Big Time Bigotry

Discussion in 'Political Discussions' started by AV8R, May 20, 2005.

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  1. Abner

    Abner Well-Known Member

    Re: Democrats Cave

    I agree with you Nosborne, however, do not despair too much. I don't care what anybody says, the conservative Republicans are losing ground in the polls. Baby Bush has had more judicial nominees than most presidents, and it still was not enough! He demands absolute power, right on wrong. I will stress the right or wrong. A young man who I watched grow up has come back from Irag without his legs!!! Let Dubya tell him it will all be ok, based on a bunch of absolute lies!

    For all you the would like to crucify Bill Clinton, I will remind you he lied about adultery, a matter that should have remained between him and his family. The current president's lie resulted in many young men and women being killed and maimed for life! You draw your own conclusion! Furthermore, Ken Starr even recently admitted a dismantling of the fillibuster was just plain wrong. This sort of behaviour is typical among the Conservative right, if you can't win honestly, change the rules or redistrict. If Tom Delay may be indicted, let's change the rules, on and on and on.

    Just my two cents!

    Take care,

    Abner :)
     
  2. nosborne48

    nosborne48 Well-Known Member

    Abner,

    Well, it turns out that not ALL of the President's more conservative Judge nominees WILL be sent to the floor under the agreement. So maybe it really IS a genuine compromise.

    little fauss,

    What effect does this deal have on your tradition-based analysis? Now that an agreement enshrines the right to judicial filibuster, albeit only in "extraordinary circumstances", are your constitutional concerns satisfied? Or has a "cabal" of Republican Senators betrayed their Party as Dr. James Dobson is now claiming?

    anyone,

    Does this agreement undercut Senator Frist's authority as leader? He is growling that the nuclear option still exists; I am not so sure. Under the agreement, he may no longer have the votes. The seven Republican Senators involved in the negotiations are now committed to a course of conduct that Senator Frist neither agrees with nor controls.

    I understand that the President is quietly relieved that the issue was compromised.
     
  3. Tom H.

    Tom H. New Member

    Consensus v. Majoritarianism

    uncle janko,

    The filibuster does serve a purpose ... without it the Senate becomes just another legislative body, not the "deliberative body" that has been the guardian of moderation in American politics. The Senate is not the House of Representatives and not simply because of the six year terms versus the two year terms. Rather, the institution was originally designed and has evolved into something far different than the far more "radical" House.

    Like it or not, the House more accurately represents the will of the people as expressed in the most recent election. A large-scale turnover in membership is possible (but diminished due to gerrymandering by both parties) if the electorate so desires. The Senate, by contrast, turns over much more slowly - 1/3 of its membership stands for reelection every two years. Only a true shift in the political landscape, as opposed to the natural cyclical swing of the political pendulum, causes a fundamental change in the Senate.

    To those who champion true majority rule, look no further than the parliamentary systems in place in much of the world, especially in countries without a democratric political tradition. Once elected, the majority party often makes wholesale changes to their country, usually to the detriment of supporters of the minority party. This process is then reversed in some future political cycle and the results are very wide swings in policies. These wide swings in policies have a variety of effects on the economy, political life and culture of the country, mostly negative. Imagine trying to run a business or government agency for the long-term when the rules/laws/policies affecting the operation change every (pick a number) years.

    The filibuster allows the Senate a limited check to absolute majority rule and force moderation. Of course, in situations when the majority has been voted in by the people overwhelmingly (60+ Senate seats), the filibuster is not an issue. Absent this, a consensus is needed. This form of forced moderation also allows a sitting President to nominate a moderate candidate for the Federal judiciary without alienating his "base" (core supporters) on the grounds that a more radical candidate would never receive the Senate's "advice and consent."

    While Republicans are presently in the situation of having to compromise, during the Clinton Administration it was Clinton who compromised. Clinton sent much more moderate candidates forward than his base wanted but the threat of the Senate voting down his candidate caused him to moderate his selections. Since the GOP held a slight majority they didn't need to use the filibuster but rather could stall candidates at the committee level or even vote them down, if necessary.

