the Senate returning to Republicans, the Democrats resorted to the filibuster on ten circuit court nominations, which was the most extensive use of the tactic in the Nation's history. The filibuster started with Miguel Estrada, one of the most talented and competent appellate lawyers in the country. The Democrats followed with filibusters against nine other circuit court nominees. During the 108th Congress, there were 20 cloture motions on 10 nominations. All 20 failed.
To this unprecedented move, President Bush responded by making, for the first time in the Nation's history, two recess appointments of nominees who had been successfully filibustered by the Democrats. That impasse was broken when President Bush agreed to refrain from further recess appointments.
Against this background of bitter and angry recriminations, with each party serially trumping the other party to ``get even'' or, really, to dominate, the Senate now faces dual threats, one called the filibuster and the other the constitutional or nuclear option, which rival the US/USSR confrontation of mutually assured destruction. Both situations are accurately described by the acronym ``MAD.''
We Republicans are threatening to employ the constitutional or nuclear option to require only a majority vote to end filibusters. The Democrats are threatening to retaliate by obstructing the Senate on a host of matters. Each ascribes to the other the responsibility for ``blowing the place up.''
The gridlock occurs at a time when we expect a United States Supreme Court vacancy within the next few months. If a filibuster would leave an 8 person court, we could expect many 4 to 4 votes since the Court now often decides cases with 5 to 4 votes. A Supreme Court tie vote would render the Court dysfunctional, leaving in effect the circuit court decision with many splits among the circuits, so the rule of law would be suspended on many major issues.
In moving in the Judiciary Committee to select nominees for floor action, I first selected William Myers because two Democrats had voted in the 108th Congress not to filibuster him, and one candidate for the Senate in 2004, since elected, made a campaign statement that he would vote to end the Myers filibuster and to confirm him. Adding those three votes to 55 Republicans, we were within striking distance to reach 60 or more. I carefully examined Myers' record. Noting that he had opposition from some groups such as Friends of the Earth and the Sierra Club, it was my conclusion that his environmental record was satisfactory, or at least not a disqualifier, as detailed in my statement at the Judiciary Committee Executive Session on March 17, 2005. To be sure, critics could pick at his record as they could at any Senator's record; but overall Mr. Myers was worthy of confirmation.
I then set out to solicit others' views on Myers, including the ranchers, loggers, miners, and farmers. In those quarters, where I found significant enthusiasm for the Myers confirmation, I urged them to have their members contact Senators who might be swing votes. I then followed up with personal talks to many of those Senators and found several prospects to vote for cloture. Then the screws of party loyalty were applied and tightened, and the prospects for obtaining the additional few votes to secure cloture vanished. I am confident that if party pressure had not been applied, the Myers filibuster would have ended and he would have been confirmed. That result could still be obtained if the straitjacket of party loyalty were removed on the Myers nomination.
Informally, but authoritatively, I have been told that the Democrats will not filibuster Thomas Griffith or Judge Terrence Boyle. Griffith is on the Senate calendar awaiting floor action, and Boyle is on the next agenda for committee action. Both could be confirmed by mid-May.
There are no objections to three nominees from the State of Michigan for the Sixth Circuit: Richard Griffin, David McKeague and Susan Bakke Neilson; but their confirmations are held up because of objections to a fourth nominee. I urge my Democratic colleagues to confirm the three uncontested Michigan Sixth Circuit nominees and fight out the Fourth Circuit vacancy and Michigan district court vacancies on another day. The Michigan Senators make a valid point on the need for consultation on the other Michigan vacancies and that can be accommodated.
In the exchange of offers and counteroffers between Sen. FRIST, majority leader and Sen. HARRY REID, the Democrat leader, Democrats have made an offer to avoid a vote on the nuclear or constitutional option by confirming one of the four filibustered judges: Priscilla Owen, Janice Rogers Brown, William Pryor, or William Myers with the choice to be selected by Republicans.
An offer to confirm any one of the those four nominees is an explicit concession that each is qualified for the court and that they are being held hostage as pawns in a convoluted chess game which has spiraled out of control. If the Democrats really believe each is unqualified, a ``deal'' for confirmation for anyone of them is repugnant to the basic democratic principle of individual, fair, and equitable treatment and violates Senators' oaths on the constitutional confirmation process. Such ``deal-making'' confirms public cynicism about what goes on behind Washington's closed doors.
Instead, let the Senate consider each of the four without the constraints of party line voting. Let us revert to the tried and tested method of evaluating each nominee individually. By memorandum dated April 7, 2005, I circulated an analysis of Texas Supreme Court Justice Priscilla Owen's record demonstrating she was not hostile to Roe vs. Wade and that her decisions were based on solid judicial precedent. No one has challenged that legal analysis.
By memorandum dated January 12, 2005, I distributed an analysis of decisions by Judge William Pryor that shows his concern to protect the rights of those often overlooked in the legal system. Similarly, no one has refuted that analysis. California Supreme Court Justice Janice Rogers Brown has been pilloried for her speeches. If political or judicial officials were rejected by provocative/extreme ideas in speeches, none of us would hold public office.
The fact is that the harm to the Republic, at worst, by the confirmation of all pending circuit court nominees is infinitesimal compared to the harm to the Senate, whichever way the vote would turn out, on the nuclear or constitutional option. None of these circuit judges could make new law because all are bound, and each one agreed on the record, to follow U.S. Supreme Court decisions. While it is frequently argued that circuit court opinions are in many cases final because the Supreme Court grants certiorari in so few cases, circuit courts sit in panels of three so that no one of these nominees can unilaterally render an unjust decision since at least one other circuit judge on the panel must concur.
While it would be naive to deny that the ``quid pro quo'' and ``logrolling'' are not frequent congressional practices, those approaches are not the best way to formulate public policy or make governmental decisions. The Senate has a roadmap to avoid ``nuclear winter'' in a principled way. Five of the controversial judges can be brought up for up-or-down votes on this state of the record. The others are entitled to individualized treatment on the filibuster issue.
It may be that the opponents of one or more of these judges may persuade a majority of Senators that confirmation should be rejected. A group of Republican moderates has, with some frequency, joined Democrats to defeat a party line vote. The President has been explicit in seeking up-or-down votes as opposed to commitments on confirmations.
The Senate has arrived at this ``confrontation by exacerbation'' as each side ratcheted up the ante in delaying and denying confirmation to the other party's Presidential nominees. A policy of conciliation/consultation could diffuse the situation. This has already been offered by the Democrats, informally signaling their intentions not to filibuster Griffith or Boyle. Likewise, it has been reported that Senator REID has privately told Republicans that he doesn't intend to block votes on any Supreme Court nominees, except in extreme cases. A public statement with an amplification of what constitutes an ``extreme case'' could go a long way.
Sen. SCHUMER praised White House Counsel Gonzales's consultation with him on President Bush's judicial nominees. On April 11, 2005, the President's nominee for the U.S. District Court for the Southern District of New York, Paul Crotty, supported by Senator SCHUMER, was confirmed. Both New Jersey Senators, Bob Torricelli and Jon Corzine, approved all five district court nominations for their state in the 107th Congress. In the 107th Congress, Florida's Democratic Senators, BOB GRAHAM and BILL NELSON, appointed representatives to a commission which recommended Federal judges to President Bush.
President Bush recently nominated Minority Leader HARRY REID's pick for the U.S. District Court for the District of Nevada. I have reason to believe the President is considering consultation with the Michigan Senators on some Federal judicial vacancies in their State and perhaps beyond.
One good turn deserves another. If one side realistically and sincerely takes the high ground, there will be tremendous pressure on the other side to follow suit. So far, the offers by both sides have been public relations maneuvers to appear reasonable to avoid blame and place it elsewhere.
Meanwhile, the far left and the far right are urging each side to shun compromise: pull the trigger; filibuster forever. Their approaches would lead to extreme judges at each end of the political spectrum as control of the Senate inevitably shifts from one party to the other.
The Senate today stands on the edge of the abyss. Institutions like the Senate are immortal but not invulnerable. If we fail to step back from the abyss, we will descend into a dark, protracted era of divisive partisanship. But if we cease this aimless game of political chicken, we can restore the Senate to its rightful place as the world's greatest deliberative body. That will require courage. Courage from each senator. Courage to think and act with independence. Our immortal Senate is depending on our courage. Do we have it?
Since the U.S. and USSR avoided a nuclear confrontation in the Cold War by concessions and confidence-building measures, why couldn't Senators do the same by crossing the aisle in the spirit of compromise.
Posted in News —
Posted at 3:15am on May 10, 2005 Free Lance-Star on Senator Warner
By AndrewHyman
The Free Lance-Star in Fredericksburg, Virginia has some thoughts about Senator Warner's filibuster stance. In an editorial titled "Ignore Thy Enemies," the Free Lance-Star makes the case that Sen. Warner should "vote to end Democratic radicalism in the Senate, despite Jerry Falwell & Company." Here's part of the editorial:
Some religious conservatives in Virginia are muttering that U.S. Sen. John Warner will have electoral perdition to pay if he votes to preserve the ability of Senate Democrats to fatally filibuster George Bush's judicial choices. Not only do the blowhard divines misjudge Mr. Warner, a two-war veteran; their past attempts to punish him for irksome votes all flopped. The only possible effect their new vendettas could have on the six-term solon is to provoke him into shoving a pro-filibuster vote up their noses.
Mr. Warner should vote with the Senate GOP majority to strip Democrats of their judge-blocking power not because the evangelical bishop of Lynchburg and his fellow eminences huff and puff, but because, as the senator truly says, he reveres Senate tradition. Democrats have scorned that tradition by promiscuously checking, actually or by threat, nearly a third of Mr. Bush's appeals-court nominees. No living senator can recall the like. Neither can any living American. This rawly political action calls for a neutralizing political response.
Nothing holy decrees that 40 members should be able to stop a Senate action. Until 1917, one senator alone could do so. From then until 1975, it took a third of the Senate to sustain a filibuster. The requirement is now two-fifths. The bar can be raised further, and should be, allowing the full Senate to approve or reject Mr. Bush's judges, fulfilling its advise-and-consent role. Sen. Warner should ignore the prickly preachers. Spiting them is not ignoring them.
Sen. Warner is understandably concerned about diminishing the traditional right to unlimited debate. But that right's been diminished many timed before, when it has been abused. Why not diminish it again, just enough to ensure that the tradition of up-or-down votes on judicial nominees is restored?
