In the U.S. Senate, filibusters came about because of a loophole in the Senate rules. The rules declare that a simple majority of those present, is sufficient to pass a bill or confirm a President's judicial nominee. But the rules also state that a vote on such passage or confirmation cannot take place until debate on it has ended. And the rules further state that, if one or more Senator wants to keep debating, nobody can stop him unless a supermajority of 60 or more Senators votes to do so. Stopping a debate with such a supermajority vote is called "invoking cloture".

Senators found out early on, of course, that they could delay a vote on any bill or nomination, simply by standing up and talking, and talking, ad infinitum, as long as the people who wanted to vote numbered less than sixty. This excessive, and sometimes nonsensical talking came to be known as "filibustering". The downside of such an act, was that while the talking went on, no Senate business at all could be transacted - it too required the same 60-vote supermajority, to end debate for ANY reason.

The weird procedure known as "filibustering" was the only way a minority of Senators could thwart the will of the majority in ordinary bill passage and confirmations. It has been used by Democrats and Republicans alike. I am sure that much debate took place way back when this was first discovered, and probably continues to this day, over whether the Senate rules should be changed to get rid of this strange anomaly. To date, the Senators have elected not to get rid of it.

They might have elected to keep the filibuster, since it was so disruptive of Senate business that they were sure it would be used very rarely, and only in very extreme cases where a minority was willing to risk wholesale condemnation by their constituents for the highly obstructive tactic.

But recently, something has changed. I don't know if it's an actual change in the Senate rules, or just a "gentlemen's agreement" among today's Senators. But today, and for the past 10 or 20 years, a minority can declare that it is filibustering a bill or nomination... and then the rest of the Senate business continues without disruption. Thus, filibusters have become relatively painless to the filibustering minority. They have practically no effect on the Senate at all, but still effectively thwart the will of the majority, since a supermajority of 60 votes is still needed to end the "debate"... even when no debate is going on.

This change has had the effect of converting the simple majority (51%) needed to pass any bill or confirm a nomination, into a requirement for a 60-vote supermajority, any time the minority simply nods its head.

Should this situation be allowed to continue, effectively eliminating the 51% majority as a deciding force in the Senate? Or should the continuous-real-debate rule be restored, making such thwarting of the will of the majority, punishable by quick and severe disapproval of the filibustering minority? If the original style of the filibuster is restored, it will go a long way toward making sure it is only used in the most extreme situations.

Debate question:

Should Senate filibusters be returned to their original formats, where one or more Senator must keep talking continuously, bringing all other Senate business to a halt? Or should they go on as they presently do, letting other Senate business continue and providing a painless way for the minority to thwart the will of the majority until a 60-vote supermajority is reached?

Should Senate filibusters be returned to their original formats, where one or more Senator must keep talking continuously, bringing all other Senate business to a halt? Or should they go on as they presently do, letting other Senate business continue and providing a painless way for the minority to thwart the will of the majority until a 60-vote supermajority is reached?

The question as presented seems to me rather irrelevant. The Senate majority leader can actually require a traditional filibuster if s/he so desires according to the rules.

Filibusters haven't just recently changed in the past 10 to 20 years, they have been evolving over the past century due to power plays from both political parties. There is a good wikipedia article here at answers.com that gives you the beginnings of the history (which you could use to dig deeper if so desired). As you can see by reading it senate procedural rules dicate the conditions for a filibuster.



So to me the question of whether filibusters should return to their original format is irrelevant since the senate could require the traditional method if they so desired or the Senate majority leader could simply change the rules.

Recently the only rule changes being discussed is the so-called "nuclear option" where the Senate majority leader could change the rules to disallow filibusters for executive judicial nominations. This is something the Republicans are now holding over the Democrats and if we get the opportunity to see a Supreme Court nomination during this administration I have a feeling you'll see it used.

To me the real question is: does this point to a deficiency in the Constitution allowing for tyranny by majority? I think, and have always thought, that the filibuster is an important way for the minority in the senate to be heard and this goes for both Democrats and Republicans when they have been in the minority over the past few decades. If we are talking about ideals here and what we'd do if we could wave our magic wands and change things then I'd like to require a 3/5 super majority in the senate to pass anything regardless of whether it was legislation or a judicial nomination. The effect this would have is two-fold:
1) It might actually force our two political parties to try something completely foreign - compromise.
2) It would ensure that extremists in the majority (Republican or Democrat) could not pass legislation and everything would be more moderate in nature.
3) It would remove the rubber stamp business going on when you have one party in the executive branch and the same party holding a majority in Congress (like our current congress and like congress in the 90's). Congress was meant as a check to ensure the executive wasn't stacking the judicial branch with questionable choices. When the aforementioned situation is in play it doesn't work like that, who ever the executive branch nominates is simply rubber stamped by Congress no matter how extreme they are because that is what a good party player does.
4) It might actually slow Congress down a bit forcing them to only work on the most important pieces of legislation and leaving a lot of this to the states or the House.

Thank you, CJ, for clarifying what rules govern filibusters. I didn't know where to look for them.

The question is certainly relevant, though. It is just as well phrased:

Should the Senate Majority Leader make a practice of requiring all filibusters to be actual talk sessions that hold up all other business in the Senate? And/or, should the Senate vote to formally change its rules to take the option out of the hands of the majority leader, and require actual talk sessions for all filibusters?

The debate question was not about who has the authority to make the change. It was about whether the change should be made.

