ConfirmThem

Posted at 7:58am on Jun. 5, 2008 Two and a quarter cheers for McConnell

By Quin

I was swamped with straight journalism work yesterday and thus derelict in commenting on McConnell's work yesterday to highlight the judicial nominations issue. I must applaud McConnell for stepping up to the plate. If I had had time yesterday, I would have praised him to high heaven. I still don't have time for a full analysis, but I am a little concerned about the end result of all this. If, and only if, this is just an opening salvo by McConnell, then I repeat my earlier enthusiastic applause. If, on the other hand, he doesn't continue to press the issue, repeatedly and with a coordinated media effort, then this little exercise will have accomplished next to nothing, and merit just half a cheer instead of three full cheers. I am inclined to believe the former scenario, and withhold a full-throated yell of support only because last night ended with such a fizzle. For now, though, I think it incumbent on all of us to rally to McConnell's side and let him know how much we appreciate his opening salvo.

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Posted at 12:31pm on Nov. 16, 2006 McConnell on Filibusters

By AndrewHyman

Courtesy of Hugh Hewitt:

[A] year ago, we were able to get Janice Rogers Brown and William Pryor and Priscilla Owen, who had become kind of poster children for the left, we got them all confirmed, not to mention two solid Supreme Court nominees. So I think we've pushed them back on the filibuster. Now the filibuster is considered something that would be done only on rare circumstances. It had become routine. So we'll see whether they honor the most recent precedent. If they don't, they're going to have a lot of problems moving anything on the floor.

More from McConnell on judges, here.

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Posted at 6:17pm on Aug. 10, 2005 We're Not Telling the Truth?

By AndrewHyman

Earlier this month, Senator McCain sent a letter to a concerned citizen who had inquired about the “Gang of 14" deal. Among other things, Senator McCain said someone's not telling the truth:

We did not use the filibuster to block President Clinton's judicial nominees because we successfully prevented many of those nominees from coming to the Senate floor for a vote or from even receiving a hearing in the Senate Judiciary Committee. Please know that anyone who claims Republicans haven't prevented Democratic nominees who had the support of a majority of Senators from receiving an up or down vote on the Senate floor is simply not telling you the truth.

Despite what Senator McCain says, Republicans have never prevented any Democratic JUDICIAL nominee, who had the support of a majority of Senators, from receiving an up or down vote on the Senate floor. When President Clinton’s judicial nominees were languishing in committee, Democrats could have filed a discharge petition to get the nominees to the Senate floor --- they didn’t even bother to file a discharge petition, because they knew a majority of Senators very probably would have voted against the discharge petition. Likewise, the Fortas case is no precedent for perpetually filibustering majority-supported nominees.

Anyway, I hope the deal that Senator McCain helped negotiate continues to succeed. If not, the tradition of up-or-down votes for majority-supported judicial nominees really ought to be restored, by invoking the Constitution's provision that allows a simple majority to change the rules so as to prevent abuse of the filibuster.

As James Monroe said at the Virginia Ratifying Convention (on 10 June 1788):

He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. THE CONCURRENCE OF A BARE MAJORITY OF THOSE WHO MAY BE PRESENT WILL ENABLE HIM TO DO THESE IMPORTANT ACTS.

Monroe carried on this tradition as one of Virginia's first United States Senators. This majoritarian tradition for confirming judges, which endured for 215 years, should not be destroyed.

UPDATE: I should note that Senator McCain's letter also said this:

Senate rules specify that a two-thirds majority of Senators is required to change a Senate rule. That has been the practice here for many, many years. The "constitutional" or "nuclear" option would have changed the Senate rule on filibusters with only a 51 vote majority. I opposed trying to change a rule by breaking another rule.

Actually, the constitutional option has been used before. Tom Curry of MSNBC has written as follows:

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.

You wouldn't think such a thing ever happened, from reading Senator McCain's letter.

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Posted at 12:44pm on Jul. 21, 2005 What Roberts, Bolton and Estrada Have in Common

By AndrewHyman

Two days ago, I predicted that John Roberts will be easily confirmed, without need of any help from the likes of us bloggers. I still think and hope that's true. But if things do descend into a mudfight, the issue will probably be Democratic attempts to get confidential memos that Roberts wrote when he worked in the Justice Department. Winning a fight about the Roberts memos may finally end the kind of unprecedented memo-seeking obstruction that we've seen in the Estrada and Bolton nominations. Today, Opinion Journal made a similar point:

Expect . . . to hear demands for the White House to release the confidential case memorandums written by Judge Roberts during his time in the Solicitor General's office. This is the Democratic delaying tactic du jour, used as an excuse to filibuster Miguel Estrada's nomination for the D.C. Circuit and employed most recently against John Bolton. We hope the White House resists, lest every lawyer in the SG's office starts giving advice not on the merits but based on how it might look at some future confirmation hearing.

The Chicago Tribune is reporting the same kind of thing.

While acknowledging his reputation as a first-rate legal thinker, some Democratic senators have indicated they will seek some of the confidential internal documents and memorandums Roberts wrote as a government lawyer, working for Presidents Ronald Reagan and George H.W. Bush. Those documents, they suggest, could give them vital insight into Roberts' views on abortion and other issues.

That sets up a potentially fiery debate, not initially on Roberts' positions, which remain obscure, but on Congress' right to have access to the confidential papers as it decides whether to grant Roberts an appointment to the Supreme Court.

"The Senate's role will be to establish clearly whose side John Roberts would be on if confirmed to the most powerful court in the land," said Sen. Edward Kennedy (D-Mass.), a senior member of the Senate Judiciary Committee. "Because Judge Roberts has written relatively few opinions in his brief tenure as a judge, his views on a wide variety of vital issues are still unknown."

