Saturday, April 16, 2005
Filibustering Judges - Who's Really "Nuclear"?
There continues to be a lot of angst about the prospect that Senate Republicans will go "Nuclear" for Bush's judicial nominees. Let's be clear that ALL this incredibly misnamed action, if taken, will do is to allow the full Senate to vote up or down on the nominees approved out of the Judiciary Committee. Gee; is that really a Constitution Buster?
Actually, No! It merely allows the Senate to perform its Constitutional duty rather than be obstructed by a new minority party policy of using a senate rule in a manner never intended. One could argue quite reasonably that the Democrats went "Nuclear" in 2003 and are still there. Some facts might help to clear up the emotion and to recognize that all the noise is really just hardball political gamesmanship from the minority party. Nothing wrong with that. But, it's just politics as usual, not a Constitutional crisis.
Let's first note that the filibuster has been around for a long time but was never used to deny a full Senate vote on a nominee untill 2003, when the Democrats adopted it as an explicit policy to obstruct voting on the President's judicial nominees. Wait! didn't Bush get all but 10 nominees approved and isn't it in the Constitution ? One at a time : As the Lawyer at The Hedgehog Blog explains :
"All 10 of the nominations that the Democrats have blocked are Court of Appeals judges. The Democrats have been very accommodating in confirming district court judges, who sit in trial courts, not appellate courts. That is not surprising; it's no big deal for the opposition party to approve trial court judges.
No, it is over nominations to the United States Courts of Appeals that the Democrats have chosen to fight. Unlike district court decisions, Court of Appeals decisions actually set judicial precedents (often called "making law"). Perhaps more important, talented Court of Appeals judges are one step away from the Supreme Court and can use their appellate seats to qualify themselves for appointment to the Supreme Court.
That's what the Democrats want to prevent-- someone like Miguel Estrada getting appointed to the Big One. Estrada is a very talented lawyer with a superb legal education and pedigree; he's a mainstream conservative thinker, not an extremist, and (horrors!) he is Hispanic. It's just not good politics for the Democrats to allow Bush to groom that kind of bright young conservative for a Supreme Court nomination-- especially when the potential nominee would help Bush cut into one of the ethnic constituencies that Democrats are desperate to hang on to. (Estrada is no longer a nominee, by the way; he gave up after being held up for a year. He is, however, a fine example of the type of nominee that the Democrats want to block.)
I think that sums up a good case for a game of hardball politics being played out. I might add that the game did not work out well in November 2004 for the Democrats. With a lot of publicity about Judicial Obstruction, Senate Minority Leader Daschle was ousted by the voters and the Republicans gained both Senate and House seats. One could say that the electorate spoke strongly and has good reason to expect that their elected representatives will listen to their voice.
OK. But we all know that the Constitution is there to protect the rights of the minority from abuse by the majority. True, but it's not there to foster the tryanny of the minority either. Regarding the Constitution, it's useful to consult the document or a good guide to it. You could get this by linking from the Hedgehog Blog above, but Doug TenNapel's blog on Filibusted is worth quoting in full :
"The U.S. Constitution is careful to limit Supermajorities to key votes...votes that are extraordinary and require broad bipartisan support because they are so weighty. Here are the only nine instances where a Supermajority is allowed:
1. Convicting an Impeachment (2/3 majority in the Senate - Article 1, Section 3)
2. Expulsion of a member of one house of Congress (2/3 vote of the house in question - Article 1, Section 5)
3. Override a Presidential Veto (2/3 majority in both the House and the Senate - Article 1, Section 7)
4. Ratify a treaty (2/3 majority in the Senate - Article 2, Section 2)
5. Passing of a Constitutional Amendment by Congress (2/3 majority in both the House and the Senate - Article 5)
6. Calling for a Constitutional Convention (2/3 of the state legislatures - Article 5)
7. Ratifying a Constitutional Amendment (3/4 of the states - Article 5)
8. Restore the ability of certain rebels to serve in the government (2/3 majority in both the House and the Senate - 14th Amendment)
9. Approval or removal of the President from his position after the Vice President and the Cabinet approve such removal and after the President contests the removal (2/3 majority in both the House and the Senate 25th Amendment)."
That's right, no mention of a Supermajority to confirm Presidential nominees; or even for cloture. What was expected was that the Senate would provide its Advice and Consent to the President's nominees. Instead, a minority of Senators are claiming the right to preclude the full Senate from doing this duty. We are dealing with an internal rule that was never used before to prevent a full Senate vote on nominees. The voters gave a very strong statement in the last election that they want this obstruction to end.
