Posted on 03/23/2005 2:44:31 PM PST by Tumbleweed_Connection
Majority Republicans in the Senate have long been frustrated by minority Democrats' filibusters of President Bush's judicial nominees. So frustrated, in fact, they have considered employing a rarely used tactic to get those nominees a fair vote.
But now some Republicans are wavering, and it isn't at all clear the so-called "nuclear option" favored by Senate Majority Leader Bill Frist of Tennessee is still an option.
In fact, says one analysis, the issue could come down to an early 2008 presidential primary of sorts between Frist and Sen. John McCain, R-Ariz.
According to a report in the Washington Times, Frist may no longer have enough Republican backers to employ the rule change that, if ever adopted, would allow Bush's nominees that are summarily approved by the Judiciary Committee to receive an up-or-down vote by the full chamber.
At the present, Democrats are using the filibuster – a tactic requiring 60 votes to overcome – to prevent nearly a dozen of Bush's nominees from being considered by all 100 members.
"Of the 55 Republicans in the chamber, at least six are undecided or adamantly opposed to the plan of using the rare parliamentary procedure to end the filibusters with a simple majority vote, rather than the 60 votes normally required," the Times reported.
According to the paper, three of the wafflers are Sens. Susan Collins and Olympia Snowe of Maine and Sen. Lincoln Chafee of Rhode Island. It's expected that these moderates absolutely will not back Frist and vote to change the rules governing filibusters.
Three others – Sens. McCain, Chuck Hagel of Nebraska and John Warner of Virginia – aren't convinced that Frist's plan is wise, but have not completely ruled out supporting it.
With those six uncertainties, that leaves Frist with 49 GOP votes – one shy of the majority he'd need to allow Vice President Dick Cheney, as the executive branch head of the Senate, to step in and cast a vote that, observers say, would support busting the filibusters. All of this, of course, assumes that remaining Republicans back the idea and there are no Democratic crossovers.
A separate analysis at NationalLedger.com says McCain is the one who has a chance to shine for conservative Republicans, whose support he'll need for any future presidential bid in which both he and Frist may have an interest.
With Hagel and Warner's support not at all certain, "the one left standing will be John McCain," the Ledger says. "So, this sets up a possible preview of the 2008 GOP primary, John McCain versus Bill Frist."
"Does John McCain really want to be the 2008 presidential candidate for the GOP?" the site continued. "If so, he will have an excellent opportunity to gain favor with at least a few conservatives that desperately want these judicial nominees to get their day and their required vote before the full U.S. Senate."
But if he "blows this he can kiss his 2008 presidential aspirations good-bye as he will never make it out of the Republican primaries."
I guess the political capital of the 2004 elections has just been pissed on by the Republican leaders. Spineless wimps!
2 out of these 3 are up for re-election in 2006. How would they like to go without RNC money?
Come on Frist and Co. play hardball.
Democrats begin filibuster against Estrada - Feb. 13, 2003.
Pubbies have allowed this to continue, now for 768 days.
But if he "blows this he can kiss his 2008 presidential aspirations good-bye as he will never make it out of the Republican primaries."
And, if Hagel stands in the way of this, steps need to be taken so that he never makes it out of another Nebraska Republican primary.
Failing to get these judges into the court system will be gravest mistake Republicans have made since George HW Bush broke his no new taxes pledge.
There really isn't any reason to waste time and money supporting the Republican party if it fails on this issue, especially given the dramatic increase in government spending in the first four years of the Bush administration.
Word up Sparky... word up.
You're absolutely correct! Not only does the majority in
Congress demonstrate a failure of leadership but they
(and Bush) have spent recklessly for for years. As if all
this were not bad enough we have a President who won't
even protect our borders against a foreign invasion by
millions of illegals. This may be the last opportunity to
prevent activist judges from gaining complete control of
the judiciary, especially the Supreme Court -- whose
members and their decisions may live to haunt us for
generations. Partisan politics aside, the filibuster is
unconstitutional because there are only seven instances
where the Constitution requires a supermajority vote --
and confirmation of judicial nominees is NOT one of them.
The people I speak to (part of the core base) are
becoming so disgusted with the lack of leadership from
Bush and Congress that they'll probably drop out for
future elections. Many believe that with all the effort
that went into achieving majority status - the game wasn't
worth the candle.
If 2008 comes down to Frist V McCain, Hillary's got the election won.
You hit it right there. I've heard this guy does nto know how to play hardball. If that's true, I have one question, "How the heck did we get stuck with this guy for majority leader of the Senate?"
I have the feeling that, if he knew hardball, he would have won this internal fight by now, by making whatever behind the scenes moves he had to make.
