Full Version: Reason for filibustering judicial nominations
QUOTE(Erasmussimo @ May 9 2005, 05:27 PM)
QUOTE(hayleyanne @ May 9 2005, 02:54 PM)
The ACLU addresses civil liberties but it also closely aligns itself with primarily left wing causes/issue such as reproductive rights; gay marriage; and lesbian/gay/transgendered discrimination issues. For the most part, it pays very little attention to the traditional right wing causes such as religious freedom. Hence, new organizations, have been created to fill that void. A good example of a right leaning organization looking out for the civil liberties of religious people would be the St. Thomas More Law Center, based in Ann Arbor, MI.
Well, I disagree with the way that you emphasize left-wing matters and minimize right-wing matters. The ACLU simply doesn't think in terms of left and right; they take on any case that seems to violate fundamental rights. If you visit their website, you'll find cases they have taken to protect Christians as well as Muslims.
The problem with claiming that the ACLU never protects Christian freedoms is that we have no way of knowing how often Christian freedoms are infringed upon relative to how often other religious freedoms are infringed on. It is entirely possible (and indeed probable) that the great majority of religious infringements have the infringer as Christian and the infringee as non-Christian. We just don't know. But to claim that a disproportionate number of their cases defend non-Christian causes assumes that one knows the proper proportions in the first place.
In any case we're drifting well off-topic, so I offer you the last word on this question.
I am not saying that the ACLU does not perform a valuable service. But that doesn't mean they are without a political agenda. Here is a good piece on some of the "contradictions" in ACLU litigation:
http://www.frontpagemagazine.com/Articles/...le.asp?ID=10447
And as I said earlier, other organizations have sprung up to fill a void in the defense of the civil liberties of religious people and religious freedoms.
QUOTE(Erasmussimo @ May 9 2005, 05:23 PM)
QUOTE(hayleyanne @ May 9 2005, 02:11 PM)
Additionally, Justice Ruth Bader Ginsburg was the former general counsel of the American Civil Liberties Union 
Not an organization known for its "moderate" political leanings.
Not an organization known for its "moderate" political leanings.I disagree with a characterization of the ACLU as a left-wing organization. Their portfolio addresses only the civil liberties of citizens. They have defended the American Nazi Party and the Ku Klux Klan. If you want to associate the left wing with the protection of civil liberties, and the right wing with the denial of those liberties, that's fine with me, but I should think that conservatives would resent such a characterization.
That's another thread erasemussimo. The ACLU is a far left organization that only recognizes select portions of the bill of rights that fit their political agenda.
I can't imagine this point is even debatable in 2005.
QUOTE(carlitoswhey @ May 9 2005, 11:42 AM)
As to the 7 out of 200, whatever. Yes, it was bad when Orrin Hatch was bottling things up in committee, but to his credit, he was not filibustering Appeals Court nominees. Indeed, he was demanding some time for debate before they would receive votes on the floor.
You defense of the Republican tactics here is highly hypocritical carlito, how long do they need to debate these judges - 6 years? There were quite a few judges that never even made it to the floor for a vote because of these tactics.
What you are doing is picking on the Democrats for taking advantage of a procedural loophole and excusing the Republicans from using a different procedural loophole for exactly the same reason. That is hypocrisy at its finest.
QUOTE(Cube Jockey @ May 9 2005, 08:31 PM)
QUOTE(carlitoswhey @ May 9 2005, 11:42 AM)
As to the 7 out of 200, whatever. Yes, it was bad when Orrin Hatch was bottling things up in committee, but to his credit, he was not filibustering Appeals Court nominees. Indeed, he was demanding some time for debate before they would receive votes on the floor.
You defense of the Republican tactics here is highly hypocritical carlito, how long do they need to debate these judges - 6 years? There were quite a few judges that never even made it to the floor for a vote because of these tactics.
What you are doing is picking on the Democrats for taking advantage of a procedural loophole and excusing the Republicans from using a different procedural loophole for exactly the same reason. That is hypocrisy at its finest.
