Skip to comments.Orrin Hatch: Nuclear Option Still on the Table
Posted on 05/28/2005 5:09:47 PM PDT by RWR8189
The judicial filibuster agreement reached by a group of 14 Republican and Democratic senators may be a truce, but it is not a treaty.
It remains to be seen if the Senates tradition of up-or-down votes for judicial nominations will be re-established. And make no mistake, every tool for returning to that tradition remains on the table. As Majority Leader Bill Frist and even some signatories to this agreement have acknowledged, this includes the constitutional option.
Those who founded this republic designed the Senate without the minoritys being able to filibuster anything at all. After a rules change made the filibuster possible, the Senate reserved its use to the legislative calendar and by tradition did not use it for judicial nominees. We could have used the filibuster to prevent confirmation of judicial nominations, but we did not do so.
In 2003, after 214 years, that tradition changed when Democrats blocked confirmation of 10 majority-supported appeals court nominees by preventing any confirmation vote at all.
The ends, however, do not justify the unconstitutional means. We must restore the Senate tradition of up-or-down votes for judicial nominations reaching the Senate floor.
On May 23, 2005, a group of 14 senators, seven Democrats and seven Republicans, issued a Memorandum of Understanding on Judicial Nominations. The Democrats part of the pact was pledging to vote for cloture on three named judicial nominees and to oppose filibusters of future judicial nominations except in undefined extraordinary circumstances. The Republicans contribution was pledging to oppose changing Senate rules or procedures regarding judicial filibusters during the current 109th Congress.
They announced this deal on the eve of a Senate vote that would have eliminated the judicial filibuster altogether. Four times during the 108th Congress, the Senate failed to invoke cloture, or end debate, on the appeals court nomination of Priscilla Owen. Had that happened again on May 24, 2005, Frist would have sought a ruling from the presiding officer that, after sufficient debate, the Senate should vote on a judicial nomination. I would have joined a majority of my fellow senators in voting to affirm that ruling, re-establishing Senate tradition and making the judicial filibuster a thing of the past.
Recently dubbed the constitutional option, this is a mechanism for changing Senate procedureswithout changing Senate rulesthat has been used, directly or indirectly, for nearly a century. The filibuster deal was struck, in part, so that the constitutional option would not, at least for now, be exercised.
The operative words here are for now. On its face at least, the deal fails to re-establish the Senates tradition of up-or-down votes for all judicial nominations reaching the Senate floor. Instead, it may effectively reduce the number of senators who can dictate which nominees receive floor votes to just the handful involved in this deal, since they can make or break the 60-vote threshold for invoking cloture, or ending debate, under Senate Rule XXII.
Loopholes in the Deal
Perhaps even worse, the deal does not even attempt to distinguish the extraordinary circumstances justifying future filibusters from the extreme standard Democrats say justified their past filibusters. Rather than confine the filibuster, this subjectivity creates loopholes large enough to drive a filibuster through.
The imperative to re-establish Senate tradition remains. This deal does not take the constitutional option for accomplishing this goal off the table. In fact, it was precisely the prospect of using the constitutional option in this very instance that prompted this agreement, including the promise to allow votes on nominees such as Priscilla Owen, Janice Rogers Brown and William Pryor. Some Republican signatories have already said that they will support the constitutional option if the deals extraordinary circumstances loophole turns out to be a distinction without a difference compared to past practice. If we return to judicial filibustersand we all know a Supreme Court vacancy loomswe will return to the constitutional option.
The judicial confirmation process needs to be fixed by returning to the tradition of up-or-down votes for judicial nominations reaching the Senate floor. This deal does not directly accomplish this goal, though it remains to be seen whether it might still do so in practice. I agree with Frist that, one way or another, whether by the self-restraint that once guided us or by the constitutional option, that tradition must return.
Sen. Hatch (R.-Utah) is the former chairman of the Judiciary Committee.
I'd like to announce this not the last time I will type: blah, blah,blah ....
Has anyone seen Trent Lott, Orin Hatch or Bob Dole in the same room at the same time? I still say they are the same person, with different masks. Now I'm beginning to think of Frisky Fritter the same way.
Could we all pitch in and buy one spine for them? Perhaps they could take turns.
Save the words. We're interested in deeds.
My friend..........there just isn't enough money.
It's not one of these freepers that calls Hatch or Lott a RHINO. They are good men.
The GOP is acting like a minority, not cause of these men, but because of John McCain.