However, I sincerely hope I am completely wrogn about the guy.
Right On!
There I have to disagree. As pissed off as I am on this judicial thing (which began falling apart when Bush supported Specter for re-election), the Republicans have done a lot on National Security. If Gore won in 2000, we'd be halfway toward becoming a tri-lingual nation (French/Spanish/English) by now. And in the White House, they'd be bowing to Mecca 3 times a day to show their "tolerance".
this whole debate is nonsense...does anyone here doubt for a minute that were the party's reversed the Democrats would NOT do this?!!!Of course they would have...January 21st by 9:01 am!!.If the Pubbies don't quite trying to pretend the Senate is a country club and do their job the next Democratic Senate is gonna do this in a heartbreat!!
Only on the issue of national defense has voting Republican made any difference. Republicans in Congress, specifically in the Senate, have failed miserably.
Frist is in control of nothing.
FRIST CAN'T LEAD.
It has become obvious.
He blew it on this one.
For months all we have heard from Frist is......"Well, we have the votes for the nuke option....we have the votes for the nuke option....we have the votes for the nuke option....BLAH BLAH BLAH"
YET....HE HAS DONE NOTHING! HE IS ALL TALK AND NO ACTION ON THIS ISSUE!
Folks have been saying that Frist should stop talking about the nuke option and just do it.
He didn't....and now he is losing his support.
As for the moderates .....(and there are more than listed in the article).......Well.....blame the Republican party itself.
Backing well known RINOS over real Republicans who actually push for less taxes and smaller government.
Between choosing Frist as a leader and the whole Specter drama, I have to say, something is quite rotten in the Republican Senate caucus. It puzzles me why they are so terrrible, but terrrible they are.
Senators are often the worst kind of Republicans.
Six year terms and all that money makes them soft.
Here is Texas.....our JR. Senator is getting more respect than our SR one.
Kay Bailey is a moderate.......so the JR Senator is starting to pass her by.
Senators are often the worst kind of Republicans.
Six year terms and all that money makes them soft.
Here is Texas.....our JR. Senator is getting more respect than our SR one.
Kay Bailey is a moderate.......so the JR Senator is starting to pass her by.
Yeah, well I live in Pennsylvania. Not much you can say on that score.
WHAT??!!! You mean the Senate ISN'T a country club???!!
Please, at least reassure me that RNC headquarters has a wet bar and is reasonably close to the links. I'd feel even better if you told me that they serve champaign brunch on Sunday mornings.
"Failing to get these judges into the court system will be gravest mistake Republicans have made since George HW Bush broke his no new taxes pledge."
I know the answer - put another Bush, Jeb, on the 2008 ticket!
Can we see a pattern here?
"You hit it right there. I've heard this guy does nto know how to play hardball. If that's true, I have one question, 'How the heck did we get stuck with this guy for majority leader of the Senate?'"
For all the bad press converavtive southern politicians get, their senators sure are milquetoast. What gives?
One of the saddest things is the failure of the renegade attempt by Conservatives (led by Right ot Lifers) to defeat Specter in his primary. Bush and Santorum both actively campaigned for Specter in Pennsylvania, and he edged out Toomey by only 51% to 49%.
Had it shifted a few percentage points, a powerful pro-Conservative national message woudl have been sent. As it is, a message of despair was sent. However, we really should still read the results positively. We can win these kinds of fights, clearly. However, it does require a nationally focused effort. Some of the key people in the Toomey effort, who I happened to meet (unfortunately) after the effort was over, were college students, which is to say, not people who grew up in Pennsylvania. Much of the Toomey money came from out of state too. We just have to get a little better, and knock off a Senator, that would be a big start.
By the way, the Democrats smell blood in the water vis a vis Santorum and have fielded a strong candidate against him (Casey). The PA conservatives have had it with Santorum, by and large. Whether they will vote for him in November I do not know, but the soldiers (volunteers) will not come out. I guess he might as well rely on Bush, now that he's cast his lot with him.
However, this is not an example of what I mean. To make our (conservative) point with the Senators, we need to defeat one of them with a Conservative in a primary.
One thing that woudl help this process would be a fusion caucus between strict constuctionists (like myself) and right to lifers.
Here is an excerpt from my Campaign Notes 2004:
http://groups.msn.com/2004CampaignNotes/_whatsnew.msnw
My opposition to Specter was based primarily on my strict constructionist views, the idea that the job of the Supreme Court is to apply a “constitutional test” to laws based on the words of the Constitution, not the way Specter explains it in his book, Passion for Truth.
