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Senate To Decide On Judicial Filibusters

Months of endless hemming and hawing are finally, hopefully, drawing to a close.

Senate Majority Leader Bill Frist (R-TN) has sent the embattled nomination of Texas judge Priscilla Owen to the 5th U.S. Circuit Court of Appeals in New Orleans to the Senate floor for debate. The Senate is expected to debate Owen's nomination for the rest of the week. The fireworks will start next week as Democrat will move to filibuster the nomination, whereupon Frist plans to call a vote on banning judicial filibusters. No one knows how that vote will go.

Democrats, lead by Sen. Harry Reid, are fighting to keep their right to obstruct judicial nominees from receiving an up or down vote in the Senate. What ever crap they're spewing about "cherished freedoms," and "200 years of history," etc. is just that - complete and utter bullshit. When Clinton was president and some of his nominees were blocked in committee pretty much every Democrat of note went on record opposing the use of filibusters (and other delay tactics) to keep nominees from receiving an up or down vote on the floor of the Senate. All the constitution requires is the "advice and consent" of the Senate, everything after that is a byzantine history of Senate rules, traditions, and gentleman's agreements.

Republicans are equally guilty of convenient short term memory loss. Republicans did put some Clinton nominees, for all intent and purposes, on hold forever. Acting like the Democratic minority in Congress has crossed some new magic line that had never been crossed before, while technically true, is blatantly unrepresentative of recent history. One could claim that Reid's Democratic caucus learned how to game the judicial nomination system from their predecessors - notably Bill Clinton's Republican opposition in the Senate.

At the end of the day if neither side wants to play by the rules, traditions, and gentleman's agreements which have loosely governed the judicial nomination process for decades, I say "fine, get on with it."

Reid has said that Democrats will block all committee hearings from going on while the Senate debates Owen, and has threatened to block all Senate business if the judicial filibuster (cloture) is ruled out of order. Reid should have a conversation with Newt Gingrich on how well that strategy is likely to play out, but for purely selfish reasons I encourage him to go with his "neutron" option in response to the "nuclear" option.

For Frist the judicial filibuster issue will effectively determine his future as the Majority Leader. Frist took this upon himself and has come too far to back down or take a last minute deal. For Frist it's do or die, as a defeat will probably submarine any hopes he has for the Presidency in 2008 and would likely call into question his leadership position after the 2006 elections. For all of Frist's talk about the principle of every nominee receiving an up-or-down vote, I say the time to talk about your principles is over. Either do something or change the topic...

I think I speak for a majority (on both sides) in urging them to just get the hell on with it and let the chips fall where they may. I'm tired of hearing the BS from both sides.


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Comments (26)

I think one difference betw... (Below threshold)

I think one difference between Republican treatment of Clinton Nominees and Democratic filibustering of Bush nominees is that Republics were a majority. They stalled, yes, but they didn't filibuster judicial nominees, and they were the majority.
Democrats are filibustering judicial nominees and they are the minority party- so we have the minority dictating who our judges will and won't be.

The Republicans also stalled closer to the end of Clinton's presidency, not wishing to have a lame duck stack the judicial system with his constitutional reconstructionists for decades to come. The Democrats have been doing this since the beginning of Bush's presidency.

Also, let's not pretend thi... (Below threshold)

Also, let's not pretend this started with Clinton. George Mitchell deep-sixed nearly all of Bush I's nominees after Clarence Thomas.

What's new and different is the use of the filibuster by the minority against judges who would surely be confirmed. The Senate has given its advice, and the majority is prepared to consent.

Advise and consent. Yep, t... (Below threshold)

Advise and consent. Yep, that's what they do.

Definition of Consent:

1) [n] permission to do something; "he indicated his consent"
2) [v] give an affirmative reply to; respond favorably to; "I cannot accept your invitation"; "I go for this resolution"

I'm sorry, but if the Democrats want to endlessly debate the nominee, thus filibustering the vote, then they are essentially not consenting to the nominee.

That's just the way it is. I don't care who said what or when or whether or not this entire fight is ludicrously political and partisan.

Ultimately it will come down to whether or not a majority of the senate will agree to do away with the fillibuster rule.

Until such time, the Senate has not consented to this nominee.

Most BS seems to be coming ... (Below threshold)

Most BS seems to be coming from left of center aisle...

