Let Them Filibuster: A Senate rules change may not be wise.

National Review Online ^ | December 15, 2004 | The Editors

[xsysmgr]

Democrats have waged an "unprecedented" campaign against Bush's judicial nominees — to quote an accurate observation that Democratic senator Jon Corzine made in a fundraising letter. They have denied up-or-down votes to several Bush nominees who had the support of a majority of senators. They have made scurrilous charges against nominees. Priscilla Owen was said to be an enemy of women because, as a judge in Texas, she had interpreted a state law to grant parents a stronger right to be notified of their children's abortions than Democrats would like. Democrats sought to breach the confidentiality of Miguel Estrada's work for the Justice Department in a desperate search for embarrassing material on him. The effect of the Democratic campaign, and probably the intent, has been to intimidate some qualified conservative jurists from putting themselves in the line of fire.

So we sympathize with those Republicans who have been proposing to change the Senate rules to make it easier to confirm nominees who have majority support. Nevertheless, we think the idea is a mistake.

Under current Senate procedures, it takes 60 votes to end a debate and move to a vote. It takes 67 votes to change the procedures. Some conservatives argue that the 60-vote rule to cut off debate, when applied to judicial nominations, violates the Constitution. The "advice and consent" of the Senate, they say, implies that it should only take a majority of the Senate to confirm a judge. The use of the filibuster effectively creates a supermajority requirement, which, on this argument, is unconstitutional. It is, in our view, an implausible argument. The Constitution does not forbid the Senate from setting its own procedures.

Republicans should insist on
political accountability for filibusters
instead of a rules change.

Conservatives are on stronger ground in arguing that a simple majority of senators should be able to rewrite the rules. But whether it would be prudent for Republicans to act on this insight is another question.

It may be wiser to insist on political accountability for filibusters of judicial nominees than to change the rules to prevent them. In the 2002 and 2004 elections, Republicans took Senate seats from the Democrats. The Democrats' filibusters against Bush's judge picks were an issue in all of them.

The consequences might be worse for the Democrats in the case of a Supreme Court vacancy. Only small portions of the electorate have paid attention to the political battles over appellate-court nominations. The public will be paying attention during a Supreme Court fight. Many voters will root for Bush's nominee and many will root against. But it is unlikely that middle-of-the-road voters will have much tolerance for attempts to block a vote.

Consider the Ashcroft precedent. Liberals were incensed over Bush's nomination of John Ashcroft to be attorney general. They were energized by their strong showing in the 2000 Senate elections and angered by the Florida recount. They demanded a filibuster of Ashcroft. The Democratic Senate leadership refused to take this step, rightly calculating that the public reaction would be negative.

The Democrats will probably not be able to resist the liberal pressure to wage a filibuster when a Supreme Court vacancy arises. But at some point, we strongly suspect that the filibuster would collapse. That collapse would do more for Republicans — and for the cause of confirming conservative judges — than a rules change. (A rules change might demoralize Democrats, but it would also enrage them. An unsuccessful filibuster would just be demoralizing.)

Republicans could change the rules, but they have no constitutional obligation to do so. And the best moment for changing the rules, during a Supreme Court fight, would also be the moment when a change would be least necessary. So let the Democrats filibuster — and pay the price.

[Don'tMessWithTexas]

Yes. I think we are in agreement.

[mrsmith]

All records from the early Senate, not just MacClay and Jefferson's works, show that "moving the question" brought all debate to an end upon the vote of a mere majority.

"what the rules of the Senate were and are, for which the official - and current - Senate information seems more credible than opinions from 200 years ago"
"Those people that were there- what do they know?" LOL!

Ignorant stupid people will believe history is whatever they're told one day, and believe it's something else if they're told that another day.

There was an interesting novel about a society like that.

[mrsmith]

"few have made a compelling argument that it is being unconstitutionally applied. "

I also don't think the filibuster of nominations can be proven unconstitutional from the actions or words of our Founders.
They were all over the place on the issue at the convention- during the debates Madison proposed both that the Senate make appointments by itself, and that the President appoint subject only to a 2/3 negative vote by the Senate.

