Posted on 12/15/2004 2:07:12 PM PST by 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.
I disagree. I think the Republicans tend to comply with the rules but the Libs do not. People state that when the situation reverses itself, and it will, and the Libs will be in the majority, it would be nice to have the filibuster available to stop a Lib nominee, but I say if it is wrong then do not use the filibuster no matter who has the majority. If it is suppose to just be a majority vote then it does not matter who is in charge, just vote. And secondly, in my opinion, if the Libs return to power they will get rid of the filibuster with no second thoughts if needed. For example, the Libs had no problem using the filibuster even though it was not used for judicial nominees in the past. What happened, FILIBUSTER IN FULL FORCE, with Libs out of power.
The filibuster hurts our 'moderates' too.
The Party wants them to vote for good judges, their electorate wants them to defend Roe v Wade. EIther way they lose. But end the filibuster and they can vote using RvW as a litmus test all they want.
It wont work that way, the Democrats would change the rules in a heartbeat leaving the Republicans babbling.
A supermajority needed to break a filibuster was 2/3rds or 67 votes. In the 70s when the Democrats found themselves unable to get around a determined Republican minority, they changed the rules to 60 votes instead of 67.
The Democrats have already changed the rules once, nothing would stop them from doing it again. All the media hype about hard feelings and bringing the Senate to a stop is BS, proven by the fact that the rules were changed, by Democrats, previously and life goes on in the Senate.
Actually, the "blockers" only need one person there... the person speaking... it's the "blockees" who need to keep a quorum, otherwise the blockers can make a quorum call, and if there aren't 51 Senators there, they adjourn with no action taken.
Correct, I mis-stated.
They didn't.
Originally, senate rules permited a senator, or a series of senators, to speak for as long as they wish and on any topic they choose which need not be relevant to the topic under discussion.
Until 1917, there was no formal mechanism to allow the senate to close debate, and any senator could start a filibuster. From 1917 to 1949, two-thirds of those voting could limit debate on a measure. As civil rights loomed on the Senate agenda, this rule was revised in 1949 to allow cloture on any measure or motion by two-thirds of the entire Senate membership; in 1959 the threshold was restored to two-thirds of those voting. After a series of filibusters in the 1960s over civil rights legislation, in 1975 the Senators changed the filibuster requirement from 67 votes to 60, after concluding that it only takes a simple majority of Senators to change the rules governing their proceedings.
As Senate Majority Leader Mike Mansfield (D-MT) said at the time: "We cannot allow a minority" of the senators "to grab the Senate by the throat and hold it there." Senators Leahy, Kennedy, Byrd, and Biden, all agreed. Nearly a decade ago, Lloyd Cutler, the former White House Counsel to Presidents Carter and Clinton, concluded that the Senate Rule requiring a super-majority vote to change the rule is "plainly unconstitutional."
(Source: Wikipedia's "Filibuster (legislative tactic)" and The Cato Institute's article "The Filibuster")
Two ways:
The first thing every new Senate does it to vote by simple majority on the rules of the Senate.
I'm a little weak on this one. But procedurally, if a Senator were to suggest that the filibuster wasn't keeping with the "advise and consent" clause of the Constitution and the Senate President agrees, it goes to a simple majority vote.
This is just one of those illogical "Two-Party Cartel" reasonings & the people will probably fall for it. The only peaceful way is if we have a group as determined as in Ukraine & we force it.
Agreed. Change the rule.
What was it that Ann Coulter called these guys? This article seems to confirm her opinion. We can wait until after the first filibuster to change the rules, but there is no reason to wait any longer than that.
Thanks.
Amen...the Constitution is the point here...the judges are simply the touch-point.
That is just wrong.
Judge for yourself:
"The political scientist Lloyd Cutler points out that they adhered to the precedent of the English parliament that allowed a simple majority to cut off a debate by a motion for the previous question. This device was included in sections eight and nine of the rules adopted by the first Senate in 1789, and was in effect until it was removed in 1806 ."
Filibuster
(Sorry, I no longer have a link Cutler's paper at hand. It's on the internet somewhere though.)
The rule can easily be found in the original sources: Journal of William Maclay, United States Senator from Pennsylvania, 1789-1791
"Rule 7. 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?" "
MacClay was on the Senate committee that wrote the first rules.
And in A MANUAL OF PARLIAMENTARY PRACTICE: for the Use of the Senate of the United States. BY THOMAS JEFFERSON.
"WHILE a question is before the Senate, no motion shall be received unless for an amendment, for the previous question, or for postponing the main question, or to commit it, or to adjourn. Rule 8. "
Calling the previous question can be, and was, used as a delaying tactic itself (there is much in Jefferson's manual about it). However it made it possible for a simple majority to always insist upon a vote on any question.
Original sources are always best.
See #59 above. The Senate did not allow filibusters until 1806. The first one was in 1847 I believe.
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