Skip to comments.GOP Prepares for Filibuster Battle over Another Judicial Nominee
Posted on 04/26/2003 7:41:47 AM PDT by Remedy
Even though the U.S. Senate appears headed for a filibuster over the judicial nomination of Priscilla Owen, a senator from her home state of Texas remains hopeful Democrats will avoid that route.
Sen. John Cornyn (R-Texas), who once served with Owen on the state supreme court, warned his Democrat colleagues that they would suffer politically for holding up President Bush's judicial nominees.
"Since the Democratic leadership feels like it's not had to pay a political cost for it, they see no reason to change their tune," Cornyn said. "I think we've got to find some way to hold them accountable, and I think that time is rapidly approaching."
He said Democrats are becoming known as "obstructionists," and they're experiencing voter dissatisfaction for their inflexible positions on matters like the Department of Homeland Security and terrorism insurance - two issues Cornyn said hurt them in this past November's elections.
No one knows for sure if the Owen nomination will lead to a filibuster, a tactic Democrats have used to hold up the confirmation of Miguel Estrada to a post on the D.C. Circuit Court of Appeals.
Bush nominated Owen, a Texas Supreme Court justice, for a vacancy on the U.S. Court of Appeals for the 5th Circuit. Although her first confirmation failed when Democrats controlled the Senate, Bush re-nominated her after Republicans won control of the Senate in the 2002 elections. The Judiciary Committee approved the nomination March 27 on a party-line vote.
The Committee for Justice, a conservative group established to defend and promote Bush's judicial nominees, directed criticism earlier this month at a group of moderate Senate Democrats who are opposing Owen.
Sean Rushton, the group's executive director, accused Democrats of carrying out an unprecedented and unconstitutional fight by using a filibuster to hold up the nominations. He said the Committee for Justice is preparing a campaign to defeat these senators in 2004.
Among the Democrat incumbents the group plans to target are Sens. Even Bayh (Ind.), John Breaux (La.), John Edwards (N.C.), Byron Dorgan (N.D.), Bob Graham (Fla.), Fritz Hollings (S.C.), Harry Reid (Nev.), Tom Daschle (S.D.) and Blanche Lincoln (Ark.).
"They should remember they may be taking their cues from [Sen.] Ted Kennedy, but they don't get to run for re-election in Massachusetts," Rushton said.
But even beyond the political consequences, Rushton said he worried about the damage that would result from the filibuster strategy used by Democrats. Estrada's nomination marked the first time senators used their filibuster power to derail a judicial nominee.
Cornyn raised the idea that a court might need to enter into the debate. Sixty votes are needed to override a filibuster, and Republicans have only been able to peel off a few Democrats to garner 55 votes.
Several liberal groups, including the National Organization for Women and the National Women's Law Center, which have publicly stated their opposition to Owen, did not return phone calls.
Earlier this month, however, Marcia D. Greenberger, co-president of the National Women's Law Center, warned about the dangers Owen would pose if she was granted a seat on a federal circuit court.
"All judicial nominees should be required to demonstrate that they have a commitment to the fundamental constitutional principles and statutory provisions that protect women's legal rights," she said. "Justice Owen's record actually showed hostility to the core rights and principles that American women depend on."
Owen's critics have complained about her interpretation of a parental notification law dealing with abortion. But Cornyn defended her handling of the case.
"It is a law she did not write; it was written by the Texas Legislature," he said. "And unlike legislators, when an issue comes before a court, a judge doesn't have the option of saying, 'No, I don't want to decide this one, it's too controversial.' A judge is obligated, and duty bound, to decide each and every case that comes before them to the best of their ability."
Cornyn raised the idea that a court might need to enter into the debate.
WHY NOT THE U.N.?
The courts decide everything else - why not?
On Feb. 18th, The Washington Post called on Senate Democrats to "Stop These Games and Vote," and even Sen. Tom Daschle (D-SD), the leader of the filibuster, is on record supporting up-or-down votes on judicial nominees during the Clinton administration (Congressional Record, 10/5/99).
The filibuster, as applied to the confirmation process most recently, is a violation of the Senators Oath of Office and the Constitution.
US Senate: Art & History Home > Origins & Development > ... I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Using the filibuster to delay debate or block legislation has a long history. In the United States, the term filibuster -- from a Dutch word meaning "pirate" -- became popular in the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill.
In the early years of Congress, representatives as well as senators could use the filibuster technique. As the House grew in numbers, however, it was necessary to revise House rules to limit debate. In the smaller Senate, unlimited debate continued since senators believed any member should have the right to speak as long as necessary.
In 1841, when the Democratic minority hoped to block a bank bill promoted by Henry Clay, Clay threatened to change Senate rules to allow the majority to close debate. Thomas Hart Benton angrily rebuked his colleague, accusing Clay of trying to stifle the Senate's right to unlimited debate. Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote -- a tactic known as "cloture."
The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.
Senate Is to Advise And Consent, Not Obstruct and Delay The Framers Envisioned A Narrow Role for The Senate in The Confirmation Process.
Wednesday, February 26, 2003 Judicial Nominations -- Miguel Estrada
How did we get into this circumstance? How did we get to this point where the ground rules have changed, that we are into an obstructionist tactic, an unfair procedure? What happened? After the last election when President Bush was elected, the New York Times reported that the Democrat majority, the Democratic Senators at that time early in President Bush's administration had a retreat at some location unknown to me, and they heard at that time from three liberal law professors, Lawrence Tribe, Cass Sunstein, and Marcia Green burger. These liberal professors at this private retreat told the Democrats at that time, they should change the ground rules for nominations. They should ratchet up the pressure and they should alter the historic rules of courtesy, the historic presumptions in the Senate, and they should change how nominees are treated. They said: You have the power to do it. Do it, Democrats. Stand up and block these nominees. Do not accept the nominees from President Bush, like this Republican Senate accepted President Clinton's nominees. Fight every step of the way. That is apparently what has happened.
Shortly after that, when the majority in the Senate changed, I served on the Administrative Oversight and the Courts subcommittee. Senator Schumer chaired that subcommittee. He held hearings. He held hearings to argue the point that the burden of proof for a confirmation of a judge should change and it ought to be on the judge to prove he is qualified. That has never been done before in the history of this country. We had Lloyd Cutler, former Counsel to the White House of Democrat Presidents. We had others testify. They testified that it would be wrong to shift the burden to the nominee, it was not the right thing to do. Then he had hearings to say we ought to just consider your politics, your ideology, as he said, and we can consider somebody's politics, and we can reject them if we do not agree politically.
I don't think a Court would touch the question of the constitutionality or the enforceability of the Senate's internal rules, particularly the rules relating to filibusters. I think any Court would consider that a political question, internal to the Senate.
The Courts are getting increasingly arrogant/unconstitutional. If they ruled against the Republicans, they wouldn't need to be concerned about the enforcement of their opinion.
Your post is the best solution I've read.
Its political dynamite! It'd take no more than 2 weeks max. All our congress critters on every medium - "Well this nice young man Eric Estrada yada, yada ... Ms. Owens, a shining intellect ... Mr. Pickering, widely praised ... etc. The US constitution provides ... The Democrats are refusing to allow an up or down vote ... Tom Daschole today again refused ... Sen. Ted Kennedy passed out on the floor of the Senate ... 83% of those polled agree that the bags under Sen. Clinton's eyes have taken on a life of their own ... 98% of those polled agreed that the dimocrats should "get over it" ... etc.
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