Posted on 03/14/2003 11:06:03 AM PST by Congressman Billybob
By John C. Armor From the Washington Politics & Policy Desk Published 3/13/2003 7:40 PM
HIGHLANDS, N.C., March 13 (UPI) -- The U.S. Senate is conducting an episodic filibuster against the nomination of Miguel Estrada to be a U.S. Circuit Court judge. But the Senate is not voting, only arguing about the subject for four weeks and counting --- interrupted occasionally by other business.
What's happening here? Doesn't the Constitution require a majority vote for judicial nominees? Yes. Don't most Senators favor confirming Estrada? Yes.
The Senate's filibuster rule requires 60 senators to end debate. Absent that, Senate opponents can hold the floor forever, so long as 40 agree to do so. The first vote to close debate on Estrada failed with 55 ayes, 44 nays, and one absent. There will be additional cloture votes.
All decisions by Congress must obey the Constitution. Unless it requires otherwise, all decisions are by majority vote. That's what democracy means.
However, many aspects of government are deliberately non-democratic. There are 55 non-democratic clauses in the Constitution as amended. Some require supra-majorities; some forbid certain decisions regardless of majorities in favor. Based on these clauses, and one in particular, 44 senators are violating the Constitution by preventing a majority vote on this nomination.
An early non-democratic clause is Article I, Section 3, clause 1, which gives each state two senators regardless of population. In the abstract, it's "unfair" that Alaska's half a million people have as many senators as California's 34 million. But that compromise was essential to the writing and ratification of the Constitution. The last non-democratic clause, the 27th Amendment, bars a congressional pay raise until after the next election. (This was part of the original Bill of Rights but wasn't ratified until 1992.)
The First Amendment contains four non-democratic provisions. No matter how large the majority, Congress cannot vote to silence a speaker, or a newspaper, or forbid a religion, or halt a political demonstration. Likewise, Article V is non-democratic. To amend the Constitution requires two-thirds of both Houses of Congress and three-fourths of the states.
This choice was deliberate. As Madison, Hamilton and Jay wrote in the Federalist, the Constitution should not be amended by "the mere whim of a majority." All non-democratic provisions were adopted to prevent certain decisions at "the mere whim of a majority."
The Advice and Consent Clause applies directly to the Estrada filibuster. Article II, Section 2, clause 2, gives the president the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, by and with the Advice and Consent of the Senate ... judges ...."
Note the difference between treaties and judges. The latter is democratic; the former isn't. None of the Democrats conducting the Estrada filibuster claims that confirming judges requires more than a majority. But they are using the non-democratic filibuster to prevent that vote.
Doesn't that mean that 44 senators are saying, in effect, "democracy be damned," and "amending" the Constitution by force? Yes.
What can be done about this? Here's where the process gets tricky. Article I, Section 5, clause 2, says, "Each House shall determine the Rules of its Proceedings...." The Supreme Court will never tell either House it must change its rules. So the answer to this conundrum is not in court.
The current Republican tactic is to break the filibuster by embarrassing Democrats before immigrant and Hispanic citizens for blocking the Estrada vote. He is an immigrant and an Hispanic, an accomplished graduate of Harvard Law School, rated "highly qualified" by the American Bar Association, and praised by Democratic and Republican Solicitors General he worked for. But political pressure is not the only way to break this filibuster.
This week, President George W. Bush sent a letter to the Senate, read on the floor by Majority Leader Bill Frist. The president asserted that all judicial nominees by all presidents should receive a majority floor vote. This would solve the immediate problem and prevent its recurrence.
However, this is wishful thinking. A letter from the president plus $1.50 will get you a cup of coffee in the Senate cafeteria. Can the filibuster rule be changed to not apply to judicial nominees?
Senate rules provide that they continue in effect, "unless changed by a vote of two thirds of the Senators." That looks like an even higher burden, 67 senators to change the rules, rather than 60 to end a filibuster. Things aren't always as they seem.
Cloture requires 60 votes, regardless of how many senators are present. The rule on rules requires "two thirds of the Senators present and voting." Let's say that the Republicans gain the support of three more Democrats, increasing the vote to close debate to 58, too few to break a filibuster.