This is different from the "nuclear option" you mentioned. That simply gets rid of all filibusters for judicial nominations, which I think is a bad idea. Not only does a filibuster let the minority impose its will on the majority, but (when done in the continuous-talk-session style) invites huge public scrutiny to the issue being filibustered, far more than the public usually gives. This has the happy effect of letting the public become well-informed on the issue being filibustered, and if the public feels that the minority has a good reason for such an extreme tactic (holding up all Senate business for the sake of preventing a vote on the one issue), then it can actually increase public support for the minority's position.

I believe that, when a filibuster is used (enabling a minority to thwart the will of the majority), it should be a very unusual and significant event that causes the whole country to stop and look at what is going on. The American people can then react to their Senators, whether minority or majority, as they see fit. And the Senators can take the people's reactions into consideration when deciding what to do and how to vote.

When a minority decides to thwart the will of a majority, it should be an event that causes everybody to look closely at the issue and why they are doing it. I see nothing but good coming from this, since it gets the American people more involved that they normally are. If they decide the minority is justified in doing that, so be it.

Ok then, my answer would be no

It is my belief that Congress needs the important tool of the filibuster to keep the majority in check with a strong minority. As the filibuster works today it is actually more suited to that purpose than allowing one lone senator to prattle on endlessly and stop business in the senate. While making senators give endless speeches would probably make filibusters rare even though easier to invoke, they are certainly more effective as written today.

Now ideally, we'd have some sort of constitutional amendment to give the minority a check on the majority as I described in my previous post. That of course would be the right way to do things. But working within the current system I feel that the filibuster is important for both parties. There are some serious problems that have developed and the best way to resolve them and ensure proper checks and balances is with an amendment.

One could easily claim that I am saying that simply because I'm a Democrat and naturally I'd like to block some of the judicial nominations Bush will inevitably submit or I'd like to delay his legislation. However, Republicans found themselves in this situation in the 90s (and seem to forget that) and will again in the future find themselves in this situation, possibly even as early as 2006 with any luck

On preview (we were posting/editing at the same time):

That is a good point and I have to admit I hadn't really thought about it that way. I suppose what this really suggests is that we need a better defined process for the minority to express disagreement with the majority.

I also ahve to admit I'd get a lot of laughs out of seeing senators reading the phonebook on c-span or something

Should Senate filibusters be returned to their original formats, where one or more Senator must keep talking continuously, bringing all other Senate business to a halt? Or should they go on as they presently do, letting other Senate business continue and providing a painless way for the minority to thwart the will of the majority until a 60-vote supermajority is reached?

I think that the Senate should be made to stop all of its business for a filibuster.

Recall that the filibuster itself is simply a loophole created because there is no fixed duration for debates in the Senate. If the filibuster is so important, why not add one to the House procedures? If it is so important to avoid the "tyranny of the majority" then why is such protection only afforded to the Senate (supposedly the more mature group of the Congress).

The filibuster should only be invoked for critical issues. It is a stalling technique, not a trump card. It is an opportunity to stir public awareness (especially today) on an issue.

As it is used today, the filibuster is nothing but a obstructionistic footnote.

"In other news, the Senate continues to filibuster (ad infinitum) the nomination of Judge So-and-so..." (yawn)

It could be reported:

"Minority Senators today continued their 45 hour filibuster to ensure that newly nominated Charles Manson does not get approved to the nation's High Court."

The filibuster should be used for important stuff, not trivial mundane issues (as it is used today). If the issue is important enough, then the effort can be made to sustain it (and thereby, raise awareness).

I should probably point out, that filibusters, at least the ones presently used against judicial nominations, are being employed for issues the filibuster-ers (is that a word?) think are VERY important. But that is part of my point: a filibuster should be a sufficiently earth-shaking event that it, and its cause, are immediately emblazoned across every newspaper and TV screen in the country. So the American people can become informed, involved, and tell their Senators real fast, what they think of the issue.

If the people consider the issue (or nominee) being filibustered, to not merit the huge impact the filibuster is having, they can say so. And if the DO think the filibuster is merited, they can say that.

Presently, filibusters slip by under the radar. They have essentially changed the rule for a 51% majority, to a 60% supermajority, when such was never intended by the Senate rules. As such, they thwart the will of the majority. IMHO this extreme move should not be done without the people having a LARGE voice in the decision.

I would agree with you, but this also points to problems with our media. They are the "government watchdogs" but generally reporting on what legislation is being considered isn't something that makes front page news (or any news except on c-span) unless it is something highly controversial. In my opinion that needs to change, along with our daily dose of how the relationship between Jennifer Aniston and Brad Bitt is going we should be learning what our representatives are considering in Congress.


I don't believe that the Filibuster was originally designed to serve in this capacity Amlord. However, in my opinion we do need to address the core of the issue here which in my opinion is the fact that something (whether it is a judicial nomination or legislation) can pass with a simple majority. 51% of the people voting does not in any way indicate a consensus on an issue. It merely indicates that one party happens to be more powerful than the other at the time.

In my first post I listed what I think are some pretty serious issues facing us and they should be dealt with using a constitutional amendment.

I would like to add something here. The reason for the Senate to allow it's members unlimited time. The reason as I understand it is so that each and every Senator that wishes can be afford as much time as they require to debate any and all issues brought before the Senate.

