Big Time Bigotry

Jeb Bush?

Could it be Jeb Bush?

He, he, he!


Abner

 

I am compelled to reply to some of the misinformation that has been posted. I teach U.S. Government at the college level.

First, the Republican rules change that has been proposed is just that, a rules change. The filibuster has been in flux from day one. Anyone ever seen Jimmy Stewart in "Mr. Smith Goes to Washington"? Well, he couldn't do that today with the 60 vote cloture rule. Senate rules can be changed at the whim of a majority of senators. Always has been that way.

Now, for some of the misinformation. The Republicans are not overturning two centuries of time-honored history, they are merely trying to turn back a Democratic overturning of two centuries of history regarding the filibuster!

That's a simple, irrefutable fact and no amount of partisan demogoguery will change it.

There was never in the history of the United States a single partisan filibuster of a judicial nominee prior to the Democrats doing it against George W. Bush's nominees. There was one such filibuster--and only one--over thirty years ago, and that was strictly bipartisan against Abe Fortas, a truly corrupt justice.

Why wasn't the filibuster used for partisan purposes against a President's judicial nominee for those two centuries? Because generation after generation of legislators realized that an executive nomination was the province of the executive, not the legislative. Legislation emanates, of course, from the legislature. Filibusters are proper here, but executive appointments emanate from the president, and filibusters are quite improper against them. The Constitution gives the Senate an "advise and consent" role. That's all. Majority vote, up or down, take it or leave it. By setting the number of Senators required to approve a nomination de facto at 60, the Constitution is discarded. Not a word in the Constitution cojmpels a supermajorityrequirement for judicial nominations, and no Senate rule should be allowed to override the Constitution.

In short, the Democrats usurped the 200 years of tradition when they used an internal rule in a manner in which it was never, ever intended. And if they have problems with this analysis, let them demonstrate to me a single occurrence in history when the filibuster has been used in a partisan manner to obstruct a judicial nominee prior to George W. Bush. Answer? It has not happened. Never. The Republicans are trying to set things back to the way they were prior to the unprecedented and unconstitutional actions of the Democrats starting a few years ago.

Hitler had the gall to accuse the Brits of warmongering for daring to fight back after his SS had pushed all the way to the English Channel, destroying millions in their path. Senate Democrats would do well to learn the lessons of history, and leave such outrageous cynicism in the dustbin of history where it beloings.

 

Ahh Little one Fauss- you truly prove that their are true partisan Cons even in academia (although some would believe that there are only liberal instructors).

Sorry bud - remind me never to take your class. I can see that your partisanship has overtaken your impartiality. If I were your student, I would call you on that making you look small in front of your class.

You are right - the filibuster is not a right and not part of the constitution. But do you want to know something -- no one is "entitled" by law or constitution to an up and down vote. Matters of fact, all judicial confirmation traditions in the Senate are just that - traditions. So, forget Bill Frist's crap about anyone deserving an up or down vote - their is no reference to this right anywhere.

Again, this will backfire. 2/3rds of the American people see Frist as merely being a puppet to the Bush administration. As a potential Presidential hopeful, Frist is taking his chances on supporting a President whose popularity keeps dwindling. The judges that are being targeted are on the far far right of the fringes and frankly do not deserve the right to lifetime employment.

To invoke the SS and Hitler in your argument makes you look even sillier.

So, I am compelled to dispute your misinformation. I also suggest retaking your US Government class before one of your students makes you look silly.

 

Bought and paid for Carl.... (isn't that how all of them got there?)

 

little fauss:

I kinda think we agree as to the nature of the filibuster as a Senate Rule. See my earlier post. But you lost me when you said that using the filibuster to block a judicial nominee is unconstitutional. How can this be?

Confirming a Judge is a purely political act, isn't it? I mean, there is no Constitutional provision that REQUIRES the Senate to vote, is there? There is no personal right to be appointed, is there? And by claiming that there is a legal, constitutional barrier to using the filibuster to block a confirmation vote, aren't you really saying that the Constitution restricts the ability of the Upper House to conduct its business according to such rules as it may from time to time adopt? And isn't that exactly what you ARE saying by calling the Democrats' actions "unconstitutional"?

 

Godwin’s Law

http://members.tripod.com/~goodwin_2/law.html

BM

 

Sorry, Mr. Engineer! I guess I won't run!

 

Salient point!

Nosborne!

You bring up a salient point!



Abner

 

A couple of points.
1. While getting an up or down vote is not a right it does seem the fair and therefore "right" thing to do. As others have pointed out it is only recently the Democrats started using the filibuster in such wholesale fashion to block large numbers of judicial appointments.

2. It seems to me the public notices the unfairness of blocking votes in such wholesale fashion. It also seems like the Democrats are losing even more ground to Republicans in the public's eyes. When will they learn?!