The fight is likely to center on Roberts' tenure in the Office of the Solicitor General at the Justice Department, which represents the administration before the Supreme Court.

Much more than John Roberts is at stake in the Roberts nomination, including the continued use of excessive document requests to justify obstruction of nominees, as in the Estrada and Bolton filibusters. Senator Kennedy's complaints about the lack of a Roberts paper trail are particularly unpersuasive, as Marshall Manson already noted at this blog, given that Roberts would have a much longer paper trail had his nomination for circuit court not been obstructed for so many years. Past and present Solicitors General will probably take the same position on the Roberts memos that they took on the Estrada Memos, and they were 100% correct.

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Posted at 11:57am on Jul. 18, 2005 Ben Nelson (D-Neb) on "Extraordinary Circumstances"

By DanCT

From today's Lincoln Journal-Star (July 17, 2005), Ben Nelson almost assured us that ideology is not grounds for claiming "extraordinary circumstances":

...On the retirement of Justice Sandra Day O'Connor, the Los Angeles Times quoted me as saying "If someone was committed to being a judicial activist that would raise the question of extraordinary circumstances." There was a similar quote in the Washington Post. On Fox News Sunday another member of the "Gang of 14," Republican Sen. Lindsey Graham and I concurred that "Based on what we've done in the past, ideological attacks are not an extraordinary circumstance." That position was restated at a news conference in Omaha the day O'Connor announced her retirement.

I will say it once again for Wolff's benefit as he seems to have missed it in the past; philosophical views do not constitute extraordinary circumstances. I would hope Wolff would agree that the Supreme Court is no place for an activist judge.

Hmmm...philosophical views/ideology do not constitute "extraordinary circumstances" but "judicial activism" does? I wonder what he thinks about the philosophical view that the Constitution is a "living document" that can and should be twisted to conform to the latest ideological fashions of the sitting justices...

Would that the GOP had had the will to pull the trigger on the "nuclear option" the last time the issue came up!

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Posted at 11:16pm on Jun. 3, 2005 Senator Feinstein versus the Congressional Research Service

By AndrewHyman

California Senator Dianne Feinstein claims that a Supreme Court nomination was defeated by filibuster way back in 1881, but the Congressional Research Service (CRS) says the opposite. The following statement is at Senator Feinstein's website:

In 1881, Republicans held a majority of seats in the Senate but were unable to end a filibuster to preclude a floor vote on President Rutherford B. Hayes's nomination of Senator Stanley Matthews to the Supreme Court. Matthews was renominated by incoming President James Garfield, and after a bitter debate in the Senate, was confirmed by a vote of 24 to 23. This has been described as the first recorded instance in which the filibuster was clearly and unambiguously deployed to defeat a judicial nomination.

But, here's what the CRS says:

According to one historical account, the nomination did not enjoy majority support in the Senate Judiciary Committee and was not reported out by the Committee or considered by the full Senate before the end of the Congress.

The thing I can't figure is how Matthews could have been filibustered if he didn't even make it out of committee. Senator Cornyn has confirmed that Matthews never got out of committee during the Hayes administration.

Not only is Senator Feinstein's claim of a Matthews filibuster unfounded, but in fact his ultimate confirmation vote of 24 to 23 plainly shows that the Senate has never before accepted a supermajority threshold for even the most controversial nominees. I guess if history's not on your side, you just make it up, or cite someone else who has.

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Posted at 1:51pm on May 30, 2005 Nihilist in Golf Pants

By AndrewHyman

The blogger who calls himself Sisyphus, at the blog "Nihilist in Golf Pants," has a penchant for lists, including the "Top 11 Things the Republicans Get in Exchange for Surrendering on Judges" (beware profanity).

Meanwhile, on a somewhat more serious note, Senator Byrd hopes that the recent agreement on judges will help to reduce animosities, which of course would be a good thing. To get his point across, Byrd retells "The Pardoner's Tale" by Geoffrey Chaucer. As Democratic leaders plot further filibusters, they ought to keep that old tale in mind.

And, Confirmthem wishes everyone a safe and enjoyable Memorial Day.

UPDATE: Power Line has also noticed Byrd's reference to Chaucer. Unlike Power Line, I think it's an appropriate reference. If the Dems break tradition by grabbing for the nomination power, and Repubs break tradition by grabbing it back, then everyone ends up losing, as in the tale.

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Posted at 10:32am on May 30, 2005 McCain Ready to Go Nuclear?

By DanCT

Can we count Senator McCain as a "yes" vote on the Byrd option in the future? I wouldn't count him out. Sean Hannity had an interesting exchange with the Senator on Hannity & Colmes last week:

HANNITY: If there's a nominee like a Miguel Estrada, if there is a nominee like a Robert Bork or a Scalia or a Thomas, and the Democrats say that's an extraordinary circumstance, will you then join with Bill Frist and go forward with that option, because you feel that they will have broken the agreement?

MCCAIN: I will — I can't name those names because I never examined any of them that carefully although Estrada clearly was qualified. But if we make a judgment that these nominees are extraordinarily unqualified, we'll agree with them. But if they're not, then we will — we will go ahead and go forward.

McCain defines "extraordinary" in terms of qualifications rather than ideology. If the Democrats filibuster for ideological reasons, then McCain is prepared to "go forward" with the Byrd option -- and with a Miguel Estrada-type nomination in particular.

Hannity pressed him further on the deal, which looks absurd in the eyes of many conservatives:

HANNITY: But if the Democrats — if this is the first time they did it, didn't they get a reward for this? And what guarantee is there they won't do it in the future?

MCCAIN: If they do it in the future, the agreement we had will be null and void. We've made an agreement that they will only filibuster under, quote, "extraordinary circumstances."

HANNITY: Does that mean that a conservative is appointed? Is that "extraordinary"?

