O'Connor retires from US Supreme Court

Yes, Ted, of course they do. And that is exactly what they can do if they so choose: put the candidate up for a vote, and vote him or her down. If he or she does not get at least 50 votes plus the V.P.'s tie-breaker, he or she will not be consented to by the Senate. This is what they did to Robert Bork. As much as I hated the smears upon him in the hearings, at least they constitutionally voted him down, he did not receive a majority.

But what we're talking about here is a filibuster, an internal Senate rule that does not exist in the Constitution. They are using it to make a justice nomination require a 60 vote supermajority for "consent". That supermajority has no support in the Constitution--in fact, it's unconstitutional.

Let us suppose that a particularly rabid majority that hates the sitting president one day changes internal Senate rules to require a 100% vote to invoke cloture on a filibuster; I believe this could be accomplished by a bare majority vote. Therefore, no nominee would ever get nominated unless unanimously supported--and it would likely never happen. The federal benches would go unfilled, the President would be unable to nominate a single jurist. Then, after that president has left and a president more palatable to the majority party took office, they could again, by a bare majority vote, change the internal rules on filibusters back, and allow their president to nominate whomever they wish and pack the benches with their party's nominees.

Would you consider that constitutional? And if not, are you starting to see how internal Senate rules should never be allowed to do violence to the letter and spirit of the Constitution, but how they are being used by one party currently to do just that vis-a-vis the federal bench?

 

It is unfair to accuse only any one party of Filibustering nominations. The GOP did it to Clinton ,before that..actually the history of Judicial Filibusters we see the first time it was used was in 1968(interesting note it was the GOP was the first party to use it on Abe Fortas an LBJ nominee (http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm)) . So it might not be in the Consititution but it has been a long standing Senate Rule(since 1806 actually), with out any major changes.
It can be said(by me at least) it is in the spirt of the Orginal Federalist papers that this senate rule was born out of. It was Alexander Hamilton who was always advocating for protection of the minority(not just in politics but in general law) and was fearful of an overpowerful majority. Also the constitutionality of the senate rules might be a difficult argument in the Supreme Court due to seperation of powers and the long standing parlimentary procedures of the senate. If this rule gets tossed it could lead to a huge fight as to what procedures are "consitutional"(talk about a mess).

Regardless of what either Republicans or Democrats have to say the facts are they have been used by BOTH parties in the past it is only now that there is a question about the rule.

Taken from (http://www.goodspeedupdate.com/index.php?p=1762)

Prior to the start of the George W. Bush administration in 2001, the following 11 judicial nominations needed 60 (or more) votes – cloture – in order to end a filibuster:

• 1968: Abe Fortas to be Chief Justice of the Supreme Court (cloture required 2/3 of those voting)
• 1971: William Rehnquist to be a Supreme Court Justice (cloture required 2/3 of those voting)
• 1980: Stephen Breyer to be a Judge on the First Circuit Court of Appeals
• 1984: J. Harvie Wilkinson to be a Judge on the Fourth Circuit Court of Appeals
• 1986: Sidney Fitzwater to be a Judge for the Northern District of Texas
• 1986: William Rehnquist to be Chief Justice of the Supreme Court
• 1992: Edward Earl Carnes, Jr. to be a Judge on the Eleventh Circuit Court of Appeals
• 1994: H. Lee Sarokin to be a Judge on the Third Circuit Court of Appeals
• 1999: Brian Theadore Stewart to be a Judge for the District of Utah
• 2000: Richard Paez to be a Judge on the Ninth Circuit Court of Appeals
• 2000: Marsha Berzon to be a Judge on the Ninth Circuit Court of Appeals

Because of a filibuster, cloture was filed on the following two judicial nominations, but was later withdrawn:

• 1986: Daniel Manion to be a Judge on the Seventh Circuit Court of Appeals
Senator Biden told then Majority Leader Bob Dole that “he was ready to call off an expected filibuster and vote immediately on Manion’s nomination.”
–Congressional Quarterly Almanac, 1986.

