ConfirmThem

I am proud of my role in persuading my fellow Republican Senators to respect the limits of our own power and not abolish the filibuster rule

He's proud of the Senate exerting a power not rightfully granted to it in the Constitution (imposing on the President, a de facto Senate-selected 60 vote hurdle for a function that the Constitution says is to be decided by a simple-majority), and calls it "respecting the limits of the Senate's power."

The sad thing is that his line of reasoning in this regard is accepted by many, if not most people.

There must be a push in this direction, seeing John Dean's article this morning too.

Does anyone have the text of Alito's speech? I'd be quite a bit more interested in that -- even though I'm not as paranoid about him anymore and it looks like, ideologically, he will lie somehwere between Rehnquist and Thomas.

Why were you ever paranoid about him?? Alito's about as solid as they come, and always has been. And I doubt he's ideological at all.

"Priscilla Owen, Janice Rogers Brown, and Bill Pryor have all been confirmed,.."

Just what Sen. McConnell said. They're just far superior to the current, stalled crop, with the possible exception of Keisler. The Senate would've nuked over those three & Alito, but not Myers or Boyle. We should be proud of the Big Three, and should've made them a cornserstone of the campaign all summer & fall.

Imagine if there are two openings next summer & Bush recess appoints JRB & Pryor? Man, THAT would make '08 kinda interesting. Talk about a one issue campaign....

Ah, one can dream....

Great interview with the Chief by Jan Crawford Greenberg.

http://abcnews.go.com/Nightline/story?id=2661589&page=1

I would also add Viet Dinh to my list of nominees I'd wholeheartedly support. Rumor had it he was previously being considered for the DC Circuit or the 4th Circuit, but that may have gone bye-bye along with the Republican Senate. SCOTUS is an entirely different situation.

Because I continue to believe that the nuclear option was unconstitutional (concededly an inelegant way to phrase the point, but you get the meaning), and have no strong view on whether the filibuster should or should not be eliminated as a normative matter, I don't share the hostility of so many towards McCain re the Gang of 14 deal. And for that matter, for those who do strongly believe the filibuster should be eliminated, it seems that the object of hostility for the failure to do so should be Frist, not McCain, insofar as it was Frist's failure to act at a time when the rules could have been changed by a process that all concede to be legitimate.

I suppose the hostility might make some sense from those who believed passionately that the filibuster not only should be elimiated, but that the Constitution demanded it, but I have the feeling that a lot of people have been angry at McCain for a long time, and simply fit each new perceived heresy into a pre-existing dislike.

~Simon

"Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind." - Turner v. United States, 396 U.S. 398, 426 (1970) (Black, dissenting)

Can the Senate deice that 99 votes are required to confirm a Secretary of State? OR how about a rule that no Presidential cabinet members can be voted on until the 2nd year of a president's term?

After all, it's just a Senate rule, and the Constitution says they can make their own.

Does the Senate have to try impeachment? The Constitutions says it has the power to do so, therefore it must also have the power to NOT do so. The Constitution does not forbid the Senate from ignoring impeachment.

cboldt - yes, in my view, they can. It would be exceedingly unwise to do so, but they could adopt either of those rules, or indeed, they could enact a rule that said that the Senate would be deemed to have given its advice and consent by unanimous consent if no member objected within two weeks of the nomination being read into the record. They can enact any rules they so choose to discharge their Constitutional obligations, as long as those rules do not violate any other provision of the Constitution. So, for example, right now we're having a lot of ballyhoo because Pelosi wants to put a former impeached judge, Alcee Hastings, in charge of the House Intelligence Committee. At the same time as Hastings' impeachment, Congress impeached Judge Walter Nixon:

After the House presented the articles to the Senate, the Senate voted to invoke its own Impeachment Rule XI, under which the presiding officer appoints a committee of Senators to "receive evidence and take testimony." The Senate committee held four days of hearings, during which 10 witnesses, including Nixon, testified. Pursuant to Rule XI, the committee presented the full Senate with a complete transcript of the proceeding and a Report stating the uncontested facts and summarizing the evidence on the contested facts. Nixon and the House impeachment managers submitted extensive final briefs to the full Senate and delivered arguments from the Senate floor during the three hours set aside for oral argument in front of that body ... The Senate [then] voted by more than the constitutionally required two-thirds majority to convict Nixon on the first two articles.

Nixon thereafter commenced ... suit, arguing that Senate Rule XI violates the constitutional grant of authority to the Senate to "try" all impeachments because it prohibits the whole Senate from taking part in the evidentiary hearings.