Who would have ever dreamed that it was possible for a male Republican Senator to have such teenie weenie testicals , that by comparison, Orrin Hatch's pair borders on bowling ball dimensions?
Not for the size spine they'd need. True.
I sent TWO postage paid envelopes back to the Republicans this weekend. One to the RNC and the other to the Republican Senatorial Committee. No money inside, just a lot of writing about how disgusted I am with the RINOs in the Senate.
I'm a pretty good giver, too.
Oh, don't worry, DU Lurkers--I'm still going to GIVE, but instead of giving to the party (until I'm satisfied with their progress), I'll give to individual candidates to make sure you socialist anti-capitalist liberal infanticide enthusiasts STILL LOSE! BWA HA HA HA HA HA HA HA HA HA! You can't stop me from funding conservative Republicans! BWA HA HA HA HA HA HA HA HA HA!
Unless Frist can peel away a few of those 7 idiots I don't see it happening. McCaine is going to keep all of them together. so they can avoid looking like idiots......Or as McCaine says'' We have to preserve the great traditions of the senate'', and Byrd'' We have saved our Republic''............Excuse me while I go puke!
Of course the nuclear option is still on the table. McCain and the 6 gollums stole the detonator so it couldn't be used.
I think the Democrats owe us a filibuster debt now, and should be forced to STFU for the rest of the year.
I HAVE SENT BACK 3 FOR MONEY WITH WORDS NO MORE MONEY NO MORE VOTES TILL WE SEE ACTION ! !
If McCain had been in the Senate 150 years ago the Mason/Dixon
Line would probably also be the Mexican Border.
There have been a lot of threads since Monday, bemoaning the RINO 7, that voted themselves into the Centrist Coaltion, and how we go about getting them out of the Senate...
I know one thread was dedicated to finding a replacement for Mike DeWeenie...and a lot of posters were suggesting John Kasich...
Well, I just finished seeing an interview ole John did with a democrat pundit re: Hillary---and John was WAY, WAY complementary about Mrs. Bubba...in fact he just said that she has "proved" to be much more moderate than people thought she would be when she was elected....
Folks in Ohio---please, find someone other than John Kasich, I beg of you!!!!
Since when does a group gather in a room and tell Frist what to do? Frist must be impotent to allow the tail to wag the dog.
the dems must take joy in that a handful of their ilk can run circles around the republicans.
"...so they can avoid looking like idiots"...TOO LATE!
Hillary probably has John's FBI File. He was a swinger.
Looks like we lost the Mexican American War anyhow now.
RECUERDA CHAPULTEPAC VATO!
Hillary probably has John's FBI File. He was a swinger.
You are probably right. If the wimps in congress-Dems and Repubs- are so afraid of what's in their files then they shouldn't be there in the first place. Why can't any of them act like decent human beings- then they wouldn't have to worry about what she has on them. I want decent people in congress. Why is this such a difficult thing to ask?
Sorry, but it takes a majority of the majority to make them act like a minority. One senator doesn't hack it.
Don't count your Hatches before they've Chickened.
Frist must announce the McCain does not speak for the party. The way things are now McCain is speaking as he is the majority leader. Frist must be a jacka@@ to let that nut get away with it.
I was just thinking the same thing. What happens to these guys when they quit politics and go on tv? I don't get it. I still remember when Joe Scarborough , before the election was openly giving advice to Lurch on how to beat Bush! Why do they kiss these Rat butts once they get on tv?It's really disgusting.
I was thinking similarly; the "nuclear option" is still on the table but no one in the GOP has the balls to use it.
I am so glad you mentioned Joe Scarborough---when he very first started at MSNBC, I could have sworn he said he was a Republican representative in the 90's---but...
you sure wouldn't know it now. When he gets with Chrissy, Ron Reagan, and Howard Fineman, watch out--he is like someone from the south, that, having moved up north has lost his accent, but...
the minute that person steps off the plane in the south--out comes the accent!!!!! Joe is like that, except in reverse---I never see him get with conservatives and revert to a conservative point of view!
McCain got caught on CNN tonight, being a flip-flopper (although he wouldn't admit it)--
On Captital Gang, it was brought out that Gary Bauer, ex congressman, very conservative said that when he asked Bush if he would appoint pro-life judges to the Supreme Court, Bush said he would appoint constitutionalists to the Supreme Court...(this was during the 2000 campaign, I think)--
When Bauer asked John McCain the same question, according to Bauer, McCain said that yes, he would appoint pro-life judges (i.e. use a litmus test)---
Tomorrow, McCain will be asked about this on Wolf Blitzer's Sunday show, and they showed a clip of McCain saying that the conversation with Gary Bauer was "private" and he woulnd't comment on what he did/did not say re: pro-life judges....hmmmmmmmmmmm interesting, NO?
