Posted on 11/27/2004 8:48:45 PM PST by neverdem
Republicans control the White House, both houses of Congress and the Supreme Court. But the greater their power, the more they have focused on one of its few limits: the Senate filibuster. They are so concerned that Democrats will use the filibuster to block a few far-right judicial nominees that they are talking about ending one of the best-known checks and balances in government. Rather than rewrite the rules of government for a power grab, Republicans should look for ways to work with Democrats, who still represent nearly half the country.
The filibuster is almost as old as America itself. In 1790, senators filibustered to prevent Philadelphia from becoming the nation's permanent capital. In the centuries since, senators have used their privilege of unlimited debate to fend off actions supported by a bare majority of the Senate, but deeply offensive to the minority. In 1917, the Senate adopted a formal resolution allowing senators to delay actions unless debate is cut off by a supermajority, which Senate rules now set at 60 votes.
The filibuster has a storied place in the nation's history, and in popular culture. During the Great Depression, Huey Long of Louisiana fought off a bill he opposed by reciting recipes for fried oysters and potlikker. In the 1939 film "Mr. Smith Goes to Washington," Jimmy Stewart triumphed over crooked politicians with a 23-hour filibuster. Filibusters were used, notoriously, by Southern senators to fight civil rights legislation, notably the Civil Rights Act of 1964. But even during those dark days, the Senate considered the right to filibuster sacrosanct.
Judicial nominees have never been immune from filibusters. When Republicans opposed President Lyndon Johnson's choice for chief justice, Abe Fortas, they led a successful filibuster to stop him from getting the job. More recently, in the Clinton era, Republicans spoke out loudly in defense of their right to filibuster against the confirmation of cabinet members and judicial nominees. Republican senators, including Rick Santorum of Pennsylvania and Mike DeWine of Ohio, used a filibuster in 1995 to block President Bill Clinton's nominee for surgeon general. Bill Frist, now the Senate majority leader, supported a filibuster of a Clinton appeals court nomination. Senator Christopher Bond, a Missouri Republican, was quoted in The St. Louis Post-Dispatch in 1993 saying, "On important issues, I will not hesitate to join a filibuster."
Now that Republicans are doing the appointing, they see things very differently. Dr. Frist recently declared on "Fox News Sunday" that preventing votes on judicial nominees is "intolerable." Among the proposals Republicans are floating is the so-called nuclear option. According to Senate rules, changing the filibuster rule should require a two-thirds vote. But in the "nuclear option," Vice President Dick Cheney, as Senate president, would rule that filibusters of judicial nominees could be ended by a simple majority.
That would no doubt put the whole matter in the courts, an odd place for the Republicans - who are fighting this battle in the name of ending activist courts - to want it resolved. The Republicans would have a weak case. The Constitution expressly authorizes the Senate to "determine the rules of its proceedings." That is precisely what it has done.
If it came to a vote, it is not at all clear that the Republicans would be able to command even a majority for ending the filibuster. Senators appreciate their chamber's special role, and much of its uniqueness is based on traditions like the filibuster. Senator Charles Schumer, the New York Democrat who has led the opposition to extremist judicial nominees, says as many as 10 Republican senators could vote against changing the rule.
The Republicans see the filibuster as an annoying obstacle. But it is actually one of the checks and balances that the founders, who worried greatly about concentration of power, built into our system of government. It is also, right now, the main means by which the 48 percent of Americans who voted for John Kerry can influence federal policy. People who call themselves conservatives should find a way of achieving their goals without declaring war on one of the oldest traditions in American democracy.
This is a violation of the separation of powers that the NYT is being hopeful about. The Senate determines its own rules. There is no court (except the 9th) that would even entertain this case. Either the NYT is clueless or they are setting the stage for a judicial takeover.
Break out the cots and caterers! Force their hand. How long could Teddy go before the DT's hit him? Probably several others. Probably would kill Sheets Byrd.
From http://www.freedomworks.org/informed/issues_template.php?issue_id=1441
The Congressional Record for Oct. 1, 1968, shows that 45 senators voted for cloture, 43 voted against. However, if the senators who did not vote are taken into account, we find that 48 were on record as opposing cloture, 47 as favoring it. Indeed, at least one of the senators who voted for cloture, Republican John Sherman Cooper of Kentucky, said that he would vote against the Fortas nomination if it came to a vote. Another who voted for cloture proposed immediately after the vote that the president withdraw the nomination and submit a name that could be quickly confirmed. This evidence alone shows that of the 47 on record for cloture, at least one, if not more, was actually opposed to the Fortas nomination.
