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Orrin Hatch: Nuclear Option Still on the Table
Human Events ^ | May 28, 2005 | Senator Orrin G. Hatch

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 Senate’s 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 minority’s 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 procedures—without changing Senate rules—that 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 Senate’s 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 deal’s “extraordinary circumstances” loophole turns out to be a distinction without a difference compared to past practice. If we return to judicial filibusters—and we all know a Supreme Court vacancy looms—we 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.


TOPICS: Constitution/Conservatism; Editorial; Government; News/Current Events; Politics/Elections; US: Utah
KEYWORDS: 109; billfrist; centrists; compromise; constitutionaloption; filibuster; frist; hatch; nuclearoption; orrinhatch; ussenate
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1 posted on 05/28/2005 5:09:49 PM PDT by RWR8189
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To: RWR8189

I'd like to announce this not the last time I will type: blah, blah,blah ....


2 posted on 05/28/2005 5:14:27 PM PDT by zarf
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To: zarf

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.


3 posted on 05/28/2005 5:18:30 PM PDT by DoughtyOne (US socialist liberalism would be dead without the help of politicians who claim to be conservative.)
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To: RWR8189
Does this mean the next time that Hatch appears on Meet the Press with Biden, Schumer, Kennedy, etc, that they won't be holding hands and gazing lovingly into each others' eyes?

Save the words. We're interested in deeds.

4 posted on 05/28/2005 5:20:41 PM PDT by labette (to hit the ball and touch em all, a moment in the sun.)
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To: DoughtyOne
"Could we all pitch in and buy one spine for them?"

My friend..........there just isn't enough money.

5 posted on 05/28/2005 5:20:47 PM PDT by RightOnline
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To: RWR8189
Well if it is still on the table PRESS THE F*****G BUTTON!
6 posted on 05/28/2005 5:21:24 PM PDT by Paul_Denton (Get the U.N. out of the U.S. and U.S. out of the U.N.!)
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To: RWR8189

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.


7 posted on 05/28/2005 5:22:33 PM PDT by mowkeka (If you thought I hated McCain before, I am FURIOUS now!!!!!!!!)
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To: RWR8189

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?


8 posted on 05/28/2005 5:23:46 PM PDT by F.J. Mitchell (Filibusterer's are fulluvsh*t!)
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To: RightOnline

Not for the size spine they'd need. True.


9 posted on 05/28/2005 5:24:30 PM PDT by DoughtyOne (US socialist liberalism would be dead without the help of politicians who claim to be conservative.)
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To: RWR8189
Yeah right. Tell me another one. This one is approaching the realm of "three biggest lies", the first one of which is "The check is in the mail."

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!

10 posted on 05/28/2005 5:24:53 PM PDT by Recovering_Democrat (I'm so glad to no longer be associated with the Party of Dependence on Government!)
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To: RWR8189

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!


11 posted on 05/28/2005 5:27:27 PM PDT by Bush gal in LA
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To: RWR8189

Of course the nuclear option is still on the table. McCain and the 6 gollums stole the detonator so it couldn't be used.


12 posted on 05/28/2005 5:27:47 PM PDT by Modok
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To: zarf

I think the Democrats owe us a filibuster debt now, and should be forced to STFU for the rest of the year.


13 posted on 05/28/2005 5:30:12 PM PDT by claudiustg (Go Sharon! Go Bush!)
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To: Recovering_Democrat

I HAVE SENT BACK 3 FOR MONEY WITH WORDS NO MORE MONEY NO MORE VOTES TILL WE SEE ACTION ! !


14 posted on 05/28/2005 5:30:12 PM PDT by ducks1944 (GOD BLESS THE USA ! !)
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To: RWR8189

If McCain had been in the Senate 150 years ago the Mason/Dixon
Line would probably also be the Mexican Border.


15 posted on 05/28/2005 5:30:38 PM PDT by CMailBag
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To: Recovering_Democrat

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!!!!


16 posted on 05/28/2005 5:31:15 PM PDT by Txsleuth (Mark Levin for Supreme Court Justice)
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To: RWR8189
On May 23, 2005, a group of 14 senators, seven Democrats and seven Republicans, issued a “Memorandum of Understanding on Judicial Nominations.”

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.

17 posted on 05/28/2005 5:31:51 PM PDT by Dont_Tread_On_Me_888 (The Republican'ts have no backbone--they ALWAYS cave-in to the RATs)
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To: RWR8189

the dems must take joy in that a handful of their ilk can run circles around the republicans.


