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.
He needs to deal with and correct the problems that he can fix starting with Arlen Specter. Then maybe people will start to take him seriously.
Article I, Section 5, Clause 2 of the U.S. Constitution - Each House may determine the Rules of its Proceedings...
For me the better logical argument is not that the fillibuster in general is unconstitutional, but that the fillibuster of judicial nominees is an abrogation of the Senate's explicit duty under the advice and consent clause, i.e. the Constitution mandates that the Senate "advise" (i.e. report to the Executive) and "consent" (i.e. approve or disapprove). When they fillibuster a judicial nominee they don't do either. These are mandates upon the body no less binding than any other requirement in the Constitution. Therefore, the Senate should not defer to its extra-Constitutional rules to avoid its Constitutionally mandated duties.
How, exactly, does Frist "fix" problems? The Majority Leader has absolutely ZERO Constitutional Powers. He's just one of 100 Senators that needs the cooperation of a majority of Senators to do anything. Scapegoating Frist doesn't address the real issue.
Screw that, restore constitutional balance, PERIOD, end of story
Trent Lott should be stripped naked and beat with a rubber hose for capitulating to "Little Tommy Daashole"
He got the senate into this mess.
http://www.freerepublic.com/focus/news/1008426/posts?page=6
The 'Nuclear Option' (to end Senate filibuster on judges)
Center for Individual Freedom ^ | Oct 23, 2003 | Author not credited
Posted on 10/26/2003 12:27:32 PM EST by upchuck
Introduction
With a Senate minority now obstructing up-or-down floor votes on several judicial nominations... the time has certainly come for the Senate majority to seriously consider re-exercising the "nuclear option."
Article
It’s been more than a quarter century since a simple majority of the U.S. Senate has employed a parliamentary procedure ominously known as the "nuclear option" to effect a change in the body’s Standing Rules. Back then, in 1975, it was a bare Democratic majority that mustered the will to force a change in Rule XXII, the "cloture rule," decreasing the number of votes required to break a filibuster from two- thirds of the Senate, or 67 votes, to the current level of three-fifths of the body, or 60 votes.
Now, 28 years later, it might be the Republican majority that exercises its constitutional prerogative to "determine the rules of [Senate] proceedings" by employing the "nuclear option" to remove the executive calendar — business sent to the Senate from the White House, such as treaties, executive nominees and judicial nominees — from the purview of Rule XXII, thus ending the ability of a Senate minority to indefinitely obstruct confirmation votes on judicial nominees who have secured the necessary majority support.
The basic problem is as follows. Standing Rule XXII provides for unlimited debate in the Senate until a cloture motion for ending debate is filed and the question is "decided in the affirmative by three-fifths of the Senators duly chosen and sworn." Thus, proceeding to a final yea- or-nay floor vote on a piece of legislation, a nomination, or virtually any other question can be prevented whenever there are at least 41 Senators unwilling or unavailable to vote in favor of ending debate.
The hurdles for the majority don’t end there. Rule XXII also states that if the "measure or motion" being debated is "to amend the Senate rules," including the cloture rule, then "the necessary affirmative vote shall be two-thirds of the Senators present and voting." In other words, a bare majority wishing to end debate and proceed to a final up-or-down vote faces a Catch-22 under Rule XXII because, so long as a 41-member minority wishes to prevent such a final resolution, the majority can neither end debate and force a floor vote nor can the majority change the Rule to reduce the supermajority requirement.
This difficulty is only exacerbated by the fact that, under Rule V, the Senate deigns itself a continuing body and, as a result, does not offer an opportunity for the majority of each newly composed Senate to ratify, amend, or repeal the Standing Rules carried over from previous Congresses. Thus, Rule XXII presents a majoritarian conundrum: Not only do the anti-majoritarian rules enacted by a simple majority of a previous Senate bind the current Senate, but a current majority cannot even change those previously adopted rules without the consent of a supermajority.
Enter the U.S. Constitution.
It has long been a principle of Anglo-American constitutional law that a previous legislature cannot bind a subsequent legislature. Indeed, the maxim dates all the way back to Sir William Blackstone, who cited Cicero in his Commentaries on the Laws of England for the proposition that "Acts of parliament derogatory from the power of subsequent parliaments bind not. … Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind the present parliament."
The U.S. Supreme Court, likewise, has held that legislative entrenchment constitutes an unconstitutional exercise of power in a long line of cases dating all the way back to the mid-19th Century. Specifically, the High Court has ruled that "[e]very 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. All occupy, in this respect, a footing of perfect equality. … A different result is fraught with evil." Newton v. Commissioners, 100 U.S. 548, 559 (1880). Thus, it is far from surprising that, according to the Supreme Court, "the will of a particular Congress … does not impose itself upon those that follow in succeeding years." Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932).
This constitutional principle against legislative entrenchment has both theoretical and practical implications for Standing Rule XXII.
On the theoretical level, the cloture rule is presumptively unconstitutional, as outlined in a Stanford Law Review article authored by Professors Erwin Chemerinsky and Catherine Fisk, of the University of Southern California and Loyola Law Schools, respectively. See Erwin Chemerinsky & Catherine Fisk, The Filibuster, 49 Stan. L. Rev. 181 (1997).
