Appointing Federal judges is one of the most important roles of the President. Ever since George W Bush was elected, the Democrats have stonewalled his nominations. Their strategy is to not allow nominees to even hit the floor for an up or down vote. They killed nominees in committee when they controlled the Senate. The reason was they did not want to be perceived as obstructionists. Now, with Democrats in the minority, their only resort is to filibuster.

Democrats Will Try to Filibuster Judicial Nominees

Bush Dealt Setback on Judicial Nominee



Schumer lets the cat out of the bag. He wants the Senate (and more specifically, a minority of the Senate) to pick nominees, rather than giving advice and consent.

He is right on one thing. It does go to the heart of the Constitution, which states that

Article II, Section 2 of the Constitution:


Do you feel that the use of a filibuster to require 60 votes to provide "consent" violates the intent of the Constitution? I certainly do.

We had this debate here once in this thread Senate Filibuster, Miguel Estrada. I closed the old one, however, so we can pick up the debate here.

Not sure about its constitutionality...but I am against this fillibuster garbage.

If you don't like Bush's nomination, then present your evidence in a Senate hearing. After both sides have been heard...VOTE DANGIT. grrrrrrrrr

Elections are next year.... are we even gonna be allowed to VOTE one way or the other before Bush leaves, or has another term?

--cheers

With regard to judicial nominations in particular, or in general? My answer would be the latter. Filibusters and committee rules and all that other gamesmanship stand in the way of true democracy IMO, regardless of the context.

amlord:


I think you are reading this all wrong. Firstly, the President will pick the nominees; but the Senate chooses which nominees to give consent to. When you consent

to something, you must in some sense think it is OK. You probably wouldn't consent to lending your escaped convict brother-in-law your car, for example.

The Senate should absolutely have the power, because it will tend to force the judiciary toward greater impartiality. Being required to gain the consent of both parties in Congress should actually mean something. At times like this, it may be cogent for you to remember that this same rule would also stop a liberal Democratic president from stocking the judiciary with ACLU lawyers.

Let me flip the question back to you, amlord.

The Constitution says,



My question to you: How would you define consent in this case? How would you change the Senate Rules? What would be a better way to do this?

To answer the question: It is wrong to block judicial nominees just because of party affiliation, and much of what the Democrats have been doing is just that. Using filibuster to block the votes is bad, but it frankly isn't any worse than refusing to even bring up nominees for a vote. At least it requires an effort on their part to block the nomination.

However, it is dishonest to present this as a tactic that just Democrats use. One has to ask themself why Bush even has so many judicial nominations to make. Then look at the previous 8 years. The Republicans wouldn't allow any of Clinton's nominees to come up for a vote after 1994. Granted, it was almost entirely Jesse Helms' doing, and he isn't exactly representative of the Republican party. However, I didn't notice any high profile Republicans telling him to stop ignoring judicial nominees.

If someone has time, they ought to look up the statistics on open federal judgeships. If anyone ever wonders why it takes so long to move federal cases through the system, one look at all the empty posts kind of speaks for itself.

Just as problematic, maybe more so, is that we're becoming a nation that allows its judiciary to legislate. This is not what our Founders intended, nor is it what most reasonable citizens want to see.

The particular issue of filibustering, while within the rules of the Senate, is serving only to obstruct the administration of justice by keeping the federal court system sorely understaffed. And doing so for purely political reasons.

Sorriest of all is that somewhere down the road a deal will be struck ending the filibuster, in return for who knows what.

While I think the tactic is against the spirit of the Constitution, I don't believe it's against the letter of the law.

We could always get a Federal Judge to decide. Oh wait. Can't seem to find one at the moment.

Bush and the Republicans have no one but themselves to blame. For eight years Orrin Hatch and the Republicans on the Judiciary Committee denied qualified nominees a hearing and a vote and now that tactic has come back to bite them on the butt.

Dubya was honest enough (or dumb enough) to say his most admired Supreme Court justices were Scalia and Thomas. That's like wrapping yourself in raw meat suit and jumping into a shark tank thinking they won't bite! What were the Dems supposed to do but send the White House a message that they weren't going to put any more right-wing wannabees in the judicial pipeline to the Supreme Court than were already there?

Yes, it is obstructionist behavior for the Dems to now apply the same tactic the Repubs used so successfully against Bill Clinton.

But hey---while two wrongs don't make a right it sure makes it even!

I condemed the repubs for doing it back then, as I condem the dems for doing it now.

Both parties should grow up

--cheers

I think this is precisely what our founding fathers intended. This is part of the checks and balances. An independent and fair judiciary are very important to our system. Our system was designed to be slow and sloppy. Our system was designed to make it difficult to get things done.

While parties were not what Washington wanted, they were spawned in his own administration. (Hamilton and the Federalists v. Jefferson and the Democratic Republicans)

Somewhere down the road a compromise will need to be made. 60 Senators and the president is not too much to ask. Asking judicial candidates to be forthcoming in responding to questions before the Senate is not too much to ask. 40 Senators who believe a judicial candidate will put ideology before the law is not a radical fringe. Maybe some teamwork is called for here by the president and the senate opposition.

