Skip to comments.2 GOP senators consider lawsuit to break filibuster
Posted on 11/14/2003 10:00:14 PM PST by WillRain
Two Senate Republicans are considering filing a lawsuit aimed at putting an end to delaying tactics by Democrats trying to block President Bush's nominations to the federal bench.
Freshman Sens. Saxby Chambliss of Georgia and Lindsey Graham of South Carolina said Wednesday they have their staffs as well as outside experts looking at whether such a suit -- filed, in essence, against the Senate itself -- would be feasible.
Their announcement comes in the midst of the debate over nominees Miguel Estrada, a Washington lawyer, and Priscilla Owen, a Texas Supreme Court justice. Democrats charge both are too conservative for the federal bench. The Estrada debate alone has dragged on for three months.
There are enough votes -- including that of Georgia's Democratic senator, Zell Miller -- to approve the nominations of Estrada and Owen. But Republicans in the 100-member Senate have not been able to marshal the 60 votes required to end debate on the nominations so they can be brought to a vote. The continued debate to block a vote is known as a filibuster.
Republicans have repeatedly protested that the filibuster, in effect, creates an unfair requirement that any nomination by the president be approved by a 60-vote margin.
"What we're seeing with respect to the judicial nominees is for the first time in the history of America, we're having a filibuster on our judicial nominees," Chambliss said Wednesday. "That's just wrong. That's not the way the Senate is supposed to operate."
The announcement by Chambliss and Graham comes just shy of two years after Bush made his judicial nominations.
"On this, the two-year anniversary of the presidential nominations, I think it's appropriate that we start ratcheting up the pressure," Chambliss said.
The lawsuit would challenge the constitutionality of the filibuster, Chambliss said. Details such as which court would hear the lawsuit would be decided by those reviewing whether it is possible, Chambliss said.
"We're not to the point of where we're going to discuss the details of what we might or might not do," Chambliss said. "Hopefully, this logjam will be resolved without us having to do that."
All through the debate, Senate Democrats have pointed out that they have helped approve the nominations of more than 90 percent of the Bush nominees. Some have suggested that if Estrada and Owen were liberals, Republicans would not have a problem with filibuster tactics. In fact, Lindsey Graham's predecessor, Republican Strom Thurmond -- then a Democrat -- set the filibuster record in 1957, speaking continuously for 24 hours and 18 minutes in a futile effort to block passage of a civil rights bill.
"It's somewhat hard to take them seriously," Sen. Patrick Leahy of Vermont, ranking Democrat on the Judiciary Committee, said Wednesday of his Republican colleagues. "They stopped something like 70 of President Clinton's nominees -- 70. We've stopped two of President Bush's. The thing I'm always impressed with is they can actually make the claims with a straight face."
In addition to Chambliss and Graham's lawsuit rumblings, there were two other prominent proposals to break the filibuster in recent weeks. Miller introduced a resolution that would limit how long debate over an issue could take place. And New York Democrat Charles Schumer proposed that the president appoint state boards, composed equally of Democrats and Republicans, to vote on the nominations.
Senate Majority Leader Bill Frist (R-Tenn.) said Wednesday that he will likely unveil a proposal that blends the Miller and Schumer plans.
When asked about the potential lawsuit, Frist said, "That is one [avenue] that I personally will not be pursuing. I will likely pursue trying to break the filibuster through persuasion and using the rules of the Senate . . . if need be."
The problem with modifying Senate rules to control filibusters is that filibusters are not exactly part of the Senate rules, said Betty Koed, assistant U.S. Senate historian.
"There's no real clear definition of what a filibuster is," she said. "It's more a Senate tradition than a rule."
I know some will point out that the courts hate to meddle in Senate internal affairs and that may well turn out to be the dicision, BUT a case can be made that since this affects the Executive branch too, it's no longer an "internal matter."
In any case, if it is timed right, it puts the stalling on the front pages if the SCOTUS agrees to at least hear it and I think that the Dems position won't play with the mushy middle who right now is just ignoring the thing.
Politically, having a court case on the way to the SC is a winner in an election year.
which might be the best way to get the Dems to back away.
After all, even THEY have enough sense to know that Teddy Kennedy calling Janice Rogers Brown a "neanderthal" on the evening news is a losing position.
Don't they? If not, so much the better for us.
What about one of those manamuss (sp) thingies .... which instructs a government dept to follow its own rules...in this case an up/down vote on the judges
What I find fascinating is that, if the Supreme Court did rule on the merits, it could conceivably throw out the entire filibuster process as unconstitutionally vague and require the Senate to craft a new one. A longshot, but one can dream. Now THAT would be interesting.
I think they might. We are not dealing with rules in regard to legislation, which is within the perview of the Senate and house, but this deals with the constitutional power and authority of the President to nominate Justices. The Senate has a constitutional authority to advise and consent. The Supreme Court has the authority to interpret that clause. Does it mean that a minority of senators can hold up the consent? Or does it require that the Senate vote these nominations up or down without undue delay?
I think that since this filibuster rule has not been used in over 200 years of judicial nominating procedures, that the SCOTUS very well may find that the Senate has engaged in an unconstitutional infringement upon the President's constitutional power to make nominations that will either be rejected or consented to following a reasonable investigation into their qualifications.
I am optimistic on this one. I do not believe that the Senate has the right to ignore a nomination, but I believe that the Senate has a constitutional obligation to give advise and consent upon each and every judicial nominee. Failure to act upon a nomination is an unconstitutional infringment upon the power and authority of the Executive Branch. This is not a political question. This is a pure constitutional question. The Supreme Court has an obligation to interpret the advise and consent clause if it is brought before it.
This is really a double edged sword. If the SCOTUS agrees with my interpretation, then a lame duck president could conceivably stack the courts by requesting that all the old dying judges that agree with his philosophy resign and allow the lame duck president to stack the courts with young ideolouges.
Nevertheless, I believe that this one has merit. I don't think it has been tried before only because nobody has ever used the filibuster technique to stop judicial nominations before. Now this issue is ripe for a SCOTUS review. Eventually neither side will like what happens.
The difference being that the Republicans had the majority when they stopped Clintons judges. Having the majority should mean something.
Just because we have seperation of powers does not mean one branch of goverment can act unconstitutionally. The Constitution says the Senate will "advise and concent." The concent is by a simple majority vote not a super majority.
Congress in the past has passed laws that were struck down as unconstitutional, and the legislature does not have the authority to conduct itself outside of constitutional law. The judicary does have the authority to interven in this case.
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