MCCAIN: No, it does not. That will be our judgment, not — as well as theirs.

McCain echos the interpretation we heard from Graham and DeWine (and Whelan), viz. that if the Democrats filibuster in circumstances that the GOPers do not agree is "extraordinary", then the deal is off. McCain then almost tells us what will happen with the deal:

Look, this was based on trust. That's the way the Senate works. We have to work that way. And I'm confident — listen, I can't tell you. A number of my colleagues came up to me today and say, "Thank you. We need to now go about the business of the Senate."

Multiple choice. How did McCain intend to finish the sentence?
A. "I'm confident [that there will be no more filibusters]"?
B. "I'm confident [that if there are filibusters, Frist will have the votes for the Byrd option]"?
C. "I'm confident [that the President will send us 'moderates' whom the Democrats won't want to filibuster]"?
D. "I'm confident [that the 7 Republicans will nod and say 'yes' when the Democrats say 'extraordinary']"?
E. "I'm confident [that after we agreed to torpedo Myers, Saad, Haynes, and Kavanaugh, the Democrats won't filibuster very many more nominees]"?

A little speculation...I don't think there's any question that "A" is what he meant to say. Why would he then pull back? Because such a statement would arose the fury of the left. He wants the fury to be disspated into a series of small brush fires that flame briefly as each nominee is voted on in series. Ambiguity and muddleness is key. One of the defining characteristics of moderates is that they like to avoid conflict by refusing to make clear decisions, by compromising, and by postponing outbreaks of discord. If no one is certain what the deal really means, the fury on both the right and left will defuse (temporarily). The fury has been notably stronger in the right so far, and McCain is trying to deflect that fury -- but not so much as to arouse it strongly in the left! This is his game, and he is good at it (even though he blundered in the Chris Matthews interview a month or so ago when he said he'd vote against the Byrd option).

At that particular point in the interview, he was able to hold back, but at other points he just couldn't:

...now you watch. We're going to confirm these judges. There's not going to be a filibuster of a Supreme Court judge.

It sounds good, Mr. McCain. But how can we have any confidence?

He later elaborates (slightly) on his view:

HANNITY: But Rehnquist, Scalia, Thomas, those are all qualified people who should not be filibustered? People like them.

MCCAIN: I don't think these seven — remember, I didn't make the agreement with 45 Republicans — Democrats. We made it with seven Democrats. I'm confident that these seven Democrats would — would not filibuster those individuals.

This is interesting because those three have already been defined by many on the left as "extreme", and the other 38 Democrats seem to be on board. McCain, though, seems to think these 7 Democrats do not think it is right to filibuster for ideological reasons and were looking for a way to break with their leadership to bring a measure of sanity back to the confirmation process. The far left has made tremendous progress in hijacking the process in recent years, from first establishing the primacy of ideology as a consideration for confirming or rejecting Supreme Court nominations (Bork, Thomas), then to establishing the primacy of ideology for Circuit Court nominations, then by asserting a minority's "right" to reject a nominee for ideological reasons. McCain apparently believes the 7 Democrats agree that the minority has pushed it a tad too far and are looking for a way to move forward with the confirmation votes.

HANNITY: The Democrats for the first time in history did this, and people feel you emboldened them by this deal. What do you say to them?

MCCAIN: Well, first of all, they did abuse the process badly, because they blocked the nominees that the president had for judgeships. We've now got an agreement where they are moving forward. You watch what we do.

We certainly will be watching, Senator, and we expect you to stand by your words to "go forward" with the Byrd option if a candidate like Estrada is nominated. This deal sounds terrible because it establishes the filibustering of nominees as legitimate and it advocates an extra-constitutional injecting of Senate politics into the nominations phase rather than containing such poison to the confirmation phase. I'm skeptical...

MCCAIN: "[O.K., Dan]... watch what happens here in the next few months before [you] make a judgment."

DAN: "Thank-you, Senator McCain. I'll be watching, and I hope you are right."

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Posted at 3:18pm on May 26, 2005 Draft and Final Deals

By AndrewHyman

You can compare the "DRAFT DEAL" to the "FINAL DEAL," if you want. I think it's kind of interesting that the final deal seeks "a return to the early practices of our government," which would entail no more appearances by nominees before Senate committees (perhaps the signers of the deal didn't realize that hearings for nominees only began in the mid twentieth century).

Anyway, check out this interesting quote from Jonah Goldberg:

If I say two plus two equals four, and you say two plus two equals one billion, is it really such a great advance to split the difference and agree that it's somewhere near 500 million?

I hope we don't get into a situation where people like Senators DeWine and Graham argue for splitting the difference with the Democrats, on judicial filibusters.

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Posted at 11:49am on May 25, 2005 Strong Statement From Frist

By DanCT

"The confrontation over judicial filibusters is the greatest single constitutional issue to confront the Senate in our lifetime."

On the floor, he discussed in detail the issues at stake -- a good read.

FRIST FLOOR STATEMENT ON JUDICIAL NOMINATIONS:

WASHINGTON, D.C. – U.S. Senate Majority Leader Bill Frist, M.D. (R-TN) made the following statement this morning on the Senate floor:

The confrontation over judicial filibusters is the greatest single constitutional issue to confront the Senate in our lifetime.

That is because this issue involves the relationship between the Senate and the Presidency, and the relationship between the Senate and the courts. It involves all 3 branches of government! In addition, it involves interaction between majority and minority parties within the Senate itself.

The Senate confronts many significant issues every year, but none of them touches the grand institutions of American democracy the way this one does.

The President has the constitutional obligation to appoint judges. And the Senate has constitutional responsibility to offer its advice and consent. For 214 years, the Senate gave every nominee brought to the floor a fair up or down vote. Most we accepted, some we rejected. But all those nominees got a vote.