Big difference, the GOP held the majority. The democrats do not.
We're picking on the democrats for being reactionary obstructionists. Yes, they are using a loophole in a unique way. The responsibility of Frist is to close that loophole and do it now.
There is nothing hypocritical about this. This is how our system works. When the GOP has the majority, they should exercise their power. We all know that the democrats did for 40 years. Reagan, Ford, Nixon, Bush Sr......all had to deal with the reality of a democrat congress.
The "nuclear option" is actually what the dems are doing now. They could not gather enough support for their agenda to capture the house, the senate, or the white house yet they are using their weapon of mass destruction, an unprecedented filibuster, to exert power beyond their elected or constitutional rights.
Since most people are against WMD's, it's time that Frist put an end to the WMD program of Reid, Clinton, Biden, and Kennedy.
I don't understand why Republicans are acting so indignant about democratic use of the filibuster. They are the opposition party. Did Republicans think that just because they gained the presidency and Congress that Democrats would just roll over and surrender. Would anyone expect Republicans to do anything, but the same thing. Of course the shameless Media Screamers on both sides of the spectrum are going red in the face about it, but hey they need something to fill their 24 hours of television.
Both sides have recognized the importance of judicial nominees. As our nation progresses farther and farther away from the mindset of our founding farthers, and our legal system gains years and years of cases to serve as precedent and to be considered which each new year, the role of the judiciary will become increasingly important. Thus, the increased focus on nominations. Both those on the left and on the right have agendas (including those who claim to follow nothing but the constitution) and would like to have judges who agree with their agenda. Consequently, no one is going to just allow a clearly conservative or a clearly liberal judge to be appointed without a struggle.
So spare me the sob story about Democrats dismissing centuries of Congressional tradition and explain to me why these individual justices should be appointed. Why should William Pryor be a federal judge, when his record as a state judge was poor?
Both sides have recognized the importance of judicial nominees. As our nation progresses farther and farther away from the mindset of our founding farthers, and our legal system gains years and years of cases to serve as precedent and to be considered which each new year, the role of the judiciary will become increasingly important. Thus, the increased focus on nominations. Both those on the left and on the right have agendas (including those who claim to follow nothing but the constitution) and would like to have judges who agree with their agenda. Consequently, no one is going to just allow a clearly conservative or a clearly liberal judge to be appointed without a struggle.
So spare me the sob story about Democrats dismissing centuries of Congressional tradition and explain to me why these individual justices should be appointed. Why should William Pryor be a federal judge, when his record as a state judge was poor?
QUOTE(lordhelmet @ May 9 2005, 08:40 PM)
QUOTE(Cube Jockey @ May 9 2005, 08:31 PM)
What you are doing is picking on the Democrats for taking advantage of a procedural loophole and excusing the Republicans from using a different procedural loophole for exactly the same reason. That is hypocrisy at its finest.
Big difference, the GOP held the majority. The democrats do not.
We're picking on the democrats for being reactionary obstructionists. Yes, they are using a loophole in a unique way. The responsibility of Frist is to close that loophole and do it now.
There is nothing hypocritical about this. This is how our system works. When the GOP has the majority, they should exercise their power. We all know that the democrats did for 40 years. Reagan, Ford, Nixon, Bush Sr......all had to deal with the reality of a democrat congress.
The "nuclear option" is actually what the dems are doing now. They could not gather enough support for their agenda to capture the house, the senate, or the white house yet they are using their weapon of mass destruction, an unprecedented filibuster, to exert power beyond their elected or constitutional rights.
Since most people are against WMD's, it's time that Frist put an end to the WMD program of Reid, Clinton, Biden, and Kennedy.
OH, I get it now. Its majority hypocrisy vs. minority subversion? That's much clearer now.
Retreating back to the "but we're in the majority" argument does nothing to advance your case, Lord Helmet. If it walks like a duck...
You would do well to read Madison's view of the "Tyranny of the Majority" in Federalist #51. His fear seems almost prophetic by your words.
QUOTE
"It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."