To stifle this right now takes a super majority of 60 members. I think perhaps it should be even higher. These are important decisions and the members need to be able to express themselves no matter how long it takes. Though I think that maybe it should be returned to the members actually saying something at that point. And let the majority explain why Senator from State X was not allowed to speak on a subject they consider important

The filibuster should bring Senate business to a halt. I understand the purpose of the filibuster to allow minority voices to be heard. But in its current state it is not just STALLING BUT OBSTRUCTING Senate business.

Current judicial nominees should be allowed an up or down vote in the Senate.

How does that meet the spirit of intent in the Constitution Hayleyanne? If you have one party in power in the executive and you have the same party with a majority in the legislative branch they are free to rubber stamp whatever nominees they like right into the Judicial branch.

Please do tell me how that is something the founding fathers would have condoned? Or do you support it because said nominees will rule based on your politics?

It meets the spirit and intent of the Constitution because the Constitution does not require that the Senate approve the President's nominees with a supermajority vote. I think you have it backwards.

Moreover, the minority party ought not to be obstructing the vote. They won't even let the nominees get to the floor for an up or down vote. The Democrats are abusing the process right now.

As far as "rubber stamping" goes-- what is that supposed to mean? If a nominee gets the majority of the votes -- he is approved. That is democracy. That is how our republic is set up.

That isn't what I meant, I am perfectly clear on the vote requirements. What you are ignoring is the reasoning behind even having judicial nominees confirmed in the senate in the first place. Judicial nominees are meant to be confirmed in the senate so the executive branch can't stack the judiciary branch with whoever it desires.

I guess the founding fathers just couldn't conceive of a time when a political party would have a rubber stamp agreement to ensure their continued power instead of fulfilling the duties of the office, huh?

In that sense it does not meet the intent of the Constitution hayleyanne which is why I was suggesting in a previous post that I approve of the filibuster as a tool to be used to fight it but would prefer a constitutional amendment requiring a super majority to pass anything.

I don't get it Cube Jockey. If the founding fathers had wanted a super majority requirement with respect to the consent requirement they would have written it into the constitution like they did for other provisions.

What is all this stuff about a rubber stamp agreement to insure continued power instead of fulfilling duties? What are you talking about?

Maybe what the founding fathers did not anticipate was the inordinate amount of power that the judiciary would have. Maybe the founding fathers had no idea that the "living constitution" would become a political tool.

I do not believe in a filibuster. The purpose is totally pathetic and serves nothing but the agendas of the party hiding behind the legality and comfort of Senate policy. If the filibuster is returned to its original format the entire fiscal means of Congress would lay idly by as the minority hurls its beliefs on the majority of the people. Should the format return to its former darker days I fear what America would become.

America has been built off the backs of men and women who have had the courage to speak out for what’s right and speak out against what is wrong. Should the Senate once again embrace the act of traditional Filibusters we would have our chosen representatives affecting the tide of the people’s will against the wishes of the country. Why would we allow a Senator to stand at the floor of the Capitol discussing baked-goods his mother made when s/he was a child when we have more urgent business that needs to be pushed through Congress?

The idea is simply startling to think that our country is like a rock in the ocean: little by little the strength of the rock is being washed away and beaten into nothing. Our country is losing touch with reality because we let our representatives grow too happy with their own needs and wishes, which directly impacts the flow of government. Should the flow of government change because a vote was delayed due to a Senator with diarrhea of the mouth, why, what do we stand for now? Hasn’t America lost its ability to govern itself? Power would have been shifted toward the Congress with no way to stop it.

All it takes is one person at the helm to steer a ship toward that ominous storm. We let these people stand up there for eight hours at a time causing nothing but mayhem. Meanwhile people are dying in Alabama because the cows have started a rebellion, but the people can’t do a darn thing because the require the approval of Congress to take up arms because the cows are protected because, not only are they pregnant, but also they have become rare and extinct due to the holes in the ozone layer depleting the natural roaming spaces of the cow. We have lost touch with what the people need, with what the majority needs. The minority has no right to impose delayed actions in more important issues because they do not agree with a piece of legislation currently working its way through the bowels of the Capitol.

They expected senators to actually do their job and examine the people the executive branch was submitting for consideration in judicial positions.

I really don't know why I should have to connect the dots for you like this, but here goes. You see we have a Republican administration in the executive branch. They are going to submit a lot of judicial nominations and possibly at some point a supreme court nomination. We also have a Republican majority in the senate. If our government was working the way it was supposed to then the senators in Congress might actually evaluate these judges on their merits instead of their ideology. We might see federal judges getting appointed because they had solid records and credentials not because they are anti-abortion or anti-gay rights.

Instead there will be the standard rubber stamp gentleman's agreement to confirm whatever judges Bush throws at the senate. If we examine the voting records when this starts happening I imagine we will not find a single dissenting Republican.

This basically means that the executive is stacking the judicial benches. So hayleyanne, either you have to completely disagree that is happening or you have to suggest that the founding fathers basically put confirmation in there for no good reason at all. Or you'll have to agree that I have a point and this is a huge problem (and please note it has been abused by Democrats too). So which is it?

IT IS A HUGE PROBLEM. That is why I am so adamantly opposed to judicial activism. I know that is a hot button word -- and that is why I started the thread on Constitutional interpretation. To try and get people to think about how the Court is interpreting the Constitution.

The politicization of the judiciary through its free wheeling jurisprudence in the last several decades has put us where we are at right now. You know I am a huge Scalia fan so-- I can't resist quoting him at this point:





To be honest, I am not sure I agree with Scalia's last statement here that we have a tyranny of the majority. In my opinion, it is a tyranny of the POWERFUL few, the elite, who know what is best for the people.