18 posted on 05/28/2005 5:32:02 PM PDT by ken21 (if you didn't see it on tv, then it didn't happen. /s)
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To: Bush gal in LA

"...so they can avoid looking like idiots"...TOO LATE!


19 posted on 05/28/2005 5:36:40 PM PDT by Nuc1 (NUC1 Sub pusher SSN 668)
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To: DoughtyOne
How about sending "back braces" for the R Senators? They could be labeled:
"Wear this to ensure that you neither bend over backwards, nor bend over to grab your ankles. Wear this garment while voting for cloture, judicial nominees, or UN ambassadors".

BTW, where is it in either the constitution or the "214 years of senate tradition" whereby 14 nitwits are allowed to side-step the senate leadership and and declare mutiny?
20 posted on 05/28/2005 5:40:51 PM PDT by SERKIT ("Blazing Saddles" explains it all.....)
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To: Txsleuth

Hillary probably has John's FBI File. He was a swinger.


21 posted on 05/28/2005 5:52:30 PM PDT by golfisnr1 (Democrats are like roaches, hard to get rid of.>)
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To: CMailBag
If McCain had been in the Senate 150 years ago the Mason/Dixon Line would probably also be the Mexican Border

Looks like we lost the Mexican American War anyhow now.

RECUERDA CHAPULTEPAC VATO!

22 posted on 05/28/2005 5:56:42 PM PDT by wardaddy
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To: RWR8189
I don't Know of one senate bill that Mc Cain has had anything to do with that was not a screw up.Either he is stupid and dumb but for sure a screw ball.
23 posted on 05/28/2005 5:59:33 PM PDT by solo gringo (Liberal democrats And Flori-duh judges are parasites)
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To: golfisnr1

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?


24 posted on 05/28/2005 6:04:44 PM PDT by dandiegirl
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To: mowkeka
The GOP is acting like a minority, not cause of these men, but because of John McCain.

Sorry, but it takes a majority of the majority to make them act like a minority. One senator doesn't hack it.

25 posted on 05/28/2005 6:07:36 PM PDT by Grut
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To: Paul_Denton
"Well if it is still on the table PRESS THE F*****G BUTTON!"


26 posted on 05/28/2005 6:08:29 PM PDT by NordP (Keeping America Great - Rice/Hughes in 2008 ! -- What do you mean, she won't run?)
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To: RWR8189

Don't count your Hatches before they've Chickened.

27 posted on 05/28/2005 6:11:05 PM PDT by SkyPilot
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To: RWR8189

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.


28 posted on 05/28/2005 6:11:57 PM PDT by Logical me (Oh, well!!!)
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To: Txsleuth

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.


29 posted on 05/28/2005 6:12:20 PM PDT by Bush gal in LA
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To: NordP

Ditto


30 posted on 05/28/2005 6:13:14 PM PDT by TatieBug
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To: Paul_Denton
Well if it is still on the table PRESS THE F*****G BUTTON!

I was thinking similarly; the "nuclear option" is still on the table but no one in the GOP has the balls to use it.

31 posted on 05/28/2005 6:18:13 PM PDT by DTogo (U.S. out of the U.N. & U.N out of the U.S.)
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To: Bush gal in LA

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?


32 posted on 05/28/2005 6:22:03 PM PDT by Txsleuth (Mark Levin for Supreme Court Justice)
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To: Modok

The McCain Mutiny

33 posted on 05/28/2005 6:26:59 PM PDT by mc5cents
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To: mc5cents

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...


34 posted on 05/28/2005 6:39:52 PM PDT by mc5cents
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To: DTogo

Yeah. I do not have much hope for it being used now.


35 posted on 05/28/2005 6:49:30 PM PDT by Paul_Denton (Get the U.N. out of the U.S. and U.S. out of the U.N.!)
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To: Txsleuth

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!


36 posted on 05/28/2005 6:51:21 PM PDT by Bush gal in LA
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To: Bush gal in LA

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...


37 posted on 05/28/2005 6:55:27 PM PDT by Txsleuth (Mark Levin for Supreme Court Justice)
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To: Recovering_Democrat

"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.


38 posted on 05/28/2005 7:17:17 PM PDT by LibertarianInExile (<-- sick of faux-conservatives who want federal government intervention for 'conservative things.')
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To: RWR8189
I believe 4 of the seven RINOs hold chairmanship on a committee and all that Leader Frist should do is have a talk with them that if they don't fall in line, their chairmanships will be taken away.