And even more prophetic in #63, without the colorful use of the "nuclear vernacular"
QUOTE
And he said, (Federalist Paper 63) "...an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.... ...there are particular moments in public affairs when the people, stimulated by some irregular passion or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? "
(Source for both)QUOTE
QUOTE
All the polls regarding the Nuclear Option have shown the public in opposition to the Republicans view. So if Senator Hagel and some other "lilly livered Republicans" vote against the Nuclear Option, aren't they voting with the majority of the American people. Are maybe they should be "activist Senators" and vote against the wishes of the American public.
It is all in how the polls are worded. When the polls ask whether republicans should be allowed to manipulate the rules to insure that Bush's judges get nominated-- the public says no. However, when the polls ask whether Bush's nominees should be insured an up or down vote in the Senate-- the public overwhelmingly says yes.
All the polls regarding the Nuclear Option have shown the public in opposition to the Republicans view. So if Senator Hagel and some other "lilly livered Republicans" vote against the Nuclear Option, aren't they voting with the majority of the American people. Are maybe they should be "activist Senators" and vote against the wishes of the American public.
It is all in how the polls are worded. When the polls ask whether republicans should be allowed to manipulate the rules to insure that Bush's judges get nominated-- the public says no. However, when the polls ask whether Bush's nominees should be insured an up or down vote in the Senate-- the public overwhelmingly says yes.
I have yet to see a poll,"when the polls ask whether Bush's nominees should be insured an up or down vote in the Senate-the public overwhelmingly says yes.
Maybe you could give me an example of those polls
The only ones I saw were:
http://www.washingtonpost.com/wp-dyn/conte...5032201677.html
QUOTE
But by a 2 to 1 ratio, the public rejected easing Senate rules in a way that would make it harder for Democratic senators to prevent final action on Bush's nominees. Even many Republicans were reluctant to abandon current Senate confirmation procedures: Nearly half opposed any rule changes, joining eight in 10 Democrats and seven in 10 political independents, the poll found.
and
http://www.gallup.com/poll/content/?ci=16195
QUOTE
A review of recent public opinion data on this issue suggests four conclusions:
1. The filibuster debate per se has not attracted the attention of the majority of the American public. It is not a high-salience issue to rank-and-file Americans.
2. When the filibuster situation is explained to Americans, the majority appear to favor keeping the rule in place. A plurality also favors the Democratic approach over the Republican approach to the issue.
3. Americans following the filibuster situation closely are more likely to favor keeping it in place than are those who are not following it as closely. Republicans and those who attend church most frequently are more likely to oppose the filibuster rule than are independents, Democrats, and those who do not attend church as frequently.
4. One unanticipated consequence of the rancorous debate appears to be a general diminution of Congress' status, as well as that of both parties in Congress, in the eyes of the American public.
1. The filibuster debate per se has not attracted the attention of the majority of the American public. It is not a high-salience issue to rank-and-file Americans.
2. When the filibuster situation is explained to Americans, the majority appear to favor keeping the rule in place. A plurality also favors the Democratic approach over the Republican approach to the issue.
3. Americans following the filibuster situation closely are more likely to favor keeping it in place than are those who are not following it as closely. Republicans and those who attend church most frequently are more likely to oppose the filibuster rule than are independents, Democrats, and those who do not attend church as frequently.
4. One unanticipated consequence of the rancorous debate appears to be a general diminution of Congress' status, as well as that of both parties in Congress, in the eyes of the American public.
Even when the filibuster situation was explained to Americans(in both polls) they still favor keeping the rule in place.
QUOTE(hayleyanne @ May 9 2005, 02:11 PM)
It is all in how the polls are worded. When the polls ask whether republicans should be allowed to manipulate the rules to insure that Bush's judges get nominated-- the public says no. However, when the polls ask whether Bush's nominees should be insured an up or down vote in the Senate-- the public overwhelmingly says yes.
