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Time to play hardball on Estrada and other nominations
Weekly Standard ^ | 4/23/03 | Hugh Hewitt

Posted on 04/25/2003 10:15:48 AM PDT by votelife

Recess Time With Senate Democrats taking obstructionism to new levels, the president should re-read Article II, Section 2, Paragraph 3. by Hugh Hewitt 04/23/2003 12:00:00 AM

Hugh Hewitt, contributing writer

THE LEFT EDGE of the Senate Democratic caucus has taken control of the judicial-nomination process and has forced the entire Senate into what is, at best, an extra-constitutional swamp. With their filibuster of D.C. Circuit Court nominee Miguel Estrada, their threatened filibusters of Fifth Circuit nominees Priscilla Owen and Charles Pickering, and their obstruction of other nominees such as John Roberts, Carolyn Kuhl, and a half-dozen Sixth Circuit nominees, Senate Democrats have decided it is good policy to wreck a judicial nomination and confirmation process that has worked for more than two centuries.

The radical agenda of the Senate Democrats has escaped a great deal of attention, though it surely played a role in their historic defeats in November 2002 and will do so again in the more than half-dozen referendums on incumbent Democratic Senators looming in November 2004. The temptation to let the likes of Tom Daschle, Harry Reid, Patty Murray, Blanche Lincoln, and Chuck Schumer hang themselves on their extremist approach must be huge, but President Bush and his advisers would be better served by aggressively defending the Constitution at every step. There are many ways to do this, including a jam-down of new Senate rules with 51 votes. But a way-station to such a melt-down is found in the president's recess appointment power.

Article II, Section 2, Paragraph 3 provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

Thus the president can fill every judicial vacancy that presently exists, though these appointments will lapse in the fall of 2004. Nominees have traditionally been reluctant to fill such temporary posts as the Senate guarded its confirmation power jealously and was likely to turn a cold-shoulder to the recess appointees in much the way that the NFL veterans shunned the temporary players who took the field during their strike.

Bill Clinton broke the taboo against recess appointments to the bench, however, with his end-of-term appointment of Roger Gregory to the Fourth Circuit Court of Appeals--an appointment President Bush made permanent through his nomination and the Senate's consent as a gesture of conciliation. That gesture and many others have been rejected as inadequate by the Leahy-Daschle-Schumer-Kennedy caucus. Kindness didn't--and won't--work. Stronger measures are called for, not only to meet real needs for judges, but also to bring the controversy to the public's attention. The Democrats have crashed the process and shredded the traditions because of the pressure of abortion absolutists. Their record is a sorry one, and attention generated via the recess-appointment power will help shine light on their excess.

At this writing there are 24 vacancies on the U.S. Courts of Appeals. The president would be wise not to launch too many recess appointments at first, but it would be a strong opening move to announce that, say, two of the six blocked nominees to the Sixth Circuit will be appointed over the Memorial Day Senate break if there is no movement with those nominees, and that the two vacancies without nominees on the D.C. Circuit (there are a total of four, with Estrada and Roberts having been nominated in May of 2001) will receive nominees in May and will be appointed during the holiday recess unless at least Roberts (and perhaps both Roberts and Estrada) gets a floor vote before then.

The Sixth Circuit nominees are all named, and two would have to volunteer for this sort of hardball, but the two D.C. open slots would be best used to serve up a couple of rock-ribbed conservatives who might be willing to serve 15 to 18 months for the good of the cause. With the freedom from pressure to conform to Chuck Schumer's strange reading of the Constitution, these two judges could provide an impressive legacy of opinions over their year-and-a-half of service. Readers are invited to suggest nominees to me from among the caucus of "They Couldn't Get Confirmed by This Senate in a Hundred Years" club because of their intellectual firepower. Perhaps Judge Bork hankers for a D.C. Circuit encore?

If the Senate radicals remain entrenched in their desire to overturn the Constitution, either the Senate can discipline itself with new rules or the president can increase the number of recess judges and announce a commitment to keep all such nominees on the bench through the recess process for as long as his power to extend their service endures. As Bill Clinton demonstrated, even a lame-duck president can employ the power just prior to his replacement's arrival. President Bush could keep using the recess power through December of 2004 even if defeated, and through December of 2008 if reelected.

This approach would announce a fundamental change in the nomination process, though a constitutional one. It would answer the Democrats' irresponsible absolutism with a measured and transparent reply. Conservative activists would be satisfied, as would moderate defenders of the clear design of the Constitution.