    If the Senate had no such tradition of moderation, instead of Justice Breyer and Justice Ginsburg it could very well have been a left-wing bomb thrower that Republicans would have then had to accept for a lifetime appointment. The filibuster, though it seems inherently undemocratic, actually protects the democratic process by allowing checks on the executive branch when the number of minority party Senators is between 40 and 49. This restraint on majoritarianism is a unique characteristic of American political life and differentiates the U.S. from the rest of the world. KEEP THE FILIBUSTER AS A TOOL OF THE SENATE!!!
     
  4. little fauss

    little fauss New Member

    Re: Consensus v. Majoritarianism

    I don't have a huge problem with the filibuster in theory or restraints on majoritarianism in at least one house of Congress (although the argument could be made that the Senate is by nature antimajoritarian anyway as it's based on one state-one vote). But in any event, that doesn't bear on the issue of JUDICIAL filibusters, which are a very recent invention.

    Nobody is suggesting that the filibuster be discarded. They're only seeking to limit it to legislation, which is the manner in which it was always used--with but one solitary and extraordinary exception that I've previously cited--over the last two centuries.

    I don't know why this concept is so difficult for people: there's a difference between legislative filibusters (time honored, venerable rule of the Senate, fairly legitimate, accepted by generations of legislators) and judicial filibusters (brand new, cynically partisan phenomenon, no history of partisan use prior to the last few years, only one extraordinary example of its use prior to judge Estrada in U.S. history).

    As for checks, there are enough checks and balances on the Executive Branch as it is: veto overrides, Congress allocating all money, Congress generating all legislation, the advise and consent role towards Exec nominations, etc. etc. etc. We have plenty of Constitutional checks on the Exec already, no need to add additional extraconstitutional or unconstitutional ones.
     
    Last edited by a moderator: May 25, 2005
  5. nosborne48

    nosborne48 Well-Known Member

    little fauss:

    So what is your take on the compromise? Has the Senate "legitimized" the judicial filibuster, or not?

    How do you see this affecting Senator Frist? (Personally, I don't think it will affect his career one whit despite the Right Wing howls; who else IS there to be their champion? They won't abandon him now.)

    Frankly, I DO have difficulty with your theory that there's a difference between a "legislative" vote and an "advice and consent" vote. The text of the Constitution draws no such distinction in terms of a supermajority.

    Forgive me, but I seem to remember you arguing that the Constitution means NOW exactly what the Framers intended it to mean THEN, so all the history and tradition shouldn't matter...it's perfectly possible, according to your view of Constitutional jurisprudence, for the Senate to have been simply WRONG all these years!

    I much prefer the bright line approach that a vote is a vote is a vote.
     
  6. uncle janko

    uncle janko member

    yes I am a crank about this--but a nonpartisan crank

    Anyone who cares about the intended purpose of the Senate, as Tom H. clearly does--along with many of the other posters to this thread--must deplore that great cave-in to populist schwaermerei: the direct election of senators. Correct that grotesquerie and much of this nonsense would go away.
     
  7. nosborne48

    nosborne48 Well-Known Member

    The direct election of senators was a major change in the relationship of states to the federal government and not one, frankly, that I think has proven wholly successful. State governments lost their ability to influence the child of their very loins (at least construtively); the federal government.

    However, this product of the Populist movement (along with more-or-less free coinage of silver) was probably inevitable. Even before the amendment, people ran for Senator through the expedient of backing appropriate candidates for state legislatures. "Vote for Smith for state rep! He'll vote for Jones for U.S.Senate". The party ran a ticket and you picked your ticket instead of a single candidate.

    Nor was the Senate as originally composed a particularly effective body...the Civil War happened on their watch and much of the ante bellum debate and compromise came from the Senate. (The House was then, as it is now, pretty much a populist rabble.)

    I suppose that the next step in the erosion of the restrictions the Framers placed on Democracy (in order to keep it from descending to pure majoritarianism) will be the elimination of the Electoral College.
     
  8. little fauss

    little fauss New Member

    The reason I'm making a distinction between them is twofold:

    1). PRECEDENT
    We have a system of jurisprudence in which precedent--itself older by a long shot than the Constitution--is the guiding rule of law. The Constitution must be interpreted in that light; surely you're not suggesting that given the mindset of the Framers, that they didn't anticipate that precedent would have a huge bearing upon how the document was construed.

