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Appointing Justices to the Supreme Court
Special to FreeRepublic ^ | 3 December, 2004 | John Armor (Coingressman Billybob)

Posted on 12/03/2004 12:50:28 PM PST by Congressman Billybob

It’s sad that political parties and the MSM who are reporting on them tend to have a “firehouse focus.” They usually pay no attention to problems that are serious and looming. Not until flames go through the roof and smoke fills the sky do they ring the bells and roll the men and equipment. A classic example of this bad habit is the belated coverage of how new Justices of the US Supreme Court are appointed.

This issue has been obvious for at least three years. It got little serious attention, beyond the narrow group of us constitutional junkies, until it became clear recently that Chief Justice Rehnquist’s cancer is not mild nor easily treated. Now that it seems likely that the Chief Justice may have to resign within the next year, coverage of the process has begun. (There will probably be two other resignations next year, but these are still below the radar.)

That brings us to a long and supposedly comprehensive article on this subject, produced by Jim Abrams for the Associated Press on Friday, December 3rd, with the title, “Filibusters an Old Senate Tradition That Republicans Want Changed.”

From the title to its final paragraph, this article demonstrates that the writer and his editor were either seriously ignorant of the subject they were seeking to cover, or were deliberately dishonest in covering that story. Harsh criticism. Allow me to prove the point.

Yes, there is a long tradition of unlimited debate in the US Senate. Interestingly, there was a similar tradition in the House, back when it had about the same number of members. And Representatives used their time to read word for word the complaint letters they received from constituents. Imagine what House sessions would be like today if Members of Congress still read those letters in public. But I digress.

The AP article does say that Republicans in the Senate have claimed that the use of filibusters against judicial appointments “violates the Constitution.” However, the fatal error in the article is its failure to recognize and describe a tradition every bit as ancient and honorable as the filibuster.

The First Congress passed the Judiciary Act of 1789, which set the number of Justices of the Supreme Court and created the lower federal courts. In doing this, Congress was exercising the power given to it by Article III, Section 2, clause 1. Then, President Washington nominated the individuals to hold the judicial offices just established by law. The first Chief Justice of the United States (which is the correct title) was John Jay. (He was a Jeopardy! question just this week.)

How were all those new judges and Justices confirmed? All of them were nominated by the President and confirmed by a majority vote of the Senate. Article II, Section 2, clause 2, provides for presidential nominations subject to the Advise and Consent power of the Senate to confirm all such nominations.

The First Congress, and every Congress since then to the present day, has recognized that Advise and Consent requires only a majority vote in the Senate, and no more. The reason is that the Constitution specifies supra-majorities wherever the Framers thought that necessary. Examples include the supra-majorities to pass a constitutional amendment, ratify a treaty, or to override a presidential veto. Wherever the Constitution requires a decision by either House of Congress, it is a majority decision unless otherwise specified.

The filibuster, which requires a supra-majority to close off debate in the Senate, is NOT a part of the Constitution. That document does provide that “each House may determine [its own] rules.” But the Constitution does not say that the Senate can, in its established rules, alter the meaning of the text of the Constitution. And that is exactly what the Democrats claimed in the last four years, by applying the filibuster to judicial nominees.

More than two years ago, I wrote about the “nuclear option,” using a ruling from the President of the Senate upheld by a simple majority of the Senators present, to end forever the application of the filibuster to judicial nominees. I believe the Senate noses have been counted, and that Majority Leader Bill Frist will use that option shortly after the new Senate is sworn in, in January.

A two-century tradition will be maintained by that decision. But you couldn’t tell that by reading the AP article, or any other MSM articles that are equally deficient in covering all aspects of this story.