Didn't we have this debate a few weeks ago? Oh well, nevermind...

I am CHOKING...absolutely choking on the hypocriscy of the Republicans threatening to evoke "the nuclear option" to bum-rush Bush's judicial nominees through. On the orders of Karl Rove, James Dobson and Pat Robertson, Bill "I Wanna Be Your President" Frist is going to throw some red meat to the Religious Right and ram through what conservatives euphemistically call "strict constructionist" judges.

Which is absolute crap. For all the talk about the evils of "judicial activists" from Left-wing judges, what's really going on is how many "judicial extremists" Bush can saddle the federal courts with in the next 45 months.

“If we go to the nuclear option . . . the Senate will be in turmoil and the Judiciary Committee will be hell.”

That was from Senator Arlen Specter, chairman of the Judiciary Committee, who apparently doesn't reply, "How high?" when Rove, Dobson and Robertson tell him to "Jump." God bless him. Now, Little Billy Frist, wary of being cast as a (shudder) moderate, has to suck up to the wingnuts of the Republican Right if he wants any shot at the nomination in 2008. The problem though for Frist is once you get in bed with the likes of Robertson, Dobson and company is that he's going their rent boy, now and forever.

It's so nice that all of a sudden after 200 years, the Republicans have decided that the fillibuster is bad, bad, BAD. It's insincere since they did the exact same thing to Bill Clinton. Oh, but I forget---that was about keeping the "judicial activists" off the courts, so that makes it okay.

Hayleyanne, you make it seem as if the Senate Democrats have thrown down the gauntlet and said, "Nyet" to every judicial nominee Bush has sent up. They approved over 200 and turned away ten. That's what you call being an obstructionist? Are we to presume that every nominee by the president deserves a lifetime appointment to the federal court?

The truth of the matter is that for the Far Right nothing less than 100 percent of their extremist judges being elevated to the Federal Judiciary will satisfy them. It's not the 200 that made it that matters, it's the 10 that didn't. What a crock!

The idea that "majority rules" is just another way of saying "might makes right." I will repeat something I said in a previous thread. The job of the Senate is to advice and consent. The White House and some of the posters in this thread seem to think it should be "shut up and do what we say."

In 2003 Judicial Watch, a conservative advocacy group, filed an ultimately unsuccessful lawsuit against the Senate, claiming that the judicial filibuster was unconstitutional. Although no text supports its argument, Judicial Watch argued that it's implied that the Senate's "advice and consent" power must be exercised by a simple majority vote, because it's consistent with the "ordinary principle of majority rule." Nice try, but that position is actually antithetical to the intent of the Framers, who were careful to make sure the majority didn't always rule. James Madison wrote in The Federalist Papers that "measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." The Senate was created, in part, to prevent the problems associated with the tyranny of the majority.

The real culprit here is Bush, who has ripped the "advice" out of "advice and consent." He has stubbornly refused to substantively communicate with any senators who oppose his nominees. When the Senate fails to confirm his nominees, Bush just reappoints them or, worse, bypasses the Senate altogether and installs them on the bench during a recess. This kind of toxic environment makes judicial filibusters more likely.

http://www.thenation.com/doc.mhtml?i=20050321&s=legum

So will the Senate "go nuclear?"

I think Frist is going to do it. He's demonstrated zero ability or interest in building a bipartisan consensus or any shred of growing a spine, so I'm pretty sure he's not going to deviate from the orders coming out of Karl Rove's office. And I think if he sows the wind he's going to reap the whirlwind. He'd better be absolutely sure he's gonna win this fight before he starts it.

Yet the largest obstacle to Frist’s plan is another aspect of the culture of the place: the belief that the Senate’s traditions are sacred, that it should be an institution where unbridled majoritarianism doesn’t always carry the day. Or, as McCain puts it, “The Senate should not be like the House.”

Even for those of us who’ve wondered if anything would be lost to democracy if the Senate were burned to the ground, McCain is onto something. And for many other “institutional conservatives,” his argument is the essence of reason. “When senators get up in the morning and look in the mirror,” says a longtime Senate aide, “the first thing they say—after ‘I should be president’—is ‘Thank Christ I’m not in the House.’ ”

Whatever the final fate of the nuclear option, however, the debate over the measure has already illuminated two points.

First: A party that seriously considers, let alone achieves, the demolition of a 200-year-old Senate tradition for essentially political ends cannot properly be called conservative. As Newt Gingrich always honestly advertised, the GOP is now a radical party, in the strictest sense of the term. But being radical, as Gingrich learned to his regret, demands a degree of ideological purity that makes governing damn hard. It also has a tendency to lead to overreaching.

Second: The fact that enacting the nuclear option has not (yet) been a slam dunk for Republicans, despite the implicit backing of the White House, is one of a number of signs that the vaunted party cohesion that characterized Bush’s first term may be on the wane. On Social Security, the budget, and even taxes, there have been more Republican yowls of discontent and disagreement in the first two months of Bush’s second term than anyone could have predicted. And most of them are emanating directly from the halls of the upper chamber.

http://www.nymagazine.com/nymetro/news/pol...1263/index.html

And here are the first three courtesy of the NY Times:


When Congress rejects men like this they are doing their job and being diligent. However, because of the way politics have shaped up in recent decades Bush and his cronies rail about senate Democrats rejecting these men and how the filibuster must be stopped. The Democrats are apparently the only ones actually paying attention here and using the filibuster should make America take notice.