The battles over judicial appointments at home are not nearly as dramatic as those battles fought abroad, but the ability to wage the latter ultimately depends upon a healthy respect for the Constitution's rules at home. Democrats have abandoned that respect in their zeal to meet the demands of the abortion-rights caucus. The president should answer their challenge.

Hugh Hewitt is the host of The Hugh Hewitt Show, a nationally syndicated radio talkshow, and a contributing writer to The Daily Standard. His new book, In, But Not Of, has just been published by Thomas Nelson.

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TOPICS: Editorial; Politics/Elections
KEYWORDS: bush; estrada; filibuster; judicial; judiciary; obstruction; recess
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Hugh Hewitt is great on this issue!
1 posted on 04/25/2003 10:15:49 AM PDT by votelife
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To: votelife
bttt
2 posted on 04/25/2003 10:16:40 AM PDT by firewalk
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To: BeforeISleep
Freeper Estrada Activism Thread
http://www.freerepublic.com/focus/news/847037/posts
3 posted on 04/25/2003 10:18:06 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: votelife
Here's a link to another thread that shows a LOT of the Estrada threads about filibusters, obstruction, etc.

The lead article is how the Democrats use religious litmus tests to block judges from the Wall Street today, 4/22/03.

http://www.freerepublic.com/focus/news/898349/posts?page=30

4 posted on 04/25/2003 10:18:58 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: votelife
Here's a link to another thread that shows a LOT of the Estrada threads about filibusters, obstruction, etc.

The lead article is how the Democrats use religious litmus tests to block judges from the Wall Street today, 4/22/03.

http://www.freerepublic.com/focus/news/898349/posts?page=30

5 posted on 04/25/2003 10:19:05 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: BeforeISleep
Hey, if Bush recess appts those nominees and they are due up in the fall of -04, it would be ideal time to push their nominations back throught the senate until the Dems approve or they obstruct RIGHT BEFORE ELECTION TIME! Sounds like a good plan!!!
6 posted on 04/25/2003 10:19:50 AM PDT by princess leah
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To: votelife
Bill Frist has been an extreme disappointment in his position as Senate Majority Leader. There should have been a REAL filibuster long before now in order to make these Democrats either put up or shut up.
7 posted on 04/25/2003 10:20:19 AM PDT by ImpotentRage
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To: votelife
If Ruth Bader Ginsburg can get thru the Senate confirmation process, why should't Miquel Estrada be given the benefit of an up/down vote?

I think there should hell hell-to-pay if they won't allow him one.

8 posted on 04/25/2003 10:22:58 AM PDT by The Other Harry
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To: ImpotentRage
What is Congress busy with?
9 posted on 04/25/2003 10:24:14 AM PDT by HiTech RedNeck
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To: votelife
This sounds like good plan.

Do it!

10 posted on 04/25/2003 10:25:16 AM PDT by Gritty
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To: ImpotentRage
Bill Frist has been an extreme disappointment in his position as Senate Majority Leader...

Not IMO. Bill Frist can only accomplish so much without the backing of his fellow Republicans, and some free thinking Democrats.
11 posted on 04/25/2003 10:26:14 AM PDT by firewalk
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To: votelife
Senate Democrats have decided it is good policy to wreck a judicial nomination and confirmation process that has worked for more than two centuries.

They may think they're winning on this but if "recent history" is any guide, BUSH will turn this against them. After all what they're doing is wrong. It may all come to a head when a Supreme Court opening comes up. It will become obvious to all that the DEMS just don't want BUSH to have the same power EVERY other President has had. This is unfair, unjust, and unstainable. Just let them try to hold court vacancies open indefinitly, it will not fly, except with their RADICAL base(that won't win them anything)