• 1994: Rosemary Barkett to be a Judge on the Eleventh Circuit Court of Appeals
“. . . lacking the votes to sustain a filibuster, Republicans agreed to proceed to a confirmation vote after Democrats agreed to a daylong debate on the nomination.”
–Congressional Quarterly Almanac, 1994.

Following are comments by Republicans during the filibuster on the Paez and Berzon nominations in 2000, confirming that there was, in fact, a filibuster:

• “. . . it is no secret that I have been the person who has filibustered these two nominations, Judge Berzon and Judge Paez.”
–Senator Bob Smith, March 9, 2000

• “So don’t tell me we haven’t filibustered judges and that we don’t have the right to filibuster judges on the floor of the Senate. Of course we do. That is our constitutional role.”
–Senator Bob Smith, March 7, 2000

• “Indeed, I must confess to being somewhat baffled that, after a filibuster is cut off by cloture, the Senate could still delay a final vote on the nomination.”
–Senator Orrin Hatch, March 9, 2000, when a Senator offered a motion to indefinitely postpone the Paez nomination after cloture had been invoked

In 2000, during consideration of the Paez nomination, the following Senator was among those who voted to continue the filibuster:

• Senator Bill Frist
–Vote #37, 106th Congress, Second Session, March 8, 2000

 

I am hoping, although not confident in the least, that GW will not nominate one of his ideologue friends. That will surely end up in a filibuster.

I can see a few nominees that GW could make that would possibly fill the void -- although none of them have my ideas, at least they would not be too extreme one way or the other. AG Alberto Gonzales would be an excellent pick. Not too much of an extremist and has a good solid sense of the law.

Of course, no matter what GW says in public, Karl Rove's (err - GW's) litmus test will be the abortion issue.

 

No, it's quite fair and it's accurate.

For one, the Fortas filibuster was not a GOP-run operation. It was entered into by both parties--bipartisan. Fortas was one of the least principled justices in our history--surely the Nixon/Clinton of justices. He was taking money on the side (corruption) and feeding confidential documents and information from secret Court deliberations to LBJ (an outrageous spitting in the face of the separation of powers). He was up for elevation from Associate Justice to the Chief Justice position when these allegations started hitting. When they proved true, a committed group from both parties filibustered on principle. And in any event, unlike the current situation with the Democrats, Fortas did not have the votes to confirm.

These do not hold up either. There is no filibuster, as it's now being used by the Democrats, when an attempt to limit debate succeeds, only when it fails! Merely holding a cloture vote is not the same as this recent Democratic version of the filibuster that's thoroughly undemocratic. There can be many reasons why a minority would want to have debate, yet not be seeking a permanent block of the vote. A minority is permanently blocking nominees when the votes to confirm another branch's nominations are there--that's what the outrage is about.

What you are defining as "filibuster" above is when one minority side or the other wanted to debate the issue and stand up there and wave their arms and say this was a bad idea, this candidate was unqualified, etc., get their opinions of this man or woman on the record, and the majority got tired and said "Shut up, let's just go ahead and vote"--and invoked cloture.

Again, that's not a filibuster as we're defining it here, as the Democrats are using it. You'd get red marks on your paper in my college Government classes; and so would the disingenuous ideologues who prepared that stuff on the site from which you cut-and-pasted.

The bottom line is that this modern notion of filibuster as used by the Democrats is unprecedented. I have no problem with a vocal minority giving speeches and an exasperated majority invoking cloture to shut them up, but these temporary--that's right, temporary--measures cited above bear little resemblance to the partisan, permanent blocks on the nominees that the Democrats are currently using. And that's the difference.

Prior to the Congressional session that took effect with Bush's nomination to office, there were a grand sum total in U.S. history of four cloture votes that failed out of fifteen cloture votes invoked. Of those four, three were temporary, lasting just days, when the nominee was promptly confirmed.

Only one of the four cloture votes taken that failed was against a Clinton nominee, and that was Brian Stewart, which you mention above. And for your information, Brian Stewart's nomination was "filibustered" by Democrats--that's right, Democrats! They were filibustering for the partisan purposes of leveraging additional nominees. When the vote was later taken a week or two after the odd little cynical filibuster by the Democrats, Judge Stewart was confirmed by a vote of 93 to 5! Come on, man, you can't include that in your list!

