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Lessons of the Estrada Defeat
Legal Theory Blog ^ | September 4, 2003 | Prof. Lawrence Solum

Posted on 09/04/2003 3:47:38 PM PDT by pogo101

Withdrawal: What Does Estrada's Decision Mean?



TOPICS: Constitution/Conservatism; Extended News; Government; News/Current Events; Politics/Elections
KEYWORDS: estrada; filibuster; judiciary; lessons; nuclearoption; senate
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Lengthy but intriguing law-prof analysis of What Went Wrong and Whither Go We Now.
1 posted on 09/04/2003 3:47:39 PM PDT by pogo101
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To: pogo101
This is the best, clearest explication of the political and legal issues in bench nominations that I have ever read. And I say that as someone who has practiced in the Supreme Court for decades, and followed the subject closely.

Congressman Billybob

Latest column, "We Are Running for Congress -- Maybe," discussion thread on FR.

2 posted on 09/04/2003 4:02:34 PM PDT by Congressman Billybob (Everyone talks about Congress; time to act on it. www.ArmorforCongress.com)
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To: Congressman Billybob
That means a lot coming from you, William Robert, thanks -- actually I wasn't sure I should bother posting it! Glad I did, then.

(Full disclosure: the posting script program of FR initially blocked this posting because its source is a "blogspot." The program was going to force me to post in General Interest, which has no categories for politics or the judiciary; only News does. So I cheated: I added extra spaces around the "dot" in the source URL.)
3 posted on 09/04/2003 4:05:29 PM PDT by pogo101
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To: pogo101
Good post on a bad day.
4 posted on 09/04/2003 4:15:47 PM PDT by LisaFab
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To: Congressman Billybob; pogo101
So what do you think are the chances that GW will work towards a "perfect storm," by nominating Al Gonzalez for the Estrada seat and waiting for a filibuster of Hispanic #2(Gonzalez); a Black Woman (Brown); a White Woman (Owen); and, a White Man (Pryor)?
5 posted on 09/04/2003 4:25:40 PM PDT by Kaisersrsic
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To: pogo101
"Although the Republican leadership gestured toward the nuclear option, in the end the Democrats prevailed and Estrada withdrew"

The Democrats should NOT have prevailed!

6 posted on 09/04/2003 4:26:16 PM PDT by cake_crumb (UN Resolutions = Very Expensive, Very SCRATCHY Toilet Paper)
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To: pogo101
Awesome post. Thank you!
7 posted on 09/04/2003 4:26:28 PM PDT by Huck
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To: Kaisersrsic
Low. Because I think Bush is holding back Gonzalez for a SCOTUS seat.
8 posted on 09/04/2003 4:27:13 PM PDT by pogo101
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To: pogo101

I can sum up the problem in 6 words: Republican Senate leadership is an oxymoron.


9 posted on 09/04/2003 4:28:16 PM PDT by Keith in Iowa (Tag line produced using 100% post-consumer recycled ethernet packets,)
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To: pogo101
I tried clicking on the Blog link but all I get is some search engine.?
10 posted on 09/04/2003 4:33:47 PM PDT by tet68
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To: pogo101
24/7 Won't Work The contemporary filibuster is a polite affair. Charles Schumer does not talk through the night, bleary eyed and exhausted. Why not? Couldn't the filibuster be broken if the Republicans forced the Democrats to go 24/7? No. Because the 24/7 option actually gives an advantage to the minority. Why? In order to force a 24/7 filibuster, the majority must maintain a quorum at all times, but the minority need only have one Senator present to maintain the filibuster. So 24/7 both exhausts and distracts the majority, while allowing the minority the opportunity to rest and carry on their ordinary business.

Not necessarily true. The majority can have a quorum call as often as they wish and send the sgt at arms and capital police to arrest the dems and bring them to the floor. They will get just as tierd, and look as foolish as the Texas State Senate hidfing in New Mexico.

SO9

11 posted on 09/04/2003 4:34:56 PM PDT by Servant of the Nine (A Goldwater Republican)
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To: pogo101
good article - ping to myself
12 posted on 09/04/2003 4:39:06 PM PDT by Puddleglum
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To: pogo101
"The problem with recess appointments is that they expire at the end of the next term of the Senate."

I tried to point this out earlier today. Several times. People just don't want to listen and the Bush bashers are bound and detirmined to drown me out.

13 posted on 09/04/2003 4:44:14 PM PDT by cake_crumb (UN Resolutions = Very Expensive, Very SCRATCHY Toilet Paper)
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To: tet68; All
Had to edit the URL slightly, as otherwise FR's programming would have blocked the posting in News.