12 posted on 04/25/2003 10:31:20 AM PDT by Mister Baredog ((They wanted to kill 50,000 of us on 9/11, we will never forget!))
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To: votelife
Correct me if I'm wrong, but isn't a recess appointment afforded an up or down vote where a 51 vote maj is sufficient to retain them in the new congress?
13 posted on 04/25/2003 10:32:22 AM PDT by CPT Clay
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To: BeforeISleep
He has been a great disappointment....This man should be out in the media constantly making people aware of demonrats blocking of votes on nominees. They are not even holding a vote on these people!!!!! DEMONRATS are blocking the vote from taking place knowing that if they allowed it to go to vote these people would be confirmed. This is sleazy and against the constitution. What is Frist doing? NADA, ZILCH, ZERO, NIL!!!! He is just as weak as all other republicans before him. He is allowing the minority to strong arm and bully the majority instead of calling it what it is in the public eye. There is no hope for the republicans they have allowed this to go on and on and on. Republicans are weak and always will be when it comes to pushing through an agenda in the public domain and people like me will continue to be peeved off because of them!!!!
14 posted on 04/25/2003 10:34:20 AM PDT by AbsoluteJustice (Pounding the world like a battering ram. Forging the furnace for the final grand slam!!)
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To: BeforeISleep
Bill Frist can only accomplish so much without the backing of his fellow Republicans, and some free thinking Democrats.

Let's see if this works:

Trent Lott can only accomplish so much without the backing of his fellow Republicans and some free thinking Democrats.

Do you agree with that statement?

Frist has accomplished nothing in four months as Senate Majority Leader. In fact, he has allowed Bush's tax cut to get cut in half by two Senators. TWO!

15 posted on 04/25/2003 10:38:02 AM PDT by sinkspur
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To: CPT Clay
Correct me if I'm wrong, but isn't a recess appointment afforded an up or down vote where a 51 vote maj is sufficient to retain them in the new congress?

No. Recess appointments made now will expire at the end of the current Congress, which is the fall of 2004.

Recess appointments have to be renominated.

16 posted on 04/25/2003 10:39:32 AM PDT by sinkspur
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To: votelife
Agreed. Hugh has by far the best prospective and the best solutions to this issue. Hugh wants to play hardball and I for one wish the Republicans would take him up on that challenge.
17 posted on 04/25/2003 10:40:51 AM PDT by Prysson
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To: AbsoluteJustice
Nope, even if Bill Frist stole Tommy's step stool....stood in the middle of the senate and screamed threats at the top of his voice...it would mean nothing.

Why, because as you yourself stated the Republican party itself has been weak. It's just easier to blame it on Bill Frist. It's not Bill Frist, it's the fact that the Republicans have been allowing themselves to be pushed around for a long time. They need to change, or it won't matter who their leader is...
18 posted on 04/25/2003 10:43:00 AM PDT by firewalk
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To: AbsoluteJustice
The temptation to let the likes of Tom Daschle, Harry Reid, Patty Murray, Blanche Lincoln, and Chuck Schumer hang themselves on their extremist approach must be huge, but President Bush and his advisers would be better served by aggressively defending the Constitution at every step.

Based on his signing of CFR, I think Bush prefers to see the RATS hang.

19 posted on 04/25/2003 10:43:38 AM PDT by rhinohunter
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To: votelife
Congressional Republicans are weenies compared to Congressional RATS. Bush has shown he can play hardball.
20 posted on 04/25/2003 10:45:46 AM PDT by lilylangtree
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To: sinkspur
Trent Lott can only accomplish so much without the backing of his fellow Republicans and some free thinking Democrats.

Do you agree with that statement?


yes
21 posted on 04/25/2003 10:48:44 AM PDT by firewalk
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To: BeforeISleep
Bill Frist can only accomplish so much without the backing of his fellow Republicans, and some free thinking Democrats

Who was totally behind Frist & snuffed Lott? Answer Bush. Why are ALL of the Dems (commies) held together but not the so-called conservatives? Why then aren't these RINOS kicked out as the cancer they are? You don't think that pressure put on a couple RINOs by the administration as supporting another pub in re-elelction that is conservative would not put the rest in line as the other Arab nations are since this war? Answer yes. Remember the disgraceful, compromised, Newt who supported the RINO in Calif & threw out the conservative? So why aren't these moves made? Answer - the important one - This "Two-Party Cartel" will NEVER allow a conservative agenda to be established, the money people, elites, do not support it & they are the cash cows of Congress. Now the Dept of Defense IS giving French & German companies projects in Iraq. How's that for a slap in our faces. What is GW doing about it. NOTHING. About Estrada what is GW doing , NOTHING. What a bunch of fools you are to support this kind of crapola & get the same each & every day.

22 posted on 04/25/2003 10:51:29 AM PDT by Digger
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To: votelife
For quite some time Hugh has been against recess appointments, and has objected to them many times on his radio show. His reasoning was that then the judges would make decisions during their appointment period which could be used against them in their confirmation process.