Nixon v. United States, 506 U.S. 224, 227-8 (1993) (citations omitted). The court held the matter to be non-justiciable, but do you think Nixon was right that the Senate's prescription of procedural rules violated the Constitution? I don't think that the Constitution is so rigid. I think that it is fully within the power of a legislative body to adopt a de jure or de facto supermajority requirement, as much so now as it was when we Republicans put one into place when, in 1995, we had "the House of Representatives adopt[] a rule that requires a three-fifths majority of those voting to pass an increase in income tax rates." The Rights of Legislators and the Wrongs of Interpretation: a Further Defense of the Constitutionality of Legislative Supermajority Rules, 47 Duke L.J. 327. The House imposed a de jure supermajority requirement for legislation that the Constitution does not specify a supermajority for; if the Rules & Proceedings clause permits that, why might it foreclose a de facto supermajority requirement in the Senate?

They can enact any rules they so choose to discharge their Constitutional obligations

So failure to conduct an impeachment trial, or failure to pass on all cabinet nominations is "discharging their Constitutional duty," as long as there is a Senate rule?

Regarding supermajority for enacting legislation, I have no problem with that - legislation is entirely they bailiwick of Congress. Pointing to examples of supermajority for legislation misses entirely the question of balance of power between the Senate and the President. Or, in the case of impeachment, a splitting of duty between the House and the Senate.

And given that the Senate has maintained a separate executive calender since its earliest years, that is a reasonable position. "[T]radition [can] giv[e] content ... to ambiguous constitutional text," Rutan v. Republican Party of Illinois, 497 U.S. 62, 96 n.1 (Scalia, dissenting). It is merley not one that I can agree with, and it is, in any event, now an academic debate for at least the next two years.

The nuke option is dead. The filibuster is alive and well. And McCain so botched that Gang Deal that some still praise that it dies at the end of this Congress. The base will remember, just like they did in 2000.

McCain made a horrible mistake on judges to play to the media, and the left.

Suddenly he is now running to the right. Where is his backbone? Has he no shame?

And yes, I will still vote for him over Hillary, but Damn has he screwed us on judges...

McCain made a horrible mistake on judges to play to the media, and the left.

I suppose that it's possible that McCain did it in bad faith, rather than because he shares my assesment of what the Constitution requires and permits (I'd suggest that which way one goes has a lot to do with people who haven't liked McCain for a while fitting new actions into pre-existing presuppositions about him), but again, why blame McCain? Why blame him for frustrating an option that only because necessary because Frist blew it? Seems to me that it was Frist who screwed us on judges. Why not blame Frist, for failing to move to eliminate the filibuster at the convening of the 109th Congress, when he could have done so legitimately? If he had, I think that you'd have seen people who don't have a particularly strong opinion either way on the filibuster, but who very much want to get those judges confirmed, fall in line and "go along to get along." I said the same thing a month or so ago,when we thought we were keeping the Senate - that if the putative Majority Leader McConnell moved to eliminate the filibuster, I'd support that, but if he didn't, I wasn't changing my mind on the nuclear option, so we might as well just do it properly, at the convening. But as you say, that's no longer on the table.

Could someone with the technological ability please link to the entire post by Hugh Hewitt? It's outstanding and provides many helpful links. Below I have cut and pasted the opening paragraphs.

Friday, November 17, 2006
The Gang of 14's Legacy: John McCain's Burden
Posted by Hugh Hewitt | 9:26 PM
Today, soon-to-be Senate Minority Leader Mitch McConnell told the Federalist Society that if "Democrats want our cooperation, they'll give the president's judicial nominees an up-or-down vote."

The AP account terms this a "veiled threat," even though there is no "veil' in McConnell's statement. The forthright priority he is giving the repair of Constitutional process in the nomination and consideration of federal judicial nominations is in fact consistent with his much longer discussion of the importance of the judicial nominations' issue with me from Wednesday's program, and very similar to the opinions aired by Senator Coburn -a Judiciary Committee member-- on yesterday's broadcast from D.C., opinions widely shared by most Republican senators and most center-right activists and originalists. (Senator Coburm has some very interesting info on Peter Keisler's nomination to the D.C. Circuit.)

Early in the week Senator Chuck Schumer was telling reporters that “Judges are the most important,” and that “One more justice would have made it a 5-4 conservative, hard-right majority for a long time. That won’t happen.”