It would seem that the Senate Republicans owe it to the voters to end this practice by changing their internal rule and by performing their duty to vote on nominees. So, are they really going "Nuclear" by doing this, or just ending the Democrat's "Nuclear Obstruction" policy?
Actually, No! It merely allows the Senate to perform its Constitutional duty rather than be obstructed by a new minority party policy of using a senate rule in a manner never intended. One could argue quite reasonably that the Democrats went "Nuclear" in 2003 and are still there. Some facts might help to clear up the emotion and to recognize that all the noise is really just hardball political gamesmanship from the minority party. Nothing wrong with that. But, it's just politics as usual, not a Constitutional crisis.
Let's first note that the filibuster has been around for a long time but was never used to deny a full Senate vote on a nominee untill 2003, when the Democrats adopted it as an explicit policy to obstruct voting on the President's judicial nominees. Wait! didn't Bush get all but 10 nominees approved and isn't it in the Constitution ? One at a time : As the Lawyer at The Hedgehog Blog explains :
"All 10 of the nominations that the Democrats have blocked are Court of Appeals judges. The Democrats have been very accommodating in confirming district court judges, who sit in trial courts, not appellate courts. That is not surprising; it's no big deal for the opposition party to approve trial court judges.
No, it is over nominations to the United States Courts of Appeals that the Democrats have chosen to fight. Unlike district court decisions, Court of Appeals decisions actually set judicial precedents (often called "making law"). Perhaps more important, talented Court of Appeals judges are one step away from the Supreme Court and can use their appellate seats to qualify themselves for appointment to the Supreme Court.
That's what the Democrats want to prevent-- someone like Miguel Estrada getting appointed to the Big One. Estrada is a very talented lawyer with a superb legal education and pedigree; he's a mainstream conservative thinker, not an extremist, and (horrors!) he is Hispanic. It's just not good politics for the Democrats to allow Bush to groom that kind of bright young conservative for a Supreme Court nomination-- especially when the potential nominee would help Bush cut into one of the ethnic constituencies that Democrats are desperate to hang on to. (Estrada is no longer a nominee, by the way; he gave up after being held up for a year. He is, however, a fine example of the type of nominee that the Democrats want to block.)
I think that sums up a good case for a game of hardball politics being played out. I might add that the game did not work out well in November 2004 for the Democrats. With a lot of publicity about Judicial Obstruction, Senate Minority Leader Daschle was ousted by the voters and the Republicans gained both Senate and House seats. One could say that the electorate spoke strongly and has good reason to expect that their elected representatives will listen to their voice.
OK. But we all know that the Constitution is there to protect the rights of the minority from abuse by the majority. True, but it's not there to foster the tryanny of the minority either. Regarding the Constitution, it's useful to consult the document or a good guide to it. You could get this by linking from the Hedgehog Blog above, but Doug TenNapel's blog on Filibusted is worth quoting in full :
"The U.S. Constitution is careful to limit Supermajorities to key votes...votes that are extraordinary and require broad bipartisan support because they are so weighty. Here are the only nine instances where a Supermajority is allowed:
1. Convicting an Impeachment (2/3 majority in the Senate - Article 1, Section 3)
2. Expulsion of a member of one house of Congress (2/3 vote of the house in question - Article 1, Section 5)
3. Override a Presidential Veto (2/3 majority in both the House and the Senate - Article 1, Section 7)
4. Ratify a treaty (2/3 majority in the Senate - Article 2, Section 2)
5. Passing of a Constitutional Amendment by Congress (2/3 majority in both the House and the Senate - Article 5)
6. Calling for a Constitutional Convention (2/3 of the state legislatures - Article 5)
7. Ratifying a Constitutional Amendment (3/4 of the states - Article 5)
8. Restore the ability of certain rebels to serve in the government (2/3 majority in both the House and the Senate - 14th Amendment)
9. Approval or removal of the President from his position after the Vice President and the Cabinet approve such removal and after the President contests the removal (2/3 majority in both the House and the Senate 25th Amendment)."
That's right, no mention of a Supermajority to confirm Presidential nominees; or even for cloture. What was expected was that the Senate would provide its Advice and Consent to the President's nominees. Instead, a minority of Senators are claiming the right to preclude the full Senate from doing this duty. We are dealing with an internal rule that was never used before to prevent a full Senate vote on nominees. The voters gave a very strong statement in the last election that they want this obstruction to end.
It would seem that the Senate Republicans owe it to the voters to end this practice by changing their internal rule and by performing their duty to vote on nominees. So, are they really going "Nuclear" by doing this, or just ending the Democrat's "Nuclear Obstruction" policy?