In other words, I do not believe the Supreme Court can enforce anything it wants to, only things spoken of in the constitution. As I engaged in the fight to deny Specter the seat (via phone calls, emails, faxes, etc.), I became aware of a disturbing fact. Some Right-to-Life people seem to espouse the notion that the Supreme Court should make up a “Right to Life” ruling to supercede Roe v. Wade, and that we Republicans should seek Supreme Court nominees willing to do this.
Were I a Democrat strategist bent on dividing and weakening the Republican Party, I could not have come upon a better idea. This strategy encourages the Right to Life movement to seek protection of the unborn at the price of sacrificing the Constitution itself, which is to say, sacrificing the Republic itself. This part of Right-to-Life thus aligns itself with the Democrats and, unwittingly, aids in the main goal of a man they hate---Arlen Specter. As his book makes clear, unraveling the Constitution, not aborting unborn children, is Arlen’s main goal.
In addition, this approach is tactically deficient, since it splits strict constructionists and Right-to Life people. Rather, the two groups should clarify themselves and be unified. The immediate goal of the Right-to-Life movement should be, clearly, and unequivocally, the repeal of Roe v. Wade. Every strict constructionist must stand by them on this---regardless of their views on Right-to-Life. Any other position is impossible for a strict constructionist. To quote Bork, The Tempting of America, (Touchstone, 1990) page 111:
The subject of abortion had been fiercely debated in state legislatures for many years. It raises profound moral issues upon which people of good will can and do disagree, depending on whether they view a fetus as fully human, and therefore not to be killed for anyone’s convenience, or whether they think the fetus less than human so that the desires of the pregnant woman should be paramount. Whatever the proper resolution of the moral debate, a subject which there is no need to address here, few people imagined that the Constitution resolved it. In 1973, a majority of the Supreme Court did imagine just that in Roe v. Wade.
In an opinion of just over fifty-one pages, Justice Blackman, writing for the majority of seven Justices, employed the right of privacy to strike down the abortion laws of most states and to set severe limitations upon the states’ power to regulate the subject at all. From the beginning of the Republic until that day, January 22, 1973, the moral question of what abortions should be lawful had been left entirely to state legislatures. The discover this late in our history that the question was not one for Democrat decision but one of constitutional law was so implausible that it certainly deserved a fifty-one page explanation. Unfortunately, in the entire opinion there is not one line of explanation, not one sentence that qualifies as a legal argument. Nor has the Court in the sixteen years since ever provided the explanation lacking in 1973. It is unlikely that it ever will, because the right to abort, whatever one thinks of it, is not to be found in the constitution.
Nor, I might add, is the Right to Life, as it applies to the unborn child. Right to Lifers and strict constructionists must unite in returning the Supreme Court to its rightful role of applying the constitutional test to laws created by the legislatures. As Bork says on page 5 of Tempting:
…But if judges are, as they must be to perform their vital role, unelected, unaccountable, and unrepresentative, who is to protect us from the power of judges? How are we to be guarded from the guardians? The answer can only be that judges must consider themselves bound by law that is independent of their own views of the undesirable. They must not make or apply any policy not fairly to be found in the Constitution or a statute. It is of course true that judges to some extent must make law every time they decide a case, but it is minor, interstitial lawmaking. The ratifiers of the Constitution put in place the walls, roofs, and beams; judges preserve the major architectural features, adding only filigree.
What does it mean to say that a judge is bound by law? It means that he is bound by the only thing that can be called law, the principles of the text, whether Constitution or statute, as generally understood at the enactment. The lay reader may wonder at the emphasis put upon this apparently simple point. Of course, the judge is bound to apply the law as those who made the law wanted him to. That is the common, everyday view of what law is. I stress the point only because that commonsense view is hotly, extensively, and eruditely denied by constitutional sophisticates, particularly those who teach the subject in law schools.
Then Bork quotes Joseph Story, former Associate Justice of the Supreme Court and Harvard law professor to the effect that, “…A constitution of government is addressed to the common sense of the people; and never was designed for the trials of logical skill, or visionary speculation.”
Think carefully, Right to Lifers, before you abandon the protection of the words of the Constitution (and its amendments) as those words were originally intended. Once this protection is abandoned, all out rights are forfeit.
As Bork points out on page 7 of Tempting, “The heresy described [the abandonment of strict constructionism] is not peculiar to any political outlook. When it has suited their purpose, conservatives as well as liberals have surrendered to its temptation. Given the chance, no doubt many conservatives would be delighted to succumb again.”
