Republicans Hold Conference On Obstruction Of Justice

Your post still misses the point.

As I indicated in my post, Cornyn himself is trying to piece together a panel of Constitutional experts to argue that the use of filibusters to obstruct otherwise slam-dunk nominees IS un-Constitutional.

Ah, but as I pointed out last week, Cornyn screwed up last week when he said that the SCOTUS does not have jurisdiction. The problem is, if the Senate procedures are unconstitutional, the Courts DO have jurisdiction--automatically so. All the Courts need for intervening is a triggering action. (Maybe most courts would be reluctant to rule against the Senate rules, but that would be a matter of dereliction of Constitutional duty on their part, not a matter of lack of jurisdiction.)

Your analysis is flawed. The court never accepts a "case" because an action or lack of action by government is unconstitutional. The court grants cert in order to determine whether the action or lack thereof is constitutional or not. Even before the court addresses the constitutional issue, the court must first determine whether it has jurisdiction over the matter. It must first determined if there is a case or controversy. Because this is a matter that can be addressed politically, it is unlikely that the SCOTUS will find that it had jurisdiction. Hence, the court will not even reach the constitutional issue.

I still submit that your analysis is flawed.

We should not limit our discusion to talking about what our courts tend to do or tend not to do. This is the whole basis of your argument, but we need to notice what the Constitution has ordained that the courts do.

The courts are the final defense of the Constitution when the other branches are bent on violating it. This is a sacred responsibility on the part of the judicial system. We must quit pretending that the courts can lawfully duck their responsibility. Even if we fear that they will duck their responsibility, we should decry their attitude in that regard in advance.

The Constitution really is a lot clearer than the soft-peddling, almost helpless-sounding Republicans have made it out to be. The Senate MUST get back into line or be WHIPPED into line by the courts.

As Cornyn is trying to argue--very convincingly, through the panel of Constitutional experts whom he has asked to testify--the Senate's filibuster provision as used to de-rail the judge-confirmation process is unconstitutional.

I rest my case. Cornyn is making it nicely. (Read the testimony which has already been offered before his committee!) And I will not let him turn around and say that the courts have no business in the matter if our Senators prove to be a bunch of Constitution-despising cads.

Point to the provisions of the Constitution where it says that the courts represent the place for the final defense of the Constitution. You cannot find such a place. The doctrine of judicial review is a creature not of the Constitution but of the Court itself. Therefore, by extension you must rely on the history of the court to determine to some extent the legitimacy of government action.

The Constitution requires the Court to try cases. What is the case against the Dems in the Senate? They are not placing a super-majority requirment on the votes to confirm judges. They are saying that Senate rules allow for unlimited debate on any topic. Cloture rules are constructed to allow for the end of debate and bring a matter to a vote. The filibuster is simply a normative part of Senate business. Any attempt by the Court to strike down the filibuster would be a meddling into the business of the Senate.

The filibuster does not change the requirements for confirmation. It does make it more difficult to bring the matter to the floor for a vote. It is an important difference. A difference that takes the whole matter outside the jurisdiction of the Court.

I respect and support the POTUS and the Senate leadership. However, the filibuster is simply NOT unconsitutional. Frankly, I appreciate the fact that filibuster is possible. It allows the minority to prevent mob rule. It places a check of government power. It frustrates the machinery of statecraft.

The point is that parliamentary maneuver is far more effective and appropriate in this instance.

Point to the provisions of the Constitution where it says that the courts represent the place for the final defense of the Constitution. The doctrine of judicial review is a creature not of the Constitution but of the Court itself. Therefore, by extension you must rely on the history of the court to determine to some extent the legitimacy of government action.

Only a legalist would ask for a specific provision when the entire structure of the Constitution demands a doctrine of judicial review [grin]. In other words, you are missing the forest for the trees.

The doctrine of judicial review, gleaned from the very structure of our Constituted Republic, was merely recognized before much time passed in the early days of our Republic. Structurally, our courts have specific and ominous authority in interpreting and applying law. That obviously includes the supreme law of the land, which is the Constitution. The doctrine of judicial review was not invented like the "doctrine of privacy" was. The doctrine of judicial review follows from our system of the rule of law in which the Constitution is the supreme law and our SCOTUS is the immediately final authority in the interpretation and correct application of law.

