Judicial Filibuster: Democrats' Clintonian Definition of What a 'Vote' Is.

Senate Minority Leader Harry Reid speaking for the perfectly unified Senate Democrats advanced their argument during Wednesday morning’s U. S. Senate debate on the first of several planned resubmissions of President Bush’s nominees to appellate court judicial posts, that of Priscilla Owen. The showdown over Owen will shortly be followed by the resubmission of the nomination of Justice Janice Rogers Brown and other Bush nominees to the federal appellate bench. Reid’s presentation was overflowing with misinformation, misleading statements and outright deception. But one intentional distortion was so outrageous that it stands out as bolder and more duplicitous than all the rest.

Justice Priscilla Owen was first nominated to the 5th Circuit Court of Appeals on May 9, 2001. Justice Janice Rogers Brown was first nominated on July 25, 2003 to the District of Columbia Circuit Court of Appeals.

Each of these respected jurists, previously elected to high state judicial office by overwhelming majorities in their respective states, was filibustered in the U. S. Senate by the Democrats and thereby denied the up-or-down vote called-for in the U. S. Constitution, Article II, Section 2 in which the Senate’s advice and consent function is granted.

Democrats invented the filibuster of judicial nominees in 2003, when the previous congress was in session, in order to defeat many of President Bush’s conservative nominees to the federal circuit courts. The filibuster strategy developed out of the Democrats' concern for the fact that Republicans commanded a majority in the Senate and were in a position to approve all the president's appellate-level judicial nominees. As a result of the new filibuster tactic employed by the Democrats, President Bush has had the lowest confirmation rate for such appointments in the history of the U. S.

At issue is whether the Democrats have the right to change procedures that have governed the Senate for over 200 years in acting on judicial nominees, providing for what is known as an up-or-down vote on the Senate floor. By universal assent of every Senator, politician and historian of the Senate, never in U. S. history has approval of judicial nominees required anything more than a simple majority of 51 votes in the Senate. Not even those Senate Democrats who are most opposed to President Bush’s allegedly "out-of-the-mainstream onservative nominees" are proposing that the simple majority requirement be upped to a supermajority.

Instead, the Democrats have circumvented the existing simple majority requirement through a legislative maneuver, using a technicality in the Rules of the Senate (# XXII) allowing for unlimited debate on all legislative matters, termination of which requires a three-fifths vote of the Senate (60 out of 100 votes). This Senate Rule has never been interpreted as applying to judicial nominees, and no nominee has ever been filibustered who was aknowledged by both parties to command a simple majority support (though cloture votes have been taken as a temporary delaying tactic or when in cases where nominees could not even command simple majority support in such cloture votes). Each and every one of President Bush's nominees blocked thus far by a filibuster is known to have had the simple majority support requisite for approval.

The issue came to a head because, beginning in 2003, Democrats began filibustering to death an unprecedented number of President Bush’s judicial nominees to the federal circuit courts of appeals. The net effect was that those nominees blocked by filibusters never received the up-or-down vote provided for in the U. S. Constitution’s advice and consent clause, Article II, Section 2. Due to the Democrats' sleight of hand filibuster tactic, despite having majority support the filibustered nominees never received any vote at all on their nominations.

In Wednesday morning’s debate, Democratic Minority Leader Reid made the astonishing claim that contrary to the Republicans' claim, Priscilla Owen, Janice Rogers Brown and by extension all of the previously filibustered Bush nominees to the appellate bench had in fact already received votes on the floor of the Senate.

Did we miss the vote to which Sen. Reid refers? Was it held in secret executive session as votes on some judicial nominations were early in the history of the country? – Are Justices Priscilla Owen and Janice Rogers Brown now happily sitting on the courts of appeals—while hidden in some top secret location?

Since it is universally acknowledged that no vote on a judicial designee has ever required more than 51 votes for approval, and since these two nominees without question have the support of well over 51 Senators, we are led to wonder: What might the wily leader of the Senate Democrats possibly be referring to in claiming that they have already received votes?

The explanation lies in the fact that when the Priscilla Owen and Janice Rogers Brown nominations were first submitted and filibustered in the last congress, the two nominees' supporters attempted to invoke cloture. This vote required 60 votes on the floor of the Senate.

That cloture vote was held for each of these nominees. And each failed to reach the required 60 votes to invoke cloture, end the filibuster, and force an up-or-down vote that would have required only a simple majority to approve each of these nominees.