The McCain Mutiny
Queeg(McCain) Ah, but the strawberries! That's where I had them. They laughed at me and made jokes, but I proved beyond the shadow of a doubt, and with geometric logic, that a duplicate key to the wardroom icebox did exist! And I'd have produced that key if they hadn't pulled Caine out of action! I-I-I know now they were only trying to protect some fellow officer and!......(realizes he has been ranting, babbling)
Naturally, I can only cover these things from memory if I've left anything out, why, just ask me specific questions and I'll be glad to answer them...one-by-one...
Yeah. I do not have much hope for it being used now.
Very, very interesting! I will break my vow never to watch the Communist News Network and tune in tommorrow.Thanks so much for the tip!
That show---The Capital Gang is the MOST communist of all of CNNs programming---
Last week, their guest was Teddy Kennedy---and this week, their guest was Charlie Rangel----
Add those two to Mark Fields and Mr. Judy Woodruff, and it is lie after lie, distortion after distortion, and even though Robert Novak and the woman conservative (forget her name) attempt to state the conservative point of view--they aren't very forceful, so the whole show becomes a Bash Bush show every week...
"I'll give to individual candidates to make sure you socialist anti-capitalist liberal infanticide enthusiasts STILL LOSE! BWA HA HA HA HA HA HA HA HA HA! You can't stop me from funding conservative Republicans! BWA HA HA HA HA HA HA HA HA HA!"
Club for Growth. Highly recommended. F the RNC, and the Republican senators' campaign committee.
The mushy middle always exists. Look at these particular posts within threads:
These all detail some history. This is what ALWAYS occurs during a major sea change in American politics. I've seen other articles about other periods, but those will do for now.
The way to finally seize the ground is to increasing the majority, not to dump those marginally on your side.
Good suggestion. I'm not a real Senate historian but there must have been idiots before this. I don't know though. Perhaps our society is just deminished to the point that this is now possible without getting your hind end handed to you at the next election. In the past I'd suspect McCain would have been political toast by now.
Up until now (two years or so ago), that was always understood (recall the 52-47 approval of Justice Thomas instead of some successful filibuster) and it was the only provision ever voted on in the history of the country regarding this issue. If they wish to change that, the Senate and House must muster a 2/3 majority to start to AMEND the Constitution.
All Hatch needs to say is that the Framers explicitly considered requiring a supermajority approval for judges, and explicitly rejected that.
NRO's McCarthy had asserted that filibustering judges did not violate the constitution last November. He describes why his further study and reversal in CONFESSING ERROR. His argument is circuitous enough that it appears to be a legal opinion rather than an easily accessible article, but he has clearly thought about this a great deal now, unlike his earlier writings - his words, not mine.
If you have a mind for legalese and enjoy a challenge, take a look at it.
Culmination of his argument is:
"...the power of the president to make appointments is explicitly spelled out in the constitution. By blocking it, the Senate is thus effectively denying the executive his indisputable authority." ...
"Filibusters of judicial nominees have always been a bad idea. They are also an unconstitutional idea. I used to think otherwise, but I have not heard an argument that overcomes the structure of the constitution. No matter who is president, nominees deserve an up-or-down vote."
If you put these together, the NO FILIBUSTER OF JUDGES argument is certain to win the day in an honest court.
Calling it the "Democrat option" or perhaps the Robert Byrd option would have brought the focus back to the Democrats and placed their hypocrisy under a very bright light. As it is, the Democrats have bamboozled many people into believing this is a new and underhanded tactic about to be sprung on the tender and precious Senate by a conspiring and evil Republican cabal.
Glad to see somebody else thinks Kasich is Little Lord Fauntleroy. He's a RINO, weenie boy gun grabber.
I noticed that from his first show, and was shocked to find out he was a Republican!
Good men? We have Hatch to thank for 1. Ginsberg 2. Souter 3. Talking the Republicans out of filibustering judges when they were in the minority. If they had the Rats would have pulled the "Byrd" option and this would be a settled matter. Hatch is either stupid or a skunk. In either case he is an empty suit.