Posted on 05/23/2003 5:10:37 PM PDT by TLBSHOW
How Trent Lott Got His Groove Back
May 23, 2003
We have a story in the stack of stuff that exposes the Trent Lott that I remember from his House days. Many have forgotten, but Lott, while in the House of Representatives, was a conservative warrior. That's one of the reasons so many people were so excited when he went to the Senate, then became majority leader.
When Congress returns from its week-long Memorial Day holiday break, Senator Trent Lott, the new head of the Senate rules committee, hopes to have a hearing to change the filibuster rules for judicial nominees. This is one of these so-called "nuclear options." Lott wants to change the filibuster rules and get rid of the 60 votes business. A first cloture vote would need 60 votes. If it fails, the next one would need 58, next one would need 56 and so on down the line until you get to 51 and you break the filibuster.
This could all come on June 5, and it is designed to secure the stalled nominations of Charles Pickering, Miguel Estrada and Priscilla Owen. Lott said, "The Senate hasn't been reformed in many, many years. I'm looking for work so I'm looking at the rules. We'll either have some reform or we're going to have some fun."
Good! Trent Lott, the warrior, appears to be back, ladies and gentlemen. He continued, "I am for the nuclear option, absolutely. The filibuster of federal district and circuit judges cannot stand. It's bad for the institution, it's wrong, it's not supportable under the Constitution and if they insist on persisting with these filibusters I'm perfectly prepared to blow the place up, no problem." He's back.
He actually seemed to be originating thoughts during his interviews versus the "old script" he used to play from.
I'm certainly not saying I would want him back as Speaker but its good to see some life back into him.
Well, maybe Trent Lott is coming to the realization that there is a certain manliness that comes with standing up and fighting for what's right.
Maybe. He might just be spouting off. Time will tell.
I'm of the exact opposite view; let the nukes fly now so that the precedent doesn't stick around long enough for it to be a worry once a Supreme Court nomination rolls around.
Will he get better then? He ain't showed me nothing.
The Dems walk over him.
If the Rs really want to play they need someone else.
Rather than enforce the rules, the politicians will go around them.
How about enforcing the rule that a filibuster must be done by a man standing in the Senate and talking?
Damn fool stoopid Republicans....if they made the Dems do a real sillibuster, the whole nation could see exactly how petty and obstructionist the Democrats really, they could get the Hispanics (the legal ones) a view of the Democrats engaging in childish tactics to keep a Hispanic judge off the bench, and they could assure their own constituency that they aren't really as liberal as their votes and weasel antics make them appear.
Nope, the Republicans will, as usual, do things the stupid way, just to make the Democrats happy.
Additionally, what about allowing a President to specify a deadline by which the Senate must conduct a vote? If the President who sets the deadline too short, Senators who feel an issue hasn't been given proper consideration may vote "no", but it would absolutely prevent the filibustering shenanigans Congress is engaging in here.
I thought the President was supposed to ask Congress for a declaration of war, though not that you mention it Congress has the initiative on that.
Still, my basic point was that the President is given the initiative on appointments, and so Congress should be required to react.
How about changing the Senate rules so that (1) constitutionally-mandated business (approval of appointments, declarations of war, etc.) has a cloture of 51 votes, and (2) cloture of other issues requires 51 votes or 60% of Senators present, whichever is greater? [In other words, a minority party could still conduct a filibuster but would have to keep almost all its members actually on the floor].
MR. STEVEN CALABRESI Professor of Law Northwestern University Law School
The U.S. Constitution was written to establish a general presumption of majority rule for congressional decision-making. The historical reasons for this are clear. A major defect with the Constitution's precursor, the Articles of Confederation, was that it required super-majorities for the making of many important decisions. The Framers of our Constitution deliberately set out to remedy this defect by empowering Congress to make most decisions by majority rule. The Constitution thus presumes that most decisions will be made by majority rule, except in seven express situations where a two-thirds vote is required. The seven exceptional situations where a super-majority is required include: overriding presidential vetoes, ratifying treaties, approving constitutional amendments, and expelling a member.
The Senate can always change its rules by majority vote. To the extent that Senate Rule XXII purports to require a two-thirds majority to invoke cloture on a rule change, Rule XXII is unconstitutional. It is an ancient principle of Anglo-American constitutional law that one legislature cannot bind a succeeding legislature. The great William Blackstone himself said in his Commentaries that "Acts of parliament derogatory from the power of subsequent parliaments bind not...". Thus, to the extent that the last Senate to alter Rule XXII sought to bind this session of the Senate its action was unconstitutional. A simple majority of the Senate can and should now amend Rule XXII by majority vote to ban filibusters of judicial nominations.
