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Posted on 04/14/2003 9:20:19 AM PDT by xsysmgr
There's a heated debate going on among Senate Democrats over whether to broaden the party's strategy of filibustering the Bush administration's judicial nominees.
So far, Democrats have filibustered only the nomination of D.C. Circuit Court of Appeals candidate Miguel Estrada, although they are blocking several other Bush nominees by the use of senatorial holds and other parliamentary measures (see "The Democrats' Big Plan," April 3). The issue has taken on new urgency because Republicans are pushing ahead with efforts to bring the nomination of Priscilla Owen to the Senate floor for a final confirmation vote. Owen, a Texas state supreme-court justice who is being considered for a place on the Fifth Circuit Court of Appeals, was approved by the Senate Judiciary Committee last month on a straight party-line vote.
So far, Democrats have dragged their feet on debating Owen, but there appears to be a deep division in the party over whether to resort to a filibuster. The debate is focused on the question of how Democrats might frame the issue. Should they filibuster Owen based on objections to her views on questions like abortion? Or should they filibuster Owen based on objections to the way the White House and Senate Republicans have handled the nominations process? Or, lacking any agreement on strategy, should they forgo a filibuster altogether?
The short version of the debate is this: Would it be more effective for Democrats to launch a filibuster about something, or about nothing?
So far, the "nothing" answer seems to be winning, mostly because the "something" approach involves serious political risks. The substance of Democratic opposition to Owen in the Judiciary Committee centered around her decisions involving a Texas law that requires underage girls who want to have an abortion to first notify one parent (the law requires simple notification, not consent). The law gives some girls the option of going to court to request permission to have an abortion without parental notification, and Owen's sin, as some Democrats saw it, was to read the court-bypass clause more narrowly than some of her colleagues on the Texas high court.
That was enough to cause every Democrat on the Judiciary Committee to vote against her. But the problem for some less-zealous Democrats is that parental notification laws are quite popular nationwide, and it would seem suicidal to launch a filibuster based on a position that so clearly flies in the face of public opinion.
Among Senate Democrats, pro-filibuster forces have identified 15 colleagues who are thought to be opposed to a filibuster based on substance. They are Bob Graham and Bill Nelson of Florida, Evan Bayh of Indiana, Mary Landrieu and John Breaux of Louisiana, Thomas Carper of Delaware, Byron Dorgan and Kent Conrad of North Dakota, Ben Nelson of Nebraska, Max Baucus of Montana, Blanche Lincoln and Mark Pryor of Arkansas, Ernest Hollings of South Carolina, Zell Miller of Georgia, and Robert Byrd of West Virginia.
The opposition of all, or even most, of those senators would be enough to stop a filibuster. Democrats control 49 votes in the Senate. They need 41 votes to sustain a filibuster, which means they can lose no more than eight defectors before the effort falls apart.
In the case of Estrada, just four Democrats — Miller, Breaux, and the two Nelsons — have split with the party's leadership. But Democrats have remained united only because they have framed the argument in terms of process. They first claimed that Estrada had failed to answer Democrats' questions about his legal views. Then, when Estrada offered to answer any and all questions, they focused their objections on the White House's refusal to release memos Estrada wrote while working in the Justice Department, which Democrats say might reveal new information about his legal opinions.
So far, the procedural approach has been enough to keep 45 Democrats together. But would it work against Owen?
She has answered all the Democrats' questions — in two hearings. There are no secret memos to fight about. But Owen was voted down by the Judiciary Committee, on a straight party-line vote, last year when it was under Democratic control. Now, it appears Democrats will base their argument against her on the contention that President Bush should not have renominated her since she had been voted down in committee. "Owen is a nominee who has already been defeated by the Senate," Nan Aron, head of the liberal interest group Alliance For Justice, said last month. "It's inappropriate and unprecedented for her to have been renominated having already been defeated. We believe a filibuster will be just as easy to organize for her as Estrada."
It is unclear whether there are 45 Democrats who agree. Almost all of those who are said to be wavering on the filibuster question are from states carried by George W. Bush in the 2000 election. Several face reelection in 2004. While most went along with the Estrada filibuster — some reluctantly — they might not be willing to stick their political necks out again.
That means one exception in 214 years to the general rule that judicial nominees are approved or rejected by a majority vote in the Senate. Applying the filibuster means the Senate is amending the Constitution by force -- requiring 60 Senators to do what requires only 51 Senators per the Constitution.
There are two ways to solve this problem, not just for the Estrada and Owen nominations, but for all time. One way is to amend Senate Rule XXII (the Cloture Rule) to exempt judicial nominees. The other way is for a Senator to raise a Point of Order that Rule XXII cannot apply to a judicial nominee (because it alters the required vote). Then, Dick Cheney in the Chair as President of the Senate can rule that the filibuster cannot be applied to judicial nominees.
Points of Order are NOT debatable. And, any ruling of the Chair stands unless it is rejected by a majority of the Senators. That would be game, set and match, and the filibuster would no longer apply to ANY judicial nominee, now or in the future.
Congressman Billybob
Latest column, now up on UPI, and FR, "I Believe" (1957-2003)
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seems simple to me...so why don't they do it....?
This happens only when the Republicans are in power - especially in the US Senate. Seems Frist, et. al., have forgotten that a day have 24 hours and a week 7 days - bring in the cots.
Imagine a "thrust" into the heart of the dim-0-crats' position - akin to the imagery from Iraq.
What is required to amend SR XXII? I assume that the democRATs could stop an amendment of the rule through a filibuster. Am I correct?
Also, what is required to eliminate the "gentleman's agreement" that allows the democRATs to mount a filibuster simply by saying that they intend to do so? If they want to filubister, they should be forced to hold the floor until they drop.
Amendment of the Rules, however, depends on Senators present. If at least 10 Senators are absent (campaigning in Iowa for Democrat votes, for instance), the two-thirds becomes less than the three-fifths. Does that make sense?
Congressman Billybob
Your article on dealing with the Democrat filibuster of WH nominees is interesting. However, it is a double-edged sword. Future Democratic Presidents with a Democratic majority in the Senate can ram very liberal and controversal judges through the nomination process. I wonder if this is the precise reason the Republicans haven't used the two methods you described.
If the filibuster applied to judicial nominees violates the Constitution, then it is the obligation of people of principle to work to strike down that atrocity. And as for Republican tactics in the Senate, I hope that Bill Frist is simply looking for the right opportunity to spring the trap on the Democrats.
Cong. Billybob
Well then, he will be more SADDENED when I stick my shoe us his a$$, if he doesn't get moving on these nominations.
You are right about this.
That's right - we had a very liberal judge (Ruth Bader Ginsberg), nominated by a democrat president (XXXlinton) - and the Repubs sure fillibustered that nomination to death. Right?
Wait, no, I guess not. I stand corrected.
In fact, Ginsberg sits on the Supreme Court today. She got 97 votes.
So we sure wouldn't want to do anything else to make the dems mad, would we?
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