Here is the proper link.
14 posted on 09/04/2003 4:44:46 PM PDT by pogo101
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To: cake_crumb
Something the author doesn't mention is that recess (judicial) appointees also are unpaid.
15 posted on 09/04/2003 4:46:27 PM PDT by pogo101
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To: Keith in Iowa
Correct - and next go round, the Republican "leadership" needs to toss around phrases that seem to work for the Rats....."Racism", "Hijacking the Constitution", etc., etc.
16 posted on 09/04/2003 4:47:40 PM PDT by ErnBatavia (40 miles inland, California becomes Flyover Country!)
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To: Congressman Billybob
Is the Filibuster of Judicial Nominees Now a "Custom of the Senate"?

Will this mean the end of the Supreme Court as we know it? What will happen in the future when no one will be approved and a vacancy needs to be filled??
Is there a Constitutional way to handle this?
17 posted on 09/04/2003 4:53:00 PM PDT by jrushing
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To: pogo101
"Something the author doesn't mention is that recess (judicial) appointees also are unpaid."

Yep, that's true too.

18 posted on 09/04/2003 4:55:10 PM PDT by cake_crumb (UN Resolutions = Very Expensive, Very SCRATCHY Toilet Paper)
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To: Dane; Miss Marple; PhiKapMom
Worth a read... long but interesting
19 posted on 09/04/2003 5:00:48 PM PDT by deport
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Bump for later.
20 posted on 09/04/2003 5:04:53 PM PDT by StriperSniper (The Federal Register is printed on pulp from The Tree Of Liberty)
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To: pogo101
Both sides now seem committed to a judicial selection process that concieves of the federal judiciary as the third political branch. Not the least dangersous branch, but the most dangerous branch. The branch that carries out a political agenda with the security of life tenure and the power of final decision about Constitutional questions. Can that bell be unrung? I wish that I could say "yes" with confidence, but alas, I cannot.

For the most part it has not been Conservative Judges and Justices who have turned the judiciary into a polictical organization and the "most dangeous" branch of government. It wasn't conservative justices who said that "No state shall .. deny to any person within its jurisdiction the equal protection of the laws" meant that it was OK to do so for a "good cause" or at least a politically correct one. Nor was it conservative justices who took away the power of the states to define what constitutes a crime in their states. And that's just in the last session of the Supreme Court. It certainly hasn't been "strict constructionist" judges that have declared that "right of the people" means "right of the National Guard" (not even the right of National Guardsmen!).

21 posted on 09/04/2003 5:07:14 PM PDT by El Gato (Federal Judges can twist the Constitution into anything.. Or so they think.)
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To: jrushing
The Democrats have already committed that they will not filibuster a nomination to the Supreme Court. However, you know how those Democrats can lie.

It is best at this point that the Senate Republicans "go nuclear" for the remaining held up judicial appointments. That way, the decks are absolutely clear for the next Supreme Court nomination -- which will come no later than June, 2004, perhaps earlier.

John / Billybob

22 posted on 09/04/2003 5:11:17 PM PDT by Congressman Billybob (Everyone talks about Congress; time to act on it. www.ArmorforCongress.com)
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To: pogo101
Thanks for an excellent post

Cheers,

Richard F.
23 posted on 09/04/2003 5:16:55 PM PDT by rdf
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To: Congressman Billybob
It's About the Votes Stupid
The best way to bust a filibuster is to get the 60 vote necessary for cloture


I don't understand what happened to "Advice & Consent". Those terms do not include "filibuster". How can the Dems suddenly turn around 200 years of history & change Advice & Consent into filibuster???
24 posted on 09/04/2003 5:19:58 PM PDT by jrushing
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To: pogo101
I usually just skim articles on FR, but this one had me parsing each word. Great article, highly informative.
25 posted on 09/04/2003 5:34:10 PM PDT by thedugal (Someone ping me when the shootin' starts...)
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To: pogo101; NormalGuy; cherry_bomb88; chicagolady; TheRightGuy; cfrels; JustPiper; Endeavor; ...
Thank you for posting this very educational analysis, p1.

unspun's unsolicited ping: uno momento, especially for those whom I pinged earlier on this critical issue. This is well worth the read.