    Nowhere have I jettisoned the concept of precedent in any of my theories of constitutional interpretation. In fact, the way it was treated by those for whom the drafting of the Constitution was a very recent memory is at least some evidence of original intent. The first filibuster occurred in 1837, the ratification of the Constitution was less than 50 years old. The precedent established from day one of the filibuster--for legislation, but don't touch judicial nominees--should be followed.

    You may not be persuaded by my argument that there should be a bright line between judicial filibusters and legislative filibusters, but the first 65 sessions of the Senate that followed the first filibuster certainly respected that bright line! And until just a few years ago, that bright line regarding partisan filibusters was respected by every single session of the Senate in U.S. history.

    (A not-so-brief aside: My contention that the Constitution must be understood from the perspective of precedent is similar to my contention that biblical documents must be interpreted from a Hebraic standpoint and with that midset. I believe that many of the "difficulties" and so-called "contraditions" in the scriptures are the result of modern-day, Western-minded scholars imposing Greek mindsets upon documents that never were intended to be so construed. For example, the Hebrews didn't consider the sequence of events to be nearly so crucial as the relative importance of them, so you might see sequences of events moved around in order of importance rather than chronology because that's what was important to the Eastern mindset. Either way could be right, depending on your point of view, but some ignorant and foolish scholars now say: "Ha--Contradiction!")

    2. INTERNAL MATTERS VERSUS EXTERNAL
    The legislature has the constitutional power to adopt its own internal rules. There's nothing per se unconstitutional, in my opinion, about adopting internal rules that influence the likelihood of internal matters passing, even requiring a supermajority or even if stalled by a tiny minority. For example, the Constitution says nothing about committees or subcommittees in Congress, and yet this is a reasonable rule pretty much necessary for the internal workings of Congress and for the investigation of matters relevant to legislation. The committee process sometimes results in a small minority stalling legislation that would have been passed by a majority had it only made it to the floor. But I don't see any manner in which that's unconstitutional. They have the constitutional right to set the rules by which their House is governed. Imagine a world in which there were no experts on subcommittees to inform the legislators, no hearings but those that would be heard by the entire body--it would grind the legislative process nearly to a halt!

    The difference between these internal filibusters/stalling tactics for legislation and stalling tactics (when there's a majority available to support the nominee) and filibusters on Executive Branch nominees is that the former originates in the body which is allowed to make its internal rules to govern its own workings, while the latter is used to stop external matters in which the Senate is constitutionally given an "advise and consent" role only. The stalling/filibustering of nominees upsets the balance of powers, the filibustering/stalling of legislation has no bearing on the balance of powers.

    And for your benefit, I think that Republican stalling of Democratic Executive Branch nominees in committee is unconstitutional as well.

    Finally, if you want to argue that the filibuster as a whole is wrong and unconstitutional, you might persuade me, the above rationale notwithstanding. But I still tilt toward thinking it's constitutional, so long as limited in the way it was always limited until very very recently.
     
    Last edited by a moderator: May 25, 2005
  9. little fauss

    little fauss New Member

    That would be a sad day for those of us--you included--in "Flyover Country". It would be the last nail in the coffin of federalism at least with regard to states' rights.
     
  10. nosborne48

    nosborne48 Well-Known Member

    How is it that the enactment of legislation is an "internal" matter? I still don't see it. If anything, the consent to the apointment of a new federal official by other federal officials is more "internal" than the enactment of legislation that affects all citizens directly, such as a tax cut or military draft.

    The Constitution is silent on how the Senate should conduct its votes but surely that silence cannot imply "anything goes". Here's why:

    The Senate is supposed to be a more or less representative body, designed, it is true, to represent States as States instead of States as groups of individual citizens in a particular geographical area, but representative nevertheless.

    It seems to me that the idea of any representative body is that every representative must have an exactly equal voice and vote. Why? Because if you say that this is NOT a requirement , it becomes possible in theory to vest each individual member with a veto and from there it is no great logical jump to vest the vote itself in the hands of a few, or even a single member of the body. At that point, representation is a sham.

    There is only ONE consistant rule for representative bodies that preserves their representative nature: One member gets one vote ALWAYS.

    Any other rule distorts the representative nature of the body and therefore makes it less representative of the will of the "represented".
     