People are bandying around ... (Below threshold)

People are bandying around words like minority like the Democrats are some small group that is using the filibuster as a technicality ot get their way. However a filibuster can be stoped with cloture of 60 votes, just 9 more then an up or down vote. If these judges are so unpopular that they can't get 9 more votes then are they fit to be judges. Remember, judges hold poistions for life, do we really want to have the vote dependant on a simply majority or a 60% majority. The Founding Fathers warned us of the tyranny of the majority, and we should listen. Both parties are hypocritcal, that is a recorded fact so trying to find who is most hypocritical on which issue is like trying to tell whether the absence of light or a blck hole is blacker. While the filibuster is not enshired in the Constitution it is not prohibited by it either, so like the previous post says its all up to the way certain on-the-fence Republicans vote.

Frist say the Democrats hav... (Below threshold)

Frist say the Democrats have shutdown the Senate Committees


Frist is not running in 200... (Below threshold)

Frist is not running in 2006, so he is not going to be leader any way this turns out.

But, this will determine if he has a shot at the nomination in 2008.

I happen to think there is ... (Below threshold)
Just Me:

I happen to think there is also a difference between stopping a nomination and hanging it up at the committee level, but I think pretty much that once a nominee has passed the committee, they deserve a "yes/no" vote for confirmation.

Maybe it's just me, but I t... (Below threshold)
Just John:

Maybe it's just me, but I think 41 + senators blocking a confirmation is a lot less offesive than one senator blocking by not returning a blue card.

Student, if the Constitutio... (Below threshold)

Student, if the Constitution wanted there to be a super-majority required for judicial advise and consent, it would have stated so. In the same section of the Constitution, it clearly spells out the necessity for ratification of treaties by a super majority.

This is the first time in the history of the Senate that a judge with majority support has been filibustered. Sure, people have been blocked or voted down in Committee before. When they were blocked from a vote, that was wrong. When they were voted down, by the majority, that was the process. But they got voted on.

Plus, what I find to be the most remarkable is that this time at least the Democrats are being honest about their reasons. Sen. Schumer said previously that this was a debate about ideology. Never before has anybody had the unmitigated gall to state that publicly before. This is not about their judgement, their qualifications, their education, their temperment, etc ... This is about the special interest lobbies that the Democratic party is beholden to.

Judge Owen rules about parental notification! Oh, the humanity. Estrada might be a potential Supreme Court nominee? Can't have a minority excel in the Republican party! Judge Janice Rogers Brown? See all of the silly arguments proffered about Clarence Thomas.

I still do not understand why the Republicans simply do not make the Dems actually filibuster the nominees. Make them bring business to a standstill, nothing the matter with Washington not doing anything. Make them show that they are willing to read out of a phonebook to keep from actually having to vote on a nominee, as required by the Constitution. Make them prove that they will to exert power over nominations not given by the Constitution. Let them obstruct, in an incredibly public way.

JustMe, can you explain to ... (Below threshold)

JustMe, can you explain to me the difference you just cited?

There is no easy solution to this situation. I thought the problems largely began during the Clinton presidency with solid nominees blocked by Republicans for purely political reasons. It is hard to tell the Democrats to back down following what the Republicans did during Clinton's terms. This may be an extreme comparison, but it is like telling the dominant member of warring ethnic factions to stop killing the other faction. Neither side remembers who started it, but the faction in power only remembers the last time the other faction was in power and the killing it did. The Democrats may agree to stop the war over this, but only after they get to "even the score" by blocking Bush's nominees. Don't get me wrong, I don't like the blocking of nominees (I am a law clerk and would like to see the case load lightened by the addition of judges to long-standing open seats), but I understand the problem with forcing the Democrats to bend to the Republican will on the issue.

And I don't think changing long-standing Senate rules is necessarily the solution, though it may have to come to that. If the Republicans and their supporters are for such a move, I hope it is on a principled basis such that when the Democrats are next in power there will be no objection when they make similar moves. Of course, the Republicans will find some disingenuous way of distinguishing the current situation (and this is not something only Republicans do, the Democrats are equally guilty - one reason I hate politics)

this is all about Frist kow... (Below threshold)

this is all about Frist kowtowing to the religious right in a hope to salvage his 08 presidential bid.

Please, there's so much BS coming from the right about the filibuster issue.

here, let me clear some things up:

The Top 10 filibuster falsehoods

[Ed - Posting an entire Media Matter piece (uncredited) in the comment section is not allowed, due to copyright issues. You can leave a link. The rest of this post (all plagiarized from Media Matters has been deleted.]