And so you're left with one--one solitary example of a permanent filibuster in the history of the U.S. prior to the cynical behavior of the Democrats since the 108th Congress: Abe Fortas.

And I've already dealt with that, haven't I?

 

Well you bring up a good point Cloture is not a filibuster and Richard Beth actually identifies this common problem amongst Political Scientists (which I am not). Beth also argues that the amount of filibusters is overstated because of the use of cloture.

Also I notice you differentiate between permanent filibusters and temporary ones. That was not mentioned in the first place and what I originally said was that the Republican used it too. now Fortas was Filibustered and we (I think can agree to that, If not argue with the US senate click on the link to the previous post) Also the change in rules to Cloture as you mentioned to require a "supermajority" could be filibustered by the minority and most likely would so your original argument does not hold water.

You say the rule is "undemocratic" I disagree there also. If you teach government then indeed you should be aware the US is not a democracy. It is a republic and it was set up as a republic for many very good reasons (which I should not have to go into, if you again teach government).

Indeed you may be right that the use of the filibuster by the democrats in judicial nominees may be unprecedented but I say it's the republic in action, the minority are just protecting ideas that the majority would like to abolish.

 

There's no doubt Fortas was filibustered; I won't argue there. But the difference between that filibuster--which itself was unprecedented--and this recent invention by the Democrats of the last few years is that senators were fed up with Fortas and knew he didn't have the votes to confirm anyway (he probably had about 40 or maybe 45 solid votes total). They apparently didn't want the Senate stained by even voting on the matter, and it would've been a quixotic exercise anyway from Justice Fortas' standpoint.

That's quite different from filibustering a potential judge or justice who has a good 55 or 58 votes to confirm in hand--but not the 60 required to invoke cloture. Remember, at bottom, there is no constitutional mandate that more than a bare majority be required for the Senate to perform their "consent" role--and that includes the Vice President's tie breaker, so that means that 50/50 should always be sufficient to confirm, so long as we're interested in actually regarding the Constitution as more than a mere suggestion--which the current group of Democrats are not interested in doing. The Constitution is quite clear about where it requires a supermajority, and consent to Executive Branch nominees is not one of them.

With all due respect, Mr. or Ms Rivers, that's a non sequitur.

Whether our system is a direct democracy or a representative democracy has no bearing whatsoever on the issue at hand: whether one party or another is disregarding the democratic principles laid out in our Constitution. Our system is a "republic" because people freely, democratically vote for their representatives, who then make public policy decisions--that's all it means. And the principles that were laid out in our Constitution were that the President--as elected by the people through the Electoral College--was given the mandate to nominate people to the Cabinet, to head federal agencies, and to the federal bench, subject only to the "advice and consent" of the Senate. There are specific situations where a supermajority of the Senate or both Houses of Congress is required, and they are clearly laid out in the Constitution, they include: overriding a presidential veto (both Houses), removal of a federal official from office after impeachment (Senate), and amending the Constitution (both Houses).

But they do not, anywhere, include approval of an Executive Branch nominee!

That's not constitutional, and it's undemocratic, because it thwarts the will of the people's chosen president vis-a-vis federal nominees. It upsets the balance of powers established in the Constitution--and that, too, is undemocratic and unconstitutional.

No, I am right--it is unprecedented. It's never occurred in U.S. history that a judicial nominee with the votes on the floor to confirm was filibustered on a permanent basis by either party until the last couple years, and I believe it's occurred about 10 times in that time span. Let's look at the numbers here:

Total permamnent judicial filibusters of a candidate who had the votes to confirm in U.S. history:


1787 - 2000 (217 years) - 0
2001 - 2005 (4 years) - 10

Total filibusters as described above by Republicans: 0
Total filibusters as described above by Democrats: 10


Correct my numbers if I'm wrong, but the Democrat filibusters are around 10--maybe a bit more--the Republican filibusters are zero.