The fact that some of our timid courts have not always been willing to do their Constitutional duty is beside the point. When Constitutionality is at stake, when we have a bunch of Senate reprobates who have hijacked the Constitutional process of advice and consent, the Constitution obviously expects--by the very structure of a Constitutional nation of laws interpreted by the courts--that the court system will act to defend the Constitution when the reprobates have trampled on it.

In other words, the SCOTUS really is the final Defense of the Constitution in our three-branch Republic. It is in the structure of things, not in precedents of judicial review. (Besides, if we have a lot of bad precedents involving courts which are not sufficiently zealous to oppose another Branch for its violations of the Constitution, the Constitution itself trumps the precedents. [Bad precedents in this regard of judicial cowardice can be condemned and thrown out. Hey, it happens in law! We just don't talk a lot about such embarrassing things!])

The Constitution requires the Court to try cases. What is the case against the Dems in the Senate? They are not placing a super-majority requirment on the votes to confirm judges.

Nonsense. The Dems are playing legalistic games--such that they are doing precisely what you are suggesting they are not doing. They are doing their Constitution-hating mischief in a de facto way--and, of course, they aren't saying that they are doing it.

So what if they aren't saying it? They are doing it. They are requiring a super-majority which is at odds with the Framers' obvious intentions.

They are saying that Senate rules allow for unlimited debate on any topic.

I notice again your word "saying." You are missing the point of what they are doing. They are maligning and obstructing rather than discharging their Constitutional responsibility of advice and consent.

The fact that the Dems claim Constitutional authority for this dirty trick is just so much foul smoke-blowing. You need to start wearing a gas mask. The toxins of the Dems' legalistic gamesmanship have gotten to you already, I'm afraid. (Gosh, you ought to read the arguments which the Constitutional scholars have offered to Cornyn. Their unanswerable arguments cut through the smoke and reveal very clearly that the Dems are behaving in a criminal way. The Dems are behaving as self-seeking pirates, not responsible officers of a serious duty.)

Cloture rules are constructed to allow for the end of debate and bring a matter to a vote. The filibuster is simply a normative part of Senate business. Any attempt by the Court to strike down the filibuster would be a meddling into the business of the Senate.

You have offered ultimately irrelevant comments about this rule and that rule. What you have failed to grasp is that the Senate has made rules which are now being revealed as unconstitutional in the matter of advice and consent. They are not prolonging debate. They are shutting down the process and pretending that they are not doing this. Any idiot should be able to see that. They are unlawfully seizing complete control of the process--and they have no Constitutional right to do that.

The filibuster does not change the requirements for confirmation. It does make it more difficult to bring the matter to the floor for a vote. It is an important difference. A difference that takes the whole matter outside the jurisdiction of the Court.

Again, you are missing the point. The Dems are maligning and viciously obstructing the will of the majority. This is provable in the case of Estrada's nomination. The Dems are subverting the whole process. This is illegal. They can't claim that the Constitution gives the Senate the right to make rules at odds with the Constitution. The purely technical point to the effect that they haven't changed the simple-majority criterion is a legalistic charade. They have changed it in a de facto way.

I respect and support the POTUS and the Senate leadership.

I respect them when they show that they are willing to do what is right.

However, the filibuster is simply NOT unconsitutional.

When the filibuster is used as a de facto establishment of a super-majority criterion for confirmation of judicial nominees, it danged sure is unconstitutional. (There are a lot of Constitutional lawyers on my side, by the way. You ought to see how they argue the Constitutional issues in the light of American history. [History actually supports our case, not yours.] So, puh-leez quit siding even accidentally with those who hate our Republic.)