To me this seemed a little contrary to the thinking. I mean, if you were afraid of a judge’s decision, or had reluctance about his ability to judge, why appoint them in the first place. Seems to me that a recess appointment could be just the opposite – it could give a judge, through well-thought out decisions, the chance to prove the DemocRats wrong and diffuse any controversy.

23 posted on 04/25/2003 10:51:44 AM PDT by gubamyster
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To: The Other Harry

If Ruth Bader Ginsburg can get thru the Senate confirmation process, why should't Miquel Estrada be given the benefit of an up/down vote?

Come on, you know the answer. It is because to Schumer, Clinton, Kennedy, etc., she is a "mainstream" moderate, who only wants to ensure that the Constitution remains a Living, Breathing document that must be interpreted in light of current thought, etc.

Pardon me while I go wash up.

24 posted on 04/25/2003 10:52:05 AM PDT by BruceS
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To: rhinohunter
I agree but we must do something, watching this continue as it has for years is frustrating!!!!
25 posted on 04/25/2003 10:53:12 AM PDT by AbsoluteJustice (Pounding the world like a battering ram. Forging the furnace for the final grand slam!!)
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To: votelife
"Bill Clinton broke the taboo against recess appointments to the bench, however, with his end-of-term appointment of Roger Gregory to the Fourth Circuit Court of Appeals--an appointment President Bush made permanent through his nomination and the Senate's consent as a gesture of conciliation."

IPOTUS Clinton nominated Bill Lann Lee as Assistant Attorney General for Civil Rights. Lee was never confirmed. He received a recess appointment which lasted for years. Even leading Sen. Byrd found in necessary to address the senate juciciary committee about circumvention of senate rules and The Constitution.

Bush doesn't need to worry about renomination after a 2004 election. Make the recess appointments and make them often.

yitbos

26 posted on 04/25/2003 10:57:54 AM PDT by bruinbirdman (Buy low, sell high)
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To: votelife
Remember, there are two goals 1) to flood the courts with conservatives, and 2) exploit Estrada to turn the Hispanic vote and win the next elections.

Everything else is only tatics.
27 posted on 04/25/2003 11:02:08 AM PDT by nathanbedford
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To: votelife
ABSOLUTELY.

FRY THE TRAITOROUS OBSTRUCTIONISTS WITH DECISIVE SEA-CHANGE LEVEL ALTERATIONS TO THE PROCESS.

28 posted on 04/25/2003 11:12:57 AM PDT by Quix (QUALITY RESRCH STDY BTWN BK WAR N PEACE VS BIBLE RE BIBLE CODES AT MAR BIBLECODESDIGEST.COM)
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To: Digger
What a bunch of fools you are to support this kind of crapola & get the same each & every day...

Digger, I'm no more of a fool than you are.
29 posted on 04/25/2003 11:13:00 AM PDT by firewalk
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To: CPT Clay
I think a recess appt has no guarantees...not sure on the legality, of course when did legality ever bother Tom Daschle?
30 posted on 04/25/2003 11:14:55 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: rhinohunter
it would be fun to see the rats get really run out the next election, but then that's asking a lot of the right base to turn out on when Bush got nothing done domestically...

who knows...

either way, keep up the heat on the Senate.
31 posted on 04/25/2003 11:16:43 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: BruceS
Dem's are hostile to Estrada because he is against "settled law"

What about when Clinton nominated people anti-capital punishment, ie anti "settled law"?

32 posted on 04/25/2003 11:18:35 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: princess leah
Hey, if Bush recess appts those nominees and they are due up in the fall of -04, it would be ideal time to push their nominations back throught the senate until the Dems approve or they obstruct RIGHT BEFORE ELECTION TIME! Sounds like a good plan!!!

Not sure if it would work, but I like your optimism (sp?) Hey...you never know (-:
33 posted on 04/25/2003 11:19:36 AM PDT by firewalk
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To: votelife
How many "moderate" swing voters of the type who are supposed to abandon the Democrats over their obstructionism even know who Miguel Estrada is?

And whose fault is that?

The Democrats can play this game with impunity, knowing they will suffer no punishment for doing so. A clear, straightforward, ten-minute, prime-time, televised speech by Bush that clarifies the issues and names names might indeed push Estrada through and cost the Democrats six or seven Senate seats in 2004, but he's got to be willing to use his political capital to make it happen.