Leading scholars in this area of law such as John O. McGinnis of Northwestern University, Michael Rappaport of San Diego University, and Erwin Chemerinsky of the University of Southern California all have written that the Senate Rules can be changed at any time by a simple majority of the Senate. More importantly, Vice Presidents Richard M. Nixon, Hubert H. Humphrey, and Nelson A. Rockefeller have all so ruled while presiding over the United States Senate. Some commentators have gone even further in challenging filibusters of legislation as unconstitutional, as did Lloyd Cutler, White House Counsel to Presidents Carter and Clinton. Indeed, eight years ago, 17 very distinguished law professors, led by Yale Law Professor Bruce Ackerman, opined that a new Rule in the House of Representatives purporting to create a 3/5 requirement for enacting new tax increases was unconstitutional. The Ackerman letter wisely called for limiting the proliferation of new extra-constitutional, super-majority rules - counsel that the Senate should heed here.
What will happen if the filibuster is allowed to spread to the new area of judicial confirmations? It will next spread to the resolution every new Senate must pass to organize itself, set up Committees, and apportion staff and other resources. The filibusters next expansion will be one wherein a minority of 41 Senators will claim they are entitled to equal slots and Committee resources as are enjoyed by a majority of 59 Senators. This is the logical extension of the filibusters protection of minority rule under the inexorable Calhounian logic now being played out. Additionally, what about allowing a President to specify a deadline by which the Senate must conduct a vote? If the President who sets the deadline too short, Senators who feel an issue hasn't been given proper consideration may vote "no", but it would absolutely prevent the filibustering shenanigans Congress is engaging in here.
President Calls for Judicial Reform
Six months ago, I proposed a plan to end the vacancy crisis and make the process work again. This plan would apply no matter who lives in the White House or no matter which party controls the United States Senate. Here's how it works: Judges on the federal appellate and district courts would notify the President of their intentions to retire at least a year in advance whenever that is possible. The President would then submit a nomination to the U.S. Senate within 180 days of receiving notice of a vacancy or intended retirement. The Senate Judiciary Committee would hold a hearing within 90 days of receiving a nomination. And the full Senate would vote on a nominee no longer than 180 days after the nomination is submitted. The goal is to have a new judge ready to take the bench on the same day the sitting judge retires.
Rope a Rat.
No, better to have the precedent already set and firmly in place for the Supreme Court nomination
Absotutely - no way should they wait until a Supreme nomination.
If anyone thinks the liberals/press will go nuts if we do this for regular judicial nominees, imagine what they will do if we wait and try it for a Supreme nominee. Their heads will explode!
How is changing the rules the same thing as going around the rules?
Then what happened, Rush?
Bush could fill every single one of the record judicial vacancies this weekend if he wanted to, and then extend them every six months, indefintely. Think of the impact of having Conservatives in every currently empty slot, undermining liberalism for 18 months until the election. Is it better to let the vacancies stay, and give Clinton's judges free reign? I do not understand the White House's hesitation to simply do the obvious here.
I urge all members to contact their Representative and the White House to urge the President start using RECESS APPOINTMENTS immediately. He should name Estrada and Owen to the court on July 4th...very fitting, don't you agree?
I always liked him!
The rule isn't being obeyed, is it? No, or they wouldn't need to change it. Hence, they're going around it.
There really only two choices with a rule, right? You obey it, or you don't. "go around", "bend", "break", "ignore", all essentially terms that mean the rule isn't being obeyed.
The Democrats would be happy to point out the crying the GOP did over Clinton's use of recess appointments.
And I don't agree with you. I think recess appointments would impact negatively on Bush, and it would be far far better if the GOP got it's act together for a change and fought this battle in the Senate, where it belongs.
Oh, wait. I said "Republican" and "fight" in the same sentence. I must remember to take a tighter grip on reality.
I suspect that it took the backstabbing of having Democrats who heard Lott make his Thurmond comments over and over at tributes and never said a word, turning on him at an opportune moment for short-term political advantage after years and years of trying to play nice with them, that finally got him to see the light.
If THAT didn't do it for him, then he is truly a hopeless Renfro for the Democrat vampires.
-PJ
There really only two choices with a rule, right? You obey it, or you don't.
There are three choices. Choice three is to change the rule.
That's what this Lott thingy is -- choix numero trois.
Not go around them, change them. They didn't come down from the mountain on stone tablets you know. They are just Senate Rules, not part of the Constitution. Once they are changed, the are changed, and can be applied in the current situtation and for any future Supreme Court nominations. In fact, were the rules to be changed, I suspect we'd get two SC retirements in short order, in time for the vacancies to be filled well before the 2004 elections.
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