Thus, Justices Priscilla Owen and Janice Rogers Brown never received a vote on their nominations due to the fact that the cloture vote failed. The vote to invoke cloture was a procedural move to force an end to the debate, not a vote to approve or disapprove the nominees.

This failed procedural cloture vote is the basis for Sen. Reid’s duplicitous claim, repeated over and over again in yesterday morning's Senate debate, that these and all of President Bush's nominees who were filibustered to death did receive a vote on the floor of the Senate. He is merely switching the meaning of the word vote, to refer not to any vote on the nominees, but to the procedural vote on whether to invoke cloture and terminate debate.

Conclusion: Here Sen. Harry Reid is saying, to borrow a phrase from Bill Clinton, It’s all a matter of what the definition of "vote" is. Sen. Reid is a worthy successor to the former president in the techniques of manipulating language for political advantage. A proud tradition indeed. Sherry Eros, MD, is a neuropsychiatrist and Steven Eros is a philosopher. They are conservative columnists and maintain an online presence at their blog, Eros Colored Glasses.

This isn't my research but other freepers have gathered the following quotes:

Sen. Joseph Biden (D-Delaware) March 19, 1997: “But I also respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor.”

Sen. Richard Durbin (D-Illinois)September 28, 1998: “We should meet our responsibility. I think that responsibility requires us to act in a timely fashion on nominees sent before us. ... Vote the person up or down.”

Sen. Dianne Feinstein (D-California) September 11, 1997: “Let’s bring their nominations up, debate them if necessary, and vote them up or down.”

Sen. Edward Kennedy (D-Massachusetts)February 3, 1998: “We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.”

Sen. Patrick Leahy (D-Vermont) May 10, 2000: “The Founding Fathers certainly intended that the Senate advise as to judicial nominations, i.e., consider, debate, and vote up or down. They surely did not intend that the Senate, for partisan or factional reasons, would remain silent and simply refuse to give any advice or consider and vote at all.”

Sen. Barbara Boxer (D-CA) 5/14/97 : “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.”

Sen. Tom Daschle (D-SD): “I find it simply baffling that a Senator would vote against even voting on a judicial nomination.” (Congressional Record, 10/5/99)

Sen. Tom Daschle (D-SD): “Hispanic or non-Hispanic, African American or non-African American, woman or man, it is wrong not to have a vote on the Senate floor.” (Congressional Record, 10/28/99)

Sen. Byron Dorgan (D-ND): “My expectation is that we’re not going to hold up judicial nominations. …You will not see us do what was done to us in recent years in the Senate with judicial nominations.” (Fox News’ “Special Report With Brit Hume,” 6/4/01)

Richard Durbin (D-IL) "If, after 150 days languishing on the Executive Calendar that name has not been called for a vote, it should be. Vote the person up or down." (Cong. Rec., 9/28/98, S11021)

Sen. Dianne Feinstein (D-CA): “Let’s bring their nominations up, debate them if necessary, and vote them up or down.” (Congressional Record, 9/11/97)

Sen. Dianne Feinstein (D-CA): “It is our job to confirm these judges. If we don’t like them, we can vote against them.” (Congressional Record, 9/16/99)

Sen. Dianne Feinstein (D-CA): “Our institutional integrity requires an up-or-down vote.” (Congressional Record, 10/4/99)

Sen. Tom Harkin (D-IA): “[The filibuster process] is used … as blackmail for one Senator to get his or her way on something that they could not rightfully win through the normal processes.” (Congressional Record, 1/4/95)

Tom Harkin (D-IA) "Have the guts to come out and vote up or down….And once and for all, put behind us this filibuster procedure on nominations." (Cong. Rec., 6/22/95, S8861)

Sen. Tom Harkin (D-IA): “I urge the Republican leadership to take the steps necessary to allow the full Senate to vote up or down on these important nominations.” (Congressional Record, 9/11/00)

Sen. Ted Kennedy (D-MA): “We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.” (Congressional Record, 2/3/98)

Sen. Ted Kennedy (D-MA): “It is true that some Senators have voiced concerns about these nominations. But that should not prevent a roll call vote which gives every Senator the opportunity to vote ‘yes’ or ‘no.’ ... Parties with cases, waiting to be heard by the federal courts deserve a decision by the Senate.” (Congressional Record, 9/21/99)

Sen. Herb Kohl (D-WI): “These nominees, who have to put their lives on hold waiting for us to act, deserve an ‘up or down’ vote.” (Congressional Record, 9/21/99)