I'd like to back up Popeye47 on this point. The polls are very clear on every aspect of this, and the wording has nothing to do with it. Here are some wordings with results, taken from the site he links to:
"Do you favor or oppose the use of the filibuster in the U.S. Senate?" Favor 52% Oppose 40%
"In the current controversy over the filibuster, whose side do you generally favor -- [ROTATED: the Republicans in the Senate (or) the Democrats in the Senate]?" Republicans 36% Democrats 45%
"The Senate has confirmed 35 federal appeals court judges nominated by Bush, while Senate Democrats have blocked 10 others. Do you think the Senate Democrats are right or wrong to block these nominations?" Right 48% Wrong 36%
"Would you support or oppose changing Senate rules to make it easier for the Republicans to confirm Bush's judicial nominees?" Support 26% Oppose 66%
QUOTE(hayleyanne @ May 9 2005, 02:11 PM)
I will say again, that I think this whole issue is being presented by all parties in an extremely hypocritical way. Everyone is ignoring the 900 lb gorilla in the room. And that is that the judges have too much power. We should not be concerning ourselves with a check on judicial appointments, but rather with a check on judicial power during their life time tenure.
That's another topic. Let's discuss it more there, if you wish!
QUOTE(Cube Jockey @ May 9 2005, 07:31 PM)
QUOTE(carlitoswhey @ May 9 2005, 11:42 AM)
As to the 7 out of 200, whatever. Yes, it was bad when Orrin Hatch was bottling things up in committee, but to his credit, he was not filibustering Appeals Court nominees. Indeed, he was demanding some time for debate before they would receive votes on the floor.
You defense of the Republican tactics here is highly hypocritical carlito, how long do they need to debate these judges - 6 years? There were quite a few judges that never even made it to the floor for a vote because of these tactics.
What you are doing is picking on the Democrats for taking advantage of a procedural loophole and excusing the Republicans from using a different procedural loophole for exactly the same reason. That is hypocrisy at its finest.
The beef with the current tactics is that, by filibustering judges that would receive a majority vote on the floor, the Democrats are introducing an extra-Constitutional 3/5 majority as part of "advise and consent" to even secure a vote on the floor. Many of the (Clinton) judges being referenced mostly anecdotally were "returned" and confirmed anyway. When cloture was sought, it was granted and almost all were confirmed.
here is a senate chart where you can see that the filibuster was never used against an appelate judge.
When you look "apples to apples" to Clinton vs. Bush, first with an opposition Senate, then with a "friendly" Senate, it's clear that Bush's judges are not being approved at the same rate which Clinton received. Here are numbers from 2-year periods representing Congress on a like-for-like basis - whether Dem v Rep or vice-versa. I've excerpted the commentary, tables are not pasting friendly - from dalythoughts.com
daly thoughts - if you have some reading time...
QUOTE(some editing for format)
Apples to apples.
92.3% for Clinton to 67.3% (so far) for Bush.
71.4% for Clinton to 53.0% for Bush.
100% for Clinton, 52.9% (so far) for Bush.
86.3% for Clinton, 52.9% for Bush.
55% for Clinton, 51.6% for Bush.
Zero filibusters for Clinton, ten and counting for Bush.
Pick your comparison– they are not close. How about them apples?
92.3% for Clinton to 67.3% (so far) for Bush.
71.4% for Clinton to 53.0% for Bush.
100% for Clinton, 52.9% (so far) for Bush.
86.3% for Clinton, 52.9% for Bush.
55% for Clinton, 51.6% for Bush.
Zero filibusters for Clinton, ten and counting for Bush.
Pick your comparison– they are not close. How about them apples?
So to our Democratic Senators - If you agree that unprededented opposition is called for because Bush's nominees are "just so extreme and out of the mainstream" then go ahead and say so. Maybe we could put the case to the people, have 2 presidential and 3 Congressional elections and campaign on electing constructionist judges and let the people vote on ... wait, never mind, we did that and elected Republicans
. OK, why not just say whatever, let Ted Kennedy and Chuck Schumer bluster about and the press will print it without any fact-checking anyway. Heck, in the LA Times case, they will make already-partisan editorials and edit them to make them even more partisan. Not that the press has a horse in this race.