- 30 -

About the Author: John Armor is a First Amendment attorney and author who lives in the Blue Ridge Mountains of North Carolina. CongressmanBillybob@earthlink.net

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TOPICS: Culture/Society; Editorial; Extended News; Free Republic; Front Page News; Government; News/Current Events; Philosophy; Politics/Elections; US: North Carolina
KEYWORDS: judicialnominees; scotus; usconstitution
This is a subject of obvious interest to Freepers. We were looking for honest and competent ways of appointing Justices and judges, when the MSM was ignoring the story.
1 posted on 12/03/2004 12:50:28 PM PST by Congressman Billybob
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To: Congressman Billybob
This is a subject of obvious interest to Freepers.

And it's pity an evenhanded report is not of interest to the fourth estate.

2 posted on 12/03/2004 1:04:12 PM PST by pa_dweller (A city holy to a people who condone and applaud the murder of innocents is a temple of demons.)
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To: Congressman Billybob
Can I run this as guest editorial in www.Christian-news-in-maine.com ?

IF so, could you freepmail me with what you would like me to put in the From: Ie; name, name an address? whatever.

Jake

3 posted on 12/03/2004 1:08:20 PM PST by newsgatherer
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To: Congressman Billybob
Can I run this as guest editorial in www.Christian-news-in-maine.com ?

IF so, could you freepmail me with what you would like me to put in the From: Ie; name, name an address? whatever.

Jake

4 posted on 12/03/2004 1:08:52 PM PST by newsgatherer
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To: newsgatherer

Of course you may run this as a guest editorial. I'll Freep mail you the info.

John


5 posted on 12/03/2004 1:14:08 PM PST by Congressman Billybob (Visit: www.ArmorforCongress.com please.)
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To: Congressman Billybob
As always, CBB.. well reasoned and well written.. A rare combination..

I'm going to pose two topic related questions which I haven't seen addressed...

1. When the Dems attempt to justify their obstructing Bush's nominations, they always trot out the stat..they've confirmed 95% of them..whatever the numbers are..210 out of 220..YET the GOP never comes back and pounds the point about the % of appeals court judges that have been filabustered. WE need to frame the argument better..and it's so easy to do..

2. Re the nuclear option, last year there was a Senate hearing before the Rules subcomittee, I believe. It was on C-span, and is probably in their archives.. Sen Cornyn testified, and he made the point that the Senate is NOT a continuing body..therefore the rules don't apply to the next Senate, unless by unanimous consent..which has been done every time, of habit. He said that because he was NOT elected when these rules were adopted, in effect HIS constituents in Texas are being denied their constitutional rights. I may not be expressing this correctly, but it was a very compelling, and cogent argument. Again, why isn't the GOP making it..? It wuld seem to be one that peopel could easily grasp. The Dems are attempting to equate Senate custom with constitutional procedure in the public mind..If Frist is indeed going nuclear, as I also believe he should, the GOP needs to start making the case IN ADVANCE..prepping the battlefield so to speak..

6 posted on 12/03/2004 1:16:02 PM PST by ken5050
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To: ken5050
I have seen your first point made in paragraph 20 of extensive articles in conservative publications, but nowhere else.

Your second point is well-taken. Jefferson stated it succinctly in saying that no legislature has the authority to bind the next legislature. I hope the Republicans will make this point when they do pull the procedural trigger. But I don't count on the MSM either to understand the point, or print/report it.

John / Billybob
7 posted on 12/03/2004 1:21:39 PM PST by Congressman Billybob (Visit: www.ArmorforCongress.com please.)
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To: Congressman Billybob

Once again, John, nice work. Frankly, there are two reasons why the Republicans haven't done this yet...

1. I'm not sure all Republicans were on board with the nuclear option before (Snowe, Specter, Chafee, etc.)

2. Until this past election, I think some of them thought they might need to use the filibuster soon themselves. I think they wonder if, in the future, they become the minority, will they regret killing it.

Frankly, principle is principle. If you win the election, to the victor go the spoils. Just don't lose future elections...