In the last Congress, however, the minority leadership embarked on a new and dangerous course. They routinely filibustered 10 of President Bush's appellate court nominees and threatened filibusters on six more. Organized and fueled by the minority leadership, these filibusters could not be broken. By filibuster, the minority denied the nominees a confirmation vote and barred the full Senate from exercising its obligation to advise and consent.

The purpose of the filibusters was clear. It was not only to keep the President's nominees off the bench, it was to wrest effective control of the appointments process from the President. Anyone who did not pass the minority leadership's ideological litmus tests would be filibustered. That meant a minority would dictate whom the President should appoint if he expected the nominee to get a confirmation vote. This was a power grab of unprecedented proportions. And with more filibusters threatened for this Congress, the power grab would become even bolder and more entrenched.

Fundamental constitutional principles were called into question. These included the separation of powers, checks and balances, the independence of the judiciary, and negation of the Senate's right to advise and consent.

The minority claimed the right to impose a 60 vote threshold before a nominee could pass muster, for that is the number needed to invoke cloture and break a filibuster. The Constitution doesn't say that. It only requires a majority to confirm. But for a minority spinning novel constitutional theories, the real Constitution took a back seat.

The Republican majority tried at first to invoke cloture on each of the judicial nominees. But driven by the minority leadership, the filibusters proved resilient to cloture. Then, we introduced a filibuster reform proposal and took it through committee. But it died without action because it was sure to be filibustered itself. So, we turned to the voters in November, and the election strengthened our majority. But the minority ignored the election and dug in its heels.

Faced with the certainty that the minority would expand its filibusters, Republicans faced a critical choice. Either accept the filibuster power grab as the new standard for the Senate, or restore the tradition of up or down votes for the nominees. We as Republican Leadership decided to stand for a principle. And that principle is clear. It is clear without trimming or equivocation: every judicial nominee brought to the floor shall get a fair up or down vote.

The Constitution specifically gives the Senate the power to govern itself. And we were fully committed to use that power to establish a process by which a confirmation vote would occur after reasonable debate. This approach has a lot of precedent. The minority attempted to demean it by calling it the “nuclear option.� But the nuclear option is what they themselves detonated with their filibuster power grab initiated in the last Congress. The proper term for our response is constitutional option, because we would rely on the Constitution's power of self governance to restore Senate traditions barring judicial filibusters.

Against their unprecedented power grab by filibuster – their nuclear option -- the constitutional option is the only effective certain antidote.

The moment of truth was to have come yesterday on May 24. But action was preempted by an agreement among seven Republicans and seven Democrats to forestall use of the constitutional option in exchange for confirmation votes on just three nominees and a promise that filibusters would only occur in “extraordinary circumstances.� I was not a party to that agreement nor was the Republican Leadership. It stops far short of guaranteeing up or down votes on all nominees. It leaves open the question of whether Miguel Estrada – who has been filibustered by the minority seven times in the last congress – would be an “extraordinary circumstance.�

Now we move into a new and uncertain phase. Today the Senate will confirm Priscilla Owen to the Fifth Circuit Court of Appeals. Several more of the nominees will follow her. Priscilla Owen, a gentle woman, accomplished lawyer and brilliant Texas jurist was unconscionably denied an up or down vote for more than four years. The minority distorted her record, cast aspersions on her abilities, and rendered her almost unrecognizable. She had the fortitude to see the process through. And very late, but at long last, she will be confirmed by an up or down vote.

· Without the constitutional option, Priscilla Owen would never have come to a vote. Neither would any of the other nominees.

· Without the constitutional option, judicial filibusters would have become a standard instrument of minority party policy. The agreement among the 14 is based on the trust that casual use of judicial filibusters is over.

· Without the constitutional option, the minority would have adhered to the path it was on and deal brokers would have had no deal to broker.

I am now hopeful but wary. As Ronald Reagan was fond to say, trust but verify. If nominees receive up or down votes and the sword of the filibuster is sheathed, then the Republican Leadership can be proud that its focused direction on the constitutional option arrested a dangerous and destructive trend. If filibusters again erupt under circumstances other than extraordinary, we will put the constitutional option back on the table and move to implement it.

Abraham Lincoln once said that when it is not possible to do the best, it is best to do what is possible. Standing firm for the principle of fair up or down votes, we have made real progress. That is something we all can celebrate. And that principle will be our guidepost as the rest of this great constitutional drama unfolds.

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Posted at 10:46am on May 25, 2005 Taranto Sees Rays of Hope Too

By DanCT

In today's Best of the Web, James Taranto expresses some optimism about the deal:

Did the Democrats really want to go through all this again? Well, some no doubt did. Hate is more important than success to the likes of Barbara Boxer and Ted Kennedy, and in any case senators from liberal states are unlikely to pay a price for obstructionism. But the filibuster strategy runs counter to the inclinations and political interests of a substantial minority of Democrats, including, as we noted yesterday, at least five of the seven compromisers.

From where we sit, then, the actions of the Republican compromisers look like not a capitulation but a way of letting Democrats back down from a losing position without being humiliated.

Why not humiliate the Democrats? Well, here's one reason: "Democrats agreed on Tuesday to clear the way for the Senate to vote on the controversial nomination of John Bolton as the next U.S. ambassador to the United Nations, which was expected to pass mainly on party lines," Reuters reports.

The deal is wrong on principle (filibuster is still a possibility and "advice and consent" should not apply to nominations but only to appointments ), but the jury is still out on the politics.

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Posted at 12:31am on May 25, 2005 Is It True?

By DanCT

Noam Scheiber at New Republic has this to say about the MOU:

So a deal has been struck on the filibuster. Republicans will allow Democrats to keep the filibuster as long as Democrats never use it. This way, both sides win (except for the Democrats).