Indeed, the first major deviation of this sort was “conservative”---the Dred Scott decision (1857). As with subsequent (20th century) deviations from the strict constructionist view, there is nothing subtle about the central errors of Dred Scott. As with Roe v. Wade, a law degree is not required to understand what is wrong with the decision. In essence, as Bork explains, Dred Scott is doubletalk. The writer of these notes relies on Bork’s correctness here, not being a legal scholar, but Bork’s argument is a common sense one (vastly condensed in these notes). Bork (page 31, Tempting) picks out two crucial sentences from Justice Taney’s opinion (Taney wrote the majority opinion for Dred Scott).
[T]he rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress that deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of the law.
Bork’s riposte:
The first sentence quotes the guarantee of due process, which is simply a requirement that the substance of any law be applied to a person through fair procedures by any tribunal hearing a case. The clause says nothing whatever about what the substance of the law must be. But Taney’s second sentence transforms this requirement of fair procedures into a rule about the allowable substance of a statute. The substance Taney poured into the clause was that Congress cannot prevent slavery in a territory because a man must be allowed to bring slaves there. The second sentence is additionally dishonest because it postulates a man who had “committed no offence against the laws” but a man who brings slaves and keeps them in a jurisdiction where slaver is prohibited does commit an offense against the laws. Taney was saying there can be no valid federal law against slaveholding anywhere in the United States.
How did Taney know that slave ownership was a constitutional right? Such a right is nowhere to be found in the Constitution. He knew it because he was passionately convinced that it must be a constitutional right. Though his transformation of the due process clause from a procedural to a substantive requirement was an obvious sham, it was a momentous sham, for this was the first appearance in American constitutional law of the concept of “substantive due process” and that concept has been used countless times since by judges who want to write their personal beliefs into a document that, most inconveniently, does not contain those beliefs.
Wrapping up this section, Bork comments that, “There is something wrong, as somebody has said, with a judicial power that can produce a decision it takes a civil war to overturn.”
I realize that arguments have been made deriving the Right to Life from the Constitution. I am simply denying that these arguments make sense.
The proper job of the Republican Party and Conservatives is to now restore the Supreme Court to strict constructionists. This is the great political battle before us. Once this battle is won, the job of writing laws, including abortion laws, will return to the legislators and executives of the State and Federal Governments, as the Founding Fathers intended. There, Right to Life people and Pro Choice people can battle it out among the electorate. Alternately, an amendment to the Constitution can be sought, although the country seems too evenly divided on this issue to allow passage of such an amendment.
Unless Right to Life people and strict constructionists can unite on this, this battle cannot be won (because either faction alone lacks the power to win), and the country must inevitably lose, first its constitution (through it being rendered irrelevant to government) and then its freedom (because our freedom is based on the constitution, without which we descend into mob rule).
So who will you support?
It does no good at all to elect liberal Republicans or lukewarm ones like Hagel and McCain, who are doing everything possible to undermine conservatism with in the Republican party.
Blinding voting Republican while the Republican party expands government are rates not seen since the LBJ and while they do nothing to fix the judiciary is insane.
You can count me among the fed-up and dropping out. I wouldn't dare vote for another Republican if they continue to spend like drunk sailors and fail to get control of the confirmation process. I'm starting to think it is hopeless, and that we have put our eggs into the wrong basket.
As far as some imaginary showdown between Frist and McShame, in the '08 primaries: neither will be a blip on the radar if this crap continues. May they perish into the oblivion of the has-been and the never-was. If the majority Republican caucus fails us on judicial nominees, may they meet the same fate.
Yes, sadly and reluctantly I'm coming to the same conclusion. A high drop-out rate has happened before and
cost Republicans more than one election. We keep getting
promises but this time with control of the Executive and
Legislative branches they have no excuse for failing to
keep them. The tragic aspect to this is not the Republicans
are blowing it but that CONSERVATISM will lose because
these hacks have deceived us. When confronted with a choice
between "tweedle-dum" and "tweedle-dee", who can be
motivated? I'm waiting for a credible, strong third party
candidate. If nothing else, I can make a protest vote.
I feel we have been lead down the primrose path like a bunch of dummies. We have been lied to, and have been made believe "Republican" means "Conservative". That has to be the unfunny joke of the century, given the sad state of affairs we find ourselves in.
Not much I can do, here in Arkansas. I'm stuck with two Dim senators, and a pork-happy Dim congressman, and they'll be lifers. The state Republican Party is in total disarray, and damn-near broke. Our RINO governor has sold us out to the illegal immigrants and the corporate entities that scoop them up for the cheap labor costs.
I'm taking a hard look at the Constitution Party, but know full well third-party voting is not much more satisfying than kissing one's sister. I'll have the satisfaction, though, of being able to vote without having to hold my nose.
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