  11. little fauss

    little fauss New Member

    By internal, I only mean that legislation ORIGINATES in the Legislative Branch; I'm NOT contending that the EFFECTS of the legislation are internal to the legislatures. Like Executive appointees, legislation affects us all.

    The enactment of legislation is not internal, because it requires the work of another branch, but the process of crafting that legislation and kicking it out to that other branch is most definitely internal. And that is where the filibuster has its say.

    It's the job of legislatures to construct legislation and vote on it. This is, of course, subject to the final vote of the president, which is in turn subject to legislative override, which is in turn subject to the Supreme Court finding the whole works unconstitutional, which is in turn subject to the legislature--with a lot of help from the states--amending the Constitution. Quite a system of checks and balances!

    In any event, legislation originates in the legislatures: it's hashed out in subcommittees and committees, crafted, amended, twisted this way and that with riders and log rolling and innumerable compromises, but all within the legislature, not in the Executive or Judiciary. This is the general framework laid out in the Constitution. The other branches have no say at all save for signing or vetoing it exactly as it arrives on their desk (Executive) or declaring it constitutional or not through the process of appellate review (Judiciary).

    The fact that legislation is the legislature's "baby", so to speak, makes it less shocking to my sensibilities that the legislature would make internal rules regarding the manner in which it should be ultimately approved before being sent to the Executive. And that includes the filibuster, holds, committee stalls, etc. Nominations are the Executive's "baby"; they are external to the legislatures, not originating there. Again, the legislature (actually, half of it) has only one role with regard to these nominations: advise and consent.

    That's the bright line I draw, and it's evidently one that every Senate in U.S. history throughout 165 years of the filibuster respected with regard to partisanship or elevations to the bench. The present phenomenon is very new and utterly unsupported by precedent or the Constitution. You must admit that there was evidently some reason why the judicial filibuster was not entertained for all those years.

    If you want to argue that the filibuster is invalid because it fails to recognize the concept of one representative-one vote, you might be right there. But of course, as you already pointed out, the concept of one person-one vote is one that is neither sacrosanct nor all that respected in our Constitution. It was as much about states as people, but you already mentioned that in your posts. And I'm afraid I'm repeating myself now ad naseum.
     
  12. nosborne48

    nosborne48 Well-Known Member

    And in any event, you still haven't given us the benefit of your thinking about the effect the "compromise" will have on Senator Frist.

    Actually, I am beginning to wonder if there's a thaw in the air. No only did the Senate manage to avoid the nuclear option, apparently against Senator Frist's desires, but now the House has voted to loosen the stem cell research funding restrictions in the fact of a Presidential veto.

    I imagine that the usual spokemen of the Radical Right are foaming at the mouth!
     
  13. little fauss

    little fauss New Member

    No long term effect on Frist. He's got eyes on the White House, and while I don't think this will affect him, I still don't think he'll garner the nomination.

    As for stem cell research, that's one whale of a red herring. There are very few known beneficial effects from embryonic stem cell research, which is not banned by the way (to my knowledge), it's just a matter of federal funding. Adult stem cells, however, have shown great promise. But of course, this is another example of an ignorant and/or disingenuous media. Stem cell research is dead so long as Bush is in the Oval Office. I don't anticipate a 2/3 majority in both houses overriding.
     
  14. nosborne48

    nosborne48 Well-Known Member

    Doubtless correct on all counts, but do you see any political significance in the House vote?
     
  15. little fauss

    little fauss New Member

    The electorate is very short-term in their memory with the exception of juicy--that is, sex or money--scandals. It's not a sexy enough issue in my opinion to damage Bush. But of course, what does he care? He's got nothing to worry about now but the midterms. He's soon to be lame duck (already is in some ways considering how candidates start jockeying for position as soon as the last election is over).

    Are you talking about the midterms? Is that where you think some fallout will come? Loss of base for Republicans who crossed over? Gain of swing voters for Democrats challenging Republicans who voted against the research? I'm trying to figure out what you're getting at. It must be one of those two.

    I don't see any long term benefit or loss either way, but I could be wrong.

    BTW, IMHO, these exchanges are great. I really enjoy them, even when (especially when) we vehemently disagree. You should be teaching somewhere.
     
  16. nosborne48

    nosborne48 Well-Known Member

    I suppose I could teach welding technology somewhere...once I learned something about welding technology!