I see that as the way the founding fathers crafted our wonderful system.

Oddly enough, though, Article II Section 2 of the Constitution doesn't say anything about needing a 60/40 majority to confirm. It doesn't say anything about a majority at all, or even a vote, and it doesn't say anything about the "rules of order" that make filibusters possible. Those things were all crafted by lesser people, for lesser reasons, and their use to obstruct the nomination process is not one of the checks and balances our founding fathers envisioned.

I have to disagree with you on this one, DP. I'll grant you that the filibuster is not the most popular device used by our representatives, but I'll say that it is among the most important. Without it the minority has no voice in the government.

Both major parties utilize the filibuster when in the minority status, and for good reason... It is the ONLY option open to them. What else can they do? Frankly, I would be more disappointed in my representatives if they failed to use the tools available to them in order to represent me.

Furthermore, I'd be more than a little upset if judicial nominees were just sailing through the confirmation process on only the word of the administration. That is exactly what would happen, too, if not for the filibuster, in many cases. My opinion on this is not exclusive to the Bush administration, either. I'd feel the same way if it were Clinton's nominees being blocked by a minority GOP (Hypothetically speaking).

As to "Ending the filibuster"... I wouldn't count on it. Either party could be in the minority after the next election in either or both houses of congress. I seriously doubt that either party would even consider it.

The Constitution is part written word and part precedent. That is why Washington was such an essential figure in our history. The structure of the judiciary and the way it is put in place was left to be worked out.

Just because you weren't alive in 1776 or 1789 does not mean you are a lesser person.

The government has grown, adapted and moved forward. In 2003 we have had the filibuster for a long time and it is a useful tool to slow down rampant swings between sides of the aisle in programs.

It isn't broken, so it does not need fixin'

Edited to avoid double post.

The Constitution does allow for this practice because it gave broad powers to the members of the Senate to set the rules of debate in
Article I Section 5.
"Each House may determine the Rules of its Proceedings."

I think if they stuck to forcing someone to ACTUALLY filibuster, i.e. stand up there and hold the floor, then this problem would go away. To just say "OK, now we are filibustering, time to go to lunch" does not follow the precedent and rules of the Senate.

Don't get me started on precedent and how it's abused. We'd need a whole new forum for that. If you want to pursue it, try reading Daniel Lazare's The Frozen Republic: How the Constitution Is Paralyzing Democracy.



...and I never said that, thank you very much. I've criticized the attitude that the Constitution is some sort of holy writ plenty of times already, in the short time I've been here. I don't need to be reminded that it's not the last word on everything. I find it rather facile, though, for someone to invoke it in one post as though it were holy and then start talking about precedent once the holy document's true contents were actually examined.

The fact is, we were blessed with an unusual number of exceptional social and political thinkers around the time of the Revolution. That's why the Revolution happened. They weren't perfect, in fact some of them were jerks and hypocrites, but they had some pretty good foresight. They set up a system of checks and balances, which I don't happen to think is the best way to structure a government (I'm more of a parliamentarian), but we've long since abandoned that. We have a legislature that cedes lawmaking authority to the executive, then turns around and tries to blackmail that executive with filibusters and special investigators. We have a judiciary that for many years tried to legislate, and more recently interfered in a presidential election. We have an executive who ignores both the legislature and the Constitution when he feels like declaring war, and expects consent without seeking advice regarding nominations. The founding fathers didn't have those "checks and balances" in mind, and no amount of "interpretation" can justify turning the system they did design into its exact opposite.



That rather seems to be the issue we're debating. Thank you for your opinion.



Yeah, it also provides for the "health and general welfare" but a lot of people don't seem to accept that (or precedent) as justification for half of what the government does or how it does it. Can't have your cake and eat it too.

It is precisely here where I disagree with you Platypus. The founding fathers operated on the assumptions about John Locke about government. It was a necessary evil. They believed that governmental power corrupted people. Some (Hamilton) saw this as just fine so he thought of that thirst for power as a way of harnessing the nation's best minds, others (Jefferson) saw this as the primary threat against the nation's future. But they put the different branches at odds with each other and overlapping each other for the reason of checking each other's powers.

The system is designed to move only in case of clear consensus or emergency.

And as we are remembering not to over sanctify our founding fathers, let us not misread history. The founding fathers of 1787 are not the reason the revolution happened. This was more the work of people like Sam Adams, PAtrick Henry, and englishman Thomas Paine and "terrorist" organization like the Sons of Liberty.

We were fortunate that we had an able generation of political leaders at the outset of the cration of our national government.

The Constitution gave the Senate the power to make its own rules and procedures. The Filibuster is constitutional. I don't see where I am having my cake and eating it too in this argument.

Here's a brief history of the filibuster:

Filibuster History Link

The Senate can set its own rules of debate, as can the House. If the GOP doesn't like the way it's set up now, work on it.