He did that to that RINO from PA and it worked!
39 posted on 05/28/2005 7:20:12 PM PDT by El Oviedo
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To: Grut

The mushy middle always exists. Look at these particular posts within threads:

http://www.freerepublic.com/focus/f-chat/1410045/posts?page=115#115

http://www.freerepublic.com/focus/f-chat/1410045/posts?page=76#76

http://www.freerepublic.com/focus/f-chat/1410045/posts?page=121#121

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.


40 posted on 05/28/2005 7:36:19 PM PDT by AFPhys ((.Praying for President Bush, our troops, their families, and all my American neighbors..))
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To: RWR8189
You know, I used to think that the "nuclear option" was like a sword of Damocles hanging over the heads of the Democrats. I no longer believe that. I now think it's more like a carrot on a stick hovering just out of the reach of the conservative base of the GOP. It's meant for us, not for the Dems. Hence, it will continuously threatened but never used.

Third party is starting to look tempting in 2006. What's the point of continuing to vote for bozos like this?
41 posted on 05/28/2005 7:37:53 PM PDT by Antoninus (Benedictus qui venit in nomine Domini, Hosanna in excelsis!)
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To: SERKIT

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.


42 posted on 05/28/2005 7:45:23 PM PDT by DoughtyOne (US socialist liberalism would be dead without the help of politicians who claim to be conservative.)
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To: RWR8189
I wish Hatch, and all the Republicans, would simply DISCUSS THE CONSTITUTION when talking about the "constitutional option". The case is easily made in, for example, Breaking the Rules: The Framers intended no more than a Senate majority to approve judges.http://www.freerepublic.com/focus/f-news/1404953/posts


This article contains a side-by-side comparison and the dates that the judicial appt's question was brought before the Constitutional Convention.
Excerpt:

On June 13, 1787, it was originally proposed that judges be “appointed by the national Legislature,” and that was rejected; Madison objected and made the alternative motion that appointments be made by the Senate, and that was at first approved. Madison specifically proposed that a “supermajority” be required for judicial appointments but this was rejected. On July 18, Nathaniel Ghorum made the alternative motion “that the Judges be appointed by the Executive with the advice & consent of the 2d branch,” (following on the practice in Massachusetts at that time). Finally, on Friday, September 7, 1787, the Convention approved the final Appointments Clause, making the president primary and the Senate (alone) secondary, with a role of “advice and consent.”

Obviously, this question is something that the Framers carefully considered. The Constitution and Supreme Court decisions are quite clear that only a majority is necessary for confirmation. Neither the filibuster, nor a supermajority vote, is part of the Advice and Consent role in the U.S. Constitution. Until the past four years, the Senate never did otherwise.

After discussion, the Framers of The Constitution clearly intended majority advise/consent approval of the Senate in this case to be sufficient, and wrote it that way, and ratified the document in this form.

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.

43 posted on 05/28/2005 7:53:45 PM PDT by AFPhys ((.Praying for President Bush, our troops, their families, and all my American neighbors..))
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To: AFPhys
I really need to anticipate the "But the Constitution gives the Senate the right to make its own rules" argument, since I'm going to bed now ... That is answered "True in some ways. They can make their own rules on legislative process, but not when it comes to fulfilling their RESPONSIBILITY to the other branches.

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.

44 posted on 05/28/2005 8:07:06 PM PDT by AFPhys ((.Praying for President Bush, our troops, their families, and all my American neighbors..))
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To: RWR8189
I'm thinking that from the beginning we should have called this the "Democrat option," not the nuclear option, not the constitutional option. Democrats have used it repeatedly in the past and are world class hypocrites for feigning shock and dismay over Republican promises to invoke it in this very narrow and special circumstance.

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.

45 posted on 05/28/2005 8:43:37 PM PDT by JCEccles (Andrea Dworkin--the Ward Churchill of gender politics.)
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To: Txsleuth

Glad to see somebody else thinks Kasich is Little Lord Fauntleroy. He's a RINO, weenie boy gun grabber.


46 posted on 05/28/2005 8:50:29 PM PDT by Luke21
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To: Luke21

I noticed that from his first show, and was shocked to find out he was a Republican!


47 posted on 05/28/2005 8:55:47 PM PDT by Txsleuth (Mark Levin for Supreme Court Justice)
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To: CMailBag

LOL!


48 posted on 05/28/2005 11:21:23 PM PDT by strategofr (What did happen to those 293 boxes of secret FBI files (esp on Senators) Hillary stole?)
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To: mc5cents

LOL!


49 posted on 05/28/2005 11:24:10 PM PDT by strategofr (What did happen to those 293 boxes of secret FBI files (esp on Senators) Hillary stole?)
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To: mowkeka

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.


50 posted on 05/29/2005 6:04:59 AM PDT by Les_Miserables
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