Now that's a "veiled" threat, because it doesn't forthrightly set out the particulars of the consequences that will follow from the nomination of another SCOTUS candidate like Chief Justice Roberts or Justice Alito. It also categorizes the two new members of SCOTUS as "hard right," which on the basis of what we have seen to date is just absurd, and an obvious part of Senator Schumer's continuing and relentless assault on the right of Americans to hold originalist, constitutional majoritarian views on the Constitution and its intended operation. Schumer is a master propagandist, and never lets up inhis effort to define the terms in ways favorable to his radical agenda of delegitimizing the historical mainstream of American legal theory. (He is not, howver, so funny when trying to be.)

There is no need to rush with Senator Schumer. We will have two years to follow Senator Schumer's very dangerous and very dishonest assault on the judiciary.

These exchanges on judicial nominees are very important because they underscore why the Gang of 14 is so great a burden upon Senator McCain's presidential ambitions.

Now that we're in the minority again, a filibuster might seem like a useful tool. But that doesn't make it constitutional.

The GOP should have abolished the filibuster when it had the chance.

How many state legislatures have such a silly rule? How many city councils have one? How many student councils have one for that matter? I think that the filibuster was invented as a last gasp chance for slave states to exercise power that they were never given.

It will eventually be eliminated. Just not this year.

gives any senator the right to filibuster.

Please let me know where in the Constitution it says that 60 votes are needed to end discussion.

If it's a senate rule (which it is) then call it a senate rule. The Constitution does not require filibustering power for the minority in the Senate.

If you're going to say that the Constitution permits it (by not expressly prohibiting it), then I would say that the Constitution also permits the Chairman of the Joint Chief of Staff to take over the government and replace the Supreme Court with his mistress. Because the Constitution does not expressly prohibit it.

California Cons..,
The Constitution doesn't say anywhere in it that fifty votes are needed to pass a piece of legislation, either. You will find nowhere in the Constitution's text a delination of the committee system that Congress uses to sift and filter legislation. The Constitution sets up a broad framework and gives Congress broad power to fill in the specifics of its operation.

Now, to be sure, the Constitution was not adopted in a vacuum, and I have argued - often to the irritation of some conservatives and strict constructionists - that it must be read in the context of the time in which it was adopted. When determining the original meaning of the Fourth Amendment, for example, one must look to the common-law background extant in 1791 to discover what constituted things like probable cause and reasonableness. That is why Justice Thomas read the common-law knock-and-announce rule into the Fourth Amendment in Wilson v. Arkansas. And I also accept the argument that the framers' expectations of how Congress would operate was probably found in the operation of the legislative assemblies that preceded it - the British Parliament, the thirteen state legislations and the Continental Congress. If it were definitively established that it was absolutely unheard of in 1791 that a legislative body conduct all business in anything other than a purely and strictly majoritarian manner, something that I don't think has been proved conclusively, and if there were no Constitutional text to the contrary, that might suffice to support an original meaning argument that the Congress was expected to conduct itself in a purely majoritarian fashon.

But there is Constitutional text that, in my view, clarifies the situation. Those sneaky framers! All the originalist analysis in the world about what might be implicit in the Constitution is, to me, insufficient to trump an originalist analysis (or even just a logical one) of the explicit grant of power of the rules & procedings clause.

It is clear to me that the House had the power under the rules & proceedings clause to pass a rule requiring a three-fifths majority to pass an increase in income tax rates, a de jure supermajority rule, see McGinnis & Rappaport, supra, and that it is also clearly within the scope of setting rules for the procedings that the Senate places business onto the calender and usually brings it to the floor by unanimous consent, see J. Schneider, House and Senate Rules of Procedure: a Comparison, CRS RL30945 (2003) at pp.6-7 ("Legislation reported from committee are referred to the Calendar of Business, or placed on this calendar by unanimous consent ... The Senate Majority Leader has the authority to raise measures for Senate floor consideration [and] [m]ost measures reach the Senate floor either by a simple unanimous consent request, or under a complex unanimous consent agreement") (emphasis changed), a de facto supermajority rule. If would seem anomalous if it were a legitimate use of the rules & procedings clause to create a rule that requires, in effect, one hundred votes to start debate, yet not one that required a substantially smaller number of votes to end debate.

