Changing the rules to do the nation's business

[DesertFox]

Former Sen. Dave Durenberger and former Vice President Walter Mondale in a joint opinion piece said that if the Republicans go forward to limit filibusters of appeals court (only) judges, it will "profoundly and permanently undermine the purpose of the U.S. Senate...." (Star Tribune, May 5). Rubbish. Let me give a clearer picture.

In the last Congress, the Senate Democratic leadership orchestrated a filibuster of 10 of President Bush's appeals court nominees and threatened filibusters against six others. Filibusters, a tactic historically used only against legislation, were now targeted on judicial nominees and were a rock-solid obstruction to a confirmation vote. As a consequence, a centuries-long Senate tradition against filibusters of judicial nominees was broken.

In this Congress Democrats again vowed to block an up-or-down vote on these nominees, and threaten forthcoming nominees. These filibusters assert precedent-shattering power over the confirmation process and erode constitutional checks and balances. ...

The Constitution clearly specifies the few instances where more than a majority vote is required for Senate approval. For example, two-thirds of senators are needed to ratify a treaty or to override a presidential veto. For nominations, only a majority is needed. It has been that way for 200 years. It is not the Republicans who are breaking constitutional and Senate tradition. It is those who wish to filibuster judicial nominees and impose an effective threshold of 60 votes to confirm an appeals court judge. The Democrats complain about the tyranny of the majority as they practice tyranny of the minority -- certainly not a Senate or constitutional tradition.

More (http://www.startribune.com/stories/1519/5402872.html)

[tacitus]

The left doesn't give a rip about the Constitution, except when it benefits their agenda. In this case it doesn't, so they ignore it.

[DesertFox]

Here's Andrew McCarthy with a superb rundown of the foolishness the Democrats are engaging in

Confessing Error

...In ignoring Chief Justice Roger Taney’s ruling that he had acted illegally by unilaterally suspending habeas corpus in the thick of the Civil War, Lincoln famously observed that Taney’s myopia, stressing a single clause of the Constitution to the exclusion of the rest, would allow “all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated.” Are those who (like myself) have found the filibuster justified by the Constitution’s express grant to the Senate of rule-making power over its own proceedings making the same analytical error for which Lincoln chastised Taney? I think the answer is "Yes."

Could the Senate, for example, make a rule that said: “the Senate will only consider presidential appointments in even-numbered years”? After all, the Senate may make its own rules and, as with the filibuster, there is nothing in the Constitution that expressly says such a rule is impermissible. But of course, such a rule would have the effect of grinding government to a halt. It would nullify the president’s express constitutional authority to appoint most high government officials (art. II, sec. 2, cl. 2). That is, such a Senate rule could force the president to try to govern not only bereft of the ability to choose judges but, in fact, with no Cabinet and sub-Cabinet officials.

Similarly, if in a fit of pique a rule were adopted that the Senate would no longer consider nominees to the Supreme Court, that would eventually leave the Supreme Court empty, notwithstanding that it is the repository of the judicial power and a branch made co-equal to Congress by the constitution. The branches are supposed to compete, but a construction that allowed one to dissolve another’s powers would, in short, destroy the foundations of the Constitution.

Clearly, there must be some objective limits to the Senate’s authority despite the fact that the clause granting it rule-making power does not expressly admit of any. What should our guiding principle be in determining what those limits are? I believe they ought to be (and in fact are) those points at which the Senate’s powers intersect with the powers of the coordinate branches. That is, the Senate may make rules that control any matter over which it uniquely exercises legitimate authority. Beyond that, its rules must yield to the enumerated powers of the other branches.

Entire article (http://www.nationalreview.com/mccarthy/mccarthy200505130811.asp)

[DesertFox]

Here's Rich Lowry urging the GOP to

Go Nuclear

The routine filibuster of judicial nominees is being portrayed by its defenders as one of the most hallowed traditions of American governance, up there with Robert’s Rules of Order, congressional committee hearings and Rose Garden bill-signing ceremonies. But this tradition dates from only 2003, when Democrats found themselves in the minority in the Senate and desperate to block Bush judicial nominees.

The judicial filibuster isn’t a tradition, but an innovation; not a function of checks and balances, but a perversion of them; not an outgrowth of the Constitution, but at best irrelevant to it.

More (http://www.nationalreview.com/lowry/lowry200505130813.asp)

[DesertFox]

Here's C. Boyden Gray on

Four Democratic Myths About Confirming Judges: Bust Judicial Filibusters

The Senate moved closer this week to a long-awaited showdown over President Bush’s judicial nominees—10 of whom Democrats blocked starting in 2003 by using the parliamentary device known as the filibuster.

As Republican leaders have moved closer to restoring 214 years of Senate tradition of giving judicial nominees an up-or-down vote, Democrats have launched an aggressive defense of their unprecedented use of the filibuster that is based on mythology, not fact.

With public discourse focused intently on judicial filibusters, it is vital to distinguish reality from the Democratic spin. The left must not be able to reshape the debate by presenting falsehoods or distorting the truth.

Myth No. 1: Democrats have confirmed 205 of President Bush’s judges, and blocked just a handful.

Reality: When it comes to the powerful appellate courts—the locus of the Senate’s confirmation battles—the story is different. During Bush’s first term, he nominated 52 qualified men and women to the appeals courts. Of these, 35 were confirmed, 17 were not. That is the lowest appellate confirmation rate—67%—in modern times, according to American Enterprise Institute scholar John Lott, Jr.