Perhaps that is the reason why Justice Fortas decided to ask that his nomination be withdrawn, and why President Johnson promptly complied on Oct. 4. The point is, at least 49 senators -- a majority of the 95 senators whose positions were identified in the Congressional Record -- either opposed allowing a confirmation vote or opposed confirmation on the merits. This evidence -- which suggests that, if anything, Justice Fortas might have had a majority opposed to his confirmation -- casts doubt on the likelihood that a committed plurality of 50 senators (who, with Vice President Humphrey, would have constituted a majority) would have voted for Justice Fortas's confirmation had the filibuster not prevented it.
By contrast, Mr. Estrada and Ms. Owen would win a confirmation vote today if the Democrats allowed them one. Even assuming that the Fortas filibuster was legitimate, it is not a precedent for Mr. Estrada's case or for others where a declared majority of senators favors confirmation of the nominee, and where the nominee reacts to the filibuster not by throwing in the towel but by standing his ground.
Besides, four days of debate on a nomination for chief justice is hardly a filibuster, as the closing remarks of then-Sen. Robert P. Griffin, who led the opposition against Fortas, make clear: "When is a filibuster, Mr. President? . . There have been no dilatory quorum calls or other dilatory tactics employed. The speakers who have taken the floor have addressed themselves to the subject before the Senate, and a most interesting and useful discussion has been recorded in the Congressional Record:
"Those who are considering invocation of cloture at this early stage on such a controversial, complex matter should keep in mind that Senate debate last year on the investment tax credit bill lasted 5 weeks; that the Senate debated the Congressional reorganization bill for 6 weeks; and that we spent 3 weeks earlier this year on the crime bill."
The Fortas episode is different from the current situation for other reasons. The Fortas filibuster lasted a little over a week. It slowed down the deliberative process, but it did not bring it to a halt. Just over three months in all elapsed between the date of nomination and Justice Fortas's decision to step aside as nominee for chief justice. By comparison, the floor debate on Mr. Estrada's nomination has been going on for well over three months; and the nomination itself has been pending before the Senate for over two years. Whatever else the Fortas episode stands for, it does not provide senators with precedent for a delay of this duration.
I was being kind to the NYT.
Article 2, Section 2 of the U.S. Constitution gives the President the power to appoint Justices of the Supreme Court with the advice and consent of the Senate. The article does not specify exactly what majority in the Senate is required to constitute consent but because the justices are lumped in with all other officers that require Senate confirmation and because that has always been done with a simple majority, one would expect a simple majority to continue.
The last controversial Supreme Court justice, Clarence Thomas, came to the floor of the Senate for confirmation in 1991. He was confirmed by a simple majority of 52 to 48 at a time when Democrats were in the majority in that body. Article 2, Section 2 does require an extraordinary majority of two-thirds only for ratification of a treaty. Otherwise, a simple majority has applied for more than 200 years. The requirement for 60 votes to close debate is a rule of the Senate that is found nowhere in the Constitution. It has been abused many times in the past and has helped minorities many times also. But the use of the filibuster in the past has been relatively rare and using the filibuster to block appointments reather than legislation is a relatively recent practice. Article I, Section 5 gives each house of Congress the right to set its own rules. The only time a two-thirds vote is specified is to expel a member. The bottom line is that in the face of repeated abuse of the filibuster to stop the will of the majority on many judicial appointments, the majority has the right to change the rules and either eliminate the filibuster entirely or at least place a time limit on its use with respect to confirming judicial nominees. Of course, the editors of The New York Times never actually read the Constitution so they could care less what it really says. If the Senate Republicans change the rules allowing a filibuster for judicial nominees, they will not be trampling on the rights of the minority, they will be ensuring that the minority cannot indefintely stop the will of the majority.
I think we should LET them have their filibusters...
...but they have to do them in the traditional way shown in that film. Taking the floor and holding it so long as they can talk.
The modern way simply requires a Senator wanting to filibuster a bill or an appointment to merely announces that he is doing it and THAT stops the bill in its tracks until someone can get 60 votes to bring it to vote. He doesn't have to read the New York telephone directory, pontificate orationally on any subject, road blocking every piece of business AND keeping a quorum at their desks... Under this modern "better" system he can even go home to his state, all the while filibustering in the modern style!
Let's go back to the Jimmy Stewart, Mr. Smith model!
A straightforward lie.
All of the debate in the Senate over the placement of the capital were subject to simple majority votes. VP Adams cast several deciding votes during that debate.
Filibustering was not allowed in the early Senate.
From the journal of Senator William MacClay ( who was on the committee that wrote the rules for the first Senate) on the rules of the first Senate: " In case of a debate becoming tedious, four Senators may call for the question; or the same number may at any time move for the previous question, viz, "Shall the main question now be put?" "
Thomas Jefferson also refers to this rule in his 'Manual'.
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