Skip to comments.Collateral Damage from the Nuclear Option
Posted on 05/05/2005 12:05:15 PM PDT by MikeJ75
Republicans and conservatives are in high dudgeon over Senate Democrats' refusal to let the Senate vote on some of President Bush's judicial nominations. "This filibuster is nothing less than a formula for tyranny by the minority," says Senate Majority Leader Bill Frist.
Frist speaks for many conservatives who want to change the rules of the Senate on a simple majority vote, to eliminate the filibuster for judicial nominations. Fifty-five Republicans, 55 votes to change the Senate's rules, case closed.
But those conservatives are being ahistorical, short-sighted, and unconservative. Judicial nominations are important, but so are our basic constitutional and governmental structures. Conservatives aren't simple majoritarians. They don't think a "democratic vote" should trump every other consideration.
The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it. Everything about the Constitution -- enumerated powers, separation of powers, two bodies of Congress elected in different ways, the electoral college, the Bill of Rights -- is designed to protect liberty by restraining majorities.
The Senate itself is apportioned by states, not by population. California has 53 members of the House to Wyoming's one, but each state gets two senators. If each senator is assumed to represent half that state's population, then the Senate's 55 Republicans represent 131 million people, while its 44 Democrats represent 161 million. So is the "democratic will" what the 55 senators want, or what senators representing a majority of the country want? Furthermore, the Senate was intended to be slower and more deliberative. Washington said to Jefferson, "We put legislation in the senatorial saucer to cool it."
The Founders didn't invent the filibuster, but it is a longstanding procedure that protects the minority from majority rule. It shouldn't be too easy to pass laws, and there's a good case for requiring more than 51 percent in any vote. And supermajorities make more sense for judicial nominations than they do for legislation. A bill can be repealed next year if a new majority wants to. A judge is on the bench for life. Why shouldn't it take 60 or 67 votes to get a lifetime appointment as a federal judge?
Throughout the 20th century, it was liberal Democrats who tried to restrict and limit filibusters, because they wanted more legislation to move faster. They knew what they were doing: they wanted the federal government bigger, and they saw the filibuster as an impediment to making it bigger. As Norman Ornstein of the American Enterprise Institute writes, the filibuster "is a fundamentally conservative tool to block or retard activist government."
Conservatives know this. For decades they have resisted liberal efforts to grease the Senate's wheels. In the 19th century, Senate debate was unlimited. In 1917, at Woodrow Wilson's prodding, the Senate adopted Rule 22, which allowed 67 senators to invoke cloture and cut off a filibuster. In 1975 that quintessential big-government liberal Walter Mondale moved in the post-Watergate Senate to cut off debate with a simple majority, to make it that much easier to advance the Democrats' legislative agenda. Conservatives resisted, and the Senate compromised on 60 votes to end a filibuster.
Conservatives may believe that they can serve their partisan interests by ending filibusters for judicial nominations without affecting legislative filibusters. But it is naïve to think that having opened that door, they won't walk through it again when a much-wanted policy change is being blocked by a filibuster -- and naïve in the extreme to think that the next Democratic Senate majority won't take advantage of the opening to end the filibuster once and for all.
In the play A Man for All Seasons that great conservative St. Thomas More explained to his friend Roper the value of laws that may sometimes protect the guilty or lead to bad results. Roper declared, "I'd cut down every law in England ... to get at the Devil!" More responded, "And when the last law was down, and the Devil turned 'round on you, where would you hide?"
American constitutional government means neither majoritarianism in Congress nor acquiescence to the executive. If conservatives forget that, they will rue the day they joined the liberals in trying to make the Senate a smaller House of Representatives, greased to make proposals move quickly through the formerly deliberative body. The nuclear option will do too much collateral damage.
Personally, I am more concerned about who Bush appoints to the Supreme Court than I am about who he appoints to the Appellate Courts. I don't want him to use his ammo until we get to that point, and then I want him to open up with everything he's got.
I heard Rush yesterday trying to argue there is a difference, but all he could do was call the author of the piece he was quoting a "hack." Simple ad hominem. Go and read the transcript. It was one of the weakest, lamest arguments I've ever heard from Rush.
If they want the judges they should go for it or else quit whining.
This is all tied to that. These are the potential SCOTUS picks. I really want to see Janice Rogers Brown on the SCOTUS. I think she'd be great. Nothing is stopping the GOP except their own fecklessness.