Posted in News —
Posted at 1:27am on May 10, 2005 Will Owen Trigger The Nuclear Option?
By Lorie Byrd
Charles Hurt reports in The Washington Times:
Senate Majority Leader Bill Frist plans for Texas Supreme Court Justice Priscilla Owen to be the judicial nomination on which he uses the "nuclear option" against Democratic filibusters later this month, according to Republicans familiar with his plans.
Justice Owen, first nominated to the 5th U.S. Circuit Court of Appeals four years ago yesterday, has often been seen as the most likely nominee to be pushed though. And when Mr. Frist, Tennessee Republican, made his final offer to Democrats last month to avoid a showdown, he mentioned only one nominee: Justice Owen.
The Republican sources, both on and off Capitol Hill, say the choice of Justice Owen for the precedent-setting vote is based in part on the political calculation that she is a sure winner and, as one source said, "a great face" for this issue.
She has impeccable academic credentials, received the highest rating from the American Bar Association and is supported by both Republicans and Democrats who know her.
Posted in News —
Posted at 1:17am on May 10, 2005 NY Times & Wash. Post Gang Up On Justice Owen
By AndrewHyman
Both a Washington Post article today, and a New York Times article today, incorrectly report that Attorney General Alberto Gonzales once accused Texas Supreme Court Justice Priscilla Owen of being an unconscionable judicial activist, when they served together on the Texas Supreme Court. This charge is utter baloney, and it merely repeats what the New York Times incorrectly reported previously, on April 21 and April 22.
This alleged charge of unconscionable judicial activism relates to a particular case, In Re Jane Doe, that involved whether or not a minor seeking an abortion had to notify her parents. Justice Owen wrote one of several dissents, and then-Justice Gonzales wrote an opinion concurring with the majority. The respected legal scholar Jonathan Turley (a self-described liberal) has written this about Justice Owen's dissent in that case: "I don't agree with it. But she's not some wild-eyed extremist."
The controversy basically swirls around one particular sentence in the concurring opinion written by then-Justice Gonzales:
Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.
Here's what the Post says today about this sentence:
While serving alongside Owen in 2000, Gonzales wrote an opinion criticizing her and two other dissenting judges for "an unconscionable act of judicial activism" in seeking to restrict a minor's right to an abortion. "Judges disagree from time to time on particular issues," Gonzales said yesterday. "That doesn't in any way detract from my view that she would make a terrific judge on the 5th Circuit. I've never accused her of being an activist judge."
So, the Post says Gonzales made an extremely damning charge against Owen, and then the Post blithely mentions that Gonzales now denies he ever made such a charge. The Post does not bother to say why it believes Gonzales is wrong when he denies ever having made that charge against Owen. After all, that might require real reporting.
In contrast, the New York Times today does not even bother to mention that Gonzales has (repeatedly) denied the story:
Attorney General Alberto R. Gonzales, a justice on the court at the time, said the dissenters' views were far beyond what the Legislature had enacted and amounted to "an unconscionable act of judicial activism."
Attorney General Gonzales has not just denied the story, but has denied it under oath, during his confirmation hearing to be Attorney General:
Justice Owen has also testified under oath that she agrees with that comment by Gonzales about an unconscionable act of judicial activism: "I agree with that," said Justice Owen at her confirmation hearing. So what's going on here? Why do the Post and the Times insist that Gonzales made an accusation against Owen, despite denials under oath by both Gonzales and Owen?
It's revealing that neither the Post nor the Times could spare enough ink to quote the two words immediately preceding the phrase that they did quote: "would be an unconscionable act of judicial activism." Gonzales was not accusing anyone of an actual act of judicial activism.
Moreover, the Post and the Times both manage to conveniently overlook the fact that, in the very same concurring opinion, Gonzales acknowledged that each of the dissenters ââ‚Å“agrees that the duty of a judge is to follow the law as written by the legislature."
Former Texas Supreme Court Chief Justice John Hill explains that this whole story about an "unconscionable act of judicial activism" propagated by the Times and the Post is completely absurd:
That's just a phony charge, and the reference to General Gonzales' comments in that opinion are just a red herring.
In fact, Justice Owen's dissent in that case --- unlike other dissents in the same case --- did not even address issues about how to interpret the parental notification statute; that point has been clearly explained by John Hinderaker at Power Line.
Wouldn't it be refreshing if the Post and the Times would do a better job, so I wouldn't have to write these long, tedious posts? :-)
UPDATE: Power Line has further May 10 comments about Justice Owen and this parental notification case here and here, plus May 11 comments here.
Posted in News —
Posted at 12:13am on May 10, 2005 Lott and Baker on Filibusters
By AndrewHyman
According to The Hill, Senator Trent Lott says "it wouldnââ‚â„¢t be accurate to say that a deal is close."
Assuming there is no deal, Ross Baker of Rutgers University writes (in a USA Today column today) that it would be a Pyrrhic victory if the Senate majority insists upon providing advice and consent for appellate and Supreme Court nominees. Baker explains:
Democrats would slow-walk executive nominations, refuse to give unanimous consent that is required under Senate rules to routine requests that leaders use to expedite business, and generally conduct a kind of low-level guerrilla warfare that might not be noticed by the public but would make the Senate a most unpleasant place to work.
Hmm. Should the Senate perform the constitutional duty of advice and consent, and restore the centuries-old tradition of up-or-down votes for majority-supported judicial nominees --- or should the Senate instead be scared witless by a bit of unpleasantness that wouldn't even be perceptible to the public? Tough choice.
Posted in News —
Posted at 8:13pm on May 9, 2005 Isakson, Gonzales, Hentoff & Alexander on Filibusters
By AndrewHyman
Senator Johnny Isakson explained his rationale today as follows:
You run for the US Senate to take the responsibility the constitution designates, that is, to advise and consent on the judges appointed by the president of the United States of America. We should do it, and in the next two weeks, that showdown is coming.
Th Attorney General also spoke out today:
"All judicial nominees deserve an up-or-down vote. It's a matter of fairness," Attorney General Alberto Gonzales said at a news conference at the Justice Department.
Nat Hentoff had this to say today about Justice Brown:
She does not deserve being stereotyped as an archetypical reactionary. And her defense of the Fourth Amendment's protection of our rights against government search and seizure are much stronger than any current member of the Supreme Court.
Senator Lamar Alexander made a wish today:
On Senate filibusters, he said his policy is to allow a vote on all judicial nominees, whether they are Republicans or Democrats. He said, "I wish a few of the Democratic senators would take that position. It would help avert the train wreck that is coming."
And, Rich Lowry of National Review had a conversation today with an anonymous Republican Senator, who said this:
We've been right at the 50 we need, although there may be some who don't jump one way or another until they have to. We may not have a hard count until there's a voteâ₦.Our base views this as a huge issue.
Yup.
Posted in News —
Posted at 7:15pm on May 9, 2005 Kennedy, Long & Miranda on Filibusters
By AndrewHyman
MSNBCââ‚â„¢s Tom Curry reports:
Asked Monday whether Frist has the votes to pass his proposed rule change, Sen. Edward Kennedy, D- Mass said, ââ‚Å“I think that at this time there are probably three, maybe four senators that havenââ‚â„¢t indicated where they are on this vote. But I donââ‚â„¢t underestimate the power of this executive and the administration in trying to win the last couple of votes. As we have seen on vote after vote in the United States Senate, when the administration wants to lean hard on members, they have been very, very effective."
Among the uncommitted Republicans are Hagel, Sen. Susan Collins of Maine, Sen. Arlen Specter of Pennsylvania, and Sen. John Warner of Virginia.
Three Republicans, Sen. Lincoln Chafee of Rhode Island, Sen. John McCain of Arizona, and Sen. Olympia Snowe of Maine, have indicated they would vote against the proposed rules change.
â₦.
ââ‚Å“Sen. Hagel has been spending a lot of time in New Hampshire lately," noted Wendy Long, chief counsel to the Judicial Confirmation Network and a former law clerk to Justice Clarence Thomas. ââ‚Å“I grew up in New Hampshire and Iââ‚â„¢ll tell you something: somebody who, on this issue, is on the side of (liberal groups) Moveon.org and People for the American Way is not going to fare very well in the New Hampshire Republican primary. They are going to be laughed across the border to Vermont."
â₦.
[Former Frist aide Manuel] Miranda said the idea of nominees voluntarily withdrawing would be ââ‚Å“terrible for the Republicans, terrible for the presidency" and would make Americans ââ‚Å“cynical."
I sure hope the nominees hang in there for a little while longer, until Memorial Day at least.
Posted in News —
Posted at 6:55pm on May 9, 2005 Looks Like Sununu's on Board
By DanCT
From MSNBC
"The current situation, where weââ‚â„¢ve established a de facto threshold of 60 votes for appeals court and Supreme Court nominees is not tenable,ââ‚? Sununu said. ââ‚Å“Democrats as well as Republicans understand this current environment, where we have a 60-vote threshold, is not keeping with his precedent and itââ‚â„¢s not sustainable.ââ‚?
He said that although Americans generally are not experts on the Senateââ‚â„¢s rules, ââ‚Å“the vast majority of the people in the country think that nominees should get an up-or-down vote. I think they see that as basic fairness.ââ‚?
He'll be there when the time comes.
Posted in Uncategorized —
Posted at 6:44pm on May 9, 2005 The Maverick Deal
By DanCT
Susan Collins mentions the deal that was reported on in the Roll Call article earlier today:
``Attempts are under way'' to try to avert a showdown, Collins said in an interview. ``I have had discussions with colleagues in the Senate about the possibility of that. I haven't signed off on anything.''
Collins didn't discuss the details of the discussions. Roll Call... reported that six Republicans offered to oppose the rule change to eliminate judicial filibusters if Democrats agreed to allow votes on four of the seven disputed judges.
As mentioned previously at confirmthem, Sen. Lott's spokesperson says, "Senator Lott has not agreed to this deal reported today.''
Posted in Senate Rules —
Posted at 5:54pm on May 9, 2005 Key Specter sentences!!
By Quin
From Specter's floor speech, the key sentences:
"THe fact is that the harm to the Republic, at worst, by the confirmation of all pending circuit court nominess is infinitesimal compared to the harm to the Senate, whichever way the vote would turn out, on the nuclear option. None of these circuit judges could make new law because all are bound, and each one agreed on the record, to follow U.S. Supreme Court decisions."