I personally see it as avoiding the dictatorship of the majority and lending voice to the minority. However, the Senate should, as noted, grow up. They are supposed to be the level-headed adults in Congress.

But maybe this points to the general lack of level-headed adults in society.

Not quite.

The minority HAS a voice already. It's called debate. Not having a voice, would mean not being able to throw in their 2 cents to the debate. Not having a voice, means no participation at all.

This goes way beyond not having a voice. This, effectively I might add, force feeds the will of the MINORITY on the MAJORITY of the people. If more than half of the people would have voted "yes" to let this guy have his judgeship, who are they to block that vote?

This is not a minority rules type gov't. It's MAJORITY rules. If the minority doesn't like it...well....I'm sorry. That's the way things are.

Just because the minority doesn't get their way, doesn't mean they don't have a voice.

--cheers

PS: If I recall, there is no way to end a fillibuster, or override one. So...the minority wins :/

It's called the cloture rule. The 60% majority is what's needed to invoke it, and force a vote.

It takes 60 votes to stop a filibuster.

Politicians playing at politics? Ive never heard of such a thing. Its an outrage I tell you!

This is off topic somewhat, and I apologize, but I've seen too many people on here throw around comments that add up to a belief that the Constitution is either a flawed document or mutated to a completely different beast.

That attitude is absolutely wrong. There is a reason that the US Constitution is the oldest constitution in the world that is still in use: It is flexible. Over the course of time, things change. Attitudes change. Technology changes. Even geography changes. No document, written by a handful of men in the 1780s, from 13 states, could possibly still be relevant today if it spelled everything out.

The reason the US Constitution still works is the fact that things are vague. We are able to modify things over time. The Constitution and Bill of Rights sets forth a very basic set of principles that has generally stood the test of time. Note that there are very few amendments, compared to many other constitutions. As other countries add so many amendments that they must write completely new constitutions, the US has been able to adapt theirs without rewriting.

The Founding Fathers did not want to legislate the US for generations to come. They wanted to give Americans the ability to govern themselves according to the principles they held in the highest regard. This really is the genious of the US Constitution. It takes change into account.

So, Hodur, you KNOW you're going off topic and you do it anyway?!? Please don't do that.

If you want to start a new debate about founding father's intentions & what-not, please do so. Otherwise, let's respect the original question and debate:

DP,



Have you read the brief history I linked to? Filibuster, which has as its root meaning pirating, has been an accepted part of Congress since 1850. That is 153 solid years of allowing the minority to have a voice, as in the true metaphorical sense--power to decide--not the literal sense of talking about stuff.

Filibustering is not easy. It is a physically stressful situation, as depicted in Mr. Smith Goes to Washington, one of my favorite old movies. The technique has been used by both conservatives and liberals throughout its history

If you read this history, you will notice that the House has restricted the filibuster by limiting time for debate. The Senate has not done this, and there is a very good reason for why the filibuster has been preserved.

Here it is: No party wants to give up all its minority power. All parties know that the political winds swirl around, can become a storm, and can blow the dickens out of a country. Thus, the minority needs to have a check for the will of the majority, else we become at risk to the will of a single party--and that can lead to a dictatorial oligopoly, which I happen to believe has been happening in our country.

It is interesting that conservatives run to the idea of minority powers when it is in their best interests, then criticize such powers when they run contrary to their interests. It's as if our form of government doesn't really matter, as long as their interests are served. For example, conservatives became strict constitutionalists to elect GWB, but now that their court-stuffing agenda is challenged, they become liberal interpretists.

This, IMO, is not only dishonest but dangerous to the future of our great country.

In any case, if the GOP doesn't like the system, push for change. However, the GOP has done this effectively in the past only to be bit in the butt when the political winds changed. So, all they can do now is to call it un-American or something equally as inane.

Meanwhile, judges need to be appointed. Time for compromise. The court-stuffing agenda will likely fail due to the slim majority the GOP has in the Senate. I think compromise is really what this issue is all about, and Republican senators need to learn how to do this.

- edited to change "slime" to "slim" in the above paragraph--talk about Freudian slips! -

AM, one of my problems in this case is that it is NOT a physical situation. It is hypothetical. They just say "OK, now we are filibustering xxx nomination, time for lunch" No one is PHYSICALLY filibustering, which means the technique can be used on a host of issues that the participants don't really feel that passionately about.

I say, if they can stand up there for 2 days straight, let em. If not, sit down and vote.

amlord,

I am in agreement with you on this. Filibustering should involve a measure of personal suffering.

After all, the senator has declared his or her intention to take the issue by force of will, like a pirate taking the king's gold.

Did you know Aaron Burr was accused of filibustering in favor of war? This was an attempt to draw the US into war with, I think, Mexico. That involved a lot of personal risk, not just reading from the Bible or unabridged dictionary. Burr denied his filibuster, of course.

I suppose the oppostion to filibuster could demand no lunch or other breaks. The image this brings up is rather humorous, if you think about it. A big, empty (to be filled) fruit jar would be in order.