Patriot, what caterwauling!... (Below threshold)
Norman Rogers:

Patriot, what caterwauling! With all your wailing you don't tell us why our elected representatives shouldn't vote for or against the President's nominees. Nor do you address any of the terrible lies that the democrats fling at these nominees.

My bet is that Frist has the votes. My only question was whether he had the balls. My predicition? The Dims will quietly sit down and not let this thing come to a vote they know they'll lose.

What fun!

When in doubt, it is always... (Below threshold)

When in doubt, it is always a highly effective debating tool to cite Media Matters, and their group of hacks, as biblical truth.

Yet again, with the notable... (Below threshold)

Yet again, with the notable exception of "IMO", the partisans are here spouting their respective party's talking points.

Both parties are equally guilty of playing politics with judges and the nice distinctions that others here have sought to make do not change the fact that the Senate has traditionally served a purpose as a force of moderation on all parties. The rare (but actual) use of the filibuster (or more often) the threat of its use hase been vital to both parties over the years. In a government based on checks and balances, it has served that purpose. It is not pretty, it is sometimes petty, but it forced compromise upon the parties. I thought democracy was more than a zero-sum game. Sigh.

Damn, I want the moderates in America to take back this country from all the idealogues. And that includes some of you.

Amen, Kevin. Nice to see s... (Below threshold)

Amen, Kevin. Nice to see someone actually realizing both sides are acting like idiots. As silly as the suggested compromises seem ("trade ya this nominee for that one!"), they're really the best outcome in the long run. If either side "prevails" completely, a really bad precedent will be set.

I am embarassed at the way ... (Below threshold)

I am embarassed at the way Frist is threatening to use the Contitutional Option. I swear to God if he does that, I am switching parties. He will hurt himself, but he will hurt the party even more.

"I think I speak for a majo... (Below threshold)

"I think I speak for a majority (on both sides) in urging them to just get the hell on with it and let the chips fall where they may. I'm tired of hearing the BS from both sides."

Holy crap I actually agree with Kevin! The time for rhetoric is over, it's time to let the votes fall where they may. Where I disagree is how it will shake out. Poll after poll after poll has shown that Americans support the use of the fillibuster to block judicial nominees and that they don't want either party to pack the courts with ideologues. No matter how it shakes the Republicans will come out the losers here.

"I think I speak for a majo... (Below threshold)

"I think I speak for a majority (on both sides) in urging them to just get the hell on with it and let the chips fall where they may."

Hmm..have you actually done a poll to determine this, or do you just *know* that everyone thinks the way you do?

That kind of talk only comes from someone who hasn't thought about the implications of what is going on. This is a very serious moment for our democracy, much too much to be brushed off with "shoot em all and let God sort them out" homilies.

To Jon, Earl and IHBKatie:<... (Below threshold)

To Jon, Earl and IHBKatie:

Richard Nixon was a vampire who fed on power rather than blood; Gerald Ford was a nice guy, but not the sharpest knife in the drawer; Jimmy Carter was an ineffectual tool. But they all had one thing in common.

They were all political moderates.

So was James "The Shame of Pennsylvania" Buchanon, who did absolutely nothing to try and prevent the Civil War.

Moderates don't lead; They wet a finger and stick it in the air to see which way the wind--or the latest opinion poll--is blowing. Rather like Bill Clinton, who by nature was a left-wing ideologue, but who, above all else was a politician who wanted to be re-elected. When "The Voter Revolt of '94" showed that America wasn't interested in his and Hillary's left-wing ideology, he scurried back to the right as fast as he could. And no, I didn't--and don't-- take that as a vote for moderation; rather, as a vote by the majority against left-wing ideology.

If this little rant gives you the impression that I'm an ideologue...you're right.

So Fatman, what can we expe... (Below threshold)

So Fatman, what can we expect now that poll after recent poll has shown Bush with almost the lowest approval ratings of a second term president ever -- and his handling of Iraq slipping to 37 percent! (Harris Poll)? Will Bush continue to courageous "lead" the country rightward even if the country doesn't want to go (because lord knows I'm sure no senators or congressman care about getting re-elected in 2006) or will Bush humbly recognize the moderate nature of the general public and serve accordingly? Oh wait, there's the third option for low poll ratings: terror alerts and war with Iran. Cool. Can't wait.

-- we can expect that either Bush will begin to wise up to the moderate nature of the general public or else he'll "lead" straight into another the country toward the radical right because he's such a man of conviction?

Will Bush continue to co... (Below threshold)

Will Bush continue to courageous "lead" the country rightward even if the country doesn't want to go[?]