Judicial Nominations, Filibusters, The Constitution:....MR. STEVEN CALABRESI "

The filibuster of legislation dates back to 1841 when Senator John C. Calhoun, a notorious defender of slavery and an extreme proponent of minority rights, originated the filibuster as part of his effort to defend the hideous institution of slavery. Calhoun’s creation of the filibuster was opposed by the great Senator Henry Clay and the very name filibuster itself was originally a synonym for pro-Slavery mercenary pirates who would attack Latin American governments to try to spread the Slave system. Since its inception in 1841, the filibuster of legislation has been used to block legislation protecting black voters in the South, in 1870 and 1890-91; to block anti-lynching legislation in 1922, 1935, and 1938; to block anti-poll tax legislation in 1942, 1944, and 1946; and to block anti-race discrimination statutes on 11 occasions between 1946 and 1975. The most famous filibuster of all time was the pro-segregation filibuster of the Civil Rights Act of 1964, which went on for 74 days. In recent years, the number of filibusters has escalated dramatically due to the emergence of the so-called stealth filibuster or two track system of considering legislation. We have gone from 16 filibusters in the 19th Century to 66 in the first half of the 20th Century to 195 filibusters between 1970 and 1994. Filibusters of legislation may be constitutionally dubious as an original and textual matter, but they have been permitted now in the Senate for a century and one-half and indeed seem to be mushrooming.

Now for the first time in 214 years of American history an angry minority of Senators is seeking to extend the tradition of filibustering from legislation to judicial nominees who enjoy the support of a majority of the Senate. This unprecedented extension of the filibuster to judicial nominees threatens to raise the vote required for senatorial confirmation of judges from 51 to 60 votes. This is a direct violation of the Advice and Consent Clause, which clearly contemplates only a majority vote to confirm a judge. Raising the vote required to confirm a judge will weaken the power of the President in this area in direct violation of the Constitution while augmenting the power of a minority of the Senate. Giving a minority of Senators a veto over judicial nominees will also threaten the independence of the federal judiciary in direct violation of the separation of powers.

The Appointments Clause imposes a mandatory duty on the President to nominate and appoint judges. The Clause directs that the President "shall" i.e. "must" nominate individuals to judicial vacancies and it implicitly suggests that the full Senate must give its advice and/or consent with respect to each nominee. By giving the Senate a role in judicial confirmations, the Constitution allows the Senate to share in the inherently executive power of appointment. This senatorial exercise of executive power is to be narrowly construed, as it is an exceptional involvement of the Senate in an inherently executive task. Myers v. United States.

The question that faces this body is: should the non-textual, non-originalist tradition of allowing filibusters of legislation be allowed to spread to the new area of senatorial confirmation of federal judges? There are several reasons why allowing filibusters of judicial nominations is a bad idea. First, such filibusters weaken the power of the President who is one of only two officers of government who is elected to represent all of the American people. The President was supposed to play a leading role in the selection of judges and that role is defeated by giving a minority of senators a veto over presidential nominees.

Second, giving a minority of Senators a veto over judicial nominees will violate the separation of powers by giving a Senate minority the power to impose a crude litmus test on judicial nominees, thus undermining judicial independence. It is already hard enough for talented and capable individuals to be appointed to the federal bench. Making this process even more difficult is bad for the federal judiciary and bad for the country. We are likely to get only bland and weak individuals being willing to serve as federal judges if we continue to make the process of becoming a federal judge ever more onerous. This would weaken the federal courts and the exercise of judicial review immeasurably.

Third, the filibuster of legislation can at least be defended on the ground that federal legislation ought to be rare because of the sweeping and national effects it has on the rights of all citizens. In contrast, the confirmation of a judge who is sworn only to apply the law made by others ought to have no such sweeping and national effects. If a mistake is made with a judicial confirmation and somehow a judicial activist is allowed to slip through, impeachment is always available to rectify the error. There is no similarly easy remedy if Congress passes a bad law.

Finally, the tradition of Senate filibusters of legislation is, as I have shown of questionable pedigree. Text and original understanding do not clearly support the filibuster of legislation and the filibuster has had a dismal history as a tool primarily used in the defense of slavery and then of segregation. While it may be too late in the day to stamp out the filibuster of legislation, surely we can keep this invention of John C. Calhoun from spreading to a new area for the first time in 214 years of American history! This is the time and place to nip the spread of the filibuster in the bud.

You need to read the material in the links in post#14.

The gloves will be off when the GOP senate take a vote, decalre filibuster unconstitutional, take a vote and confirm.

Wrong. The gloves will be off when Bush uses RECESS APPOINTMENTS to put Estrada, Owen and dozns of other judges in place. I suggest the 4th of July to do this. Every day these judges are kept out of those courts is a victory for the march of Socialism.