Cube Jockey wrote:



Nighttimer wrote:


I suggest you read a piece written by Orrin Hatch on this whole issue. He responds here to the liberal talking point about "rubber stamping":



The Democrats are not even letting the President's nominees get to the floor for a vote! You are confusing "rubber stamping" with the fact that there may be (although we don't know do we since the vote can't get to the floor) enough Senators that would vote to approve the nominee. Let the debate proceed -- don't stop it from ever being debated in the first place.

Right, play it off as a "liberal talking point" hayleyanne - coming from Orrin Hatch's mouth no less. Ok then, lets look at those nominees which I listed above. Assuming you could make an objective analysis of them (which may or may not be possible due to your political leanings), do you really feel those men are qualified to hold a position as federal judge? A lifetime appointment.

Our Republican Congress apparently does, that is why they are screaming about them being blocked. Any person with an ounce of common sense could see that the only rational explanation for installing those judges in a federal position would be to meet political ends, not because they are qualified candidates. Do you really think that Republican senators would rail against the Democrats for filibustering these nominees and then turn around and vote them down? This proves the "rubber stamp" concept isn't some liberal talking point.

The filibuster is the only method we currently have in Congress to stop ridiculous abuses of the Constitution like rubber stamping of judicial appointments. It may not have been the initial intended purpose but it is an effective tool. Until we replace it with something officially written for that purpose in the Constitution I am in favor of it being available to both sides because I don't want to see extreme elements from either party making a mockery of our system of checks and balances. Given the fact that you constantly claim you are such a strict constructionist I think that would particularly anger you.

Ummm, no. We also have a method called "voting for the people you want to advise and consent to judicial nominees". Also known as an "election". We've had several recently, and the American people have voted Republicans into majorities in the Senate every time.

Democrats, take the hint.

Back to the subject:

Should the filibuster be restored to the form where, in order to thwart the will of the majority, the minority must do it in a highly disruptive way that invites close scrutiny by their constituents? I suggest that we should. Otherwise we are left with a Senate in which no issue can be decided by a simply majority vote, despite the clear intent of Senate rules. Forcing a supermajority in extreme situations can be a good thing, and has in the past. Doing it secretly (as it were), is not a good thing, and the practice should be revised.

I am trying to find an unbiased source so that I can learn about these nominees. I will get back to you.



CJ-- you never responded to my point about how all this just goes to prove that the problem here is the power in the judiciary. Personally, I don't think the battle should be fought in this tit for tat kind of way that has become routine with judicial nominees. I think the problem needs to be addressed at the source: a look at the judiciary itself.



The problem as I see it is that we have no way of seeing through all the political rhetoric. Accusations are flung from both sides. Why is all this happening in the first place? It all started pretty much with Bork back in the late 80s. All of a sudden, it dawned on everyone just how much power these judges wield. That is the issue that needs to be considered. Not all this nonsense about stalling and obstructing and filibustering.

No, because I would think that all voters regardless of political affiliation would want their senators to do their jobs correctly instead of rubber stamping judicial appointees. That is exactly the problem which hayleyanne and I are discussing and it is directly related to the question at hand because it deals with why filibusters are used and why one method would be preferable over the other.

And by the way, if you think a conversation is going off topic that is what the "Report" button is for - you aren't a moderator.


Hayleyanne, you know that I disagree with your position on judicial activism already so I'm not sure what you were looking for in the way of a response. I think there is a topic discussing that already in the constitutional forum, I'll look it over and try and forumlate a post there.

Yes, please take the hint.




Filibusters during Clinton's terms didn't hurt Republicans at all. In fact, it energized the party, aligning its core principles with the Religious Right more than ever before. The number of filibustered nominees increased with each passing year, until--who'd da thunk it!--Republicans decided presidential nominees from their own party deserve an up or down vote.

If 10 filibustered judicial nominees make an obstructionist tactic Democrats should be ashamed for being such underachievers.

Year . . . No. of filibustered nominees
-------------------------------------------
1993 . . . . . . . . 0
1994 . . . . . . . . 0
1995 . . . . . . . . 0
1996 . . . . . . . . 0
1997 . . . . . . . . 0
1998 . . . . . . . . 0
1999 . . . . . . . . 0
2000 . . . . . . . . 0

Sure enough, you're right. 1994 had twice as many filibustered nominees as 1993. And this trend repeated itself every year except 1998, where three times as many nominees were filibustered than the previous year!

May I respectfully suggest that it's time to do a little homework?

Of course, the Republican majority in the Senate voted quite a few down, just as Democrat-majority Senates had done during Reagan's and Bush's terms. That's a legitimate function of the majority. But none were ever filibustered by a minority during Clinton's terms; and only one has ever been filibustered by a Republican minority in living memory - a man who already had a lifetime appointment to the Supreme Court, which filibustering or even rejection, would not have affected. Quite a different legacy from what we're seeing today from the Democrat minority in the Senate.

Oh, do please spare me the crocodile tears, Haleyanne. I could take Senator Hatch's flowery rhetoric about "a fair fight" if he wasn't such an appalling hypocrite regarding denying previous Democratic nominees a "up or down" vote.

As far as "doing a little homework," Little-Acorn, the reason the filibuster seemed to disappear is because the Republicans came up with a sneaky little way to deny President Clinton's nominees without having to publicly go on record and that was by coming up with the invention of "Senatorial holds." Back in 2001, SLATE in their "Explainer" department explained how this neat little trick works.