According to Professors Chemerinsky and Fisk, "The conclusion that emerges is clear: laws and rules that restrict changes by future legislatures are unconstitutional. This view has been followed by the Supreme Court throughout American history and it is supported by compelling arguments. As such, Rule XXII is unconstitutional in requiring that any revision be by a two-thirds margin."
Their conclusion is bolstered not only by the same long line of Supreme Court cases, but also by the text of the U.S. Constitution itself, which explicitly sets forth only seven instances in which supermajority votes are necessary for the federal legislature to act and states that the "Vice President of the United States" shall break ties in the Senate when "they be equally divided."
The clear import of these provisions is that Congressional action, in both the House and Senate, is to be by simple majority, except in the seven instances specifically listed in the Constitution. After all, according to the canon of construction expressio unius est exclusio alterius, or literally "inclusion of one is the exclusion of all others," the enumeration of one thing in the Constitution implies the exclusion of another.
On the practical front, the constitutional rule against legislative entrenchment means that it must be possible for the current Senate to amend, repeal, or ratify Standing Rule XXII by a simple majority vote of the body. According to Professors Chemerinsky and Fisk, "The effect of declaring [legislative entrenchment] unconstitutional is that the current Senate could change Rule XXII by majority vote. In other words, a majority of this Senate could eliminate the filibuster if a majority wished to do so."
This is the so-called "nuclear option."
The way this procedural maneuver would work — as it did in 1975 — would be that, at the time of a cloture vote to end debate, the Senate majority would secure a ruling from the chair that Standing Rule XXII does not apply. The chair, likely the Vice President, would probably agree and rule in favor of the majority. The issue would then be brought to a vote, and the minority, probably through the Minority Leader, would note that the issue is debatable and, hence, also subject to a filibuster.
The parliamentarian, relying on Senate precedent, would agree. The chair would then recognize a non-debatable motion to table. At this point, the majority could overrule the anti-majoritarian precedent, uphold the ruling of the chair, and proceed to a final yea-or-nay vote on the original question by securing a simple majority vote in favor of the motion to table.
If all that seems complex, it is. But the basic import of such procedural maneuvering is that a simple majority of the current Senate can force a change in Rule XXII to reduce the supermajoritarian cloture requirement, thus making it possible to end debate by simple majority vote.
With a Senate minority now obstructing up-or-down floor votes on several judicial nominations and other nominations languishing for hundreds of days under the threat of filibusters, all while there is a vacancy crisis plaguing the federal appellate bench, the time has certainly come for the Senate majority to seriously consider re- exercising the "nuclear option."
The irony is that the very majoritarian rule suggested by the text of the Constitution is deemed "nuclear" by those who have sworn an oath to uphold "the supreme Law of the Land."
Do 51 say they don't want to change the rules?
Interesting and exactly right.
If the Senate never has a vote, what is the Supreme Court supposed to do? Force the Senate to Vote on a judicial nominee? There's not a chance in the world that SCOTUS will rule on Senate Procedure. This issue can only be resolved in the Senate, unless an Amendment is passed giving SCOTUS the right to determine the procedure of the Congress. That won't happen.
Sounds real good to me. But why limit it to the executive calendar?
Because under Article I, Section 5 of the Constitution, each house of Congress has the power to establish its own rules.
I don't know. Frist talked about the nucular option but never used it. I would be quite surprised if there were more than 48 votes for this in the current Congress. Zell would go for it, but Arlen and the Maine Chicks probably not. We should have a better chance in the next Congress, but I still don't know if we have the votes.
I've wondered, too, what would happen if they'd just vote despite objections.
Frist has as much said that they didn't go nuclear because of disloyal Rino's who would vote against them.
With the 55 senators and the VP, there might be enough loyalists to overcome the disloyalists.
Rather than rely on a lot of parlimentary maneuvering that has no chance of succeeding, Frist and the Republicans should just call the Senate into session and keep it there until the fillibuster is broken. This is why a fillibuster is practically impossible to break now as opposed to years past. In earlier practice the senator had to actually hold the floor and speak. That's not required any more. There are literally weeks, if not months of inactivity on a particular question when a fillibuster is in operation because the opposing senators are sitting on their fat asses in their offices or home pressing the flesh. If Frist had the balls to call them all into session and force Byrd to stand at the podium for 96 straight hours, they'd fold like a cheap umbrella!
With 45 to 50 senators to support them, there would be no way to break that filibuster. There will be too many to hand off to.
A rules change, imho, is the correct route.
Wow. Frist sounds like he's REALLY getting mad now. The Dems better watch out.
As the matter of fact I like him.
But he is in a leadership position and the one thing he can do if he's got the skills is lead.
The Specter problem is one he can fix because it only involves the Republicans in the Senate.
If he can't get those to go along with him lots of luck on on issues where the democrats have a vote such as rule changes.
Someone early in the thread made a very good point that bears remembering.
Frist appears to have presidential ambitions. He is fairly conservative with an 89 rating from ACU.
If he could pull off the rules change and get this back to being a constitutional process, he'd endear himself to every single social conservative in the country. They wouldn't forget. He'd get the nomination.
He probably knows that.
Before he had to contend with the lily-livered RINOs, but now he can ignore most of them for a simple majority. And this might be enough for a point of order ruling on the use of a filibuster against judicial confirmations. Frist might be willing (and able) to pull off this maneuver.
If he does we may never hear the end of the howling, but it no more breaks precedent than the judicial filibusters themselves. Reap what they sow....
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