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!
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