Let's say that six Democrats are absent, in Iowa campaigning for president. Let's say that a snap vote is called at midnight during the filibuster, and seven other Democrats do not reach the floor in time. Two-thirds of 87 senators present is 58, enough to eliminate the filibuster rule for all judicial nominees. Majority rule would be re-established where the majority is intended to rule, advise and consent on judicial nominees.
For 214 years, all judicial nominees to reach the Senate floor have received majority decisions (unless they withdrew). There was one exception: the bipartisan filibuster against Justice Abe Fortas, nominated by President Lyndon Johnson as chief justice. By tradition, the Senate has not allowed its rules to impede its constitutional role of majority votes on judicial nominees.
Tradition is fine, as long as it holds firm. For a century and a half, no president served more than two terms --- because George Washington returned to private life after two terms. After Franklin D. Roosevelt's fourth term, the 22nd Amendment replaced the broken tradition with a constitutional requirement.
The same logic applies here. Democrats have killed a two-century tradition of democracy in the Senate. The broken precedent must be re-established by a Rule that no Senate is likely to break. The application of filibusters to judicial nominations should be stopped, not just for Miguel Estrada but for all judicial nominees, by all presidents, for all time to come.
--
(About the Author: John C. Armor practices law in the U.S. Supreme Court and writes books and articles, some on constitutional law. His eighth book will be "These Are the Times that Try Men's Souls," about Thomas Paine).
Copyright © 2001-2003 United Press International
During the filibuster on Estrada, a Senator in favor of his approval rises to make a Point of Order:
Senator: Mr. President, since judicial nominees require only a majority vote per the Constitution, I challenge the application of the Cloture Rule during any debate on judicial nominees.
Vice President Cheney, presiding: The Chair rules that Senate Rule XXII, the Cloture Rule, does not apply during any debate on judicial nominees.
Opponents would, of course, challenge the ruling of the Chair. But such rulings stand as made, unless the Senate reverses the ruling by majority vote. Since there would not be a majority to defeat this ruling, the filibuster would immediately be over, not just with respect to Miguel Estrada but with respect to all judicial nominees. That is exactly what President Bush sought in his letter to the Senate, this week.
I thought Freepers would be interested in this.
Filibuster Si, Estrada No!
Source: Weekly Standard; Published: March 17, 2003; Author: Major GarrettTalking Nonsense - The Senate Filibuster
Source: BreakPoint with Charles Colson; Published: March 13, 2003; Author: Mark EarleyEstrada & the Dream
Source: National Review Online; Published: March 12, 2003; Author: René FonsecaPresident Calls for Action on Judicial Nominations
Source: White House Office of the Press Secretary Published: , March 11, 2003.Miguel Estrada: The President Must Take His Case To The People
Source: CNSNews; Published: March 11, 2003; Author: Paul M. WeyrichLeft-Wing Democrat U.S. Senators Thwarting The Will Of 'We The People'
Source: Toogood Reports; Published: March 10, 2003; author: Wallace HonleyEstrada and the future of the judiciary
Source: Washington Times; Published: March 10, 2003; Author: Nat HentoffSupermajority Rules?: Why the Estrada filibuster is unconstitutional
Source: Wall Street Journal; Published: , March 8, 2003; Author: Douglas W. KmiecBarbara Stanley: Hillary Barks Her Marching Orders To Democrats: Bork Miguel Estrada!
Source: Toogood Published: March 7, 2003: Author: Barbara StanleyDems: We Don’t Really Want Answers from Estrada.