We should use this news, though, especially in bringing hispanic households to the right side.
26 posted on 09/04/2003 5:35:42 PM PDT by unspun ("Do everything in love." | No I don't look anything like her but I do like to hear "Unspun w/ AnnaZ")
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To: jrushing
No, the best way to kill the filibuster in THIS Senate on THESE nominees is to use the nuclear option to end forever the application of any filibuster to any judicial nominee. It's last use of the nuclear option was by Senator Byrd. And it works.

The Democrats in the Senate (Zell Miller and John Breaux sometimes excepted) are a cancer on the body politic. Since they cannot be removed by surgery, they need to be isolated and attacked. Dr. Bill Frist should have gotten that point months ago. He should do it now, or risk being consigned to the ashheap of history like Trent ("Vacant") Lott.

John / Billybob

27 posted on 09/04/2003 5:39:51 PM PDT by Congressman Billybob (Everyone talks about Congress; time to act on it. www.ArmorforCongress.com)
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To: pogo101
This is a lengthy but excellent analysis of what has happened and what the future possibly holds for the judicial nomination process. A line has been crossed by the dems in the Senate and it's not just "politics as usual".
28 posted on 09/04/2003 5:48:09 PM PDT by Reb Raider
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To: Congressman Billybob
The best way to kill the filibuster in THIS Senate on THESE nominees is to use the nuclear option to end forever the application of any filibuster to any judicial nominee

The NUKE option as written above sounds dangerous because,"It would make the Senate function like the House."

Would it be wise to alter the Senate in this direction?
(Miller, Lott & Breaux--I was born in Georgia, grew up in Mississippi, & now live in Louisiana)
29 posted on 09/04/2003 5:57:57 PM PDT by jrushing
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To: pogo101
Good article. I will be very interested to see what the next move in this ideological war will be.
30 posted on 09/04/2003 6:10:16 PM PDT by PogySailor
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To: pogo101
I agree. Bush is holding Gonzales back for a SCOTUS seat. Gonzales is clearly his first choice and, with Estrada gone, becomes an even more likely appointee.

Were Bush ever willing to get tough with the Senate I'd suggest Bush might be just as happy it turned out this way. He's picked up an electoral hook into the Hispanic community in next year's election and he's made the Gonzales appointment that much more certain to be both made and confirmed. Since Bush never goes to the mat with the Democrats, however, I have to guess he just doen't care as much as I think he should - on many counts.

31 posted on 09/04/2003 6:10:57 PM PDT by caltrop
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To: pogo101
A worthwhile read.
32 posted on 09/04/2003 6:14:27 PM PDT by headsonpikes
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To: jrushing
The "Senate would function just like the House" is another Democrat dodge. It would not.

The proper use of the nuclear option is tactical, not theater. It can and should be used ONLY to eliminate the filibuster as applied to judicial nominations and no other subject. That way, judicial confirmations will go back to what the Constitution requires -- majority vote only. And all other activities of the Senate will continue as before.

John / Billybob

33 posted on 09/04/2003 6:23:32 PM PDT by Congressman Billybob (Everyone talks about Congress; time to act on it. www.ArmorforCongress.com)
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To: unspun; ntnychik; CindyDawg
Estrada thread. Thanks for the ping, unspun.
34 posted on 09/04/2003 6:24:30 PM PDT by potlatch (If you want breakfast in bed - - - sleep in the kitchen!)
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To: pogo101
Very informative.
35 posted on 09/04/2003 6:37:49 PM PDT by livius
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To: Congressman Billybob
The proper use of the nuclear option is tactical, not theater.

This sounds great. I liked the NUKE option when I first heard about it.
My concern is that changes will be made that we will regret at a later date.
The Dems held onto power for 50+years. We have a Majority now and can't get a Judge appointed.
I want our Majority to rule by the Constitution. I do not want to win a battle and lose the war. I value our Constitution & want it preserved.
36 posted on 09/04/2003 6:43:07 PM PDT by jrushing
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To: cake_crumb
da withdrew" The Democrats should NOT have prevailed!

You are so right! I am sooo furious! Our country has been hijacked by liberal socialists and we just have to sit here and take it!!!!

37 posted on 09/04/2003 6:45:19 PM PDT by ladyinred (The left have blood on their hands.)
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To: Keith in Iowa
Given what the author of this fine piece has written, what would you have suggested the leadership have done? Seems to me they were stymied by Senate rules and recalcitrant RATS with nary a possibility of defeating them.
38 posted on 09/04/2003 6:52:21 PM PDT by Paulus Invictus (Freerepublic.com is eTruth!)
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To: pogo101
This is the most intelligent and accurate article I have seen which even touches the subject. 99% of the reporting is either superficial or agenda-driven and inaccurate.
39 posted on 09/04/2003 7:09:20 PM PDT by Dog Gone
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To: pogo101; .30Carbine
bump to read later
40 posted on 09/04/2003 7:17:29 PM PDT by TigersEye (Regime change in the Courts. - Impeach Activist Judges!)
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To: Paulus Invictus
Given what the author of this fine piece has written, what would you have suggested the leadership have done?