34 posted on 04/25/2003 11:20:47 AM PDT by Mr. Jeeves
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To: nathanbedford
Remember, there are two goals 1) to flood the courts with conservatives, and 2) exploit Estrada to turn the Hispanic vote and win the next elections. Everything else is only tactics.

Exactly. You have the correct perspective.

35 posted on 04/25/2003 11:23:26 AM PDT by DeweyCA
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To: votelife
Do it! IF W can get re-elected then we are looking at December 2008. That's a long way off, and if we can pick up a couple more Senate seats it may be moot down the road.
36 posted on 04/25/2003 11:27:58 AM PDT by Rummyfan
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To: votelife
Bill Clinton broke the taboo against recess appointments to the bench,


There have been over 300 recess appointments to the Federal Judicary..... Not sure what he means by Clinton broke the taboo against recess appts.
37 posted on 04/25/2003 11:29:33 AM PDT by deport
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To: Rummyfan
this is the goal:
Remember, there are two goals 1) to flood the courts with conservatives, and 2) exploit Estrada to turn the Hispanic vote and win the next elections. Everything else is only tactics.

Freepers should less eager to think Bush/Frist/etc are selling out. Wait 6 years and then decide. For now work hard and let's give Bush the benefit of the doubt. If Bush has a better Senate and 6 more years, the Courts will move a LOT to the right.
38 posted on 04/25/2003 11:34:23 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: DeweyCA; nathanbedford; votelife
Remember, there are two goals 1) to flood the courts with conservatives, and 2) exploit Estrada to turn the Hispanic vote and win the next elections. Everything else is only tactics

Check out the work that Kay Daly is doing in DC on this! She was the winner of the CPAC 2003 Reagan award.

Coalition for a Fair Judiciary

39 posted on 04/25/2003 7:06:28 PM PDT by Huber (Support the Coalition for a Fair Judiciary!)
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To: Huber
good link and bump for Estrada
40 posted on 04/26/2003 9:06:26 PM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: votelife
bump
41 posted on 04/28/2003 8:58:34 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: votelife
ESTRADA Activism thread
http://www.freerepublic.com/focus/news/847037/posts


42 posted on 04/29/2003 1:27:13 PM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: votelife
bttt
43 posted on 04/30/2003 3:55:17 PM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: votelife
bring on the judges
44 posted on 05/07/2003 7:38:10 AM PDT by votelife (FREE MIGUEL ESTRADA!)
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To: BeforeISleep
A few days ago, Bush had to call Frist in to tell him that he wanted his tax cuts, not the democrats tax cuts. Frist has been a non-person from the git-go and I bet Bush is sorry he was ever sold Frist by Rove or whomever.
45 posted on 05/07/2003 7:42:09 AM PDT by cynicom
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To: gubamyster
Seems to me that a recess appointment could be just the opposite – it could give a judge, through well-thought out decisions, the chance to prove the DemocRats wrong and diffuse any controversy.

The democrats are generally wrong, but even public support for a nomination will not overcome the need for a 60-40 majority to make the Senate filibuster-proof. If a recess appointment gives a judge the opportunity to show that he is against: late-term abortions, quotas disguised as affirmative action, or gun-grabbers who don't give a hoot about The Second Amendment, the dem's power base will come out in force against their permanent approval.

46 posted on 05/07/2003 7:47:44 AM PDT by TruthShallSetYouFree
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To: cynicom
A few days ago, Bush had to call Frist in to tell him that he wanted his tax cuts, not the democrats tax cuts...

Really? I didn't hear about that...why wasn't I told sooner...
47 posted on 05/07/2003 7:51:39 AM PDT by firewalk
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To: BeforeISleep
Before...It was all over the media and of course FR. Frist had joined in with the dems for the lowest figure. After the woodshed meeting, he said he now believed $570 billion was the proper amount. So much for Senate leadership. Daschle is still in charge.
48 posted on 05/07/2003 7:55:13 AM PDT by cynicom
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To: cynicom
cynicom, I don't read every thread, and have trouble paying attention to those threads that I'm interested in (-:

Mostly I meant my post to you as a (sort of) joke. You want to debate with someone (and picked me) nope...
49 posted on 05/07/2003 8:05:24 AM PDT by firewalk
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To: BeforeISleep
Nope, just assuring you that the event happened. Frist is just another weak sister that the pubs put in charge. That ought to wake up the troops here. hehehe
50 posted on 05/07/2003 8:07:37 AM PDT by cynicom
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