The republic is not "in action" unless it's allowed to function as it was defined in the document--the Constitution--that created that republic. What the Democrats are doing was not done for the first 217 years of the republic, nobody considered permanently blocking a judicial nominee through filibuster who had the votes to confirm. It was used, at most--and very rarely at that--as a rather shaky and questionable procedural tactic, and never once in history to permanently block a nominee.

Based on all the conflict--sometimes violent--throughout U.S. history between the parties, do you think that perhaps it had to do with the fact that for those first 217 years that they all knew full well it was unconstitutional? That even though they might have wanted to do so for cynical partisan reasons, that they all knew full well it was unconstitutional and set the balance of powers on its head? Democrats and Republicans alike? I think that's your answer--nay, I know full well that's your answer. And of course, so do the Democrats who are now doing it; it's just that this present group apparently considers the Constitution in this instance subservient to their own agendas.

You're limping along with a C- thus far, you're going to need to do more to keep it from slipping more.

 

Hucksters & blusterers

No.... the real reason is that since 2000 the U.S. government/executive branch has been held hostage by predatory corporate interests as in no other period in its history.

Democrats and liberals have been discredited, even though their programs and agenda match what the vast majority of Americans really need (e.g., better healthcare, protection from outsourcing, etc.).

Republican hucksters (aka George W. Bush & co.) have led the American public down a garden path of bluster and pig-headedness, all bolstered by a sadly misplaced "war on terror" or "war on drugs" or "war on something" - you pick the flavor. Therefore, filibuster is about the only defense left for those right-thinking Americans who are trying to preserve some shred of what our nation stood for during the first 213 years of its existence.

So there!

 

Re: Hucksters & blusterers

Not really. Winning some elections would be a better defense.

 

Re: Hucksters & blusterers

Remember I'm a flaming moderate here, but.... isn't it a liberal stereotype that you know what is best for "the vast majority of Americans?"

 

Re: Hucksters & blusterers

Even if it were true, every last bit of it--and of course it's not, that's just lunatic fringe-sounding rhetoric--it doesn't matter, Carl.

Not a whit.

You see, Americans elected Mr. Bush twice. Even if you disagree with the results of the first election, you can't begin to dispute the second--Bush received the "sqeaker" margin of three million popular votes--the people made their choice!

You lost.

And as such, it doesn't matter if you're the "right thinking American" or not. The fact is that one side in this judicial debate is using tactics that are of very questionable constitutional status--I think they're just flatly cynical and profoundly unconstitutional, and evidently so did over 100 sessions of Congress before them--and the other side is not. One side is stepping out and doing something never before done in U.S. history vis-a-vis the U.S. Constitution and nominees, and the other is not. One side doesn't care what the Constitution says and is willing to do this crazy dance with ends-means rationalization, justifying whatever they do--no matter how unconstitutional, unprecedented or outrageous--under the theory that they are "right-thinking" on judicial nominees, and the other side is not.

You may hate Bush, you may think he's the most dangerous mix of corporate greed and religious zealot you've ever seen. And yet, at the end of the day, he's still the one who was elected by the people; he's still the one with the constitutional mandate to nominate judges to the bench subject to but the rather perfunctory "advice and consent" of the Senate; and the Constitution is still, in the end, being spat upon by democrats such as yourself because they're willing to throw out all that which doesn't serve their agenda.

This is the fundamental problem with the modern democratic party: they are willing to trash the Constitution to further their own ends; they are willing to subvert the democratic process if it doesn't suit their personal preference. Why? Because they know better than the poor unwashed idiots who elected these representatives.

You see, if you can't get the "right" laws in place through the electorate, if they're too stupid to understand what's happening, then it's up to you, the "right thinker", to save them from themselves. So what if your methods subvert the democratic process? What of it? It's for their own good.

And that's why the battle ground is so intense over nominations. Those things that you enlightened ones think would be best for society are seldom those things that run the gauntlet of the democratic process. Abortion on demand for children without parental notification, gay marriage, etc., lose repeatedly at the polls, but they can win among the judiciary, which is unelected and essentially untouchable. And so long as they are of like mind--that is, enlightened such as you--they'll understand that things like the Constitution and precedent and rules and fair play are but playthings for a child. They've risen above such quaint notions, to a higher level where anything they do is justified--even creating new laws from the bench that thwart the will of the electorate--so long as they serve the greater overall "good".