The first Senate adressed the issue: August 21, 1789.
"The committee appointed to wait on the President of the United States, and confer with him on the mode of communication proper to be pursued between him and the Senate, in the formation of treaties, and making appointments to offices, reported:
Which report was agreed to. Whereupon,
Resolved, That when nominations shall be made in writing by the President of the United States to the Senate, a future day shall be assigned, unless the Senate unanimously direct otherwise, for taking them into consideration. "

This sounds conclusive, however filibusters were attempted upon some nominations when they were considered and were ended by 'moving the question'-IE: by Senate rule and not by any appeal to Constitutional intent.

Ironically for us today, the issue was squarely raised by James Monroe at the Virginia Ratifying Convention when he criticized the appointment mechanism because:
"[the President] is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. The concurrence of a bare majority of those who may be present will enable him to do these important acts. It does not require the consent of two thirds even of those who may be present. "
Had Madison or any of the other eminent defenders of the Constitution there risen to say "Yeah, so what?" or "No, that's not so!" what a great deal of trouble they'd have saved us.

I think the evidence is that it is more faithful constitutional practise to vote upon the nominee. But I've not seen compelling evidence to show it was considered constitutionally required.

[justshutupandtakeit]

Debate "rules" cannot stop the Senate from doing its constitutionally mandated duty through sophistic slight of hand. Nor does it have the authority to prevent votes REQUIRED by the Constitution through this means which is the functional equivalent of requiring a 60 vote majority.

[Tall_Texan]

I respectfully disagree with this editorial. The window for pushing through these nominations will close more quickly than you think. This cannot wait until 2006 and the fantasy of a possible filibuster-proof majority. I don't think there are that many Senate seats left to pick off and then we will be the ones playing defense, trying to hold onto more Senate seats than the Democrats will.

My one addendum to any possible rule change is to limit that change *only* to votes on presidential nominees and appointees rather than any Senate procedure. It's ridiculous that when a new president takes office it takes literally months for him to get his cabinet confirmed. A simple majority, or a majority plus one, is well within fair and constitutional muster and I am not afraid of how this might be used by some Democrat further down the road because, frankly, the Democrats will find ways to get their people in by hook or crook.

Only one party plays by the rules and its long past time they asserted themselves.

[rcocean]

I guess it depends on your liking for the status quo and the current direction of the country and the courts.

I don't like the current state of the judiciary; or the direction the country has taken in the last 30 years regarding social issues and judicial activism. Unlike the MSM, I don't think Thomas is an "extremist" and Ginsburg is "mainstream". I think the opposite.

I want change, and the fulfillment of promises every Republican President since Nixon has been making.

[ConservativeGadfly]

There seems to be a few myths floating around on this thread that need debunking -- here's an excerpt from the Federalist Society website which should answer a great number of the questions brought up...

http://www.fed-soc.org/judicialnominations.htm

Index

There has been much controversy lately concerning the pace of Senate confirmations of Bush Administration judicial nominees, as well as the manner in which nominees ought to be scrutinized by the Senate. Following is a bibliography of materials to shed further light on this subject, as well as a history of the ABA's response on this general subject.

Materials on Senate Filibuster : Role of Ideology : The American Bar Association : Advocacy Groups : Other Resources

Materials on Senate Filibuster of Judicial Nominees

Wall Street Journal, "Pirates We Be" discussing the Senate filibuster of judicial nominees
by Professor Stephen Calabresi May 14, 2003 (PDF)


Hearing before the Senate Committee on the Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights on “Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent.” May 6, 2003 (PDF)


An Exchange on the Judicial Confirmation Process
Prof. Stephen B. Presser, Northwestern University School of Law and Michael B. Rappaport, University Professor at the University of San Diego School of Law.
Federalist Society Hot Topics--May 8, 2003 (PDF)


Debate on Judicial Confirmations
Hon. C. Boyden Gray, Wilmer Cutler Pickering and Nan Aron, President, Alliance for Justice
February 20, 2003 (PDF)


1968 Letter from the Lawyers Committee on Supreme Court Nominations regarding the Abe Fortas filibuster. (PDF)
Role of Ideology

@@@@@@@@@ JOIN THE JUDICIAL NOMINATIONS/SUPREME COURT BATTLE PING LIST @@@@@@@@@@@@

[Truth Table]

Bottom line is pretty simple: When it comes to judges, and if the donks had the power, do conservatives honestly think that the donks would honor the minority fliibuster?Honestly?


The folks at NRO are not hitting on all cylinders.