Besides voting down a nomination, how else can the Senate block it?

Through filibusters or the more common "hold." Filibusters are rarely used, but in 1995 Clinton's nomination of Dr. Henry Foster for surgeon general died due to a Republican filibuster. More common are the mysterious Senate holds. This process, not spelled out in the Senate rules, allows any senator, for no given reason, to anonymously put on hold a nomination by simply asking his or her party leader for the delay. It was originally a sort of courtesy accorded to senators who wanted a vote delayed briefly due to scheduling problems or who needed time to gather more information. In recent years it has turned into a method for permanent obstruction. Holds can be put on for purposes that have nothing to do with a nominee as a way of forcing the administration to accommodate a senator's wishes on another matter. In recent years there have been 30 or more holds at a given time on nominees for judicial, ambassadorial, and other posts. A recent reform is requiring identification of the senator requesting the hold, but that has not always been forthcoming.

http://slate.msn.com/id/1006878/

Pot meet kettle.

In February, the president again nominated Bill Lann Lee as assistant attorney general for civil rights, a nomination the Senate has refused to consider for the past two years. Judiciary Committee Chairman Sen. Orrin Hatch, R-Utah, says he won't hold]any hearing on Lee's nomination.

http://slate.msn.com/id/22067/

In 1994 Senator Hatch added language to the Senate rules for confirming nominees. His objective: to allow a single senator to easily--and secretly--block nominations from leaving committee. It worked. Judge Marsha Berzon's nomination was secretly stymied for more than two years. (Senator Bob Smith finally admitted his role.) The nomination of Judge Ronnie White, who had bipartisan support in the Senate, languished in committee for almost two and a half years. Judge Helen White waited four years for a hearing; she never got one. This behind-the-scenes scheming proved to be so popular, Republicans were able to block more than sixty of Clinton's nominations. (To no one's surprise, as soon as Bush took office, Hatch abandoned this procedure, allowing nominees to sail through.) The bottom line: While a filibuster requires at least forty-one Senators on board to block a nominee, under Republican leadership, it took only a single dissent.

Your indignation and outrage of the Democrats exercising the filibuster rings hollow unless you are equally so over Senator Hatch's sleazeball tactics to block Bill Clinton's nominees. When it comes to dilatory and obstructionist tactics, guys like Hatch wrote the freakin' book!

President Bush has a 95 percent approval rate of his judicial nominations. But for the forces of judical extremism, nothing less than 100 percent will do. That kind of blind zealotry is the embodiment of extremism.

http://www.thenation.com/doc.mhtml?i=20050321&s=legum

http://www.detnews.com/2003/editorial/0306/23/d07-198332.htm

Well Little-Acorn,

I wouldn't exactly call bottling Clinton's appointments up in the Judiciary Committee voting the nominees down. So many Republicans; so much hypcrisy.



http://mediamatters.org/items/200502180004

Should Senate filibusters be returned to their original formats, where one or more Senator must keep talking continuously, bringing all other Senate business to a halt? Or should they go on as they presently do, letting other Senate business continue and providing a painless way for the minority to thwart the will of the majority until a 60-vote supermajority is reached?

No to the first question and yes to the second question.

We don't want single-party rule in this country, or at least we should be very wary when one party rules the whole shebang. At this point, the only check/balance is the Senate filibuster. Doing away with that is doing away with our form of government, where democratic/republic voting is just a formality.

This is the problem. The judiciary has become politicized. As a country we need to resolve this problem-- because it threatens the principles on which this country was founded.

The ball is in the Democrats' court right now. They have the opportunity to stop all the obstructionist tactics. I have no problem with the nominations being debated in substance on the floor of the Senate and then put to a vote. The minority voice is heard then.

But this will never happen will it? The Democrats point to the Republican tactics during the Clinton era. And then the Republicans in turn explain their tactics as responding to the Democrats tactics during Bush I's term.

What a mess it all is.

The Democrats charge that Bush is putting idealogues up for nomination. The Republicans charge that a liberal president will put up judicial activists.

The only resolution as I see it would be either of two things:

(1) That we explore ways to limit the power of unelected federal judges. This could be done by requiring more than a simple majority when the Court overturns a democratically enacted law. Ex. the juvenile death penalty. But of course, this does nothing to address the actions of district court judges as they do not sit on panels. At least this option would give some appearance of a decision that does not so clearly cut across political lines. It would force a compromise on the Supreme Court in instances where democratically enacted policy is being overturned.

(2) Another possibility would be to look more closely at judicial review. We should ask why it is that we needed a constitutional amendment to give women the vote in the early part of the 20th century-- but would not have needed such an amendment if faced with that issue today. The Court, I am sure, would have no problem holding that the 14th amendment equal protection clause would require it. That very same equal protection clause was in existence a century ago. What has changed? I think that Judges are not judges anymore, but rather the sole arbiter of what is right and wrong in our society.

Actually, I would challenge anyone out there to explain why judicial "review" of the 14th amendment's equal protection clause could not have gotten women the right to vote in 1920. Why was it necessary to amend the Constitution-- when we already had the equal protection clause for more than half a century?

Should Senate filibusters be returned to their original formats, where one or more Senator must keep talking continuously, bringing all other Senate business to a halt? Or should they go on as they presently do, letting other Senate business continue and providing a painless way for the minority to thwart the will of the majority until a 60-vote supermajority is reached?