As to your hypothetical, which I realize is supposed to be fascetious. The mere fact that it does not say, in as many words, that "the Chairman of the Joint Chief of Staff" -- another position that the Constitution says nothing about, by the way, and yet one which is still Constitutional -- "[may not] take over the government and replace the Supreme Court with his mistress," doesn't buy you anything. Art. II, §1 directs Congress to provide by law for cases in which neither the President nor Vice President can serve, a duty Congress discharges in 3 U.S.C. § 19. The Constitution does not forbid Congress placing the Chairman of the Joint Chiefs of Staff third in line to the Presidency, so if they did, then yes, under specfic, definable circumstances, "the Constitution [] permits the Chairman of the Joint Chief of Staff to take over the government." Having done so, could he "replace the Supreme Court with his mistress"? the Constitution does specify the tenure and manner for hiring and removal of Supreme Court Justices. So again, the former Chairman of the Joint Chiefs of Staff, elevated to the Presidency as discussed above, could replace the Supreme Court with his mistress, if all nine of them died and the mistress - and only the mistress was confirmed by the Senate.

~Simon

"Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind." - Turner v. United States, 396 U.S. 398, 426 (1970) (Black, dissenting)

I will never forget (forgive is another matter...) what McCain did to the party and to fellow conservatives when he decided to hijack the process for his own benefit.
DeWine and Chafee are gone... now I can only hope that the rest (John McCain, Lindsey Graham, John Warner, Olympia Snowe, Susan Collins) will follow suit in good order...

Fernman

DeWine and Chafee are gone... now I can only hope that the rest (John McCain, Lindsey Graham, John Warner, Olympia Snowe, Susan Collins) will follow suit in good order...

Sure, because now we're one vote down, and have at best a so-so chance of making good on it in 2008, what we really ought to be doing is throwing people out of the party. I'd prefer to retain a snowball in hell's chance of retaking the Senate in two years, personally.

I agree. I blame the Democrats most of all, but Frist deserves the most blame among Republicans, more than McCain, more than Specter (who again, for the most part, has done an admirable job), and certainly more than Bush.

Dienekes,
I have to admit that Specter hasn't been nearly the disaster that I expected him to be (although I would stop somewhere short of saying his performance has been "admirable"), but is there an argument that even if Specter wanted to frustrate the progress of nominations through the Senate, he really wouldn't have had to bottle them up in committee, given Frist's seeming lassitude towards confirmation votes?

The real failure here isn't the Gang of 14 deal, it was that Frist screwed up in January '05 in not changing the rules, and that after the deal was concluded, Frist didn't just open the floodgates. You have to ask yourself: why, having extracted a working guarantee against the filibuster, there are still vacancies on the bench today? Is it because Specter is bottling them up in committee? I'd argue that the problem is with Frist and with Bush.

To some extent - and I'm sorry if this sounds heartless - I don't care about individual nominees, I care about filling the vacancies on the bench with good, qualified candidates. Bush seems far too concerned with getting his man than getting a good man (or woman).

on Specter. again, I disagree on Bush, though I'll give you half your point that Bush could stand to be a little (but only a little, I would say, and then again the Dems are the ones that need to be more flexible on the matter) more flexible as far as particular nominees go. I don't think the (or, a possible) implication in your last sentence, that his men aren't good men is false though.

I don't think the (or, a possible) implication in your last sentence, that his men aren't good men is false though.

I didn't intend that inference! LOL. I certainly didn't mean to denigrate any of the nominees, my point was just that the goal is to fill these vacancies with good men and women, not to fill them with any particular good men and women. If you have two nominees, one of whom is really really good but is going to get (or, indeed, has been) chewed up by the Senate, and another who is just as good but who isn't going to get chewed up, instead of picking a fight for the first guy, send up the second guy. The mission is what matters, not the man, and if there's one, overriding problem that characterizes every aspect of the Bush Administration, it's been excessive personal loyalty. Bush doesn't like to fire people who he likes, and he doesn't like to cut a nominee loose. That is an admirable trait in any person who doesn't have a job to get done, but it isn't the way you'd run a business - or a war.

"Sure, because now we're one vote down, and have at best a so-so chance of making good on it in 2008"

So many people (even smart lawyerly folks) forget the underlying premise that elections have consequences...

I wasn't sure whether you meant that or not, so I put in the parenthetical as a hedge :)

and obvisouly I meant "I think...is false" not "I don't think...is false"

but yeah, we agree to a large extent on this point. like you, I think Bush's loyalty is an admirable trait, but that he could be a bit more flexible (though not too much, as I said in the previous post: the nominees deserve it, and the Dems do not deserve to win on the merits, and certainly not by these tactics).

I used to really like Frist, but I hate to say it, he blew it big time. He promised in early September (after Moore's confirmation) there would be more judicial confirmations. How many additional ones were held: Not one more additional District or COA confirmation vote was held for any judge in any of the 50 states!

Senator Frist - I would like to know why! Why did you promise and then fail to deliver.

See:
http://www.volpac.org/index.cfm?FuseAction=Blogs.View&Blog_id=445&Month=...