Individually, Specter defended Owen, Pryor and Brown with specific reference to their records. And he said the Dems should, rather than filibuster, try to persuade moderate GOPers to vote against the nominees on straight, fair votes -- and that he thought they might get a few votes that way. He is right.
All in all, it was as good a statement as one could hope for. While putting some blame on both sides, it made clear that the Dems were the ones who had been by far the most unreasonable. Good for Specter!
Posted in Uncategorized —
Posted at 5:40pm on May 9, 2005 Specter did speak; good for him
By Quin
After my earlier post, while I was away, Specter WAS given his promised floor time, and I am told his statement was pretty darn tough on the Dems. I'm trying to get a copy of it now -- a small portion, I just noticed, was posted on NRO's The Corner. In it, Specter blasts the Dems' offer of four-out-of-seven as a cynical and unprincipled bit of horse-trading. REALLY good stuff! I'm also told that Specter repeated his correct contention that the permanent filibustering of judges is a derailment of Senate tradition. Give that man a blue ribbon!
Posted in Uncategorized —
Posted at 5:28pm on May 9, 2005 The Senator From Vegas
By AndrewHyman
Mr. Harry M. Reid --- the Senator from Vegas --- has been putting on a good show lately of being crazy as a loon. Crazy enough to shut down the Senate, even.
In recent months, Minority Leader Reid has called Alan Greenspan a ââ‚Å“hack," called Clarence Thomas an ââ‚Å“embarassment," accused the President of ââ‚Å“going back on his word," called the filibustered nominees ââ‚Å“bad people," accused California Supreme Court Justice Janice Rogers Brown of wanting to go back to the days of the ââ‚Å“Civil War," called the President of the United States of America a "LOSER," and who knows what all else heââ‚â„¢s said that hasnââ‚â„¢t yet been published.
Get it? Sen. Reid wants us all to think heââ‚â„¢s a nutcase who might be crazy enough to shut down the Senate. Wise up. This guy is from Vegas. Where they play poker.
Senator Reidââ‚â„¢s most recent maneuver is to make the seemingly loony offer of allowing an up-or-down vote on nominee Tom Griffith. Mr. Griffith has never even been filibustered --- and he was overwhelmingly approved in the Judiciary Committee, by a vote of 14-4. This fellow Reid is most certainly playing games.
Here's how Senate Majority Leader Frist has responded to Sen. Reid's oddball offer regarding Tom Griffith:
I appreciate Senator Reidââ‚â„¢s willingness to give Mr. Griffith a fair up or down vote. Mr. Griffith has been waiting for almost a year for this basic courtesy. In fact today marks four years since the first of these highly qualified nominees began waiting for the civility of a vote.
This is a first step but there are seven other highly qualified nominees who have been filibustered in the 108th Congress who deserve an up or down vote as well. I remain committed to this fundamental principle and the return to 214 years of Senate tradition. I urge Senator Reid and the Democrats to take another look at my fair offer and to come to the table to work with me for a solution.
Meantime, CBN reports as follows:
Republicans say it is not just a few "way out groups" who care about judges. Sen. George Allen (R-VA) remarked:
"I was chairman of the Republican Senate committee the last two years. And whether I was in Cajun country in Southern Louisiana or the Black Hills of South Dakota or Alaska or, for that matter, the Shenandoah Valley of Virginia, I'd finish off speeches where we'd talk about less taxation, less litigation, leaders in innovation, finish with judges. People are motivated on this issue, and the architect of this obstruction, the chief obstructionist, Tom Daschle (former South Dakota senator), is a former Democratic leader. And so I think that the people of this country expect Republicans to act. We should not cower."
Senator Allen is right.
Posted in News —
Posted at 4:39pm on May 9, 2005 Housekeeping
By krempasky
Would someone please tell Quin that an extra line between paragraphs would be most helpful? :) Of course, with posts like that, he's forgiven all.
Posted in Administrative —
Posted at 4:21pm on May 9, 2005 Something strange....
By Quin
Something really strange, or a lot of somethings, is/are occurring with the judge's fight. First comes the blockbuster story about the Lott deal. Then comes the start of Senate floor discussion today: "morning business," with no pre-set time limits.
Frist, Reid, Leahy and Cornyn all talk on judges. Meanwhile, Specter was to make a lengthy statement expected to hint at his stance on the constitutional option, or maybe to hint at his stance combined with yet another compromise proposal -- or SOMEthing. But Specter clearly was in line to talk. Instead, morning business proceeds to regular order, in which the Transportation/oinking pork bill was supposed to come up.
But Ron Wyden, of all people, asks unanimous consent to proceed as if they were still on morning business, so he could have 15 minutes and then Lott could have 15 minutes, supposedly on judges. Wyden then spends 15 minutes trying to sound oh-so-reasonable and bipartisan. Meanwhile, this site reports the UPI story about how Lott's office has denied a deal. Obviously, the expectation is that Wyden and Lott have some two-step worked out, and that Lott will explain what's going on.
Instead, Lott gets up and, feigning utter ignorance about what's been happening on the floor, says he came in to talk about the transportation bill which he thought was on the floor, so, barring objection, that's what he would talk about. As if he knew nothing about how judges was the topic du jour and that his dealings were the main reason that expectations were so high about big goings-on. Anyway, about 10 minutes into Lott's babbling on about transportation -- none of it remotely important, all of it mere boilerplate -- Specter interrupts to say he thought HE was supposed to have time. Lott says he'll be done in three minutes, so Specter says to go ahead.
Lott finishes, and then Inhofe and Bond get up and start talking procedural stuff about the transportation bill. Finally one of them recognizes Specter -- specifically for 15 minutes only. Specter takes the mike. He's angry. He says he has been promised time today since last week, and that he originally was to have 45 minutes, and then he just spent a ton of time in the cloakroom negotiating it down to 25 minutes -- and now he's told he can't have more than 15. "Well, I can't possibly do it in just 15 minutes!" he huffed. "So I yield back the floor!" And he stalked off, VERY angry.
WHAT IS GOING ON? What was Specter gonna say? Why did both parties appear to cooperate in keeping him from his expected floor time??? Why did Trent Lott work with Ron Wyden to waste time that could have gone to Specter? Would Specter have announced that he would vote against the constitutional option altogether, thus killing the Lott compromise and handing a victory to the Dems? Or would he have hinted that he would reluctantly vote FOR the constitutional option, thus killing the Lott compromise and making it far more likely for the constitutional option to pass?
Either way, SOMEbody, or a number of somebodies in the Senate, seemed scared of what Specter would do. And Lott, whose deal was reported in Roll Call today, and then whose press person said there was no deal, was part of what looked like deliberate subterfuge to change the subject on the floor. VERY VERY VERY strange all around. Methinks I see a GOP implosion happening before our eyes. And if that's NOT what is happening, then Frist needs to act, and ACT NOW, to lower the boom, pass the constitutional option, and stop allowing more time for nervous nellies to gum up the works. !!!!!!!!!!!!!
Posted in News —
Posted at 3:01pm on May 9, 2005 President's Statement on Judicial Nominations
By AndrewHyman
President Bush just sent this statement, from the Republic of Georgia (he's the first U.S. President to visit that country):
Four years ago today, I nominated Justice Priscilla Owen and Judge Terry Boyle to serve on the Federal courts of appeals. Four years later, neither has received an up-or-down vote in the Senate. Both have been rated well-qualified by the American Bar Association, the highest ABA rating a judicial nominee can receive. Both have been waiting to fill vacancies that have been designated judicial emergencies by the Judicial Conference of the United States. Much more than enough time has passed for the Senate to consider these nominations. The Senate should give these extraordinarily qualified nominees the up-or-down votes they deserve without further delay.
It is only fair that the Senate promptly consider judicial nominees on the floor, discuss and debate their qualifications, and then vote to confirm or not to confirm them. Nominees who have the support of a majority of the Senate should be confirmed. Unfortunately, a minority of Senators is blocking the will of the Senate.
Over the course of the past four years, the blocking of judicial nominees in the Senate has escalated to an unprecedented level. Last Congress, ten of my appeals court nominees were filibustered. Each of these highly qualified nominees enjoyed the bipartisan support of a majority of Senators. Each would have been confirmed if given a simple up-or-down vote. Each deserved a simple up-or-down vote by the entire Senate.
I urge the Senate to put aside the partisan practices of the past and work together to ensure that all nominees are treated fairly and that all Americans receive timely justice in our Federal courts.
The thing that really baffles me is this: why the Democrats won't agree to a temporary deal guaranteeing up-or-down votes, until Republican and Democratic presidents shall have served an equal amount of time. This would manifestly not give one party an advantage over the other, and it would allow a permanent solution to be devised later. I guess the GOP is going to have to act unilaterally.
Posted in News —
Posted at 2:49pm on May 9, 2005 No Done Deal
By AndrewHyman
This just in from Sen. Lott's office, by way of United Press International:
Susan Irby, Lott's communications director, issued a statement saying there was in fact no deal and that Lott remained committed to having an up-or-down vote on all the pending judicial nominees.
Sen. Lott is to be praised for trying to seek common ground with the other party. Personally, I think a compromise would be terrific. The columnist David Boder has made reasonable efforts to propose a compromise, as has Sen. Frist. It's unfortunate that they have not gotten anywhere.
Posted in News —
Posted at 12:01pm on May 9, 2005 ââ‚Å“The Senate Should Go Nuclear"
By AndrewHyman
That's the title of an opinion piece by columnist Star Parker at Townhall today. Here's an excerpt:
It seems pretty clear to me that the point of the process of advice and consent in the Senateâ₦ is to ensure that we have qualified candidates. It should not be about having senators insert personal political opinions regarding a nominee's views on particular subject matter.
Also, as I mentioned earlier this morning, Roll Call has an article today reporting that the SENATE IS ALMOST READY TO DUMP 3 MAJORITY-SUPPORTED NOMINEES.
Incidentally, today is the 4-year anniversary of the nominations of Priscilla Owen and Terrence Boyle. Senator Frist's office has an interesting statement about that. Also, Senator Allen has this statement:
I have a responsibility as a United States Senator to advise and consent on judicial nominations, and that has been denied me and the people of Virginia and the people across this country.
Of course, Senator Allen's statement is correct. Senators have no obligation to pass unnecessary legislation, but they do have an obligation to help fill vacancies in the judiciary. Endless filibusters are preventing fulfillment of that obligation, and are an unprecedented abuse of the Senate rules. What happened to Abe Fortas is no precedent for what's happening now. The Senate---and a minority at that---is simply trying to extort nominees from the President who pass a political litmus test.