Sen. Patrick Leahy (D-VT): “I hope we … will accept our responsibility and vote people up or vote them down. … If we want to vote against them, vote against them.” (Congressional Record, 10/22/97)

Sen. Patrick Leahy (D-VT): “Now, every Senator can vote against any nominee. … But it is the responsibility of the U.S. Senate to at least bring them to a vote.” (Congressional Record, 10/22/97)

Sen. Patrick Leahy (D-VT): “ "I have stated over and over again … that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported …” (Congressional Record, 6/18/98)

Sen. Patrick Leahy (D-VT): “[E]arlier this year … I noted how improper it would be to filibuster a judicial nomination.” (Congressional Record, 10/14/98)

Sen. Patrick Leahy (D-VT): “[I]f the person is otherwise qualified, he or she gets the vote. … Vote them up, vote them down.” (Congressional Record, 9/21/99)

Sen. Harry Reid (D-NV): “[W]e should have up-or-down votes in the committee and on the floor.” (CNN’s “Evans, Novak, Hunt & Shields,” 6/9/01)

Sen. Chuck Schumer (D-NY): “[W]e are charged with voting on the nominees. The Constitution does not say if the Congress is controlled by a different party than the President there shall be no judges chosen.” (Congressional Record, 3/7/00)

Carl Levin (D-MI) "If a bipartisan majority of the U.S. Senate is prepared to vote to confirm the President's appointment, that vote should occur." (Cong. Rec., 6/21/95, S8806)

What about Minority Rights?

Our constitution is based on a concept of inalienable rights belonging to all men. They are properties of each and every person, not something that belongs to the collective society. Because each person has his own rights and we have many enumerated rights, conflicts can develop. However, groups of people do not have different rights, as they can only represent the rights of their members.

However, what I see developing is conflict between the defense of individual rights and the idea that corporate rights can and should trump the rights of the individual. In the argument over the filibuster, I hear that the Senate should respect minority rights. That sounds fair enough until you ask whether the Senate minority has the right to treat an appointee unfairly. Whether or not anyone else has ever been unfair in the past, I doubt that members of the minority either individually or together have any right to treat another unfairly.

All of my life people have objected to the idea of becoming a number in an age of data processing. So also would one object to thinking that justified giving someone the shaft based on a statistic like this. We have approved 208 and are only objecting to 10. Since 10 is a small number. We can do whatever we please. Is that the logic we would have judges use in deciding cases? Who cares if 5% of the people on death row are innocent? The other 95% are guilty. Isn’t that close enough for government work?

This is a statistical idea of fairness than conflicts with our tradition of equal justice under the law meaning fair to each and every person. The idea has been that it would be better for 99 guilty men go free than one be convicted wrongly. In other words, government does not guarantee anybody’s rights unless it protects everyone’s rights the same.

It seems to me that, when asked, Democrats assert corporate and institutional rights. Now it is minority rights in the senate over rights of accomplished Americans to be treated as individuals. They said that they could not and should not concern themselves with individual cases when Republicans passed a law for a de novo hearing of the Terri Shiavo matter. They will fight for the failing public schools versus an idea that No child be Left Behind. They talk about the middle class and working people and the minority , always as groups, not individuals.

I suppose it should be no surprise that the babyboom or me generation would elect people who would stand for the rights of individuals to be treated fairly. It is not necessarily the old rugged individualism of the past, but it is still the “Don’t Tread On Me” motto that separates these Republicans from their Democratic opponents.

Why, if the Dims invented the judicial filibuster in 2003, do several of the quotes by Dims you posted refer to filibuster of nominations in the 90's?

Sen. Tom Harkin (D-IA): “[The filibuster process] is used … as blackmail for one Senator to get his or her way on something that they could not rightfully win through the normal processes.” (Congressional Record, 1/4/95)

Tom Harkin (D-IA) "Have the guts to come out and vote up or down….And once and for all, put behind us this filibuster procedure on nominations." (Cong. Rec., 6/22/95, S8861

Sen. Patrick Leahy (D-VT): “ "I have stated over and over again … that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported …” (Congressional Record, 6/18/98)

Just asking. If the judicial filibuster hasn't been used before 2003, it just seems strange that these Senators would be implying that Republicans were using or trying to use it during Clinton's term. Where lieth the truth?

Just asking for information.

BTW, even if the filibuster is eliminated as a tactic in judical (and presumably all) nomination votes, can't any Dim still place an indefinite 'personal privilege hold' on any or all nominees, still preventing a vote? Or, don't they want to do such, since it would then open a particular Senator, rather than the party, to electoral attack?

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