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'm not sure they would rule as you hypothesize, that all nominees must be addressed within that term. Even so, the Constitution permits the appointment of lower Officers without advice and consent, so the risk you describe is already Constitutionally present.
I agree with your point that the case would have merit. As a political matter, I think this is better settled without involving SCOTUS.
Also, IMO, the person with the best standing is the President. The President has the power to nominate and appoint.
Finally, you'll note my statements that I don't know if the SCOTUS will take it (but there are arguments on both sides), and tht I think it best if this matter is settled without judicial involvment.
Hell, if a woman can sue Coke for being "addicted" to Diet Coke, it seems logical (whoops, there I go again) that a case can be made on the issue of the Dems holding up a vote on an such an important issue.
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