 

Dave Hayden:

"...the fair and therefore the right thing to do..."

Well, now. I am not sure I entirely understand this point.

To whom do the Democrat Senators owe their duty of fairness? To the Senate, the "Old Boys' Club"? Or to the people who elected them? If the latter, if in fact a Senator truly "represents" the will of his constituency, would it be "fair" to deny those electors their voice in the Upper House?

Do we really WANT our Senators just to "go along in order to get along"?

No. If the Senator believes that a Judicial nominee is not appropriate for ANY reason, he owes a POLITICAL duty to exercise his judgment as an expression of the will of those who put him in office.

 

Hi Nosborne

I think they owe it to their district and the public at large. I don't blame the Democratics for playing the political games that are normal in D.C. and elsewhere. They pushed the line and are getting called on it. I don't believe they did it to represent their constituents but because it was in their own self interest.

I think the Democrats have something important to contribute to our society. I get frustrated that they seem mired down in self-interest and extremist politics. They will never be effective until the can capture the interest of middle America which will never happen until they can bring themselves back to the center.

 

Mr. Engineer:

What a joke, you didn't even address my "misinformation". The fact is it's the Democrats here who overturned the apple cart of history and now are accusing the Republicans of doing precisely that!

Call the Republicans what you will, call them unprincipled scoundrels (I'm sure some are), call the Republican nominees for the courts incompetent ideologues (I'm sure some are that as well), but you simply cannot contend with my main argument: that this time it's the Democrats who are the demogogues. They changed the rules of the game by invoking the filibuster in a manner that it had never been used in history, then now accuse the Republicans of doing just that when they call them on it--it's outrageous! And while the Democrats are not Hitlerian otherwise, they are certainly giving him a good run for his money with their sheer cynicism here!

And for your benefit, let me add that I have not stated word one of my opinion on this matter or others in class (aside from one statement regarding abortion once in a class a couple years ago).

I DO NOT allow my politics to infiltrate my lectures. That's an assumption that you made, perhaps because you cannot imagine a conservative with a strong opinion who has the integrity to not use the classroom as a forum for his opinions. In fact, I take pains to give both sides of all arguments. My class sometimes thinks I'm insane, I'm sure, standing up there and vigorously making a point for or against judicial activism or affirmative action or what-have-you, then just as vigorously giving the counterpoints, then arguing with myself, bouncing it back and forth for several minutes until I'm sure the students have heard the gist of both sides of the argument. Then letting them decide what they think is right.

And the point is, I never tell them which side I'm on. I ask the students from time-to-time: "Do you know which side I take? I have one, I assure you." But just as many seem to guess the left as the right. I've had students, obviously quite liberal, come up to me after class with that "Hey comrade" attitude, having no idea that I'm actually closer to "Hey, fascist" (well, not really). But I always just play along, let them think I'm a radical lefty.

My forum for my opinions is here, not the classroom. Oh that my liberal colleagues on campus had the same attitude.

And if you took one of my classes, you and your opinions would be treated with respect (perhaps more than I've given them here). I'd welcome them, but I'd expect them to be refined, and I'd certainly call you to task for not truly addressing my counterpoints as you failed to do here.

 

Yes, I think it's unconstitutional for the Senate to demand there be more than a majority vote for nomination to the federal bench. The Constitution carefully carves out those situations where a supermajority is required, such as to override a veto or amend the Constitution. The Senate is not given such a supermajority mandate with Executive Branch nominations.

What if the Senate decided that "advise and consent" meant that 95% or 100% of senators must agree on a cabinet or judicial nominee? Would that be constitutional?

You know as well as I that the rules of document construction and interpretation as well as the whole concept of precedent would consider such a proposition absurd! The Constitution does not allow for greater than a majority requirement except when it's expressly stated, and that is precisely how the Senate has treated the matter from day one (with one solitary and rather exceptional exception--Fortas). Does the word "precedent" mean anything anymore in our system of jurisprudence and government? Let's not reinvent the wheel.

The Constitution provides the Senate an "advise and consent" role, that's all. "Advise" the President, which they do through blue slips and now the committee hearing process (itself a relatively recent invention, but still, constitutionally allowed I think), and then "consent", or give their majority vote.

Perhaps, at bottom, our differences here lie in our different opinions on stare decisis and document integrity, which we've hashed and rehashed with no forward progress. I believe that when a document provides for a handful of peculiar circumstances where a supermajority is required and is silent otherwise, that that otherwise means majority only, and must mean nothing but, or the meaning of the original document is disregarded. And when a body such as the U.S Senate treats the document in precisely that way, session after session--that is, requiring a majority only--for 200 years, that it both gives light to the meaning of the document and establishes a precedent.