I would accept this argument if filibusters were what they implied: Everyone has to stay in session until the argument is over. Anything less than that is hypocritical eyewash. If all members of both parties are willing to stay in session until the debate ends, sleeping on cots, ready for a quorum call at a moments notice, then I would support a filibuster. But today's filibusters are merely legislative slights-of-hand made possible by an evil RAT party and a spineless Republican party locked in a demented dance on the corpse of American Democracy.
If the republicans have a nuclear option they damned well should not waste five seconds in using it.
They knew the Dems would never go for their judicial nominees. Since the Dems have made the judges the "be-all, end-all" of legality, the Dems cannot give them up. Since the Dems cannot vote them down, the Repubs had to know they would filibuster.
That being the case, why didn't they just change that rule first thing? It would be over and done with. It would not be media fodder. It would not be a "which left leaning publication can come up with the slickest Repub-bashing sound bite" regarding the rule change.
It should have just been done. In two months, no one would have remembered it.
Remember Junior high? Remember how wrong and stupid you thought it was when your "civics" class learned about the Filibuster?
A super-majority is dictated in the Constitution for specific instances, and the appointment of judges is not one of them.
The founders knew what they were doing.
You're either going to abide by the constitution or you're not. If you believe it should take 60 or 67 votes to confirm a judge, then amend the constitution accordingly. In the meantime, I believe a simple majority is all that is required.
Astounding in it's stupidity! What part of constitutional majority authority does this guy not understand? To eliminate the filibuster for "policy decisions" would, nonetheless, take the same 2/3 majority that clouture requires so there would be no need to undermine that time-honored "protection" for the minority senate opinion. The current flap is not the majority riding roughshod over the minority, but quite the other way 'round. In America the people get to have their chosen leaders decide who shall be judge and they don't deserve to have cry-baby losers stop them with political tantrums!
The filibuster itself only dates from 1830 as an institutional requirement. And then it only applied to legislative decisions. From 1789 to 2002, the filibuster NEVER was used to block the confirmation of ANY judicial nominee who enjoyed majority support in the Senate.
Those who claim that LBJ's nomination of Justice Fortas to become the Chief Justice, conveniently (perhaps deliberately) that the one vote on Fortas had a MAJORITY opposed to Fortas' confirmation, and a BIpartisan one, to boot. Within four days, Fortas withdrew his name, and shortly afterwards resigned from the Court itself for ethical problems.
In short, anyone relying on history to support the judicial filibuster has to be either incompetent or dishonest to make an argument like this. This article is pathetically below the usual standards of the Cato Institute.
I thought most SC nominees originate from the Appellate Courts. If he can't appoint real conservatives to the AC then he won't get them on the SC either.
Not necessarily true. Thomas wasn't a judge. Neither was Blackmun or Marshall. Warren was a state justice, as were Sutor and O'Connor. In fact, I'm not sure if any of the justices currently on the Court came from the federal appellate system. Technically, you don't even have to be a lawyer in order to be on the Court.
Marshall was the general counsel for the AFL-CIO. Not exactly good training for the Supreme Court. Blackmun was a lawyer for a healthcare institution.
Whereas in the case of the advise and consent, they left it up to the Senate. Is there anything in the Constitution about Judiciary committee votes? Or nominees getting bottled up in committees? Didn't think so.
I'm still hoping John Ashcroft will be the next nominee for the SC, preferably as CJ.
Bunk. The filibuster is an extra-constitutional device, which in an age of political nihilism as exemplified by the Democrat Party, is a method of obstruction -- it prohibits good people from doing the right thing. Rather "tyranny of the majority" than "tyranny of the minority." This author's *sense of history* is bent out of proportion.
Nothing is stopping the GOP except their own
The irony of the Thomas More example seems to have eluded Boaz. The fact is that all the laws of England did not protect him from an unjust beheading.
Finally, is Boaz arguing that "restraint" shown by Republicans now, will be reciprocated by Liberal-socialists in the future? Now that is a warm fairy tale.
The liberals are trying to popularize the notion that you are not qualified to sit on the Supreme Court unless you've served in the federal appellate system because they know that if they can limit the potential choices to the federal appellate judges, then they will inevitably be liberals.
But the truth is that you don't have to be a federal appellate judge to be on the Supreme Court, and in fact, the majority of the justices (if not all) currently on the Court did not come up thru the federal system.
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