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 A bill can be repealed next year if a new majority wants to.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.
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.
Typical loser mentality. If you can't win by playing by the rules, change the rules.
It's funny. One person, on another thread, threatened to report me for accusing the congressional republicans of "caving", and here I get praise for saying basically the same thing.
I guess one person's heresy is another person's quotable line.
Uh . . . because no real existing person could get 67 votes in the Senate as currently (and in the foreseeable future) constituted?The Democrats
have journalism on their sideare on the side of establishment journalism. And they think that one man andGodestablishment journalism makes a majority. And the Democrats refuse to cede the right of the president to name judges who will enforce the Constitution and laws of the United States, without regard to laws and treaties which the President and the Congress of the United States have not affirmed.They do so on the grounds that the Constitution is not what it says it is but what Democrats say it is. In that melieu there cannot be a 60-vote supermajority, say nothing of a 67-vote one, for any conceivable nominee to the Supreme Court.
No, we're not.
Judicial nominations are important, but so are our basic constitutional and governmental structures.
that's the very reason we want to change the rules, slick--precisely BECAUSE that structure i has been mangled by the courts.
Conservatives aren't simple majoritarians. They don't think a "democratic vote" should trump every other consideration.
No, we don't. that's not even the issue. it's a red herring. we conservatives also don't think that a radical judicial oligarchy should trump--nay, obliterate--every constitution consideration.
The Founders were rightly afraid of majoritarian tyranny, and they wrote a Constitution designed to thwart it.
again, red herring. the Founders were rightly terrified of things such as oligarchies. that's why the judiciary is not superior to the other branches. and when radical leftists try to protect an oligarchy, we have a duty to restore our constitutional principles.
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.
That's the WHOLE POINT of changing the rules constitutionally--to PROTECT those liberties and principles.
So is the "democratic will" what the 55 senators want, or what senators representing a majority of the country want?
Or is the "democratic will" what the minority party-- bent on twisting the original meaning of the constitution --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."
To use a philosophical term: Well, DUH!
The senate was NOT intended to make impossible the establishment of a judiciary that , on whole, properly interprets and respects the constitution.
The Founders didn't invent the filibuster, but it is a longstanding procedure.
truth is not determined by age, ESPECIALLY when that aged argument prevents proper judicial order.
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?
see above.
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.
Just because the left does something for all the wrong reasons doesn't mean conservatives shouldn't do ssomething for all the right reasons.
As Norman Ornstein of the American Enterprise Institute writes, the filibuster "is a fundamentally conservative tool to block or retard activist government."
Key words: "block or retard activist government." (you mean like activist judges, as opposed to, say, honest judges who respect the constitution?
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.
to the contrary, it is naive and foolish to think that the left would play the rules when their in the majority--that they wouldn't break the filibuster to suit their purposes.
again, just because leftists will change rules to do something wrong, and obliterate constitutional principles, does not mean conservatives should not change the rules do the right thing and PROTECT those principles.
If our enemies in the legislature change the laws for evil, that does not that legislation properly and wisely carried out is evil.
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?"
What you don't understand is the devil has ALREADY turned 'round on us, and we must changed the rules to defeat the devil!
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.
quite the contrary. the conservatives will "rue the day" they lose their opportunity to finally get a hold of a radical leftist, out-of-control judiciary.
The nuclear option will do too much collateral damage.
wrong again! too much collateral damage has been done. the constitutional option will aim the firepower at the enemy.
This author is not the brightest bulb in the box.
Like every other conservative who criticizes the use of the "nuclear" option, this writer has absolutely no alternative solution for Bush to get his judges through. I would take his opinions more seriously if he did.
I do not believe that they really want them.
That's quite the poetry!
" The author is under the delusion that the Dems feel bound by precedent, tradition, intellectual consistency, or being "fair".
The Dems will do whatever helps them put liberal judges on the bench. Period."
THAT, MY FRIEND, is precisely right. The author shows himself to be clearly delusional at best.
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