UPDATE: MSNBC has a report about the purported deal in the works to dump 3 majority-supported nominees. Also, formerly filibustered Judge Charles Pickering has an op/ed in the Wall Street Journal available here.
Posted in News —
Posted at 11:00am on May 9, 2005 Hamilton's Hypothesis, Advice and Consent, and Schumer's Assault
By DanCT
The advice and consent clause reads "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint..." The text cannot be clearer. The President nominates, but the nominees only take office with "advice and consent" of the Senate. The nominations are made by the President, and the Senate is rightfully given a check on the executive power and may veto the President's choices. In Federalist Papers (#76), Hamilton discusses the framers' rationale for doing it this way:
I proceed to lay it down as a rule, that one man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment. ...in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight.
Hamilton's hypothesis, then, is that compromise nominations will rarely make great justices. Two historical tests bear him out. First, the great Supreme Court Justices have all been appointed when the White House and Senate were controlled by the same party, so the opposition party was unable to force a compromise candidate. A second prediction of Hamilton's hypothesis would be that great justices would tend to have contentious confirmation battles because they often will have demonstrated courageous decision-making that would be bound to offend some faction or other. John Frank phrases it as "the greater the controversy over the appointment, the greater the accomplishments of the Justice." He takes great pains to explain that the maxim is not absolute, that there are greats that were not controversial and there were controversials that were not great, but, as a general rule of thumb, controversy follows greatness. He discusses at great length why such a pattern might arise, and writing in 1976, he finds his evidence in the 60 years in the middle of the 20th century:
In the past 60 years there have been 36 appointments and confirmations. Ten of those appointments have engendered distinct controversy at the confirmation... the least distinguished [among these] being first class and some of them the foremost figures ever to sit on this court; all were subject to real confirmation disputes. Frank's Law, I submit, is clearly sustained on the evidence; indeed, the three most controversial appointments in this list of ten are those of Brandeis, Hughes and Black, and all three would be on any scholar's list of the ultimate immortals.
He then concludes:
The true meaning of the confirmation process is that where a very strong figure is appointed from some form of non-judicial public life, if he has been strong enough and active enough and conspicuous enough and effective enough, he will have enemies. This will make a confirmation controversy. If the appointee survives that controversy, he will almost assuredly make a very fine Justice.
AEI's John Lott (quoted by Andrew--a post well worth re-reading) recently made the same observation: ââ‚Å“It is pretty much the dumber you are, the easier it is to get on the court,ââ‚? he says. Senators get more upset if the President wants to ââ‚Å“put a bright person on who may be influential,ââ‚? Lott says.
Democrats are now arguing to institutionalize mediocrity by using the filibuster rule to force compromise and wrestle the control over the nomination process away from the President and into the hands of a minority of the Senate. Some, like Senator Schumer (D-NY) apparently don't like the way the framers framed the issue, ignores the great arguments made by Hamilton, and twists the clear words of the Constitution to make it appear to concur with his power grab: "...the Framers decided to give the President the power to nominate judges balanced by the Senateââ‚â„¢s power to give advice about those nominations and the power to consent to the appointments." However, the Constitution gives the Senate a role only in the appointment, not in the nomination: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint..." Hamilton's hypothesis explains why. It should also be noted that Schumer's comments are not just a slip of the tongue. He proposed a striking assault on the President's power to nominate in a press release:
So if you want a true compromise that preserves balance between the branches, I offer my proposal:
ââ‚¢ Create nominating commissions in every state and circuit.
ââ‚¢ Give the President and the opposition party leader in the Senate the power to name equal numbers of members of each commission.
ââ‚¢ Instruct each commission to propose one name for each vacancy.
ââ‚¢ And, barring the discovery of anything that disqualifies the person for service, both the President and the Senate agree to nominate and confirm him or her.
This is precisely the kind of thing that Hamilton warned against and the founders were trying to avoid when they wrote the advice and consent clause as they did rather than as Schumer wishes it had been written.
I find it amazing that the President--who is normally so attuned to preserving the power, prestige and dignity of the Presidency--is not making more of a show to defend his office against the Senate Democrats' brazen assault.
Posted in Senate Rules —
Posted at 10:19am on May 9, 2005 Senate Almost Ready to Dump 3 Majority-Supported Nominees
By AndrewHyman
Roll Call has an article today about a looming compromise which would firmly establish a new precedent: a Senate minority would be allowed to veto majority-supported judicial nominations submitted by the President. According to the deal, the Senate would allow Democrats to continue filibustering three nominees, without even making it more difficult for the Democrats to conduct those filibusters (i.e. without enforcing the two-speech rule and without banning dilatory quorum calls). Here are excerpts from the Roll Call article:
A bipartisan coalition of Senators believe it is close to a deal â₦.The potential deal, spearheaded by Sens. Trent Lott (R-Miss.) and Ben Nelson (D-Neb.) â₦.would commit to opposing the so-called nuclear option to end judicial filibustersâ₦.In exchange, the six Senate Democrats would pledge to allow votes on four of the seven circuit court nominees who were already filibustered in the 108th Congress and have been renominated. Perhaps more importantly, the six Democrats would pledge to vote for cloture to end filibuster attempts on all other judicial nominees named by President Bush, including Supreme Court picks, except in ââ‚Å“extreme circumstances," according to a senior aide familiar with the discussions.
â₦.
ââ‚Å“Itââ‚â„¢s very close," the aide said of the deal, requesting anonymity. The precarious deal â₆which would last at least through the 2006 elections â₆still hasnââ‚â„¢t been finalized, and neither side would reveal who was a party to it.
â₦.
In remarks that went widely unnoticed in Washington, Sen. Mark Pryor (D-Ark.) told reporters in Little Rock on Thursday that he was working with Lott and Nelson on the deal. ââ‚Å“It looks like there are a lot of Senators who want to avoid the nuclear option, and those are Senators on both the Republican and Democrat sides," Pryor told reporters attending the news conference.
The deal hinges on whether Republicans decide that they can trust the half-dozen Democrats to invoke cloture on all other nominees, and on how the Democrats define ââ‚Å“extreme circumstances."
â₦.
The Lott-Nelson deal, however, would be in writing, and if Republicans eventually decided that the six Democratic signatories went back on their word by supporting unnecessary filibusters, they could presumably back out of the deal and tell Frist they were ready to support the nuclear option.
â₦.
Despite the negotiations, leadership aides on both sides continued to prepare for the showdown, with Republicans and Democrats planning a major communications onslaught this week.
â₦.
In the meantime, a conservative group, the National Coalition to End Filibusters, will host a press conference today at the National Press Club with a series of anti-filibuster speakers, including Hiram Lewis, a 2006 GOP Senate candidate against Sen. Robert Byrd (D-W.Va.). Byrd, who has delivered a series of floor attacks against the nuclear option, has become a favorite target of conservatives.
â₦.
Democrats plan to bring to the Capitol this week a group of Princeton University students who have been holding a filibuster-style protest outside the Frist Campus Center, a building endowed by the Senate Majority Leaderââ‚â„¢s family. The Senator is a graduate of Princeton, where his son Harrison currently attends, and he has continued to be a large donor to the schoolâ₦.MoveOn ads are still running in Virginia, Maine, Oregon and Nebraska, targeting five swing GOP votes: Sens. John Warner (Va.), Olympia Snowe (Maine), Susan Collins (Maine), Gordon Smith (Oregon) and Chuck Hagel (Neb.).
Presumably, the three dumped nominees would be considered "extreme" enough to warrant a minority veto. In any event, future nominees to the Supreme Court would be even more vulnerable to a minority veto, because the minority could rightly argue that the nominees would not be subject to control by a higher court.
We already posted about the fact that Democrats consider three sitting Supreme Court justices to be "extreme." This deal would make it easier for fringe groups to shoot down both Supreme Court and Circuit Court nominees, because the fringe groups would have to convince fewer Senators than the 51 that has always been required in the past.
Posted in News —
Posted at 8:26am on May 9, 2005 Preaching to the choir
By Irishlaw
On NRO this morning, Senator Cornyn writing on Priscilla Owen.
Posted in Uncategorized —
Posted at 10:49pm on May 8, 2005 Sunday Night News About Filibusters
By AndrewHyman
On ABC's This Week program today, Michigan's Sen. Carl Levin accidently blurted out the true Democratic position, as reported by Mark Kilmer of Redstate:
Levin declared that "we should not give up on the principle" of the right to filibuster judges, including Supreme Court nominees. He said that it was "important to have the power of minority rule." He quickly corrected, "Not minority rule." He added that "we should not throw out the rule book."
Scott Johnson has a piece in the Weekly Standard, titled "They Were Against It, Before They Were For It" regarding filibuster flip-flops in Minnesota.
The Washington Post describes the upcoming schedule:
[N]umerous aides say a filibuster showdown is most likely in about two weeks, shortly before the Memorial Day recess. But Frist spokesman Bob Stevenson said Friday the issue "could come up at any time."
....
Thursday should be a doozy of a day in Congress. The Senate Foreign Relations Committee could spend hours discussing the latest allegations against John R. Bolton before voting on his nomination to be U.N. ambassador. The Senate Judiciary Committee has scheduled debate, and possibly votes, on three appellate court nominees whom Democrats may filibuster: William H. Pryor Jr. (tapped for the 11th Circuit); Terrence W. Boyle (4th Circuit); and Brett M. Kavanaugh (D.C. Circuit).
If these highly qualified nominees are filibustered, and the Senate majority allows the minority to demand nominees more to their liking, then at least let's have real filibusters. That means getting rid of dilatory quorum calls, and enforcing the two-speech rule. Better yet, why not give the Vice President greater authority to interrupt Senators who filibuster appellate nominations? The rule of unlimited debate (Rule 19) only prevents filibusterers from being interrupted by other Senators, and says nothing about interruptions by the Vice President.
Former Senator Slade Gorton of Washington State has some thoughts about the filibuster situation:
I regret the necessity of changing Senate rules on extended debate. I hope for a compromise that will retain those rights and allow votes on all Presidential nominees. But in the absence of such an agreement, it would be disastrous to change the processes of two hundred years and begin a system in which confirmation requires sixty votes. The "nuclear option" is a bad idea, but the present position of the Democrats is far worse.
Gary Andres discusses the wording of poll questions, in the Washington Times. Also, Gallup has updated poll info here (Gallup says the public is not paying much attention).