Read post # 33. The Senate makes it's own rules and procedures, and the courts can't interfere because the Constitution gives the Senate that right. Nothing is stopping the pub leadership from having their way on this issue, nothing that is except a lack of guts. Frist is no better than that big wuss Lott.

41 posted on 09/04/2003 7:46:59 PM PDT by epow
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To: jrushing
"How can the Dems suddenly turn around 200 years of history & change Advice & Consent into filibuster???"

Because they were allowed to, by a cowed majority.

42 posted on 09/04/2003 7:49:19 PM PDT by okie01 (I support Billybob. www.ArmorforCongress.com)
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To: jrushing
Up until the Schumer hijacking of the Constitution, all confirmations of judicial appointments were conducted by majority vote. The one exception was the mini-filbuster against Abe Fortas for the Supreme Court, and the Administration immediately dropped that ethically defective nomination, rather than fight it out.

So, getting rid of the filibuster on judicial nominations ONLY both obeys the Constitution (where Advise and Consent requires only a majority) and preserves Senate traditions, going back two centuries. Four months ago I laid this whole porcess out in writing on FreeRepublic.

The only reason it has not been done is that Bill Frist doesn't want to upset the Democrats too much. Does that remind you of anyone? Trent (Vacant) Lott, perhaps?

John / Billybob

43 posted on 09/04/2003 7:59:53 PM PDT by Congressman Billybob (Everyone talks about Congress; time to act on it. www.ArmorforCongress.com)
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To: Congressman Billybob
The only reason it has not been done is that Bill Frist doesn't want to upset the Democrats too much. Does that remind you of anyone? Trent (Vacant) Lott, perhaps?

Yes, it reminds me & concerns me that the Constitution will not be upheld by those who have sworn to uphold it.
Thank you C.Billybob for fighting to uphold our Constitution. We need more like you to fight for us in Washington!
It is very confusing to me that we have the Majority but cannot seem to use it.
44 posted on 09/04/2003 8:09:20 PM PDT by jrushing
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To: Paulus Invictus
>>Given what the author of this fine piece has written, what would you have suggested the leadership have done?

I would suggest that they should make the Demonrats fillibuster 24-7 - see if any of them have it in them to break the late Strom Thurmond's record for a fillibuster. And the sheeple might then get a chance to see the Demonrats for the weapons of mass obstruction that they are. But Frist and his merry band of political eunuchs won't go there, because it might make them look too partisan.
45 posted on 09/04/2003 8:13:16 PM PDT by Keith in Iowa (Tag line produced using 100% post-consumer recycled ethernet packets,)
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To: pogo101
It seems to me that Frist has allowed the Democrats to keep a low profile on this issue. The majority of Americans don't even know there IS a judicial filibuster. The news media are aiding and abetting, as usual, by failing to report it, but it would be harder for them to help the Dems cover up their obstructionsim if Frist didn't make it so easy for them.
46 posted on 09/04/2003 8:35:15 PM PDT by Cicero (Marcus Tullius)
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To: pogo101
Bump for later reading
47 posted on 09/04/2003 8:37:00 PM PDT by SuziQ
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To: jrushing
Thanks for your comments.

Please help. The three ways are: Volunteer if you're in the 11th Disttrict. If not, recommend friends, relatives & colleagues who are in the 11th. Donate to the campaign (from FReepers I seek only the price of dinner and a movie for two, or about $35).

I need all the help I can find. Can you be part of that? Click below for a whole bunch of additional information.

Congressman Billybob

Latest column, "We Are Running for Congress -- Maybe," discussion thread on FR.

48 posted on 09/04/2003 8:49:48 PM PDT by Congressman Billybob (Everyone talks about Congress; time to act on it. www.ArmorforCongress.com)
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To: unspun
Thanks for the heads up!
49 posted on 09/04/2003 8:52:18 PM PDT by Alamo-Girl
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To: unspun
Thanks for the ping.

Lets hope we can get a total 60 Republicans in the senate in '04.

That would finally bury these clowns for a decade or so.
50 posted on 09/04/2003 9:28:34 PM PDT by bondserv
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