Is it true that both sides win (except the Democrats)? If so, Lindsey Graham will look like a genius instead of the fool that he has appeared to be in the past week or so. It's still too early to tell. Let's see what happens with Myers, Saad, Kavanaugh, and Haynes...

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Posted at 6:11pm on May 24, 2005 Frist: "Filibusters...almost impossible"

By DanCT

On the floor today, Senator Frist (R-TN) said: "...the agreement, if followed in good faith, will make filibusters of judicial nominees in the future, including Supreme Court nominees, almost impossible."

That conditional "if followed in good faith" does have some teeth. Graham and DeWine have both said they will use the "out clause" if they think a filibuster arises except in "extraordinary circumstances" -- and they don't hold the NARAL view of "extraordinary circumstances". Let's wait and see.

Democrats are trying to push the spin that the Byrd option is off the table:

"[The compromise] took the nuclear option off the table," Reid, D.-Nev., said May 25. "The nuclear option is gone for our lifetime. We don't have to talk about it anymore. I'm disappointed that there's still these threats of the nuclear option."

But it is clearly not gone because Graham and DeWine are already talking about it coming right back on the table at the first sign of Democrats' reneging by filibustering outside of "extraordinary circumstances." Expect floor debates on Kavanaugh, Haynes, Saad, and Myers. Expect cloture to be filed. Expect a vote on the Byrd option if the cloture vote does not pass. Let Graham and DeWine and the wobbly Democrats (i.e., the six who signed the deal, excepting Byrd) know that this is what you expect.

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Posted at 4:21pm on May 24, 2005 Kennedy Doesn't See the Graham/DeWine/Whelan Interpretation

By DanCT

Beldar describes Kennedy on the floor today:

At 9:30am: Bless his boozy, craven, liberal, lawyer-like heart, there's a reason that the senior senator from MS (in contrast to its junior senator) still keeps his law license intact. He just performed the first preemptory cross-examination of any Republican signer of the MOU who might waiver and claim he/she's off the hook if the Dem signers are vaguely naughty. He didn't quite use the word "iron-clad," but that's the concept and that's the language, and yes, Teddy absolutely gets both.

But there is an "out clause", Teddy, and we will point it out to you.

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Posted at 3:33pm on May 24, 2005 The Double-Edged Sword and the Out Clause

By DanCT

Ed Whelan (Bench Memos) argues that "...the provision that 'each signatory must use his or her own discretion and judgment in determining whether such circumstances exist' is double-edged: A Republican signatory is fully entitled to determine that 'extraordinary circumstances' do not exist and that a Democrat signatory's contrary determination violates the agreement. Nothing in the agreement says that a signatory must defer to another signatory's determination." (Pers. comm.)

Or, in other words, the clause "nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist" means that if Democrat signatories filibuster when Lindsey Graham and Mike DeWine (et al.) think the circumstances are not extraordinary, then they have their "out" clause. They can can rightly say that the nominees should not have been filibustered because the circumstances were not extraordinary. Thus, the GOPers would be released from their commitment to vote against the nuclear option.

That reading is more plausible to me than the alternative reading that Graham and DeWine were majorly duped. Now it is up to them to hold the Democrats' feet to the fire. Are they up to it? Graham surely is, and DeWine is mouthing the right words. That makes 48 GOP non-signers + 2 who will hold Dems to the agreement = 50. In theory, it looks good.

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Posted at 1:44am on May 24, 2005 Exuberance on the Left; Disappointment on the Right

By DanCT

Harry Reid (D-NV): "This is really good news for every American tonight. ... Checks and balances have been protected, the integrity of the Supreme Court has been protected from the vocal influence of the radical right wing."

[Ahhh, yes. This deal may well protect the Supreme Court from the radical right wing judicial conservatives.]

Harry Reid (D-NV): "This is a day I've waited for for a long time....We've won anyway, because this is a victory for the American people. ... It's over with, and I feel so good."

Charles Schumer (D-NY): "We here in the Senate stepped right up the precipice, but we didn't fall in. ... Senators came together and came to an agreement that I think serves this body well."

And from the GOP?

Bill Frist (R-TN): "The agreement announced tonight falls short...it's a shame that well-qualified nominees are threatened still...There is no need, at present, for the 'constitutional option.' But with this agreement, all things remain on the table, including the 'constitutional option.'"

[Well, not really on the table, Mr. Frist, unless the 7 GOP moderates renege.]

Mitch McConnell notes that he wouldn't have made this agreement, but calls it "a good start [because votes will occur for three nominees]."

Scott McClellan: "Many of these nominees have waited for quite some time to have an up or down vote and now they are going to get one. That's progress. We will continue working to push for up-or-down votes for all the nominees."

Hat tip: ChargingRINO

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Posted at 1:08am on May 24, 2005 What About the Other Nominees?

By DanCT

The fates of two of the other nominees are apparently decided: "Democratic officials said an unwritten aspect of the pact was that two nominees not named in the deal - Brett M. Kavanaugh and William J. Haynes - would not be confirmed and would be turned aside either at the committee level or on the floor. " (NY Times). With these two down, two others mentioned explicitly in the agreement likely going down, and three others already down in Bush's first term, it looks like 7 successfully blocked by filibuster, 3 allowed by an ever-so-gracious-and-humble minority party to be given votes.

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Posted at 12:50am on May 24, 2005 <i>NY Times</i> Is Giddy

By DanCT

In an article entitled "Efforts of 2 Respected Elders Bring Senate Back From Brink" discussing the deal, Sheryl Gay Stolberg of the NY Times can hardly contain herself:

In the end, it was the language of the Constitution itself and two old bulls of the Senate - Robert C. Byrd and John W. Warner - that averted a grim showdown over federal judicial nominees that had threatened to wreak lasting damage on Capitol Hill.