Posted in News —
Posted at 8:58pm on May 8, 2005 Lugar, Hagel, Lemaire & Rutland on Filibusters
By AndrewHyman
Before getting to the recent remarks by Senators Lugar and Hagel, here are a couple brief comments from the citizenry. Candie Gibson Lemaire has this comment in BayouBuzz.com: "It is becoming even more clear, we need Harry Reid to get a hold of his anger and lead his party to resolve issues, not lose control." And, Ginger Rutland has a column in the Sacramento Bee defending the federal appellate court nomination of Justice Janice Rogers Brown: "I want judges on those courts who will defend the rights of the poor and the disenfranchised in our country against the rich and the powerful when the rich and the powerful are wrong." Also, don't miss this excellent piece about Justice Owen from Associated Press ("The American Bar Association unanimously rated Owen as 'well-qualified.' She is the first nominee so rated ever denied an up-or-down confirmation vote").
The South Bend Tribune has a column by Jack Corwell discussing the stance of Indiana Sen. Richard Lugar, including this information:
Lugar, a Republican team player, supports the nominees and also backs Senate Majority Leader Bill Frist, R-Tenn., in negotiations in which Frist has raised the possibility of the nuclear option as a last resort if Democrats continue to block some of the president's judicial nominees.
"At the end of the day, I will support Leader Frist in what he has to do," Lugar said. Failure to back Frist would undercut the leader in negotiations, Lugar said, and allow Senate Minority Leader Harry Reid, D-Nev., to claim that "your own folks aren't behind you."
"Despite all the protestations," Lugar said, an end of judicial nomination filibusters "sets the stage for the end of the filibuster on legislative items. Some would say that's all to the good in a democratic society." But he said the Senate has used the filibuster for "protections of minority points of view when majorities went back and forth. That in retrospect did have a cooling effect and sometimes was very helpful ...
"I'd like to see that retained."
Meantime, Sen. Chuck Hagel of Nebraska has been talking too:
"My goodness, you've got 100 United States senators. Some of us might be MODERATELY INTELLIGENT enough to figure this out. We would, I think, debase our system and fail our country if we don't do this," Hagel told ABC's "This Week."
"But you can't give up a minority rights tool in the interest of the country, like the filibuster," he said.
To Sen. Carl Levin, D-Mich., "It's that kind of statement that gives us hope."
....
"The United States Senate is a minority rights institution unique in the world," Hagel said. "And I don't think either side wants to give that up. Now, the other part of this, which I also believe strongly, is that presidents deserve votes on their nominees."
Yet he noted that Republicans prevented votes on many of President Clinton's choices for the federal bench.
"The Republicans' hands aren't clean on this either. What we did with Bill Clinton's nominees --- about 62 of them --- we just didn't give them votes in committee or we didn't bring them up," Hagel said.
So, Hagel's main point is that the right of a minority to filibuster judicial nominations should not be completely wiped out. I think Sen. Hagel's arguments are not altogether persuasive. A minority veto of majority-supported judicial nominees was never exercised before 2003, and I've said many times here at this web site that a simple majority could have "discharged" any or all of the Clinton nominees from committee (i.e. the blockage of Clinton nominees was by a majority and not by a minority). Any MODERATELY INTELLIGENT person ought to be able to recognize this fact, which has also been pointed out by others, including liberal law professor Mark Tushnet. Moreover, any MODERATELY INTELLIGENT person should be able to understand that legislative filibusters enable the minority to preserve the status quo by preventing enactment of new legislation, whereas judicial filibusters give the minority a far greater power, to change the status quo by demanding judges who will do their bidding.
Anyway, I have a suggestion for addressing Sen. Hagel's concern. Suppose the Senate sets the number of votes at, say, 52 for ending debate on appellate judicial nominations, while continuing to set 60 votes as the threshold for legislative filibusters. Sen. Frist has already recognized that there is no present need to change the rule for district court judges, and by the same token there is no present need to lower the number of votes below 52 for ending appellate nomination filibusters. All of the previously filibustered nominees would be confirmed under a 52-vote standard, and yet a minority of Senators would still have power to filibuster forever as Senator Hagel seems to want.
This suggestion of mine would NOT require a 2/3 vote to be implemented, and could instead be implemented by simply adding a standing order which would only require 60 votes. True, a standing order cannot amend a standing rule, but this standing order I'm suggesting would not amend Rule 22 or any other rule. Rule 22 provides an exception to the Rule 19 requirement that no Senator may interrupt a filibustering Senator. In contrast, the standing order that I'm suggesting would have nothing to do with a Senator interrupting a filibustering Senator, but rather would give the Vice President authority to interrupt a filibustering Senator, absent the objection of 49 Senators for an appellate filibuster (or 40 Senators for a legislative filibuster). There currently is no written Senate standing rule or standing order that prevents the Vice President from interrupting a filibuster, so the standing order that I'm suggesting would actually increase minority rights rather than decrease them, and would increase protection for the legislative filibuster rather than decrease protection. The standing order that I'm suggesting could --- if Senators so desire --- have a sunset clause so that it expires after Democratic and Republican presidents have served for an equal time or have appointed an equal number of Supreme Court justices (that way tradition would be restored for the time being while a permanent solution is considered).
Incidentally, the GOP Senate majority already represents a minority of voters, so forbidding the GOP Senate majority from confirming judges can actually be considered an infringement of minority rights.
Posted in News —
Posted at 12:20pm on May 8, 2005 Sunday Morning Filibuster Developments
By AndrewHyman
Senator Orrin Hatch has an op/ed piece in the Salt Lake Tribune, and here's a sample:
The fact is, the majority --- the party put in power by the people --- works its will in a variety of ways, within committees and without. And there's a reason the public doesn't read much about what happens within Senate or House committees: there is a lot of wrangling going on, and both Democrats and Republicans know how to wrangle and horse-trade.
But until George W. Bush was elected, no majority-supported judicial nominee was ever defeated by a filibuster. Not one. That was the tradition for 214 years, which Democrats did away with in 2003. We had restricted the filibuster to legislation only, which the Senate controls, rather than judicial appointments, which the Constitution gives to the president to control....I have never supported filibustering judicial nominations. Not once have I even voted against cloture on a judicial nomination --- in other words, out of 33 opportunities to end debate on both Republican and Democrat nominees, I always sided with those who wanted to vote up-or-down.
Regarding obstruction in committee, it should be borne in mind that a simple majority of the full Senate has always been able to yank an obstructed nominee out of committee by "discharging" the nominee onto the floor.
The Boston Globe has an interesting quote from the first person who ever got Borked:
Bork said: ''The immediate future looks like it's going to be rancorous, polarized, and venomous, but the Supreme Court has made itself a political institution, and it's culturally to the left of the American public. The fight is that the Democrats want to maintain that, because it's the only branch of government they have on their side right now."
The best recipe for making future nominations more rancorous, polarized, and venomous would be to give extremist groups increased ability to shoot down nominees---which is exactly what will happen if 60 votes are required to confirm. The Nashua Telegraph has this suggestive quote from Senator Sununu:
ââ‚Å“The U.S. Constitution gives the Senate the responsibility of ââ‚Ëœadvise and consentââ‚â„¢ for presidential nominations and I believe that means a nominee should be given the opportunity for an up or down vote by the full Senate once they are approved by a committee of jurisdiction,ââ‚™ââ‚â„¢ Sununu wrote.
Bradley R. Gitz writes about filibusters in The Arkansas Democrat-Gazette, including this perceptive sentence:
The idea that judges should interpret the Constitution as intended, and defer to democratically elected legislatures in the many areas where the Constitution is silent, is the last thing Democrats, long committed to the idea of judges legislating in a leftward direction from the bench, want to see further legitimized.
And finally, for now, I cannot resist including the following excerpt from a column today in the Portland Press Herald. You figure out why.
Someone else trying to get a bill in under the wire is Sen. Phil Specter, R-Pa. The Senate Judiciary Committee chairman has been working hard to halt lawsuits against asbestos manufacturers by allowing victims to get compensated through a trust fund of company money.
Here's a hint.
Posted in News —
Posted at 3:17am on May 8, 2005 John Dean and the Obstruction of Justices
By AndrewHyman
Columnist John Dean wrote a May 6 essay at Findlaw's Writ asserting that the Democrats' present filibustering against judicial nominations has ample precedent in the Fortas nomination back in 1968. Mr. Dean is incorrect, and his faulty arguments are helping to obstruct the confirmation of qualified nominees such as Justices Janice Rogers Brown and Priscilla Owen. Note that confirmthem already discussed a previous April 8 column by Mr. Dean on this same subject. For those who may not recall, Mr. Dean was Nixon's White House counsel during Watergate.
His recent Findlaw piece mischaracterizes what actually happened in 1968 with regard to Supreme Court Associate Justice Abe Fortas, and seeks to disparage statements made recently by Senator Orrin Hatch of Utah regarding that Fortas nomination to become Chief Justice. Mr. Dean's May 6 essay quotes various statements by Senator Hatch, and concludes that Sen. Hatch is engaged in "revisionist history," that he is "dead wrong," that his statements are "absurd," that he "utterly ignores the facts," that he is "misleading," that his history is "bogus," that he practices "baseless revisionism," and that he is engaged in "distortion of the truth." Let us look at the statements of Sen. Hatch that have prompted all of this invective from Mr. Dean. The five statements by Senator Hatch quoted by Mr. Dean are as follows:
#1) "Before 2003, only one judicial nomination on which cloture was not invoked was not confirmed."
#2) "Opposition to cloture on the controversial 1968 nomination of Abe Fortas to be Chief Justice was evenly bipartisan and showed that the nominee lacked clear majority support."
#3) "[Griffin said] that there never was a real filibuster because a majority would have beaten Justice Fortas outright."
#4) "[Griffin] personally told me that there never was an intention to use the filibuster to defeat the Fortas nomination."
#5) "Some have said that the Abe Fortas nomination for Chief Justice was filibustered. Hardly. I thought it was, too, until I was corrected by the man who led the fight against Abe Fortas, Senator Robert Griffin of Michigan."
Dean acknowledges that Hatch Statement #1 is "correct."
