Posted on 11/27/2004 8:48:45 PM PST by neverdem
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Perhaps that is the reason why Justice Fortas decided to ask that his nomination be withdrawn, and why President Johnson promptly complied on Oct. 4.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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