Source: National Review; Published: March 4, 2003; Author: Byron YorkThe Minority Democrats' War In The Senate For Control Of America
Source: Toogood Reports; Published: Febraury 28, 2003; Author: Mary MostertSenate Democrats: Filibusters Are No Longer Just For The Floor
Source: CNSNews.com; Published: February 28, 2003; Author: John NowackiSenator Leahy's Comments on Senate Floor against Estrada (26 Feb 2003) (Revised)
Source: The Congressional Record (New Search required each time); Published: 27 Feb 2003; Author: | Sen Patrick Leahy (D-VT)Ted Kennedy's Grand Design
Source: CNSNews.com; Published: February 27, 2003; Author: Robert D. NovakLinda Chavez: Republicans Need To Call Dems' Bluff On Estrada Nomination
Source: CNSNES.com; Published: February 26, 2003; Author Linda ChavezSenate Democrats Can't Get Their Facts Straight
Source: CNSNews.com ; Published: February 14, 2003; Author: John NowackiEstrada: Now It’s War
Source: National Review Online; Published: February 12, 2003; Author: Byron YorkLeahy’s Surprise Attack
Source: National Review Online; Published: October 9, 2002; Author: Byron YorkShedded by Judiciary: Senate Democrats cast off another appointee
Source: Wall St Journal; Published: October 9, 2002Miguel Estrada May be Next Victim Of Judiciary's 'Gang Of Ten'
Source: CNSNews.com; Published: September 09, 2002; Author: Paul M. WeyrichToward Priscilla Owen, Not Even The Pretense Of Fairness
Source: CNSNews.com; Published: August 01, 2002; Author: John NowackiThe Owen Nomination: Liberals Don't Let Truth Stand In Their Way
Source: CNSNews.com; Published: July 18, 2002; Author: John NowackiDemocrats Hold Judicial Nominations for 406 Days and Counting
Source: CNSNEWS.com; Published: June 21, 2002; Author: Christine HallJudge The Senate Judiciary Committee Not By What It Says, But What It Has Done
Source: CNSNews.com; Published: | June 06, 2002; Author: John NowackiThe Left Keeps Trying -- And Failing -- To Smear Brooks Smith
Source: CNSNews.com; Published: May 16, 2002; Author: John NowackiPickering Battle Places Congress on Verge of 'Institutional Crisis'
Source: CNSNews.com; Published: March 07, 2002; Author: Jeff JohnsonMake them pay for 'Borking': David Limbaugh rebukes spineless Republicans to support Pickering
Source: WorldNetDaily.com; Published: March 5, 2002; Author: David LimbaughThe GOP's Post-Pickering Strategy
Source: National Review Online; Published: March 1, 2002; Author: Byron YorkPickering Fight Shows Liberals At Their Worst
Source: Roll Call.com; Publblished: February 21, 2002; Author: Mort KondrackeStill Pestering Pickering
Source: CNSNews.com; Published: February 19, 2002; Author: John NowackiDismantling Democracy through Judicial Activism
Source: CNSNews.com; Published: February 12, 2002; Author:Tom Jipping'A Troubling Pattern': Ideology Over Truth In Judicial Confirmations
Source: Too Good Reports; Published: February 10, 2002; Author: Paul E. ScatesDemocrats Blast Bush Judicial Nominee
Source: CNSNEWS.com; Published: February 08, 2002; Susan JonesThe Next Big Fight: The first major judicial-confirmation battle of the Bush administration.
Source: National Review: Published: Feburary 6, 2002; Author:Byron YorkSYMPOSIUM Q: Should the Senate Take Ideology into Account in Judicial Confirmations
Source: INSIGHT magazine; Published: February 4, 2002;
Authors:
Ralph G. Neas -- YES: The ideology of nominees for the federal judiciary matters more now than ever
Roger Pilon -- NO: Since judges apply law, not make it, the Senate's concern should be with judicial temperamentWhat is the Judiciary Committee Trying to Hide?
Source: CNSNews.com; Published: January 29, 2002; Author: Thomas L. JippingBlasting Conservative Judges: Liberals Launch Their Campaign
Source: cnsnews.com; Published: January 24 2002; Author: Matt PyeattJudicial Confirmation Lies, Deception and Cover-up
Source: CNSNews.com; Published: December 11, 2001; Author: Thomas L. JippingSenator Leahy Does Not Meet His Own Standards
Source:.cnsnews.com; Published: December 07, 2001; Author: By John NowackiSenator Daschle Must Remove 'Leaky Leahy' From Judiciary Committee
Source: Too Good Reports; Published: December 4, 2001; Author: Rev. Louis P. SheldonA Disgraceful Blocking of Nominees
Source: The Wall Street Journal (ltr to ed) Published: December 3, 2001Mr. Leahy's Fuzzy Math
Source: Washington Times;Published: December 3, 2001; Author: EditorialSen. Patrick Leahy; Our Constitutional Conscience?