If you're right the country doesn't want to go that way, the Democrats will retake Congress, and a Democrat will be the next President.

What's your downside, Frameone -- assuming your premise is sound?

Two things: (1) Fo... (Below threshold)

Two things:

(1) For an explanation why the R's can't just force the D's to hold a good-old-fashioned Mr.Smith-style filibuster, see TigerHawk, here.

(2) Yes, the R's blocked Clinton nominees. They used committee action, blueslips, and holds to do so -- but not filibusters. (There were 4(?) contested cloture votes, but they passed; that is, cloture was *achieved*. A filibuster is when cloture is *denied*).

Wizbang sez there's no significant difference between filibusters and these other techniques, but he's incorrect. All other techniques may be overridden by a simple majority vote on the Senate floor; they do NOT require a supermajority to overcome. Now, actually ARRIVING at that vote -- presenting the motion to recall a nominee from committee, or to proceed to a vote in defiance of a hold/blueslip, requires cooperation from the Senate Majority Leader.

But SML's have been successfully pressured to put things on the calendar that they did not want to. Think McCain + Dem strongarm tactics back in 2001, to get Campaign Finance Reform on the calendar. So, it CAN (and does) happen -- and doesn't require 60+ votes.

deputyheadmistress said:</p... (Below threshold)

deputyheadmistress said:

"I think one difference between Republican treatment of Clinton Nominees and Democratic filibustering of Bush nominees is that Republics were a majority. They stalled, yes, but they didn't filibuster judicial nominees, and they were the majority."

Do you need a history lesson?

103rd Congress (1993-1995)

Majority Leader: George J. Mitchell (D-ME)

Minority Leader: Robert Dole (R-KS)


104th Congress (1995-1997)

Majority Leader: Robert Dole (R-KS); Trent Lott (R-MS)

Minority Leader: Thomas A. Daschle (D-SD)


105th Congress (1997-1999)

Majority Leader: Trent Lott (R-MS)

Minority Leader: Thomas A. Daschle (D-SD)


106th Congress (1999-2001)

Majority Leader: Trent Lott (R-MS)

Minority Leader: Thomas A. Daschle (D-SD)


Are you attempting to claim that there were no blue slips between 1993 and 1995?

Learn your history. Then come back.

Nails it:For all t... (Below threshold)

Nails it:

For all the constitutional mischief they're in the midst of making, we should probably thank the 50+ senate Republicans for giving us an extended moment to see so clearly just who they really are.

Remember that this entire political uproar is supposedly


about originalism, the need for judges who will interpret the law and the constitution not according to our personal wishes or the political needs of the moment, but according to its original and long-settled meaning. That is, we're told, their aim. And yet to accomplish this they are quite happy to use a demonstrably bogus interpretation of the constitution to overturn two centuries of settled understanding of what the document means and requires.

Before everyone's eyes, everything about the constitution is subservient to their need for power.

Their very victory, should it come to that, is their badge of hypocrisy. Their arguments are all at war with themselves. But they don't care. This is just about perpetuating their own power by any means necessary, using narrow majorities to lock in their power for the long haul.

-- Josh Marshall

The repubs just keep gettin... (Below threshold)

The repubs just keep getting dumber & dumber (or maybe just more transperant):

How Stupid Is Santorum? This Stupid
by Armando
Thu May 19th, 2005 at 15:17:15 PDT

Update [2005-5-19 18:46:42 by Armando]: Video from Crooks and Liars.
From Josh Marshall:

Did Rick Santorum really just say that?
Late Update: It seems he really did. Amazing.

Said Santorum: "What the Democrats are doing is "the equivalent of Adolf Hitler in 1942 saying, 'I'm in Paris. How dare you invade me. How dare you bomb my city? It's mine.' This is no more the rule of the senate than it was the rule of the senate before not to filibuster."

It gets funnier. From atrios:

Little Ricky
Little Ricky recently:

"Senator Byrd's inappropriate remarks comparing his Republican colleagues with Nazis are inexcusable," Santorum said in a statement yesterday. "These comments lessen the credibility of the senator and the decorum of the Senate. He should retract his statement and ask for pardon."

Update [2005-5-19 18:26:20 by Armando]: From mcjoan:

From Blogenlust, we get an old statement of Assrocket's:
"I, personally, would like to see a moratorium on all references to Hitler, the Third Reich, Nazism and the Holocaust in the context of domestic political debate. Such a rule would have no perceptible effect on conservative discourse, but it would render the left virtually mute."

I'm sure he'll be condemning Santorum immediately.






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