Otherwise, we're cast adrift and the document--our Constitution--becomes a joke. But as I said, this is ground upon which we've already trod with no resolution.

 

little fauss:

As I understand your view, every member of each House should have exactly ONE vote; no vote should ever count as more, or less, than ONE vote except where the Constitution specifically provides for a supermajority. I have very little complaint with this. Actually, if someone pinned my ears back and asked me my opinion, I'd likely say the same thing.

But it has an interesting PRACTICAL consequence:

Your analysis renders the filibuster unconstitutional for ALL purposes, something Senator Frist has been at great pains to say is NOT the case. Now, is Senator Frist drawing this distinction because he hasn't thought through the consequences of his Nuclear Option? Or, is he deliberately misleading his fellow Senators?

 

Frist actually is saying, as near as I can tell: "Let's put it back the way it was for the last 200 hundred years before this bit of insanity took hold in the last couple sessions."

It's high time.

The rationale for allowing the filibuster for legislation but not judicial or cabinet appointments is clear, as I've already stated: nominations come from the Executive Branch, with the Senate relegated to advise and consent status, whereas legislation originates, at least technically, in the Legislative Branch. There's a bright line between them, one that was respected regarding the filibuster forever. That is, until the last few years when the Democrats bucked 200 years of precedent and clear understanding and started using it against actions constitutionally originating with the Executive.

It's a matter of balance of powers, I shouldn't have to lecture you on that, you know full well, perhaps more than me, on this point.

What the Democrats did was a cynical break with tradition. Why are the Republicans now accused of breaking tradition when they're merely trying to set things back the way they were for 200 years to reestablish the tradition?

 

So Senator Frist is making a valid distinction? Hm.

You know, revenue bills must originate in the House, not the Senate. Do you extend your constitutional distinction as far as that or is the filibuster unconstitutional in regards to revenue bills as well?

Personally, I don't agree with your distinction at all. One vote is one vote always and everywhere except when the constitution says otherwise, it seems to me.

But this disagreement is trivial; once Senator Frist eliminates the judicial filibuster, there's nothing to keep him from using the same technique whenever it gets in his way. Knowing that will "chill" the future use of the technique.

 

I'm not saying that Senator Frist is making this distinction, I don't know what's going through his mind other than: "Blasted Democrats go and change the 200 year old rules of the game and when we try to change them back they accuse us of upsetting tradtion! And then the media is too biased or ignorant to call them on it!" That's probably going through his mind.

As for my distinction, I think it's perfectly reasonable and is likely the reason that again, I'll say it for the umpteenth time: the filibuster was not used in this manner for a period of 200 years prior to this recent invention by the Democrats!

Senator Frist has no power to do anything, except the power by parliamentary procedure to bring to the floor a vote to change Senate rules, which can be done by a majority vote. Those are the rules, and the filibuster has been changed often. You know that.

If the Senate wishes to filibuster a revenue bill, then have at it. Again, that's a matter of legislation, something that has originated in the Legislative Branch, something that must be voted on in identical form by both Houses, or go through Conference Committee that's a combination of the two. That's an internal legislative matter, they allocate the money, and they can filibuster it indefinitely if they wish.

And what of this "judicial filibuster"? Why do you think, counselor, that nobody engaged in one throughout the centuries? Do you think it was because there were no controversial candidates? Rubbish! Or perhaps it was because everybody knew darned well that it was an invalid use of the process, save for the extraordinary once in two-centuries circumstances of Fortas (truly the Nixon of justices).

Would you at least admit this? That the Democrats are playing the most extraordinary games by claiming that the Republicans are upsetting 200 years of traditions in their attempts to stop the Democrats from upsetting those very same traditions?

 

little fauss:

I admit it only because I defer to your superior knowledge of Senate history.

Well, at least we agree that the Senate can change its rules if it wants to. There's nothing more, really, to be said about it.

 

I got a lawyer to concede a point in a debate! And a lawyer with a higher Martindale Hubbel rating than me!

 

Democrats Cave

Alas! A black day in liberal history!

Rejoice, little fauss...the Democrats blinked. A "compromise" has been reached wherein, in return for not attempting to filibuster, the Republicans have graciously allowed the Democrats to retain their ability to filibuster judicial appointees "only in extreme circumstances". Bah. The Texas Judge and one other, so far, will go to the floor for an up-or-down vote.

In short, the Dems get NOTHING but a vague promise in return for virtually unconditional surrender. The promise, like all political promises, is meaningless. The Democrats should have gone down fighting. They have no sense of principal. No backbone. No, dare I say it? NO MORAL FIBER, damn it. Do these people believe in NOTHING? This is EXACTLY why Kerry lost, IMHO.

BTW, what little I have heard about both the Califonian and Texan appointees, there's no real reason to think they will be BAD judges. Neither has ever had any trouble getting elected.