Regarding Hatch Statement #2, Dean says that it is misleading and conjecture. Yet, Mr. Dean also says that "no one will ever know for certain if the White House had, or could have twisted arms to get, a simple majority....We'll have to await Robert Caro's next volume on Johnson to see..." Thus, Mr. Dean basically restates Hatch Statement #2, and yet Mr. Dean paradoxically does not criticize his own statement as being misleading or conjectural. The simple fact is that Sen. Hatch's statement #2 is entirely correct. Back in 1968, the New York Times described exactly what Hatch now describes: ââ‚Å“Because of the unusual crosscurrents underlying todayââ‚â„¢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." Was this New York Times statement "conjecture" or "misleading"? Of course not, and neither is Hatch Statement #2.
Regarding Hatch Statement #3, Mr. Dean writes that the "evidence is overwhelming, however, that there was indeed, a filibuster." It is apparent from Hatch Statement #3 that he was only saying that there was no "real" filibuster, in the sense that a majority was ready to defeat Fortas. As already mentioned, Dean himself admits that "no one will ever know" if a majority was ready to defeat Fortas. Mr. Dean therefore cannot reasonably deny the possibility that Sen. Griffin knew Fortas could not get the votes, much less reasonably criticize Hatch for believing Griffin.
Regarding Hatch Statement #4, Dean says it is absurd to believe that a filibuster was not meant to defeat Fortas. Dean says that either Hatch did not hear Griffin correctly, or Griffin forgot what happened in 1968. But Dean is the one who is being absurd. It's perfectly reasonable to believe that Senators opposed to Fortas wanted to fully debate the actual issues involved, in order to enhance the consensus against Fortas, rather than to prevent an ultimate up-or-down vote. Here's what Griffin said in 1968 about having a cloture vote after less than a week of debate:
Those who are considering invocation of cloture at this early stage on such a controversial, complex matter should keep in mind that Senate debate last year on the investment tax credit bill lasted 5 weeks; that the Senate debated the Congressional reorganization bill for 6 weeks; and that we spent 3 weeks earlier this year on the crime bill.
Certainly, this statement proves that Senators opposing Fortas claimed at the time that there was no intention to use a filibuster to permanently prevent a final vote on Fortas. Thus, it is very likely that Griffin did tell Hatch what Hatch Statement #4 says. It's crystal clear in the record that Sen. Griffin denied in 1968 that he had filibustered the Fortas nomination:
When is a filibuster, Mr. President? . . There have been no dilatory quorum calls or other dilatory tactics employed. The speakers who have taken the floor have addressed themselves to the subject before the Senate, and a most interesting and useful discussion has been recorded in the Congressional Record....
Why must John Dean question Sen. Hatch's hearing and Sen. Griffin's memory, when this quote from the Congressional Record verifies Hatch Statement #4? Mr. Dean is simply trying to revise history to suit his agenda.
Regarding Hatch Statement #5, the Republican Majority Leader at the time, Sen. Everett Dirksen, made clear that he opposed cloture because his decision on the merits was "still open" and because the nomination warranted further "exploration." Even if Dean believes that Senator Dirksen and other Senators who expressed the same sentiments were lying, still the simple fact remains that Fortas did not clearly have 51 votes. Dean admits that "no one will ever know for certain if the White House had, or could have twisted arms to get, a simple majority....We'll have to await Robert Caro's next volume on Johnson to see...." That is what primarily distinguishes the Fortas incident from the filibusters today. Everyone knows that Pres. Bush's nominees can get a simple majority for confirmation.
Some may say that Fortas was "filibustered" while others may say he was not. As Norman Ornstein has explained, when a filibuster occurs, "we're not going to see something where all of a sudden it's clear, the signs go up, 'filibuster.'" If Fortas was filibustered, it is still an issue precisely when the discussion turned into a filibuster, and it is also an issue whether the filibuster was merely intended to buy time in order to change minds, or instead was intended to permanently prevent an up-or-down vote. In any case, the relevant fact is that when the cloture vote was taken in 1968, there were not 51 Senators who were clearly ready to confirm. Today there are.
Posted in Fillibuster —
Posted at 10:44pm on May 7, 2005 Plain Speaking from Bob Dole and Colin McNickle
By AndrewHyman
Dole appeared on Fox News, May 5 and said this:
The former Senate Majority Leader's April 27 opinion piece in the New York Times is here. Colin McNickle has a like-minded opinion piece in Pittsburgh's Tribune-Review today:
It is widely expected that Republicans this week will use the Constitution to counter the Democrats' obstruction of President Bush's judicial nominations.
Fully supported by Article I, Section 5 -- "Each House may determine the Rules of its Proceedings, ... " -- the GOP-controlled Senate will use a parliamentary tactic, a rules change, to counter a parliamentary tactic, the filibuster, to allow court nominees the up or down floor vote they deserve.
And with the move, the constitutional mandate of "advice and consent" will be honored and fulfilled instead of mocked and perverted. Democrats were exposed for what they are -- reprobates of the republic -- when they refused the Republicans' offer of 100 hours of floor debate.
Though in the majority, Republicans have been reluctant to lead. They'll show leadership this week by rescuing the country from the tyranny of the minority. (If by chance they don't, there will be hell to pay from a growing faction within the party.)
Emphasis added. :-)
Posted in News —
Posted at 7:25pm on May 7, 2005 Ornstein Comments, WaPo Editorializes, & Hewitt Blogs
By AndrewHyman
I wrote a post a few days ago in response to a Roll Call opinion piece by Norman Ornstein. Mr. Ornstein read that confirmthem post, and responded by emailing some comments, and I've now put Ornstein's emailed comments at the end of my original post.
Moving along to other developments, the Washington Post has just come out with an editorial advocating that, absent a compromise acceptable now to all sides, the GOP should adopt a rule change that only becomes effective after George W. Bush leaves the White House. The Post argues (with superficial rationality but underlying glee) that the debate would then be purely about principle, since no one would know which party would benefit.
A much better approach than the Post's would be to immediately adopt a temporary solution that restores the tradition of not filibustering majority-supported nominees, but only for the next eight years, as Bob Dole has suggested (or until Democratic and Republican presidents shall have served for an equal time). And, we could discuss a separate rule that would take effect when the temporary rule expires. That way, tradition would be restored for the time being in a way that may equally benefit both parties, and we could have a more principled discussion about a permanent solution. Of course, I also have no problem with adopting a permanent solution now (it could always be changed later).
Anyway, Hugh Hewitt has this to say about the unprincipled behavior of a certain Dickensian senator from Nevada, and his accomplices:
A day after Senator Uriah Reid (D-Nev) brands the president a "loser" and then apologizes, a week after Senator Ken Salazar (D-Colo) labels Focus on the Family as the anti-Christ and then apologizes, and a month after Senator Robert Byrd (D-WVA) brands the Senate GOP as Hitler's heirs, Senator Charles Schumer (D-NY) appeals to President Bush to bring moderation to the Republican side of the debate on the filibusters. Now that is rich. Wildly amusing and ineffective, but rich.
Especially when you consider this account of Senator Reid's appearance before high school students yesterday:
"Reid took students through a primer of the five most-disputed judicial nominees, arguing some were opposed to the 1973 Roe v. Wade case legalizing abortion. He charged others with trying to dismantle government programs like Social Security.
"'I don't want them. I think they're bad people,' Reid said of the nominees
"He described California Supreme Court Justice Janice Rogers Brown, one of the Bush nominees Republicans will probably float first for approval, as an African-American opposed by the Congressional Black Caucus.
"'She is a woman who wants to take us back to the Civil War days,' Reid said."
On the appalling scale, accusing a distinguished African-American jurist of wanting a return to the era of slavery is simply reprehensible. Perhaps Senator Schumer would like to issue a statement on Senator Reid's disgusting attack on Justice Brown and the other nominees?
Don't hold your breath.
UPDATE: Power Line criticizes the Post editorial, here.
Posted in Senate Rules —
Posted at 2:12pm on May 7, 2005 Some Saturday Filibuster Items
By AndrewHyman
David Broder is urging Sen. Reid and the Democrats to accept the Frist proposal with respect to circuit court nominations only, without accepting anything about Supreme Court nominations.
However, Reid is still insisting that, "I will never give up the right for extended debate." Of course, the 100 hours of debate (offered by Frist) doesn't exactly mean Reid would be bound and gagged. What Reid really wants is perpetual debate, which is something that the Senate has often given up (e.g. for debate about trade agreements and budget resolutions).
Anyway, in related news, Sen. Chuck Schumer followed in the footsteps of Mario Cuomo, by delivering the Dems' Radio Address today, in which he urged Pres. Bush to intervene in the filibuster fight. Schumer wants Bush to tell some of the pro-majority-vote activists to ease up a bit. Of course, Schumer is asking for Bush to do something that Harry Reid has already insisted that Bush not do; Reid recently said, ââ‚Å“I met with the president and was encouraged when he told me he would not become involved...." Seems to me that the President should accept Schumer's invitation to become involved, and should now bring the full influence of the presidency into the effort to restore the traditional up-or-down votes for majority-supported judicial nominees who reach the Senate floor.
Sen. Frist recently asked members of the House of Representatives to become somewhat involved, according to press reports:
Chabot and the other House Republicans got involved after Senate Majority Leader Bill Frist called a few weeks ago and asked for their help. Their charge is to refine the party's message and educate the public about what's at stake and how everyone is affected....."By exercising the filibuster to block nominees, they are requiring a higher standard than is called for in the Constitution.''
I think both the House and the President should become more involved. After all, Senate Democrats like Herb Kohl have already threatened retaliation against business leaders who do not become involved.
The New York Times reports the following today, among other things:
Seizing on Democratic threats to slow the majority agenda in the Senate, Republicans intend to paint Democrats as uncompromising obstacles to popular legislation. The message is simple, they say - no highway money, no energy bill, no tax relief.
"My own judgment is that this operates in our favor," said Senator John Cornyn, Republican of Texas. "It would just cement their reputation as obstructionists."
....
[A] move before the end of May seems almost assured. By the end of this week, five judges opposed by Democrats could be awaiting floor action, though it is unclear which of them might be brought forward to trigger the showdown.
Associated Press has a story aptly titled "And the nominees are ... targets of opportunity," which includes this bit of accurate analysis:
As for the current nomination battle, Bork said, "I think it's nastier than it's ever been probably. A lot of people say it started with me, but I think it's grown increasingly nasty. I was in town when Nixon was going down. Oddly enough, the town was less bitter then than it is now."
Jonathan Turley, a law professor at George Washington University, said Guinier and Bork became "convenient placeholders for wider political controversy." That is the case this time, too, he said.