Is GWB correct in citing one basic area of disagreement - a disagreement over judicial philosophy - as the major cause of the filibusters of his judicial nominees? Or are there in fact many unrelated areas?
No, I think this is GWB strong-arming the Congress because he won’t tolerate any dissention from anybody. It’s also highly hypocritical, as has been pointed out here by others. The Republicans want the filibuster when it suits their needs, and they want it abolished when it doesn’t.
I find it funny when Republicans toss the word “majority!” all over the place like it’s the holy grail. Nearly the same number of eligible adults who did vote in the election... didn’t (~100 million)…not that it matters a whit. The minority still has rights, much to the Republicans’ dismay.
Wow.
I’m amazed you could type that with a straight face, considering the inflammatory language in all your posts on this thread. YOU are the only one who brought up the term “right wing extremist”. Conversely, you have used the term “radical left wing” at least once, “liberal activist judges” at least 3 times, labeled any Republican not teetering on the very tip of the right wing “lily-livered”, called the filibuster a “parliamentary trick/loophole/show of arrogance” 5 times, accused democrats of “subverting the will of the people/democracy/democratic process” 7 times and claimed the Republican majority as the almighty right to do whatever the Republicans want a whopping 8 times.
Whoa, I think I’m gonna hurl………
No, I think this is GWB strong-arming the Congress because he won’t tolerate any dissention from anybody. It’s also highly hypocritical, as has been pointed out here by others. The Republicans want the filibuster when it suits their needs, and they want it abolished when it doesn’t.
I find it funny when Republicans toss the word “majority!” all over the place like it’s the holy grail. Nearly the same number of eligible adults who did vote in the election... didn’t (~100 million)…not that it matters a whit. The minority still has rights, much to the Republicans’ dismay.
QUOTE(LordHelmet )
With respect to insinuating labels, I would suggest you try to reign in your own party first. If I hear "right wing extremist" another time, I'm going to gag. OK, I'll drop "immature" in favor of "subversive". It fits the current crop of democrats like a glove in my view.
Wow.
I’m amazed you could type that with a straight face, considering the inflammatory language in all your posts on this thread. YOU are the only one who brought up the term “right wing extremist”. Conversely, you have used the term “radical left wing” at least once, “liberal activist judges” at least 3 times, labeled any Republican not teetering on the very tip of the right wing “lily-livered”, called the filibuster a “parliamentary trick/loophole/show of arrogance” 5 times, accused democrats of “subverting the will of the people/democracy/democratic process” 7 times and claimed the Republican majority as the almighty right to do whatever the Republicans want a whopping 8 times.Whoa, I think I’m gonna hurl………
QUOTE(DaffyGrl @ May 11 2005, 10:24 AM)
Is GWB correct in citing one basic area of disagreement - a disagreement over judicial philosophy - as the major cause of the filibusters of his judicial nominees? Or are there in fact many unrelated areas?
No, I think this is GWB strong-arming the Congress because he won’t tolerate any dissention from anybody. It’s also highly hypocritical, as has been pointed out here by others. The Republicans want the filibuster when it suits their needs, and they want it abolished when it doesn’t.
I find it funny when Republicans toss the word “majority!” all over the place like it’s the holy grail. Nearly the same number of eligible adults who did vote in the election... didn’t (~100 million)…not that it matters a whit. The minority still has rights, much to the Republicans’ dismay.
No, I think this is GWB strong-arming the Congress because he won’t tolerate any dissention from anybody. It’s also highly hypocritical, as has been pointed out here by others. The Republicans want the filibuster when it suits their needs, and they want it abolished when it doesn’t.
I find it funny when Republicans toss the word “majority!” all over the place like it’s the holy grail. Nearly the same number of eligible adults who did vote in the election... didn’t (~100 million)…not that it matters a whit. The minority still has rights, much to the Republicans’ dismay.