    No, I wasn't thinking in terms of the electorate, though now that you mention it, MY view of the Constitution and our government DOES predict that, if the people are dissatisfied with the Congress' or President's position on, say, stem cell research, they will pressure their representatives to change...

    So, using that model, yes, I suppose that I am suspicious that House members are beginning to respond to pressure from their less Religious Right constituants. Some of them, perhaps, are beginning to think that they'd better look a little less dominated by the Religious Right. You gotta admit, some of the comments from Dr. Dobson and such about what the President or Senator Frist "must do or else" have become pretty outrageous.

    There might also be a desire to put some distance between individual Congressmen and the President. The polls (yeah, yeah, I know) show President Bush becoming less popular than any President in my lifetime except Richard Nixon.
     
  17. Mr. Engineer

    Mr. Engineer member


    Yep, but California's sent a "up yours" middle finger to Bush and his followers by passing our own initiative. There will soon be a state of the art facility in San Francisco. Of course if Laura was diagnosed with Alzheimers or some other dreeded disease, you know GW would change his tune.

    As for Frist - Pakaki has a better chance. Frist has shown that he is too out there on the fringes. I don't think he has any chance at all of even taking more than a few minor southern states.

    As for the fillibuster argrument, I find you going down the slippery slope of life. Just because you teach it doesn't mean that you know history or know procedures (hence the saying "if you can't do it, teach it"). When dealing with Senate rules which are changed at the whim of the Majority Leader - there is nothing sacred or should it be. I want my Senators to represent their beliefs and not the beleifs of the Majority Leader. If the party beleived that these Judges were not worthy of lifetime employment (something that I have always opposed except for the Supreme Court), it was their obligation to block their nomination whatever way they could. The Republicans didn't show a lot of class by blocking a great many of Clinton's nominations in committee. If they had any of the so-called "class" as you describe, why didn't they allow a simple up or down vote (can it be that they don't practice what they preach).

    I would love you as a teacher. Frankly, I would embarass you in front of your class.

    You know - I have to say - GW is typical of most addictive people that I know. They are typical drunks who reform themselves and then are the first to cast stones and rhetoric. GW will always be a frat boy drunk - it will follow him always - and he will always be just that. Take away Karl Rove, and the essence of GW will be just that.
     
  18. little fauss

    little fauss New Member

    Goodness you're hostile! I'd like to know what's at the root of it, it's a bit beyond reason.

    Let's pretend that this is the class, and that you are my student. If you're capable of embarrassing me, carry on with it, it's been done before; I doubt there's a college lecturer on the face of the earth who hasn't been embarrassed in class before.

    I once taught an evening Business Law class largely populated by professionals. When lecturing on securities regulations, I was upbraided by a student--who also happened to be a Bank Vice President--who educated me on some of the intricacies of the regulations that I'd missed or misstated. As she had about 25 years experience, without irony, I asked her if she'd like to step up and take over the lecture for that evening--it was a sincere invitation. She declined, but our back-and-forth throughout the balance of the class probably taught me more than it taught her, and the other students benefitted I'm sure. So there's nothing wrong with being corrected by a student, even embarrassed.

    But my sole problem with you, my engineering friend, is that you accuse me of not knowing my Senate history, but fail to show me where I'm wrong. You just say that just because I teach it doesn't mean I know it. Well, you're right, I don't know ALL government history, I'm not an historian, I'm a lecturer in Government and Law. But what I write on this forum, I DO know. It's not that hard to research. You could do it yourself, check out the local library, even google it (though the latter option will occasionally mislead).

    You've really got to cite more--or at least something!--in the way of my historical inaccuracies if you want to be taken seriously. Otherwise, I'll embarrass you!