"These people have entered the dangerous realm of symbolism," Turley said. "Some of these nominees appear almost to have been selected at random."
The seven at the center of today's storm are appeals court nominees whom the Democrats rejected during President Bush's first term and whose names Bush resubmitted to the Senate this year.
This whole debate --- about whether debates should end --- is itself going to end soon. Let's hope that it has a decent ending, for the country's sake.
Posted in News —
Posted at 8:54pm on May 6, 2005 Reid Says He'll Filibuster Extremely Conservative Nominees
By AndrewHyman
Associated Press reported this today:
Senate Democratic leader Harry Reid has privately told individual Republicans he doesnââ‚â„¢t intend to block votes on any Supreme Court nominees except in extreme cases, according to officials familiar with the conversations.
It's no secret that the Democrats in Congress consider three sitting Supreme Court Justices to be "extreme." For example, Congressman Barney Frank said this last year:
[T]he three extremely conservative members of the U.S. Supreme Court â₦ are, of course, entitled to their extreme conservatism, Justices Scalia, Thomas and Rehnquist; but, they are really not entitled to partisanship.
It looks like Reid and the Democrats still steadfastly refuse to let President Bush nominate anyone like Rehnquist, Scalia, or Thomas. Reid and friends are still marching to the tune of left wingers like Joanne Mariner, who wrote this last year:
The difference between an extremist minority --- for example, Rehnquist, Thomas and Scalia --- and an extremist majority is just a couple of seats....Hang tough, Senate Democrats, and remember these three essential steps: save the filibuster, block the judicial extremists, and toast the health of the remaining Supreme Court moderates!
Senator Reid's most recent threat to filibuster "extremists" like Rehnquist, Scalia, and Thomas hardly sounds like an offer of compromise, nor does Reid's renewed threat to shut down the Senate:
He repeated that the Senate will be brought to a standstill if Republicans change the rules regarding filibusters to hasten the approval of Bush's judicial nominees.
That same article also reports Reid called the President a "loser" today, but later apologized. Senator Reid has yet to apologize for calling Alan Greenspan a "hack," for calling Clarence Thomas an "embarassment," and for accusing President Bush of "going back on his word."
Posted in News —
Posted at 3:15pm on May 6, 2005 Restoring Our Heritage
By AndrewHyman
Ed Feulner, President of the Heritage Foundation, has an opinion piece in the Magic City Morning Star of Millinocket, Maine. Here's some of what he has to say:
[A]n unprecedented and ugly fight that has long prevented a vote on nominees is about to end, in part because the American people voted in 2004 to kick out the lead obstructionist, former Minority Leader Tom Daschle. This is the test to see if elections really matter.
Majority Leader Bill Frist recently offered a generous compromise that would allow up to 100 hours of debate on each judicial nominee. Thatââ‚â„¢s longer than any nominee has ever been debated. If Fristââ‚â„¢s offer is rejected, the Senate is expected to clarify its rules in early May and vote that its legislative filibuster rule does not permit endless minority filibusters to block judicial nominees
.....
We must return to original constitutional principles. Legislators should make the laws, and judges should interpret them fairly and honestly. These simple solutions would protect our democracy, and our republic.
Millinocket is a beautiful area. People who like the outdoors would enjoy visiting nearby Baxter State Park and Mt. Katahdin. The northern terminus of the Appalachian Trail is located there. Filibusters aren't the only thing on my mind, you know. :-)
Posted in News —
Posted at 12:57pm on May 6, 2005 Finding a soft spot and hitting it: Warner (R-Va)
By DanCT
The Virginia Democratic Party Chairman, Kerry Donley, hits Sen. Warner squarely in his weak spot in an open letter , which begins:
"Iââ‚â„¢m taking the unusual step of writing you today because I believe you may be the deciding vote in upholding tradition and protecting minority rights in the Senate. I speak, of course, about the filibuster, which I urge you to support."
Although the arguments about "tradition" and "minority rights" border on the absurd, they prove very well-placed because these are concerns that Sen. Warner has raised before. For example, the Richmond Times-Dispatch quotes the Senator:
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.
Although the filibuster rule has long existed, the tradition has rightly been to let it lie dormant during the judicial confirmation process and give all nominees that make it to the floor a straight up-or-down vote. The Democrats now invoke the filibuster not because they need more time to debate, but because they want to block the President's nominees. By their actions, the Democrats are making the appeals to tradition and unlimited debate look laughable--a weak spot indeed. But, strangely, even as a liberal Senator (Specter, R-Pa) has correctly identified the Democrats' filibustering of nominees a " constitutional revolution," Senator Warner still argues in support of the tactic as "traditional". Senator, vote to uphold the Senate tradition of giving nominees a straight up-or-down vote once they make it to floor.
Posted in Senate Rules —
Posted at 12:53pm on May 6, 2005 Fortifying the strong spots: Warner (R-Va)
By DanCT
Although muddled on his vision of the traditions of the Senate, Mr. Warner does implicitly understand how the nomination and confirmation process is supposed to work.
...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. (Richmond Times-Dispatch)
The Senator is correct that nominating judges is primarily the President's prerogative and that a minority of the Senate should not be able block nominees by preventing the majority from acting. An illustrative analogy: When the President refuses to act on a bill sent to him by the legislature, the bill typically becomes law automatically. The President has a constitutional right to exercise a check on the legislature's power by using the veto; but when he refuses to use that check, the power over legislation reverts solely to the legislature. Similarly, the Senate has a constitutional right to exercise a check on the power of the President to name judges to the bench; but when they refuse to exercise that check by invoking a filibuster, the power should revert back solely to the President and the nominees should take office if the system of checks and balances were reciprocal. Why, then, wasn't such a provision written into the Constitution? The framers never imagined that the Senate would abrogate its responsibility to act on nominations!
Posted in Senate Rules —
Posted at 12:49pm on May 6, 2005 Princeton Starts Thinking
By AndrewHyman
Confirmthem already reported about an ongoing "filibuster" demonstration at Princeton University against GOP efforts to overcome interminable Democratic filibusters of judicial nominees in the U.S. Senate. Princeton undergrad Michael Kenneally has a piece today in the Daily Princetonian, taking the demonstrators to task. Here's a portion of Kenneally's column:
The "Frist Center Filibuster" has done well to focus our attention on an important issue, but our attention must go beyond reading Aesop's fables or Shakespeare's plays in protest. We need to have an honest debate over the merits of the arguments advanced by both sides.
Unfortunately, the Frist filibuster has provided more hype than reasoned argument. â₦ Frist's proposal allows for 100 hours of debate over each nominee before requiring a vote. The Democrats' filibuster is not a principled plea for honest debate but rather a political maneuverâ₦.
Many of Frist's opponents speak as if he is trying to deny them some constitutional or customary right, but in fact both the Constitution and tradition support his position. The filibuster is never even implied in the Constitution, and using it systematically to deny nominees an up-or-down vote is totally unprecedented. â₦.
One could say much about the dramatic change in sentiment among Senate Democrats since the 1990s, when they were fighting for their judicial nominees. In 1998, Senator Patrick Leahy said, "I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported." Senators Kennedy, Harkin, Reid and others have made similar statements that reveal blatant hypocrisy in their filibuster. One might also point out that Americans overwhelmingly support the right of nominees to an up-or-down vote. But popular opinion and political hypocrisy should only be secondary considerations here. Instead, we should recognize the grave impropriety of senators using the filibuster to avoid their obligation to vote on judicial nominees. Senator Frist should be praised for fighting the emergence of a dangerous precedent.
Kenneally should be praised too.
Posted in News —
Posted at 12:05pm on May 6, 2005 Augustine on Brooks
By Zummo
Peter Augustine responds to the same David Brooks column that I discussed yesterday, and more clearly captures what I was trying to argue.
Brooks then goes on to compare their abolitionist enthusiasm with "the social conservatives' attempt to end the judicial filibuster." But doing away with the filibuster won't produce a civil war. The filibuster isn't in the Constitution or any of our constitutional documents. It is merely part of the way the Senate regulates itself and has no constitutional or founding status at all.
Clearly the constitutional principle that governs the two houses of Congress is majority rule. The two houses are supposed to check each other, and in turn be checked by the other two branches of government. There's no constitutional foundation for the Senate's perversely building yet another counter-majoritarian check into its internal structure. In truth, there's always been something vaguely but insistently unconstitutional about the filibuster. Liberals used to know this quite well back in the days when it was understood to be a perverse mechanism used by Southern racists to block civil-rights legislation favored by most members of Congress and most Americans. What did Martin Luther King Jr., another authority appealed to by Brooks, think about the filibuster?
I'm not taking a stand on whether or when Senate Republicans should compromise on the filibuster issue. I'm merely saying that their threat to end it is not an example of unbridled evangelical enthusiasm comparable to abolitionism. Think about how the clever Brooks is trying to structure "mainstream" American opinion here. Don't be seduced!
Posted in Uncategorized —
Posted at 10:44am on May 6, 2005 Harmon on Filibusters
By AndrewHyman
M. D. Harmon of the Portland Press Herald in Maine has a good column today, and this is a sample:
[I]f roles were reversed and Republicans were as united as Democrats now are to obstruct their opponents' agenda (they never have been, which is why this issue never came up before), Democrats would outlaw the filibuster....It would be a no-brainer for them. "Block our judges? We'll show you who has the votes!" And the body of the filibuster would be found in an alley with a bullet between its eyes.
Democrats, bless their little hearts, know that they are elected to win disputes over important issues. Thus, they will do what it takes to prevail, even if they have to twist, kick, gouge, bite and gore (sorry) their opponents' tenderest parts to do it.
If judges just interpreted laws instead of making them, we wouldn't see politicians campaign by saying they would appoint jurists who would rule their way rather than the other guy's. But they do. So, who are our real rulers --- the people we elect, or the unelected judges who overrule them?
Good question.
Posted in News —
Posted at 10:41am on May 6, 2005 Califano on Fortas
By AndrewHyman
The simple uncontestable fact about the Fortas nomination in 1968 is that the cloture vote was 45-43, and it is unclear whether he could have gotten 51 votes in an up-or-down vote on the merits. As the New York Times reported back then, ââ‚Å“Because of the unusual crosscurrents underlying todayââ‚â„¢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." In any event, just for the record, Joseph Califano's history of the Fortas cloture vote is below the fold.
The following is an excerpt from The Triumph and Tragedy of Lyndon Johnson by Joseph Califano, c. 1991, pages 316-317.