After weeks of seemingly fruitless negotiations between the two sides, Mr. Byrd, 87, a West Virginia Democrat who has spent more than half a century in Congress, and Mr. Warner, 78, a Virginia Republican who regards himself as an "institutionalist," met privately twice on Thursday. They parsed the language of Alexander Hamilton's Federalist Paper No. 66 in an effort to divine what the founding fathers intended when they gave the Senate the power to advise and consent on nominees. After trading telephone calls over the weekend, they drafted three crucial paragraphs.

The agreement contends that the word "advice" in the paper "speaks to consultation between the Senate and the president with regard to the use of the president's power to make nominations." It goes on to state, "Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate."

People on each side of the fight over President Bush's judicial nominees say those lofty principles, articulated by the Senate elders, were instrumental in bringing together 14 senators - 7 Democrats and 7 Republicans - to do what the chamber's leaders could not: draft a compromise.

Amazing what things moderates can find in the emanations and penumbras of the Federalist Papers when they put their minds to it. Have they also stumbled onto a way to put like-minded folk on the Supreme Court?

Bonus points to anyone who can tell me how Federalist Papers #66 implies that the "advice and consent" clause of the Constitution is to apply to the nominations stage, rather than just the post-nomination appointments stage, as a clear reading of the words of the Constitution would indicate? Here is the section of #66 that pertains to the "advice and consent" clause:

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. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. 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.

It sounds very much to me like the President nominates, and the Senate either confirms or rejects. When a nominee is rejected, the President sends over another one "and [the Senate] could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected." Sounds to me like the Senate offers "advice" by rejecting a nominee. The President then sends them another one--with no guarantee that they'll like the next one better. It doesn't come close to saying that the "advice" part should apply to the Senate informing the President whom they want see nominated. With hard searching in the emanations and penumbras, though, who knows what might pop up? On other hand, Federalist Papers #76--which deals more explicitly and in greater length about the "advice and consent" clause--discusses the rationale for leaving the power of nomination entirely in the hands of the executive: "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." [NOTE: I analyze this in greater detail in an earlier post.] The moderate 14 wouldn't want to read this one, though, because it would shed light on those emanations and penumbras from #66 and expose the 14's argument as fantasy.

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Posted at 10:22pm on May 23, 2005 Terrible Deal

By DanCT

Hugh Hewitt wonders:

It is impossible to say whether this is a "terrible" deal, a "bad" deal, or a very, very marginally "ok" deal, but it surely is not a good deal.

It's terrible, Hugh.

1. Democrats agree to allow votes on three nominees, but make no commitment on the others. [It's amazing how a minority of Senators is able to dictate terms to a fairly large majority.]
2. Democrats reserve the right to filibuster: "Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist."
3. Republicans give up any check on the minority's power: "...we commit to oppose the rules changes in the 109th Congress."

The commitment to oppose rules changes is unconditional. There is no out clause such as, "We commit, so long as Democrats are not abusing their discretion in our eyes. " Instead, it says, "We trust that the Democrats won't filibuster Luttig, McConnell, Estrada, Alito, or whomever is nominated to the Supreme Court unless they, in their own discretion, decide they want to. For our part, we put it in writing that we won't support any rules change because our trust in those Democrats is absolute. Trust but verify? Nah. That's mean. We just trust--period."

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Posted at 12:40pm on May 23, 2005 Dems Say They <i>Nearly</i> Have the Votes

By DanCT

Roll Call has the following gem:

... in Reid’s corner, he needs to peel away six Republicans to preserve the minority’s right to filibuster judicial nominations. So far, just three GOP Senators — Lincoln Chafee (R.I.), John McCain (Ariz.) and Olympia Snowe (Maine) — have publicly opposed the maneuver.... In an interview with regional reporters from targeted states Friday, Reid said he had a private commitment from a fourth Republican to oppose the nuclear option but declined to name who that person was. He told the reporters that he had four GOP targets remaining, of which two will be needed to outflank Frist.

The remaining GOP targets are Warner, Specter, DeWine and Sen. Chuck Hagel (Neb.), according to aides and liberal activists.

Two questions:

1) Reid says he has a secret committment from someone outside this group. Is it Collins?

2) Will Frist be able to get three from this group?

My bets are that Specter, DeWine, and Hagel will vote with Frist.

Specter has called what the Democrats are doing a "constitutional revolution," and he is judiciary committee chair. On principle, he can't stand on the Democrats' side. On politics, he doesn't sabotage his own work as committee chair and go down in history as a coward who could have prevented a constitutional revolution but didn't.

DeWine isn't going to pull a Voinovich.

Hagel is thinking about 2008 primaries.

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Posted at 10:19am on May 23, 2005 What Do Iowa Caucuses Look Like for GOP Supporters of Filibusters?

By DanCT

The Des Moines Register reports:

A powerful group of leading state Republicans and social conservatives sent a letter last week to "potential presidential candidates" telling them, in effect, that any GOP senator with presidential aspirations who doesn't support ending judicial filibusters will face consequences in the 2008 caucuses....

While McCain could bypass the caucuses in 2008, just as he did in 2000, it's not clear Hagel, a relative unknown from a neighboring state, could afford to do so. Almost any strategy for Hagel would require him to do well in the leadoff contest in his home region before the race moved to New Hampshire and South Carolina.

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Posted at 10:23am on May 22, 2005 The Future of Byrd/Warner Compromise

By DanCT

Although discussions about the compromise proposals between the administration and Senators are secret, bits and pieces do get reported. Says the LA Times:

One example came late last week during compromise negotiations among a dozen senators from both parties. When Sen. Robert C. Byrd (D-W.Va.) proposed greater consultation between the White House and the Senate before judicial nominations are made, the White House quashed that notion, a Republican congressional staffer with knowledge of the discussions said.