If winning election and being voted into the majority can't be differentiated from losing elections, and thus being in the minority, what use is our system? Isn't this moral relativism applied in a political context with absurd results?
If people choose not to vote, that's their problem. Their bystander status in our political system is their loss, not ours.
This isn't a matter of not tolerating "any dissention". It's a matter of Bush pursuing the philosophy that the people elected. The real issue that you and the other liberals have with Bush is that you disagree with this his philosophy (the topic of this thread). Yet, when he won't sell out his view to fit yours, he is "not tolerating dissent"? I'd say that the subversion of constitutional intent that the democrats are engaging in, by exploiting a procedural loophole is "dissent run amok".
The republicans did not filibuster to prevent Clinton's appointments from being confirmed so that's an invalid argument. They voted in the committee and a number of Clinton's people didn't receive the required votes (50% plus one). The democrats didn't hold congress during 6 of 8 years. Too bad. That's what the elections decided.
What the democrats are pursuing is entirely unique. They are subverting the constitution, which requires 1 more vote than 50% to confirm judges by instituting a def-facto super-majority rule.
That loophole needs to be closed. Quickly.
QUOTE(lordhelmet @ May 11 2005, 07:35 AM)
What the democrats are pursuing is entirely unique. They are subverting the constitution, which requires 1 more vote than 50% to confirm judges by instituting a def-facto super-majority rule.
That loophole needs to be closed. Quickly.
That loophole needs to be closed. Quickly.
You have repeated this falsehood despite having the error pointed out to you several times. The Constitution does not specify the voting procedure for confirming executive appointments; it explicitly leaves this to the Senate. What the Democrats are doing does not consitute a subversion of the Constitution.
QUOTE(Erasmussimo @ May 11 2005, 10:49 AM)
QUOTE(lordhelmet @ May 11 2005, 07:35 AM)
What the democrats are pursuing is entirely unique. They are subverting the constitution, which requires 1 more vote than 50% to confirm judges by instituting a def-facto super-majority rule.
That loophole needs to be closed. Quickly.
That loophole needs to be closed. Quickly.
You have repeated this falsehood despite having the error pointed out to you several times. The Constitution does not specify the voting procedure for confirming executive appointments; it explicitly leaves this to the Senate. What the Democrats are doing does not consitute a subversion of the Constitution.
Sure it does. Judges need 51 votes to be confirmed, not 60.
The loophole is the filibuster being applied in this case. And if the GOP have the votes to close it, they should without delay.
QUOTE(lordhelmet @ May 11 2005, 07:59 AM)
Sure it does. Judges need 51 votes to be confirmed, not 60.
Repeating a falsehood does not make a convincing argument. The Constitution does not specify how many votes are required to confirm a nomination. I challenge you to quote the text from the Constitution that specifies that a simple majority constitutes Senatorial consent.
QUOTE(Erasmussimo @ May 11 2005, 10:17 AM)
QUOTE(lordhelmet @ May 11 2005, 07:59 AM)
Sure it does. Judges need 51 votes to be confirmed, not 60.
Repeating a falsehood does not make a convincing argument. The Constitution does not specify how many votes are required to confirm a nomination. I challenge you to quote the text from the Constitution that specifies that a simple majority constitutes Senatorial consent.
You are right. There is no stated majority or supermajority. However, reading Article 2 with a working knowledge of English could lead one to infer that a supermajority was not the intent. Since, in the same sentence a supermajority is required for treaties, and it is not mentioned for appointments.
QUOTE(article 2 @ section 2)
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
So, the sentence above empowers the President in two cases:
- make treaties “with the Advice and Consent of the Senate . . . provided two thirds of the Senators present concur”
- nominate “Judges of the supreme Court and all other Officers of the United States [which include lower-court federal judges] ...” and to appoint them “by and with the Advice and Consent of the Senate.”
The appointment power is not qualified by a two-thirds "supermajority," but the treaty power is.
One could reasonably conclude that the framers did not intend a 2/3 majority for nominations. One could also reasonably concur that "advice and consent" should be whatever the Senate says it is, which is the current Democratic logic. I personally think that, given the very specific instances in which a supermajority was required in the Constitution, we should concur that 50 votes plus 1 is the intent everywhere else.