So the fight over the judicial nominees is intense. The current crop of democrats--a bunch from whom Hubert Humphrey and Harry Truman would recoil in horror--simply will not allow many conservative judges who care about the proper role of the judiciary to make it to the bench--certainly not the highest bench. If they did, they'd put in grave jeopardy their secret desire to have that which hardly ever is enacted through the national electorate--that is, their fundamental view on things--none the less make it into public policy unconstitutionally via the bench. And that is why they're willing to do anything to stop Bush's nominees. The Constitution, our republic, just isn't that important when compared with their personal policy preferences.

Evidently, democrats just don't think too highly of our republic--I mean, it gave us President Bush, so that right there is ipso facto proof that even it needs to be jettisoned!

But you know what? Once the precedent is established that the will of the people doesn't mean a thing, that the role of the judiciary need not be limited to holding unconstitutional that which actually is unconstitutional rather than that which offends the notions of the enlightened, things have a funny way of turning about on you and biting you, Carl, squarely on the nether regions. Exhibit A: The unconstitutional methods of the Supreme Court in overturning the California initiative, freely voted on by the people, that allowed for the medicinal use of marijuana. Funny how that happens.

 

Re: Re: Hucksters & blusterers

Frankly, Busho, you said clearly in one sentence what it took me about a thousand words to say--kudos to you!

 

Wow! Those are some very interesting numbers. And to think that liberal Justices Ginsburg and Breyer both received in the area of 90 confirmation votes.

I really don't get what the Dems are trying to accomplish. The GOP will probably still be in control of the Senate in 2008. If they filibuster President Bush's nominee, it could really backfire on them should they win back the White House.

 

I really shouldn’t say “probably” because anything can happen over two elections. However, it looks like the Dems will have a hard time defending in 2006. So, if things stay the same or if the Dems lose a seat or two, it could be hard for them to get the majority in 2008. www.realclearpolitics.com/Commentary/blog_11_8_04.html

 

I'm flattered!

Maybe? But, yours were more informative. Your explanation of when a supermajority is required was especially helpful. Anyone interested should definitely read (very carefully) that particular post.

 

Re: Re: Hucksters & blusterers

Of course, we liberal Democrats know what's best for everybody ... this is so because we're just naturally smarter than everybody else.

 

Re: Re: Re: Hucksters & blusterers

Abner

 

Re: Re: Re: Hucksters & blusterers

And, of course, this has been the case since the time of Saint Francis van Roosevelt.

 

This isn't the first time in American history where the voting public has been sadly mistaken in its choice of leadership....

1. Grant administration (rampant corruption / popular US victorious general in charge)
2. Hoover administration (look the other way while Rome burns)
3. Buchanan administration (pretend that the US is not heading towards Civil War over the slavery issue, until it is too late to fix it)
4. Carter administration (allow the Soviet Union to build its capabilities, while surrendering US prestige and territory to upstarts and hoodlums worldwide)

Problem is, Bush got re-elected even though he failed miserably as a "war president" in his first term. So that's probably a first.

And, for those of you who disagree that a small minority sometimes knows "what is best" for the majority, let's turn that around. Do Bush and his corporate buddies (the smallest of the small minorities) have America's best interests in mind, or their own profits? Don't you feel duped somehow into thinking that his bluster and posturing are more important than health care and the well-being of all of our citizens? Is health care NOT important to you? How about personal freedom? Who cares about that, right? Let's just give it up, since only a small, disenfranchised, and deluded group (aka Democrats) seems to care about it anymore.... Oh yes... Social Security - time to gut it and let the stock market dictate our future retirement plans. That's a really good idea, isn't it? Wonder who that serves? Oh yes, I forgot - the MAJORITY of voters who voted for Bush!

Duh!

 

Good points!

Great points Carl!


Abner