Will Senators continue to try press the issue onto the executive branch or will they keep it framed as an issue of how the Senate fulfills its end of the appointments process? Even the group of moderates see (or would eventually see) the difficulty and problem with treading into the Presidential prerogative of nominations. The Byrd/Warner compromise can go nowhere unless the moderate Senators force themselves onto the President in a very public way. Will they? No way. Not unless they want to increase the tension and escalate the battle. That's not going to happen. They are moderates, after all, and the defining characteristic of moderates is that they'd rather smooth over differences between competing parties than escalate the conflict by bringing a new, powerful player into the fray. "Calm, calm, keep everything calm. Back slowly away from the President. Keep the battle confined to the Senate."

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Posted at 10:58am on May 21, 2005 The Schedule

By DanCT

Katherine Jean Lopez posted the Senate's filibuster-related schedule at Bench Memos. To summarize:

* Cloture motion filed: Friday, 5/20
* Vote to request Senators to attend the session: Monday, 5/23
* Roll call vote on cloture petition: Tuesday, 5/24

Other procedural role call votes are possible on Monday and Tuesday. Stayed tuned...

Andrew adds: How Appealing has lots of links to today's filibuster news and opinion.

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Posted at 10:46am on May 21, 2005 Would GOP Confirm a Lefty, Out-of-the-Mainstream Nominee?

By DanCT

Edward Whelan at NRO raises an interesting question---

Can you guess the nominee's name and fate in Senate confirmation hearings given the nominee's expressed beliefs in the following?

1. a constitutional right to prostitution and polygamy;
2. eliminating Mother's and Father's days and replacing them with a gender-neutral "Parent's Day";
3. sexually integrated prisons on the theory that male prisoners needed to practice dealing with females for when they got out;
4. the notion that Boy Scouts and Girl Scouts are damaging because they perpetuate sterotyped sex roles;
5. court-ordered enforcement of racial quotas to correct racial imbalances in the work place, even when there is no evidence of discrimination;
6. despite the flowery non-discrimination language, the nominee selected not a single black employee in her 50 hires even though her office was in a majority black neighborhood.

Not only was Ruth Bader Ginsberg not filibustered --- she was promptly confirmed 96-3, despite her being far to the left of the majority of the Senate and the American people. She was not filibustered because the Republicans understood that it is largely the prerogative of the President to fill the courts with quality people. The Senate's role is to provide a check on corruption and cronyism, and not to impose ideological filters on the nominees. In addition, because Republicans were then in the minority in the Senate, they would not have had majority support to justify blocking her. She was competent, qualified, and ethically clean, so the Republicans plugged their noses and voted to confirm.

We've come a long way since then...

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Posted at 2:56am on May 21, 2005 The Warner/Byrd Escalation

By DanCT

As Andrew pointed out in a previous post, the New York Times has reported that Senators Warner (R-VA) and Byrd (D-WV) are discussing a plan to formally present to the President lists of acceptible nominees from which he should choose. The idea is to:

"bring into focus the importance of the word advice in the Advice and Consent clause� of the Constitution as part of a broader agreement “that will permit the Senate to move forward this Congress with its important business, while establishing a workable blueprint for the Senate’s present and future consideration of judicial nominees.�

If this account is accurate (and it may not be --- the Virginian-Pilot has a somewhat different spin), it would represent a substantial escalation in the battle over judicial nominees.
I am sending Mr. Warner the following letter to nudge him to think more carefully about his plan:

Hon. Senator Warner,
The New York Times reported rumors that you are working with Senator Byrd on a "plan to designate for the President a pool of qualified judicial candidates who might win confirmation more easily." I hope you will prove the rumors false. Such a plan would be worse than the current filibustering in every way.

1. The Democrats have been filibustering nominees precisely because they want the power to directly involve themselves in the President's Constitutional prerogative to nominate whomever he sees fit. Presenting lists to the President to choose nominees from would institutionalize that very power for them without them even having to pay a political price of obstruction. A plan to present a list of nominees to the President amounts to surrender in the minority party's attempt at a "constitutional revolution" (in the words of your esteemed colleague, Senator Arlen Specter). To concede this critical point would result in a worse situation than currently exists.

2. Injecting the Senate into the nominations phase (rather than restricting it to its historical and explicit constitutional role of offering "advice and consent" only AFTER the President has submitted nominations) would futher politicize the appointment process by injecting the politics into the process at an ealier stage.

3. Although there is some debate about whether the filibustering of nominees is unconstitutional, most would agree that it is not. However, for the Senate to inject itself into the nomination stage would be blatantly unconstitutional because the clear language of the Constitution restricts the Senate's role to the confirmation process as opposed to the nomination process: The President "shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges." Constitutional scholars are nearly unaminous on that point.

4. The idea of the Senate creating a list of compromise candidates for the President to choose from was considered and rejected by the founders when they wrote the advice and consent clause --and for good reason. In Federalist Papers (76) Hamilton wrote at some length about the rationale for excluding the Senate from the nominations process: "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. The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. ...A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body." The "advice and consent" clause purposely restricts the Senate's role to post-nomination deliberations because compromise candidates tend to be mediocre. They achieve their "inoffensive" status through their hesitation to make clear decisions that might offend, even when the facts and the law dictate a clear decision that is bound to irk the losing party.

5. This radical, extra-constitutional change in the nominations process would be a direct attack on the office of the President. The administration would be right to step in and forcefully defend the constitution and the Presidency. The administration has played a quiet, restrained role in the filibuster debate thus far. However, given Mr. Bush's deep respect for the Office, I do not believe that he would idly watch the filibuster dispute escalate into a direct assault on the constitutional powers invested in the Presidency. The political storms currently surrounding the filibuster issue would pale in comparison to what will happen should you and other GOP Senators give serious consideration to Senators Byrd and Schumer's idea.