Since the word "hyprocrisy" has appeared in the thread, I'll note that there is plenty to go around... For instance, Democrats like Walter Mondale are writing op-eds about the rule change. When he was a senator, Mondale led the effort to reduce the filibuster requirement from 2/3 down to 3/5, and he wanted to make it a simple majority. Fritz wanted to get rid of the filibuster altogether for legislation and everything, but of course now it's some time-honored institution. At least Robert Byrd is more honest in defending the filibuster, as the ex-Klansman has treasured memories of filibustering the Civil Rights Act of 1964 for 14 hours and 13 minutes. I hope I'm not the only one seeing the irony in Byrd defending the time-honored traditions of the Senate, given he was so fond of the time-honored tradition of racism in the South.
QUOTE
Since the word "hyprocrisy" has appeared in the thread, I'll note that there is plenty to go around... For instance, Democrats like Walter Mondale are writing op-eds about the rule change. When he was a senator, Mondale led the effort to reduce the filibuster requirement from 2/3 down to 3/5, and he wanted to make it a simple majority. Fritz wanted to get rid of the filibuster altogether for legislation and everything, but of course now it's some time-honored institution.
carlitoswhey,
Got any references to Mondale's stance while in the Senate? I'm curious as my home state is Minnesota, and I was living there when Mondale was my senator. I don't recollect this big Democrat push, nor any protest from Republicans.
However, examining that history might be enlightening. Who knows, it might have really happened as you describe -- I'm just not taking it on face value.
QUOTE
Sure it does. Judges need 51 votes to be confirmed, not 60.
Okay, fine. It takes 60 votes to break a filibuster. The majority needs to get busy and actually work politics for a change, instead of changing rules -- the lazy politician's way out.
QUOTE(carlitoswhey @ May 11 2005, 08:44 AM)
There is no stated majority or supermajority. However, reading Article 2 with a working knowledge of English could lead one to infer that a supermajority was not the intent. Since, in the same sentence a supermajority is required for treaties, and it is not mentioned for appointments.
This question was addressed in greater detail in the topic on the specific question of the role of supermajorities. I suggest that you take up the matter there. However, I will provide a short quote from that topic:
QUOTE
there's a long Latin phrase (expressio unius est exclusio alterius) that constitutes a legal term for what you are describing. The purport of it is that a list of specifications is assumed to be complete and to exclude any other specifications, unless language is otherwise entered that specifies otherwise. This is the foundation for the boilerplate phrase "including but not limited to". The most common interpretation is that this rule applies when all the elements of the list are gathered together into a single whole. In other words, if the document says, "A, B, C, E, H, and J" in a single place, then the most common interpretation is that D, F, G, and I are excluded. However, where the document scatters items, they are not interpreted to be a list under expressio unius.
A working knowledge of English here is not what is needed; it's a working knowledge of legal English that must be applied.
QUOTE(carlitoswhey @ May 11 2005, 08:44 AM)
Since the word "hyprocrisy" has appeared in the thread, I'll note that there is plenty to go around... For instance, Democrats like Walter Mondale are writing op-eds about the rule change. When he was a senator, Mondale led the effort to reduce the filibuster requirement from 2/3 down to 3/5, and he wanted to make it a simple majority. Fritz wanted to get rid of the filibuster altogether for legislation and everything, but of course now it's some time-honored institution. At least Robert Byrd is more honest in defending the filibuster, as the ex-Klansman has treasured memories of filibustering the Civil Rights Act of 1964 for 14 hours and 13 minutes. I hope I'm not the only one seeing the irony in Byrd defending the time-honored traditions of the Senate, given he was so fond of the time-honored tradition of racism in the South.
Please refrain from contaminating this topic with nasty denunciations of politicians you don't like. We're here to talk about the reasons for filibustering judicial nominations, not the moral worthiness of particular politicians.