From what I understand, the rules currently state that in order to filibuster, there is no requirement for a Senator(s) to hold the floor, but they need only inform the Senate leadership of their intent to filibuster and other Senate business can proceed around the filibustered proposal unless a 60 Senator vote puts an end to it. I agree that this is wrong. I do believe that members of Congress should be allowed to filibuster judicial nominations, but I don't agree with the current filibuster rules. I think it should go back to the actual holding of the floor. I do not agree with changing the rules in order to ban filibustering a judicial nomination.

The Democrats have the power to stop this? Hayleyanne let's not forget who is in power here, the Republicans control all three branches of government and they have been in office during 6 out of the last 9 presidencies. You are seriously deluded if you think the Democrats have the power to stop this.

The Democrats are the only ones protecting the interests of this country right now by blocking "judicial activists" that the Republicans want in office (that term doesn't just apply to liberals regardless of what you might think).

Your point about whether activist judges are the problem is a chicken and egg argument. The problem is the process by which the judges are appointed, not their powers while in office. The three branches of the government were intended to be equal and yet you seem to want to remove all power from the judicial branch. Even if we limited the power of federal judges and supreme court judges tomorrow, we'd still have judicial activists in office effecting this country because the process is broken.

When a political party holds both the executive office and a majority in the senate then the judiciary just becomes spoils of war, that isn't how it is supposed to work and that is what is broken.

I like the way you so adroitly tap-dance around both my and BOF's posts and do not address how the Republicans obstructed political and judicial appointments.

That is why I give no credence to this hype about the ball being in the Democrats' court. Last time I counted, the GOP had the majority of votes in the Senate. That does not however mean only the majority's will should dominate. Not while there are other devices (such as the filibuster and Senatorial holds) to protect the rights of the minority.

Your argument that, "Everybody else has done it, so why can't we" does not serve to restore a sense of bipartisan cooperation in the Senate. It only hardens each side into further partisan rancor.

...and we're still waiting for your defense of the judical extremists that Cube Jockey listed.

I see nothing wrong with the procedural filibuster, it accomplishes the same task and actually frees up the person speaking to perhaps work out a disagreement to end the filibuster. Obviously, the rules of a filibuster can be amended, and have been amended a lot. I'd argue that perhaps procedural filibusters are better since one issue doesn't bottle up the rest taht may be more important than some bankruptcy or labor bill. Say,........defense spending.

I have not tap danced around any issue. If you read through my posts you will see that I have been entirely straight forward in acknowledging that the obstructionist tactics are now common on both sides of the aisle. I do think this problem (with both sides obstructing) should be looked at more deeply. As I suggested in the post you replied to -- we should consider the source of all the controversy-- the judges power. Is it just that both sides are trying to guard against "idealogues" being appointed? What exactly does that mean? Is it the same as "activism" from the Left? On what does the Senate base its decision that certain nominees are idealogues? The ABA itself has been shown to be bias in its ratings of nominees. It is a mess and the status quo cannot remain. The obstructionist tactics must stop and the real issue must be addressed: the power of the judiciary.

The power of the judiciary (and restricting it as you apparently wish to) is an entirely different subject, Hayleanne.

Even when you try to spin this as a "non-partisan" issue, you can't resist the urge to take a swipe at the American Bar Association. Or do you hold the same reservations about the judicial recommendations made by the Federalist Society, which is whom the White House now goes to when they want to fete nominees?

The fact that Republicans obstructed nominees through means other than the filibuster is hardly germane to this discussion. The Republicans have never filibustered a judicial nominee.

As for the "extremists" mentioned by CJ that the Democrats so worthily want to block (instead of having any debate on the merits of such appointees), the American Bar Association (hardly a bastion of Conservative thought) rates each of them as "Qualified", with a minority of the Committee voting "Not Qualified" in the cases of Myers and Griffith. RATINGS OF ARTICLE III JUDICIAL NOMINEES

Of course, I think we probably disagree on whether or not there should be a litmus test based on issues for judges (abortion, etc.). The opposition of Democrats to most (if not all) of these nominees is based on issues, not on jurisprudence, which is wrong.


. Last time I read the Constitution, it didn't say anything about the fact that if one political party controls the Senate and the White house then the system is broken. Was it broken when Clinton was in office and controlled both houses of Congress? Was it broken in the 1960s when Democrats controlled all three branches of government?

I certainly hope Harry Reid invokes his "nuclear option" and shuts down the Senate. It would help us all out a lot. Reid delivers ultimatum on judicial nominations



You go, Harry.

Well said as usual Amlord. We have now gotten to the point in the Senate where interrogating a judge as to how he or she will rule on a particular issue has become routine. Sounds to me like a vetting process for someone who is going to "make law" on the bench. How did we get to this point?



I hope that the Senate rules are changed so as to stop these obstructionist tactics. If Harry Reid invokes his "nuclear option"-- so be it. Unfortunately, the mess we have in the Senate right now with this issue-- calls for harsh measures.

I am with you Amlord:

You go Harry.

Wishful thinking. Despite Frist's scandalous, if false, allegation that Democrats are the first party to filibuster a judicial nominee he is wrong on two counts. Party and precedent.

Frist himself filibustered Clinton's Paez to the 9th.



Paez's nomination sat around for three and a half years. But that's of no importance, nor should it weigh on your mind concerning this debate. Paez's nomination hearing was obstructed through means other than the filibuster.

As for Democrats being the first to block a nominee in 2003, well, it could be said that Republicans weren't shy about getting in bed with some Democrats to block Bork.