Recess Appointments are the only sure way to defeat the left.

1. the filibuster against nominees is un-Consitutional
2. the Court has no jurisdiction
I agree with both of the above.

I say that these propositions are mutually exclusive. The problem is that inasmuch as the second proposition is false, the second one is automatically true. This is because the Judiciary is Constitutionally designed to be a check on the Legislature. This is in the very structure of our Republic as Constituted.

I ain't going to budge on this one. The doctrine of Judicial Review is inherent in the Constitutional design of our Republic. It was not fabricated out of thin air by our Courts in cases like Marbury v. Madison. The doctrine was applied because it is Constitutional.

The actions of our Court system awed a lot of people when the Court bared its teeth in defense of the Constitution in the early days of the Republic. But it was Constitutionally proper for the Court to do this.

***

Your confusion is revealed to me in two ways. First of all, the links you gave do not suffice to establish your position. In some ways, they actually make my argument for me.

For example, Jefferson's famous concerns about "judicial despotism" were triggered by the very fact that he did know how much power was being entrusted with the Judiciary. It was a scary thing.

But this actually makes my case.

Imagine Bush telling Ashcroft to enforce an intrusion of the Court against the Republicans in the Senate.

Gosh, I would expect Bush to do this. So what? (Your views of the Constitution need to be elevated quite a bit.)

Imagine the Democrats not calling for impeachment of the judges that ruled against them.

I would expect the Dems to try to do this. So what? This is just how the system works. And the Dems would fail in their attempts to impeach the judges. Even if impeached, the judges would not be convicted.

Again, I don't believe that you have given the matter sufficient thought. The danger which Jefferson was worried about is real. But the the solution is that of checks and balances. In my opinion, you are just afraid to watch the system work correctly.

I also note that you and some other FReepers think Judicial Review is not in the Constitution. You seem to think that the Law is established by judicial history. You seem to think we have to cite Marbury v. Madison. But we don't.

(I do understand the role of precedent. It is important. But I'm a real conservative. I say that the Constitution as originally framed trumps everything. That being the case, I say that bad precedents--involving occasional judicial dereliction of duty--doesn't overrule the intent of the Framers. Heck, the Framers obviously intended judicial review. You are the one who is trying to deny it. And you are siding with the enemy on this one.)

In my post above, I said "The problem is that inasmuch as the second proposition is false, the second one is automatically true."

What I meant to say was "inasmuch as the first proposition is true, the second one is automatically false."

No one is berating you for misconceptions. O.K.

Go to the following two articles and click on the source u.r.l., below the titles.

Print out the material.

Take your time going over it.

The GOP wants the issue for '04. Eliminate the obstructionists. Vote GOP.

Eliminate the obstructionists, get rid of the incumbents. ALL OF THEM !!

Heck, I am berating you, friend, in case you haven't noticed (grin). To be a little more specific, I am berating you for throwing in the towel like a good little 21st Century Republican (grin again).

A good attorney could make an fully cogent argument to the effect that the filibuster is being used to establish an unconstitutional super-majority requirement for confirmation of judicial nominees. And that is a violation of the de facto type--but it is still violation.

And since it is a violation of the Constitution--as you have conceded--the Federal courts can be brought in to strike it down. The Senate's procedures are not protected, in some idiotically insulating way of "separation of powers," from the Constitutionally proper ire of the Federal courts. It is a matter of "checks and balances." (The question of whether the judges in our judicial system have the intestinal fortitude to do the Constitutionally proper thing in the matter of checking the Senate is an altogether different question.)

A lot of lawyers agree with me. Ah, but a lot of lawyers assume that the case in unwinnable. I know that. But it is beside the point. Putting Clinton on trial was practically unwinnable, too.

(Gee, why do most lawyers assume that the case would be unwinnable? Well, the answer is found when we look at how the dopey D.C. Court ruled on CFR. The courts are filled with bums who don't really care about the Constitution. Only one of the three judges roundly condemned CFR. The other "conservative" saw an inordinate amount of "merit" in the law--and ignored the fact that it is unconstitutional from start to finish.)