Rumors began circulating on the Hill that Griffin and Thurmond had something hot. We asked Fortas if he knew of any other vulnerability. He couldnââ‚â„¢t think of anything. I asked his best friend and partner Paul Porter the same question. He had no idea. Nevertheless, the rumors persisted.
Shortly before committee hearings resumed on September 13, Paul Porter called and said he had to talk to me about something regarding Fortas. When he came over early that evening, he showed me a letter he had written to several prominent businessmen. Some were clients of Fortasââ‚â„¢s old firm; all could be expected to have matters in various federal courts, some likely to get to the Supreme Court. The letter sought to raise money for Fortas to teach a summer seminar at American University Law School. Porter had raised $30,000, of which $15,000 had already been paid to Fortas for seminars he had been teaching the very summer in which we were fighting for his nomination. Porter tried to justify the arrangement, saying it wouldnââ‚â„¢t influence Fortasââ‚â„¢s behavior in the court, but his eyes teared as he talked to me. Senator Thurmond, Porter explained weakly, had discovered the payments and planned to have the universityââ‚â„¢s law school dean, B.J. Tennery, testify about it before the committee on September 13.
After Porter left my office, I reported the matter to Larry Temple, and talked to the President as soon as we could get to him later that evening. When we informed him, Johnson nodded sadly. He was silent for a long minute. Then, he said, ââ‚Å“We wonââ‚â„¢t withdraw the nomination. I wonââ‚â„¢t do that to Abe.�? Though we couldnââ‚â„¢t get the two-thirds vote needed to shut off debate, Johnson said we could get a majority, and that would be a majority for Fortas. ââ‚Å“With a majority on the floor for Abe, heââ‚â„¢ll be able to stay on the Court with his head up. We have to do that for him.�? Fortas also wanted the majority vote.
After Tenneryââ‚â„¢s testimony, as Johnson had predicted, Dirksen withdrew his support and announced he would not vote to shut off debate. On October 1, after a strenuous White House effort, a 45-43 majority of senators voted to end the filibuster, short of the 59 votes needed for cloture, but just barely the majority LBJ wanted to give Fortas. Later that day, Fortas asked the President to withdraw his nomination.
Posted in Senate Rules —
Posted at 11:42pm on May 5, 2005 Mainers on Filibustered Nominations
By AndrewHyman
The New York Times has a story about how all of this filibuster controversy is playing up in Maine, including info about Maine Senator Susan Collins, who was reelected to her second term in 2002:
Ms. Collins said that in her Maine office, "there were more calls coming in asking me to oppose than to support the rules change, but it was pretty even." She said she believed she could be the deciding vote on the proposed rule change, and that she was keeping her position to herself to encourage both sides to compromise. But as she traveled around the state over this week's recess, she said, "Very few people have mentioned the fight about filibustered judges."
Groups on both sides of the issue are trying to inform and persuade Mainers regarding the judicial filibuster issue, and that's understandable given what's at stake. Of course, that kind of advertising ought to be done respectfully and honestly. Here's some more of the Times article:
Dr. Frist, who is traveling in the Middle East, sent two private e-mail messages to Republican senators this week advising them that he intended to try changing the rule soon, according to Republican aides who were briefed on the messages. In one, he lauded the start of an advertising campaign in Maine and other states by a group with close ties to the Bush campaign urging support for the rule change in Maine and other states. In the other, he applauded the placement of an opinion article in two newspapers, including one in Maine.
"I thought it was so strange that I got that e-mail," said Ms. Collins, noting that as one of a decisive handful of the 55 Republican senators who have not yet taken on a position on the rule change, she was a target of the advertising campaign her party leader had endorsed. Dr. Frist might have sent it only to those senators who had already agreed to support the idea, she said. "I guess that says where Dr. Frist stands on the issue, that he is going to use every means possible to garner the votes that he needs to win," she said.
I hope that pressure tactics will be avoided, in favor of excellent and informative presentations like this piece by Portland, Maine attorney Michael A. Duddy. The Times also reports that Maine's other Senator, Olympia Snowe (elected to her second term in 2000), would prefer less advertising and more discussion between Senators.
Posted in News —
Posted at 9:42pm on May 5, 2005 Pigs and Swans
By AndrewHyman
Today on MSNBCââ‚â„¢s ââ‚Å“First Read" there was some discussion of the Fortas nomination in 1968:
[W]e once again ask this question, first posed by congressional scholar Norm Ornstein: If Fortas didn't seem to have majority support, then why was he filibustered? Why didn't he receive an immediate up-or-down vote?... Ornstein replies that this filibuster, no matter how you slice it, helped defeat Fortas, and that debunks the GOP argument that judicial filibusters are unprecedented. "They are trying to call this pig a swan," Ornstein says.
If the debate on Fortas ever developed into a true "filibuster," that occurred no earlier than the cloture vote. Indeed, Ornstein has acknowledged that a filibuster does not become clear before a cloture vote occurs:
[A]ny effort to stop the debate and move to a vote can't be done without filing, at that point, a motion for cloture to stop the debate and bring to it a vote (sic); and that, under the rules, takes 60 senators to do and to stop. So it'll be clear that they are acting in an extended fashion [i.e. filibustering], but it's not going to be through some formal announcement or because the Senate itself completely comes to a halt.
Thus, it was ordinary debate that helped diminish support for Fortas, rather than a subsequent filibuster. Notice that cloture votes have been happening on Bush's nominees with 51 Senators clearly supporting confirmation. That simply never happened to Abe Fortas, no matter how you slice it.
Posted in Senate Rules —
Posted at 6:43pm on May 5, 2005 Thursday Afternoon on the Filibuster Patrol
By AndrewHyman
The Economist has a prediction:
Mr Frist seems to have assembled enough votes to carry out his ââ‚Å“nuclear threat"ââ‚â€getting rid of the filibuster that allows Democrats to delay judicial appointments. The Democrats have a difficult choiceââ‚â€surrender, or risk losing their ability to filibuster Supreme Court nominees.
Meantime, Peter Friedman of Dartmouth, Massachusetts defends Justice Brown:
Forty-five years ago, Janice Brown lived in a discriminatory, segregated society that had been perpetuated by years of Senate filibustering. With the inspirational and visionary leadership of President John F. Kennedy, Attorney General Robert F. Kennedy and others, civil rights legislation eventually prevailed. Unfortunately, Janice Brown, who has been nominated to a federal appeals court, is again the victim of a filibuster, this time led by Sen. Edward M. Kennedy....
Friedman goes on to address two particular cases that have been used by Justice Brown's detractors to distort her record: American Academy of Pediatrics v. Lungren and Hi-Voltage Wire Works Inc v. City of San Jose. And, Brian Fahling takes on Al Gore; writing in Agape Press, Mr. Fahling arrives at this conclusion:
Democrats like Mr. Gore wish to continue populating the federal courts with judges who fancy themselves masters of good and evil. Judicial filibusters serve that end, at least by keeping off of the bench men and women who have a strong record of regarding the Constitution and the premises upon which it rests as relevant and authoritative --- expounders of the law, not masters of good and evil.
I agree. If judges monopolize all of the major "good versus evil" issues --- even those issues left completely unresolved by the framers of the Constitution --- then the people and their elected representatives must deal only with relatively trivial matters, and become pawns with little control over their own destinies.
Posted in Senate Rules —
Posted at 11:18am on May 5, 2005 Some More Thursday Morning Filibuster Stuff
By AndrewHyman
David Reinhard has a very well-researched defense of Justice Brown today in the Oregonian, titled ââ‚Å“Anatomy of a Legal Smear" (see here for a previous confirmthem defense of Justice Brown). And, Richard Reeb has an op/ed today pointing to the real culprits in this whole filibuster controversy:
[T]he fact that the Democrats have resorted to preventing a vote, as well as the fact that the Republicans are determined to stop them, points to the more fundamental fact that our judicial system has become thoroughly politicized. Now while members of Congress bear some responsibility for the sorry state of our courts, the primary blame falls on the judges themselves.
James Taranto writes in Opinion Journal that conservatives who have played by the rules for confirming judges, "can hardly be faulted for objecting when their opponents answer their success by effectively changing those rules."
Senator Specter has been contending for quite a while that these judicial filibusters amount to a "constitutional revolution," although he anticipated that the issue would be resolved by the 2004 elections. His speech dated February 12, 2003 is particularly interesting, and the whole text is below the fold. Note that we discussed a more recent Specter speech here.
Feb 12, 2003 - Mr. President, I have sought recognition to comment about the current procedures with respect to the selection of judges, and what is happening in the Senate today is a constitutional revolution.
The Constitution provides that the Senate will give advice and consent to the Presit. And the tradition of this country for 215 years has been that the President makes selections as he chooses, and advice can come from the Senate. Consent has been given without challenging the President to a partnership arrangement where the Senate has to consent to the nominee before the President can submit the nominee to the Senate with any chance for confirmation.
What the Democrats are doing here today is really seeking a constitutional revolution. What they want as the minority party in the Senate is a full partnership with the President on selecting Federal judges.
What we are doing with Miguel Estrada, and other nominees who are coming up for an executive session tomorrow, is really a prelude to the nomination of the next Justice for the Supreme Court. The effort is being made by the Democrats to have their acceptable ideology without the traditional deference which has been paid to the President.
The Senate has been maneuvered into a position here, an institution with lines being drawn in the sand, and Republicans on one side and Democrats on the other being backed into a corner--sort of a macho-macho game where no one wants to play the chicken game. What we are really seeing is gridlocking this institution on a permanent basis, if no one yields.
The Judiciary Committee has three nominees on the Executive Calendar tomorrow, and the Democrats have served notice that they are going filibuster. If at least one Democrat does not vote to end the filibuster, nothing will happen there.
So we have a long litany of judges--some of whom have been held up for 2 years--and nothing is going to happen.
What we may be seeing here is the foundation laid for a grand political argument in the Presidential election of 2004. We are laying it right on the line. If the American people want judges confirmed, there are going to have to be 60 votes in the President's party.
Both sides have been at fault in the past, in my opinion. When President Clinton was in the White House and the Republicans controlled the Senate, we wouldn't confirm people. There were some breakthroughs but relatively few. When President Bush submitted nominees for 2 years, or a year and 7 months, the Democrats stopped the nomination process.
It is high time we had a protocol which both sides respected wherein so many days after a nomination, there is a hearing, so many days later, a