    All you offer to support your thesis that I don't know my history is:

    1. You opinion that "I'm going down the slippery slope of life" (What ever does that mean?)

    2. The theory that those who can, do, those who can't, teach (pithy little saying, appropos of nothing here though);

    3. A discussion of how Senate rules can be changed at the whim of the leader, and thus nothing is sacred nor should it be (factually inaccurate, Senate rules are changed by a majority vote, but even if your proposition is correct: that they are just rules, changeable at whim, nothing sacred, wouldn't that support MY thesis that the Republicans have every right to vote to eliminate the judicial filibuster?);

    4. A philosophical discussion of how senators should follow their consciences, not the Majority Leader (probably true, but a red herring, doesn't support your thesis that I don't know what I'm talking about);

    5. If a party believes a judge is not worthy of lifetime appointment, they should block the nomination (I agree, so long as by "blocking" it you mean voting against it)

    6. The Republicans didn't show a lot of class by stalling Clinton's nominations in comittee (I agree! In fact, if you read my previous post above, I already said this VERY THING and said that their actions "were unconstitutional as well")

    7. Your final point that if the Republicans had all this "so-called class" that I describe, why didn't they allow an up-or-down vote? (Good point, but the problem is: I NEVER described the Republicans as having "all this class". You "engineered" a quote, but it wasn't mine. And again, I don't think the Republicans showed ANY class by stalling nominations in committee. Stalling legislation--that, of course, originates in the legislative body--is one thing, stalling Executive Branch nominations is quite another. I flatly stated that the Republicans were engaged in unconstitutional actions in doing so).

    Mr. Engineer:

    Your primary problem is that you failed to give me a single example of where I was wrong. If I am wrong in my research of Senate history, please tell me. If there really were 5 or 10 or 100 or 1000 judicial filibusters in Senate history, many with partisan motives, leading up to the recent phenomenon experienced in the last couple sessions and conducted exclusively by Democrats, then please inform me. Cite your research! I'll look into it and revise or withdraw my opinions accordingly. I'm no genius, I'm not omniscient, I'm eager to learn--it's a lifelong process, you know.

    But if you continue in your present course of making rash statements that you cannot support, attempting to buttress your arguments with red herrings that have no bearing upon your central thesis, and then gloss over the whole with a rhetorical flourish of "Frankly, I would embarass [sic] you in front of your class" and the president's "a frat boy drunk", please be on notice that learning will not be a lifetime process for you. If you're factually wrong, admit it. Passionate, angry ad hominem will not cover over flaws in logic or factual inaccuracies.

    Tone down the hostility and recognize your limitations, and then you'll be prepared to learn.
     
    Last edited by a moderator: May 26, 2005
  19. nosborne48

    nosborne48 Well-Known Member

    Mr. Engineer:

    I wonder whether you really would embarrass little fauss. I am not sure that you quite understand the nature of his and my debate.

    This isn't any reflection on you or anyone else. It is a consequence of little fauss and I sharing a common professional background and education. Put simply, we are arguing in a kind of shorthand the way lawyers in a courtroom do.

    I am not an engineer, but I'd guess that when electronics engineers talk about the stability of an amplifier, they don't delve into all possible intricate sources of parasitic oscillations and positive feedback and such. Rather, because they work from a common knowledge base, they can "zero in" on the particular questions that seem vital to both. Most of their analysis is taken for granted.

    This is why I didn't challenge little fauss on his statements about the Senate's traditional useages. There was no real reason to do so; our argument is over a very narrow jurisprudencial question which is what, if any, constraint does the constitution, as read in the present context, place upon the Senate's choice of procedural devices.

    Now what makes this question interesting is that little fauss and I have both switched sides from our last debate, or at least I think so. I am now the strict textual constructionist while he is referring to 200 years of accepted practice, a "living institution" as it were.

    And that argument is really what both debates, taken together, are about. By hashing it out, we begin to discern contours and borders to both arguments that I, at least, didn't see before.

    This is how the law develops in our system and how both of us were taught. It isn't, I imagine, how engineering is done.
     
  20. little fauss

    little fauss New Member

    I must admit that the thought crossed my mind in our debate--that we'd switched sides.

    I'm not convinced we have--yet--but I'll admit the thought has tapped me on the shoulder a few times. So it must give you hope to think that I'm not so rigid and pedantic as you first thought, as it gives me hope to think that that Osborne really cares about the text of the Constitution after all.

    We've come around through the back door to understand each other's point-of-view a little more.

    As for Mr. Engineer. Do you think I was a little too snotty and condescending with him? He's a generation younger than us and in a different field, it really wasn't sporting of me. He'd slap me upside the head if the discussion were engineering, I'm sure.

    Anyway, sorry, Mr. Engineer!
     

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