Source: Too Good Reports; Published: December 2, 2001; Author: Paul E. ScatesJudicial confirmations called significantly low
Source: Washington Times; Published: November 30, 2001; Author: Audrey HudsonPatrick Leahy - Words Do Kill
Source: PipeBombNews.com; Published: November 29, 2001; Author: William A. MayerJudicial Profiling
Source: The Wall Street Journal; Published: November 27, 2001Sen. Leahy's judicial hostages
Source: Washington Times; Published: November 21, 2001Judges Delayed is Justice Denied
Source: CNSNews.com ; Published: November 20, 2001; Author: Thomas L. JippingPartisanship is Prevalent with Leahy's Judicial Confirmations
Source: CNSNews.com; Published: November 15, 2001; Author: John NowackiLeahy And Daschle Are Coming Face To Face With Their Own Words
Obedient Democrats
Source: CNSNEWS.com; Published October 26, 2001; Author: Thomas L. JippingWhy is Daschle Blocking Judges needed to Try Terrorists when we Catch them?
Source: Banner of Liberty; Published: October 26, 2001; Author: Mary MostertPat Leahy's Passive Aggressive Game
Source: CNSNews.com; Published: October 25, 2001; Author: John NowackiOperation Obstruct Justice
Source: Washington Times; Published: October 25, 2001; Author: T.L.JippingDaschle wins struggle over judicial nominations
Source: The Washington Times; Published: Oct 24, 2001; Author: Dave BoyerLeahy doctrine ensures judicial gridlock
Source: Washington Times; Published October 22, 2001Senate's judicial powergrab: Tom Jipping tracks Dems' assault on courts
Source: WorldNetDaily.com; Published: June 28, 2001; Author: Tom JippingDems Will Shut Down Judicial Confirmations
Source: CNSNews.com Commentary from the Free Congress Foundation; Published: June 13, 2001; Author: Thomas L. Jipping
Congressman Billybob
Latest column, now up on UPI, and FR, "Once, Twice, Three Times a Moron"
Billybob
I'm not sure I understand the mechanics of what the ruling would be. The cloture rule, remember, provides a way to end the Senate's unlimited debate. The apparent meaning of a ruling that the cloture rule does not apply to advice and consent would appear to be that debate on it cannot be stopped by cloture, and thus the situation applying before the 1917 introduction of the cloture rule -- unlimited debate -- applies. We want the opposite of such a ruling.
Yes, but the constitution does not require the senate to give their advice and consent by simple majority on Hillary's Health Care Plan.
The Advice and Consent Clause provides for majority vote by the Senate on any and all presidential appointees. Come what may, I am willing to trust the provisions of the Constitution, as written. I suggest that is the proper position of all those who are conservative about respecting the Constitution.
Billybob
Interesting, and I so much want to agree with you, but isn't this just an outright abuse? HillaryCare also would have been enacted with "only" a majority vote, so if some future Democrat stands up and says, "Mr. Chair, since the Constitution only requires a majority vote to enact X, I ask the chair to rule that the cloture rule does not apply to X," then the chair does so, and we're at the mercy of that majority.
Now, I'll grant you, we're in major breakdown of the rules (thank you for accelerating that process Bill Clinton), so perhaps it's time to start the fast ride, but even so, I don't think I can support this idea unless your grounds for distinguishing nominees from laws is a little stronger than I've perceived.
There is a second reason for narrowing the target only to filibusters on judicial nominees. Hampering the independence of the judges (and eventually Justices of the Supreme Court) weakens the entire judicial branch. So this is, I think, a more important area to remove from the cloud of potential filibusters than other, non-judicial presidential appointments.
If this change could be accomplished by any method -- ending filibusters only for judges and Justices -- it is an inconsistency. On that, I agree with you. But who can object to that? As I point out in the article, the Supreme Court won't touch the issue of internal Senate (or House) Rules with an 11-foot barge pole. Whatever the Senate decides with respect to its own Rules, will stand. No one outside the Senate will have a leg to stand on, in challenging that.
Billybob
Legislation would continue to be considered on the same basis as before, meaning majority vote in the House, but subject to filibuster (60 votes) in the Senate.
Billybob
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.