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 A bill can be repealed next year if a new majority wants to.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.
The filibuster of judges is constitutional. The GOP should muscle their nominees through by whatever means, or else go to Nordstrom's and try on dresses.
That's correct and they DID NOT include the need for supermajorities to confirm judges, as they DID DO in other portions of said Constitution.
A Senate rule CANNOT trump the Constitution period.
That's true. It's not a requirement.
What is even more naive is David Boaz.
No matter how "gentlemanly" the Republicans act, the Democrats will do whatever they can get away with when they next are in power. The bolder Republicans are perceived to be, the less Democrats will think they can get away with.
So is Rush Limbaugh.
No chance. Even if he could get thru Congress, which he can't, I don't think it would be a good idea to appoint someone with his health problems. You want someone who's young and healthy. It's a lifetime appointment.
LOL, IOW a DUmbocrat or a member of the MSM.
This article is pathetically below the usual standards of the Cato Institute
It's a love note to the RINO's.
That is correct. Too bad they don't advocate my positions. They are much tougher, meaner advocates than the GOP. The GOP are wimps.
I couldn't agree more. I think Janice Rogers Brown is in her 50s.
What meaningless bullshit. Sounds just like the Left's whining about Gore having gotten more of the popular vote in 2000.
Strange how Article II, Section 2, Clause 2, says "provided two thirds of the Senators present concur" to ratify a treaty but makes no such distinction regarding "Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law". It would seem "The Founders" didn't feel that the majority needed to be as restrained regarding nominations as they wanted them with treaties.
Why shouldn't it take 60 or 67 votes to get a lifetime appointment as a federal judge?
Because that's not the way "The Founders" decided the process should work when they set up the constitutional and governmental structures that pertain to this issue.
"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?"
I especially like how the author contradicts himself in the above paragraph. The author actually states that the US Senate is apportioned by State, not population - but since the Democrat Senators represent States with more population, they actually represent the will of the people. (I thought that that was what the US House of Representatives did) Just amazing, he just weights the US Senate by population and considers it just another form of the US House of Representatives, thus enjoying the equality of the States in the Senate with the heretofore unknown population representation attributes of the House of Representatives...
Just amazing logic...
That is the problem. You cannot trust lifetime appointments. All judges should face mandatory retirement at 60 .. 65, or serve terms like the Fed Chief.
Short, sweet, and spot on. Thanks.
What good is a hammer if you won't use it? Other than Tom Delay the Republicans are a bunch of girls that don't want to do anything that might mess their hair up.
Has anyone considered kicking Leahy right in the crotch?
And right after that Schumer.
And then Chappie.
The senate has the right to set the rules they follow. A majority of the senators can chose to allow their will to be thwarted by a minority. The minority knows not to abuse the privilege, because the majority could get tired of it and change the rules.
What is constitutionally suspect is requiring a supermajority to vote to change the rules. This "rule" was based on a concept of the senate as a body that never ends -- so there are standing rules. It is argued that because each 2 years only a 3rd of the members are voted on, the majority serves through each election so there isn't really a "new" senate.
But no court would accept the argument that 33 just-elected senators can be bound by a rule adopted when they were not there.
BTW, this does mean that the Republicans would have been on firmer footing had they simply changed the rule for judicial nominations at the start of the session. But in fact there was no rule passed at the start of the session, they are merely abiding by the old rule, so they haven't (according to republicans) given up the right to change the rule. The democrats in the past have argued that the majority NEVER gives up the right to change a rule, even when they vote to require a supermajority to change the rule.
But what the republicans are GOING to do is challenge the filibuster on CONSTITUTIONAL grounds. The filibuster isn't likely constitutional OR unconstitutional, but the courts will leave the determination of constitutionality to the Senate, which can make that determination on a majority vote, which is how they will sink the filibuster.
What they need to do is have a "no confidence" provision that allows the Congress to simply send them packing anytime they want, with say, a 2/3 vote.
Requiring a supermajority to end debate has a purpose. It prevents a majority from ramming legislation through without the minority having a chance to present their views on the legislation and gain support from those who might support them if given a chance to learn more about the issue.
This is something that is arguably important. However, it does not require allowing unlimited debate. There needs to be a cap on how long an issue can be fillibustered if the filibuster is to remain.
Mr. Boaz makes a case for requiring a supermajority for appointing Judges. That is something the Senate is capable of enacting through a rules change if they choose to do so.
The fact of the matter is that we need originalist Judges to be appointed in order to protect our Constitution and the freedoms it guarantees.
The democrats are fighting to keep originalist judges from being appointed because activist judges have been enacting "progressive" policies that they have been unable to get legislated, and that are unconstitutional.
The fight over appointing Judges is a fight to protect our Constitution. It's a fight to protect our government from subversive forces that are trying to destroy the basic rules by which our government functions.
It quite likely the most important issue we are facing.
He wants the Senate to ignore it because it might make the Democrats mad?
At the heart of this it's not a liberal or conservative issue. It's an issue of maintaining a fair and orderly form of government.
As long as we allow activist Judges to legislate from the bench we don't have the form of government our constitution defines, and the checks and balances built into our government are broken.
Because it doesn't say that in the Constitution, that's why. This guy rants and raves about the Constitution, then says something totally outside of the Constitution. Inconsistent, ridiculous arguments.
I love this line!!
That all just sounds like blah blah blah to me. The SCOTUS currently composed doesn't care what is or isn't constitutional. Why on earth would the Senate ask them? They should just push their nominees through. This whole argument is pointless. The GOP look like fools. Arguing constitutionality with liberals is like arguing human rights with Iranian mullahs. What the hell do you expect to accomplish? And it's not unconstitutional to filibuster anyway. Instead of squawking for year after year after year, they could just take action. I am beginning to think they are all frauds.
That's hogwash. A legislative filibuster slows down legislation and sometimes results in compromise, e.g. the minority may be allowed to add amendments, etc..
In the case of a judicial appointment there is no compromise. The nominee is either approved or he/she is not. A judicial filibuster makes no sense. It is simply the tyranny of the minority.
By the way, the Cato Institute is not conservative. It is libertarian.
Push the freakin' button, Frist. Quit talking about it.
The "basic constitutional" issue is not "majority rule," but Article I, Section 5:
Clause 2: Each House may determine the Rules of its Proceedings,
That is the bottom line of the "nuclear option."
Nothing more or less.
He who wins the elections, makes the rules.
The democrats are not used to being in the minority and thus not making the rules.
Well, too bad.