ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Here's a quick summary of some current filibuster-related items.

The Mobile Register has a very intelligent editorial, and here's part of it:

To allow a minority of just one of the two houses of Congress to keep judgeships empty through a filibuster is to let that semi-minority hold hostage an entirely separate branch of government....Filibusters on ordinary bills --- which do not involve the important separation-of-powers issues associated with judgeships --- would still be allowed....

Democrats several times supported then-Majority Leader Robert Byrd in his successful efforts to make other subject matters, such as budgets, immune from filibusters. Sen. Byrd himself argued back then that simple rules changes --- such as ones to limit the filibuster --- could be passed by simple majority votes. In other words, the Senate can't use a filibuster to kill an attempt to limit the filibuster....The practices of 215 years, the understanding of the nation's founders, and the principle of majority rule all demand it: Kill the judicial filibuster, and kill it now.

Law Professor Jonathan Turley has an interesting piece in the LA Times calling for the Democrats to make the first move by allowing approval of most of the previously filibustered nominees:

As a pro-choice social liberal, I didn't find much reason to like these nominees. However, I also found little basis for a filibuster in most cases.....Presidential aide Brett M. Kavanaugh served with the independent counsel during the Monica Lewinsky affair. He's now being attacked as if he stuffed trunks for the Gambino crime family.....For nine of the Republican nominees, Democratic opposition looks as principled as a drive-by shooting....[However,] Democrats are on good ground in filibustering William J. Haynes II....William G. Myers ....[and] Priscilla R. Owen.....Hostilities should cease. Democrats disinclined toward apocalypse should confirm Brown, Griffith, Griffin, Kavanaugh, McKeague, Neilson, Pryor, Saad and Boyle. That should shame the president into withdrawing Haynes, Myers and Owen.

Turley was interviewed recently by Fox News, as reported by confirmthem, at which time I indicated why Myers and Owen should be confirmed, and why Haynes should be defeated in a straight up-or-down vote if the allegations against him are substantiated. UPDATE: Power Line is unconvinced by Turley.

Here are a few comments about Nebraska Senator Chuck Hagel from a newspaper in Lincoln, Nebraska:

Hagel is far from a certain Republican vote when the GOP attempts to eliminate the right to filibuster federal judicial nominees in the Senate. While the president's nominees deserve an up or down vote, Hagel said last week, "the core of the institution of the U.S. Senate is the protection of minority rights (and) the filibuster is part of that protection."

Of course, Senator Hagel is right that the filibuster is central to the protection of minority rights in the Senate, regarding most legislative matters. However, endless filibusters have never been a central feature of the Senate regarding judicial nominees (and also are not permitted for trade agreements, budget resolutions, and several other legislative matters). So let the minority filibuster judicial nominations for a finite time, in order that they can get their views across and express displeasure. But why let the minority filibuster judicial nominations forever? That's not part of Senate tradition at all.

Here are a few comments about Virginia Senator John Warner from a newspaper in Richmond, Virginia:

Last week, Warner said in an interview he believes "there's a constitutional mandate that the president is obligated to pick people for the court, and that the Senate should render the advise and consent process fairly under the Constitution. The filibuster is a situation that I think directly confronts the president's constitutional obligations," Warner added. "However, on the other side, I do believe it's extremely important that we take every caution to preserve the traditions of the Senate, and that central pillar has always been unlimited debate from the first day the institution started."

Keep in mind that unlimited debate was limited in 1917 by the cloture rule, and it's been limited many times since then, not only by modifications of the cloture rule, but by fast track trade legislation, and anti-filibuster provisions for budget resolutions, for example. The best way to protect the existing legislative filibuster would be to simply recognize that it's become part of Senate tradition and is very popular; the present controversy about judicial nominations would be miniscule compared to any future controversy about eliminating the legislative filibuster.