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 A bill can be repealed next year if a new majority wants to.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.
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.
What chucklehead.
"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...
dvwjr
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.
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