8 posted on 12/03/2004 1:39:12 PM PST by Keith (NOW, MORE THAN EVER....IT'S ABOUT THE JUDGES!)
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To: Congressman Billybob
I just have to mention the name of the Hon. EDITH HOLLAN JONES (US Court of Appeals for the Fifth Circuit) who should already be on the Court in place of David Souter. She is still out there doing brilliant work from the bench, and I pray to God her name is at the top of W.'s list.
9 posted on 12/03/2004 4:06:41 PM PST by Siobhan (Where is there justice in the gate...)
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To: Keith; Congressman Billybob; holdonnow
Since the rules can always be changed by the majority party, it doesn't matter.

By the way Mark Levin has discussed this too.

10 posted on 12/03/2004 4:14:30 PM PST by firebrand
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To: Keith

It's a matter of principle.

The President appoints judges subject to an up or down vote in the Senate, and both the President and the potential appointee deserve that and nothing more. This principle will serve us well regardless of the party in power in the Executive or holding the balance of power in the Senate.

And - it is the voters in the end who control who is President and who sits in the Senate.

If we want judges that will look to the Constitution to find Law, and not to some translation of a book by Wolfgang von Goethe, Friedrich Nietzsche, or some other European statist, ala Justice Breyer, then lets remember that it is we who decide, every time we vote.


11 posted on 12/03/2004 4:40:08 PM PST by John Valentine
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To: Siobhan

I'll take your word that she's a good choice, and I like seeing the names thrown out, but I want Bush to apply a pride-anihilating b****slap to Chuckie & Co. first by sending Miguel Estrada and Janice Brown up 1 and 2. When he get's a third and possibly 4th choice then I'm wide open as to who gets nominated.


12 posted on 12/03/2004 9:50:10 PM PST by WillRain ("Might have been the losing side, still not convinced it was the wrong one.")
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To: Congressman Billybob
"Jefferson stated it succinctly in saying that no legislature has the authority to bind the next legislature."

An excellent point....

13 posted on 12/04/2004 9:43:51 AM PST by Agrarian
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To: Congressman Billybob

I sent this to Frist and Chambliss a few weeks back:

Dear Sen. Frist:

You need to say something along the lines of the following as you open the new Session of Congress:

Our Senate has a rich history that includes both written rules and unwritten traditions regarding those rules. The filibuster is one item that has such written rules and unwritten traditions.

Until now, it has been an unwritten tradition that the minority party never used the filibuster rule to block the confirmation of a judicial appointment when the votes to confirm were present on the floor.

Since the current minority party has elected to ignore this unwritten tradition repeatedly, we have no choice but to write this unwritten tradition into the rules of the Senate to prevent such abuse in the future.

Henceforth, we are adding to the written filibuster rule what has always been the practice until very recently -- the filibuster cannot be used to block a vote on confirmation of a Judicial appointment.

Some have called this the "nuclear" solution but it is really the minority party, previously headed by the obstructionist leadership, who has "nuked" 200 years of tradition. We are merely stopping their attack, kind of like Judicial SDI.

Rob XXX
Norcross, GA


14 posted on 12/05/2004 8:28:35 AM PST by RobFromGa (End the Filibuster for Judicial appointments in January 05)
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To: Congressman Billybob

"Jefferson stated it succinctly in saying that no legislature has the authority to bind the next legislature."

The only Jefferson statement the Democrats seem to want to acknowledge and quote ad infinitum is his unfortunate phrasing in his letter to the Baptists alluding to what he called "the separation of church and state."

If it supports their self-serving interpretation of the Constitution, then they use it. Don't count on it if his words might serve to "nuke" their opposition to strict constitutionalists for the Supreme Court, however.e


15 posted on 12/05/2004 10:17:20 AM PST by loveliberty2
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To: Congressman Billybob

"Jefferson stated it succinctly in saying that no legislature has the authority to bind the next legislature."

The only Jefferson statement the Democrats seem to want to acknowledge and quote ad infinitum is his unfortunate phrasing in his letter to the Baptists alluding to what he called "the separation of church and state."