Senator Warner, I respectfully urge you not to escalate the political battle over nominations by encroaching on the constitutional power of the President to present nominations of his own choosing to the Senate. I also urge you not to abrogate your and the Senate's responsibility to offer advice and consent after nominations are submitted and urge you to vote to disallow the minority party to block appointments simply by refusing to allow the Senate to exercise its rightful power to consent.

Sincerely,

Dan Dalthorp

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Posted at 12:25pm on May 20, 2005 Compromise News

By DanCT

The most realistic approach to a compromise is the one that has been getting the most coverage:

Democrats would pledge not to filibuster upcoming nominees except in "extraordinary circumstances." Republicans would not vote for changes in the filibuster rules, except if, in their view, Democrats at some point violate the spirit of the agreement.

There are two big problems with such a deal. First, it is obviously only a temporary fix and doesn't address the underlying issue of the inappropriateness of filibustering nominees. As soon as the mix of Senators changes or even one of the signators defects, the deal falls apart. The second is that after Democrats called Scalia, Thomas, Rehnquist, Owen, and Brown "extreme", GOPers are hesitant to trust the Democrats' judgment about what constitutes "extraordinary circumstances." According to Ben Nelson (D-NE), trust building been the focus of the discussions:

Sen. Ben Nelson (D-Neb.), who has played a major role in seeking a compromise, said that much effort in the last few days had been spent on building trust among the group. "Every time we've gotten together, we've increased that trust, that mutual respect and the desire to work together," Nelson said after one session.

And how close are they getting to a deal?

"Getting close," said Sen. Ben Nelson

And:

We're as optimistic as we've ever been, but we're not quite there yet," said Sen. Mark Pryor (D-Ark.).

A different picture is painted by Susan Collins (R-ME):

We're making progress, but we're making progress by inches, rather than by miles," said Maine Republican Susan Collins, adding, "We need to get everyone to a certain comfort level."

It sounds like Collins is wary, but she leaves open the possibility that she could be convinced. Hagel, on the other hand, isn't about to be lured into a deal that allows blockage of any nominees.

Ben Nelson (D-NE) appeared on Hardball with Chris Matthews last night and didn't do very much to inspire trust. An exchange:

MATTHEWS: Do you mean there‘s a possibility you would declare Judge Scalia an extraordinary case and vote against cloture [if he were nominated for Chief Justice]?

NELSON: Probably not. But I haven‘t vetted him. I haven‘t seen all the papers....I haven‘t looked at every one of his decisions.

Probably not? If even the famously moderate Ben Nelson accepts the premise that there is nothing wrong with filibustering judicial nominees for ideological reasons, there will be no deal. We see Democrats one day strongly denounce the principle of filibustering of nominees, and a short time later they warmly embrace the filibusters they so recently denounced. How can they defend their turnabout? [paraphrase] "These are extraordinary circumstances. Justice Owen is outside the mainstream. Justice Pryor has strongly held beliefs." If PFAW and NARAL can convince 40+ Senate Democrats that Justices Owen and Pryor are "extreme", they will be able to convince moderate Democrat Senators that Scalia or any other conservative judge that gets nominated to a circuit court or the Supreme Court is also extreme. To build the kind of trust that moderates like Susan Collins and Chuck Hagel are looking for will require a stronger committment to the principle that there's something unsavory about filibustering nominees for any reason, let alone ideology.

The interview continued:

MATTHEWS: No, I know, I‘m only asking the ones who sit on the court now, because I do want to know what extraordinary means. And I question, I guess I think it may be an escape hatch for some people, maybe not one of your six, to vote against anybody.

NELSON: Well, I‘ll put it this way. When I couldn‘t get a file that I wanted, the material that was available but would not be made available to me in the case of one of the judges, I voted against cloture. The one time I did. Because I thought it was extraordinary. I decided, if I can‘t get the information, if I can‘t make up my mind, how can I decide up or down on that judge?

That was the rationale for blocking Miguel Estrada--that he didn't release confidential memos from his years in solicitor generals' offices:

They should remember that the reason Democrats gave for blocking Estrada's nomination was that the White House would not release memos Estrada wrote while working for both Republican and Democratic solicitors general. Those memos...are legally protected from disclosure, and every living solicitor, of both parties, condemned the Democrats' request.

If even Ben Nelson leaves open the door for blocking nominees like Miguel Estrada for not releasing confidential memos of a kind that have never been released by any nominee, there will be no deal.

Such a deal, though, is plausible, unlike the deal the Byrd and Warner have reportedly been discussing:

The issue at the forefront of current negotiations is a proposal championed by Byrd and Sen. John W. Warner (R-Va.) to create an independent, bipartisan commission — under the auspices of the Senate Judiciary Committee — that would pick a nonbinding pool of nominees to propose to the president to fill any Supreme Court vacancies.

This is a non-starter because it would require Senate leadership AND the President to go along with it. It's not going to happen. By contrast, the maverick deal being discussed by Nelson, McCain, Collins, etc. is plausible because individual Senators have the power to vote as they see fit. For example, if five Democrats decide that filibustering nominees is wrong, they can simply vote for cloture even if Harry Reid doesn't like it. Or if 6 Republicans decide that filibustering is a legitimate tactic to use against nominees, they can vote against the "nuclear option" even if Bill Frist doesn't like it.

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Posted at 1:11am 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."

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Posted at 11:41pm on May 19, 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: “I find it simply baffling that a Senator would vote against even voting on a judicial nomination.�

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."

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Posted at 9:58pm 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 I’ve seen it done. More importantly, I’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, “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 duty…�

Having threatened use of the constitutional option to secure a time agreement, Senator Byrd offered a motion to execute the option: he stated, “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.�

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 Byrd’s threat – 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.

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Posted at 10:36am 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.

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