Posted on 11/11/2004 6:37:18 PM PST by xzins
Frist Says Democrats' Judicial Filibusters Must Stop
By Jesse J. Holland Associated Press Writer Published: Nov 11, 2004
WASHINGTON (AP) - Senate Majority Leader Bill Frist on Thursday urged Democrats to stop blocking President Bush's federal court nominees and hinted that he may try to change Senate rules to thwart their delaying tactics. "One way or another, the filibuster of judicial nominees must end," Frist, R-Tenn., said in a speech to the Federalist Society, a conservative legal group.
The Democrats' ability to stall White House picks for the federal bench was one of the most contentious issues of Bush's first term. Despite the GOP majority in the Senate, Democrats used the threat of a filibuster to block 10 of Bush's nominees to federal appeals courts. The Senate did confirm more than 200 of the president's choices.
Republicans hope their gain of four seats on Election Day will discourage Democrats from using filibusters again. But in a Senate next year with 45 Republicans, 44 Democrats and a Democrat-leaning independent, Democrats still will have the 40 votes necessary to uphold a filibuster.
Frist said filibustering judicial nominees is "radical. It is dangerous and it must be overcome. The Senate must be allowed to confirm judges who fairly, justly and independently interpret the law."
"The Senate cannot allow the filibuster of circuit court nominees to continue." Frist said. "Nor can we allow the filibuster to extend to potential Supreme Court nominees."
Chief Justice William H. Rehnquist, 80, is seriously ill with thyroid cancer, and three other justices have had cancer. The average age of the nine court members is 70. Speculation on a Supreme Court retirement has grown in part because there has been no vacancy in more than 10 years.
The Bush's administration's former chief lawyer at the high court told the organization earlier Thursday that "any attempted new appointment to the court, especially that of a chief justice, will set off a political firestorm."
Theodore Olson added, "The presidential election was merely about the next four years. A Supreme Court justice is for life. It will not be pretty." Olson, who represented Bush before the Supreme Court in Bush v. Gore four years ago and then became solicitor general after Bush took office, predicted that the president would get to name as many as three justices during his second term.
Frist previously has advocated changing Senate rules to make it more difficult to continue a filibuster. While the idea went nowhere in the current Congress, Frist raised it again in his speech, saying that judicial filibusters were "nothing less than a formula for tyranny by the minority."
"The Senate now faces a choice: Either we accept a new and destructive practice or we act to restore constitutional balance," he said.
To block some of Bush's nominees, Democrats have used procedures that required Republicans to come up with 60 votes to advance the president's choices. It takes 60 votes in the 100-member Senate to break a filibuster, meaning some Democrats would have to side with Republicans.
Olson reminded the group of what he called malicious attacks on previous conservative nominees Clarence Thomas and Robert Bork. Thomas, named by Bush's father, was narrowly approved. Bork, a Reagan choice, was rejected.
"It could easily be worse next time around," Olson said.
Olson has been mentioned as a possible high court pick, but his confirmation for solicitor general was rocky.
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Associated Press writer Gina Holland contributed to this report.
"Whether he won't lose 5 or 10 or 15 on a vote to change the rule is yet to be seen."
That's my point. Frist is the leader, and it's time for leadership. He needs to figure out how to do this. It's not 50-49-1 anymore, no more excuses.
If it is the same 5 and there are no new defections, then the rules changes would win a 50-50 tie with VP Cheney breaking the tie.
Unless now we see what Frist is dangling in front of Specter.
That "Each House may determine the Rules of its Proceedings" appears in the Constitution.
Sounds like a plan to me.
And the Constitution does not proscribe or prescribe the rules for the senate. The filibuster is very very old, going back to the beginning of the republic although the term was not used until the mid-19th century.
Probably...Frist is useless.
While I abhor this practice and we can debate the Constitutionality of the Senate rules all day long, by the terms of the current ruls the above statement is correct. Since S. Res. 138 proposes to change the Senate rules, it would be subject to the requirements of Senate Rule XXII which covers closing off of debate, i.e. cloture. Debate on all questions before the Senate can continue ad infinitum unless 60 Senators vote to close off the debate...EXCEPT FOR MOTIONS DEALING WITH RULES CHANGES...which requires 67 votes to close off. The only escape is if the Senators agree my unanimous consent to set aside the rule. Figure the odds of the Dems doing that?
We have a bigger and younger bench. The RATs are mostly a bunch of old farts. I would love to see Teddy in some sort of swoon on the Senate floor. Go Teddy GO!
Why filibuster is unconstitutional
No, the cleaner constitutional argument is not to attack the filibuster head-on, but to raise serious objection to its entrenchment--that is, to the Senate rule that prevents a new Senate from changing the cloture rule without a two-thirds vote. Senate Rule V provides that the rules of the Senate shall continue from one Congress to the next unless amended by two-thirds of those present and voting.This violates fundamental law as old as Sir William Blackstone, who observed in the mid-18th century that "Acts of Parliament derogatory from the power of subsequent parliaments bind not." Likewise, the Supreme Court has repeatedly held that the legislature does not have the power to bind itself in the future. As the Court stated in Ohio Life Ins. and Trust Co. v. Debolt (1853), for the political process to remain representative and accountable, "every succeeding Legislature possesses the same jurisdiction and power . . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."
Frist doesn't have the votes in the current caucus to change the rules or break the filibuster. It doesn't matter who is Majority Leader; you need the votes.
In the next Congress, as you say, we'll have more votes. I am by no means confident that there are enough votes to go nucular and modify or eliminate the filibuster over judges or Justices. Senators know that if the filibuster ends, they'll each lose leverage.
Of course, it's easier for many on this thread to just place all the blame on Frist. These folks just don't understand the Senate.
see #71
I will say this,if the Republicans, with the majority they now have, cannot change the Senate rules at or before a new Congress conveins, they may as well pack up and go home.
You can bet your a$$ if the Democrats, with the majority the Republicans now have, wanted to change the rules, they would get changed.
As I have said before and take no pride in saying again, Janet Reno has more ba77s than all the Republican Senators, excepting the ones newly elcted, combined. Sad, Sad,and Tragic.
Are we prepared to give up this option ourselves? Remember that we had been in the minority for a long time, and it's not inconceivable that we could be again.
I don't know if we should give it up. But to differentiate judicial filibusters from ordinary filibusters elevates power of principle.
Snowe, Chafee, Spectre, who was the only one? Cannot be depended on. McCain is questionable. This would leave us a 50 majority with Cheney as the deciding vote, unless a few Dems cross lines. It would be preferable if we had a few more reliable Senators but as it stands we barely squeak out a conservative majority. If the Reps are going to do something to stop the Filibusters, now may be the best time.
I'm withholding judgement on Frist as he didn't have an actual conservative majority last session. This time I expect a fight. If true Frist will not run in '06, and that he has aspirations to run for Prez, he is perfectly positioned to lead this battle. How he would go about ending these filibusters, I'm not sure. The information is conflicting on altering Senate law but they have bright minds available. I expect them to be consulted on how best to proceed.
There is no way to change the rules if a majority of the Senators don't want to do so, no matter what procedural tricks or tactics are tried. It doesn't matter if there are 100 Republican Senators; if 51 say no rules change, then there is no rule change no matter who is Majority Leader.
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