Removing the original filibuster will not allow the minority party to obstruct a nominee while the majority party has the luxury of falling back on administratively obstructing nominees should the president belong to an opposing party. That's constitutional or not constitutional, as Amlord demonstrated, depending on which party you align with.

The fact that the Republicans obstructed nominees through means other than the filibuster is definitely germane to this discussion. Your transparent attempt to cover the GOP in glory Amlord, obscures the truth of how effectivly they circumvented the process of advice and consent.

The Republicans did not need to filibuster a judicial nominee during the Clinton Administration thanks to Senator Hatch's employing of the surreptitious
"holds" system. Without having to stand up and publicly announce opposition to a particular nominee the Senatorial hold system permitted nominee to dangle in limbo without a hearing or a vote as long as any anonymous Senator wanted.

It was a cheap, sneaky and sleazy way to block nominees without having to go public with that opposition. I don't blame you for saying this underhanded tactic isn't germane today. It illustrates how the Republicans objected to Clinton's nominees on purely ideological grounds, yet wanted to keep their hands clean while trying to twist the knife.

Oh yes indeed, Harry. Go ahead and shut the Senate down. That seems to be what the red meat wing of the Republican Party wants anyway.

Sometimes you have to start a fight to win one.

Barbara Boxer, at that moveon-org rally, finally came clean that the Democrats want to change the Constitution and require a super-majority for judges. Or in her words - "a super vote for a super important position" What an idiot. She actually made Leahy sound smart by comparison.

transcipt - radio blogger

link to mp3 audio


Scary indeed.

nighttimer, didn't the (Democratic) Senate 'hold' Reagan's judges or something in his final year too? I'm just wondering how common this is, and neither side seems to be coming clean.

I'm not exactly sure how that is a bad thing Carlito. I have made the argument quite a few times in this thread and in some of the ones in the Constitutional forum.

People are constantly railing about how much power judges have and activist judges and this and that. The simple fact of the matter is - nothing has changed with the judicial branch they are still just as powerful as they have always been. You still have activists - the conservatives prefer to call their brand of activism "textualism" and the bash the liberal judges by calling it "judicial activism" or the "living constitution".

The problem Carlito is what happens in Congress today. It is my personal view that a few decades ago when Scalia was appointed there was sort of a gentleman's agreement between the two parties on judges. They would appoint judges who were friendly to their political philosophy, but they had respect for the office and they put in people who would do their jobs. Today you see appointments for judges who have basically campaigned saying that they intend to overturn roe v. wade if they get a chance. While that may please you politically, do you see what is happening there? You basically have a judge saying he is going to put politics before his duties as a judge.

I don't know whether the Republicans did it first or the Democrats, but today it is open season on the judicial branch and since it only requires 51 votes to get a judge confirmed that basically assures that the party in power can stack the bench with whatever nuts they like.

Now if you increased that to a super majority then the judges submitted would actually need to have integrity and the desire to do their jobs to be confirmed. It would be a good thing for the country, and you should actually take a look at the issue rather than just turning your nose up at it because Boxer suggested it

But with a lot of things, timing is everything, CJ.

If you ask yourself why Republicans want to go nuclear now you also have to ask yourself why Boxer is suggesting a supermajority vote for judicial confirmation. Perhaps she or some other senator has mentioned it in the past, but I doubt it.

Removing the minority's access to the filibuster would ensure the majority party would be the only one that can obstruct. I don't know if Hatch's "blue-slip procedure" idea has been employed by a previous Senate Judiciary Committee Chairman, but I have reservations that such a euphemism for selective advise and consent advocacy will not be used again by either party.

Carlitos, I wouldn't be surprised if the Senate has held nominees since LBJ. I don't pretend the Democrats are saints, but the purported clean hands Frist has claimed for himself and his party rankles me. The Republicans are at an advantage as far as getting the message to constituents and pressuring Democrats into consenting with their judicial agenda. "Democrats are blocking judicial nominees. They're defying the will of the people!" requires so much less nuance than "Well, you see, back when LBJ appointed Bork... But we held over Reagan's appointment... Then in the mid 1990's... When GWB came to office Hatch let up the blue-slip procedure..." etc.

I would prefer amending the constitution to remove all doubt as to what advice and consent means for the minority and the majority, mitigating the precedent of changing 200 years of Senate tradition and removing political jockeying in the process. Or/and changing our state election and voting laws to be more inclusive of third parties so this crap doesn't happen. But I could be making Leahy sound smart. /shrug

I'm not turning up my nose only due to Boxer's suggesting this (also she really sounded like a stupid bimbo if you listened to the mp3), I'm turning up my nose because I think it's a bad idea. The framers put 7 specific instances requiring a super-majority into the text of the Constitution. They also noted that the Senate should "advise and consent" on appointments. If that meant 3/5 or 2/3 majority, they were smart enough to have said so, and they were certainly smarter than the current politicians who spoke at the rally the other day.

There is an answer for the party not in power to the question of who gets to pick judges - the party that wins elections. Dems have lost what, the last 6 Congressional elections? Judicial nominees are front and center when campaiging, the American people hold a plebiscite on this issue every 2 years, and the Democrats keep losing. George Bush said "I'm going to appoint conservative judges," Republican Senate candidates said "we're going to approve George's judges" and both won the election in 2004. Seems to be an indicator that a simple majority of the American people want Republican-picked judges. If I'm wrong, please convince me.