If it supports their self-serving interpretation of the Constitution, then they use it. Don't count on it if his words might serve to "nuke" their opposition to strict constitutionalists for the Supreme Court, however.


16 posted on 12/05/2004 10:25:15 AM PST by loveliberty2
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To: Congressman Billybob
It’s sad that political parties and the MSM who are reporting on them tend to have a “firehouse focus.”

It's not sad. It's inexcusable. It also verges on the criminal. But there is more "criminality" involved here than meets the eye.

It is also criminal the way the Constitution is taught not only in public schools but also in distinguished law schools. One would think the plain words of such a succinct an incredibly important document would be understandable to the average teacher or professor, much less the average high school student.

Apparently not, but not because of any fault of our Founding Fathers.

Liberals are happy to delve everybody endlessly into such things as "sexual studies", but defer from matters of profound national importance. After all, a correct reading of the Constitution is the last thing on their minds. They certainly don't want it on anyone else's mind, either.

17 posted on 12/06/2004 7:04:21 AM PST by Gritty ("If we are willing to give up our freedom for promises, nothing can save us-Thomas Sowell)
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To: Congressman Billybob
Excellent article, Congressman! Now if we could only get Bill Frist and the rest of our august body of Senators to read it.

You're almost "there". My spellchecker counts 751 words so you only need tighten up a bit more (however, it may be counting 's as one word, so you may be OK). ;~)

18 posted on 12/06/2004 7:11:58 AM PST by Gritty ("If we are willing to give up our freedom for promises, nothing can save us-Thomas Sowell)
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To: Congressman Billybob

Consider if the President were to make recess appointments of judges and justices denied an up or down vote in the Senate by a minority through the strategem of the filibuster: The scheme of the Constitution for an independent and co-equal judiciary would be subverted as the judiciary would come to be populated by temporarily-appointed judges and justices.

Up to now, the potential impact of the Senate to undermine the judiciary through its rules has been merely theoretical. Senators, in their wisdom, had not used the fillibuster to kill judicial appointments until recently. To be sure, sometimes the filibuster was used to delay a vote when additional time was thought useful for the investigation of appointees, or for publicity concerning them to work its effect. This is altogether different from the use of the filibuster to kill appointments.

The actual use of the filibuster to kill appointments, forcing the President to make recess appointments, being an affront to the frame of the Constitution, might be considered as unconstitutional by the U.S. Supreme Court. The Court might then decide that any candidate receiving a majority vote in an attempt to break a filibuster, not subsequently given an up or down vote within a set period of debate, and then given a recess appointment by the President, would be accorded a lifetime appointment under certain conditions.

The Supreme Court might ask the Senate what it might recommend be the procedure in such a case and, in a sense, open a dialogue with the Senate, to communicate to the Senate the gravity of the matter.

Of course, such a dialogue might also communicate to the people of the United States that certain Senators, e.g., Hairy Reid of Nevada, the new minority leader, that they continue to thwart the will of the majority at their own peril.


19 posted on 12/06/2004 8:16:13 PM PST by Redmen4ever
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To: Congressman Billybob

Thanks for the Article Billybob


20 posted on 12/07/2004 11:30:48 AM PST by RKB-AFG ("Thank you to the architect, Karl Rove" GWB)
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To: Congressman Billybob
I realy wonder if the 'Rats will be able to just filibuster a SCOTUS appointment. The filibustering of nominees to Circuit Courts was never really a big story among the general public, but SCOTUS nominations are always big stories.

If the President has reason to believe either that there aren't the votes for the nucular [sic] option or that Frist could break the filibuster, then he needs to appoint someone the Senate wouldn't dare filibuster, much like FDR knew the Senate couldn't reject Senator Hugo "KKK" Black. I think GWB needs to make a Black-like appointment anyway -- someone who will work to change the Court (for the better, this time).

21 posted on 12/07/2004 11:36:23 AM PST by You Dirty Rats
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