Since the inauguration of the Democratic filibuster strategy in March 2003, the obstruction has been especially marked. Of 34 appellate nominees in 2003 and 2004, Democrats filibustered 10 (almost one-third), denying them up-or-down votes, and blocked an additional six in the Judiciary Committee, using, for example, a procedure known as blue-slipping, which allows home-state senators to object.

Myth No. 2: The filibusters are fair recompense for Republican treatment of President Bill Clinton’s nominees.

Reality: Clinton’s eight-year appellate confirmation rate was 74%, in addition to getting two liberals confirmed to the Supreme Court. Many of the Clinton nominees who were delayed for long periods of time and not confirmed had problems with their home-state senators. For example, Helene White, Kathleen McCree Lewis, Jorge Rangel, Enrique Moreno, James Beaty and James Wynn all lacked support from one or both of their home-state senators and did not successfully negotiate these issues.

More (http://www.humaneventsonline.com/article.php?id=7444)

[Warlady]

Great job Foxie. Don't let this one get away. It needs to end up in the Hall of Fame.

[ThomasIsUnderrated]

Here's Andrew McCarthy with a superb rundown of the foolishness the Democrats are engaging in

Confessing Error

...In ignoring Chief Justice Roger Taney’s ruling that he had acted illegally by unilaterally suspending habeas corpus in the thick of the Civil War, Lincoln famously observed that Taney’s myopia, stressing a single clause of the Constitution to the exclusion of the rest, would allow “all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated.” Are those who (like myself) have found the filibuster justified by the Constitution’s express grant to the Senate of rule-making power over its own proceedings making the same analytical error for which Lincoln chastised Taney? I think the answer is "Yes."

Could the Senate, for example, make a rule that said: “the Senate will only consider presidential appointments in even-numbered years”? After all, the Senate may make its own rules and, as with the filibuster, there is nothing in the Constitution that expressly says such a rule is impermissible. But of course, such a rule would have the effect of grinding government to a halt. It would nullify the president’s express constitutional authority to appoint most high government officials (art. II, sec. 2, cl. 2). That is, such a Senate rule could force the president to try to govern not only bereft of the ability to choose judges but, in fact, with no Cabinet and sub-Cabinet officials.

Similarly, if in a fit of pique a rule were adopted that the Senate would no longer consider nominees to the Supreme Court, that would eventually leave the Supreme Court empty, notwithstanding that it is the repository of the judicial power and a branch made co-equal to Congress by the constitution. The branches are supposed to compete, but a construction that allowed one to dissolve another’s powers would, in short, destroy the foundations of the Constitution.

Clearly, there must be some objective limits to the Senate’s authority despite the fact that the clause granting it rule-making power does not expressly admit of any. What should our guiding principle be in determining what those limits are? I believe they ought to be (and in fact are) those points at which the Senate’s powers intersect with the powers of the coordinate branches. That is, the Senate may make rules that control any matter over which it uniquely exercises legitimate authority. Beyond that, its rules must yield to the enumerated powers of the other branches.

Entire article (http://www.nationalreview.com/mccarthy/mccarthy200505130811.asp)



Where have I heard this possibility before? Oh yeah...

Let's take a look at one of the paragraphs from that post of mine on the history of the filibuster. (Authored roughly a week ago)

"The Constitution clearly states that the Senate can create its own rules. IMO, that rules out a constitutional challenge to both the filibuster and its abolition with respect to anything related to the legislative branch's core function. However, in very extreme cases, I think an argument may exist that the filibuster used against nominees could have constitutional problems. For example, the minority could use the filibuster to such an extent that the judiciary grinds to a halt, effectively killing the judicial branch. Or the minority could reject all Presidential nominees that weren't already picked by its membership, which would basically destroy the President's power to nominate people."

[DesertFox]

Dems' filibustering of judicial nominations is just politics
Tony Quinn, SF Chronicle

Nothing is quite so tawdry as watching liberal Democrats suddenly find constitutional virtue in the filibuster. For decades, liberals tried to rid the Senate of the filibuster because it frustrates majority rule, just as they have pushed to repeal California's two-thirds requirement for passing budgets and raising taxes.

The filibuster is not a constitutional icon. It dates from a 19th century practice of senators talking until they dropped in order to stop legislation they did not like. In the 20th century Southern senators discovered the filibuster as a way to derail civil rights legislation. The most notorious use of the filibuster was in the 1930s and 1940s, when white Southerners regularly kept black citizens in line by lynching them. Efforts by Northern senators of both parties to pass federal anti-lynching laws were frustrated by Southern senators' filibusters. They simply talked the legislation to death.

Not until 1975, with the reformist post-Watergate Senate, were realistic limits placed on the filibuster. A rule was adopted that 60 senators could stop unlimited debate. Until World War I there was no limit on debate, and then a two-thirds vote rule was in effect.

Now this hoary practice of unlimited debate to kill legislation is being used to stop President Bush's judicial nominations. But even in its heyday, the filibuster was not used to defeat judges or other executive branch appointees.

More (http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/05/15/INGPOCNKN51.DTL&sn=064&sc=620)

[ThomasIsUnderrated]

Information also found in my post on the history of the filibuster. :grin:

[Venus de Smilo]

Well done, Thomas, and not a surprise.

Fox, you found the best of the crop of all the writings on the subject.

:claps: to you both!