QUOTE(AuthorMusician @ May 11 2005, 11:52 AM)
QUOTE
Since the word "hyprocrisy" has appeared in the thread, I'll note that there is plenty to go around... For instance, Democrats like Walter Mondale are writing op-eds about the rule change. When he was a senator, Mondale led the effort to reduce the filibuster requirement from 2/3 down to 3/5, and he wanted to make it a simple majority. Fritz wanted to get rid of the filibuster altogether for legislation and everything, but of course now it's some time-honored institution.
carlitoswhey,
Got any references to Mondale's stance while in the Senate? I'm curious as my home state is Minnesota, and I was living there when Mondale was my senator. I don't recollect this big Democrat push, nor any protest from Republicans.
However, examining that history might be enlightening. Who knows, it might have really happened as you describe -- I'm just not taking it on face value.
I have tried to find a link to the Congressional record, but can't find one. Here is a source close to your home, Minnesotan Scott Johnson writing in the Weekly Standard. My emphasis added. weeklystandard
QUOTE
The imputation of an ancient lineage to a 60-vote filibuster rule is of course flatly mistaken. The 60-vote rule derives not from the days when "Thomas Jefferson first wrote the Senate's rules," but rather from 1975. Surely Mondale remembers; as a Minnesota Senator, he led the successful fight to reform the filibuster by reducing the number of votes necessary for cloture from 67 to 60. Mondale was, in fact, the leading Democratic opponent of the filibuster.
On January 17, 1975, he stated on the floor of the Senate: "It seems to me that a not-so-subtle difference, a profound difference, between 66 2/3 percent and a simple majority could be the difference between an active, responsible U.S. Senate and one which is dominated by a small minority." Mondale accordingly advocated the right of a Senate majority to change the filibuster rule: "May a majority of the members of the Senate of the 94th Congress change the rules of the Senate, uninhibited by the past rules of the Senate? I firmly believe that the majority has such a right--as the U.S. Constitution, the precedents of this body, the inherent nature of our constitutional system, and the rulings of two previous vice presidents make clear."
<snip>
After adoption of the revised filibuster rule in 1975, Mondale took a look back in a March 18 column ("The filibuster fight") for the Washington Post. That column deserves the attention of serious observers of the current filibuster debate. Mondale proudly wrote: "The modification of Rule XXII [the filibuster rule] may prove to be one of the most significant institutional changes in the 196 years of the Senate." Mondale added: "[T]he Rule XXII experience was significant because for the first time in history a Vice President and a clear majority of the Senate established that the Senate may, at the beginning of a new Congress and unencumbered by the rules of previous Senates, adopt its own rules by majority vote as a constitutional right."
On January 17, 1975, he stated on the floor of the Senate: "It seems to me that a not-so-subtle difference, a profound difference, between 66 2/3 percent and a simple majority could be the difference between an active, responsible U.S. Senate and one which is dominated by a small minority." Mondale accordingly advocated the right of a Senate majority to change the filibuster rule: "May a majority of the members of the Senate of the 94th Congress change the rules of the Senate, uninhibited by the past rules of the Senate? I firmly believe that the majority has such a right--as the U.S. Constitution, the precedents of this body, the inherent nature of our constitutional system, and the rulings of two previous vice presidents make clear."
<snip>
After adoption of the revised filibuster rule in 1975, Mondale took a look back in a March 18 column ("The filibuster fight") for the Washington Post. That column deserves the attention of serious observers of the current filibuster debate. Mondale proudly wrote: "The modification of Rule XXII [the filibuster rule] may prove to be one of the most significant institutional changes in the 196 years of the Senate." Mondale added: "[T]he Rule XXII experience was significant because for the first time in history a Vice President and a clear majority of the Senate established that the Senate may, at the beginning of a new Congress and unencumbered by the rules of previous Senates, adopt its own rules by majority vote as a constitutional right."
here is a harvard law review article on the history of Senate rules, which references the 1975 procedings pretty well, including the pivotal role of Mondale & Pearson, as well as HH Humphrey. On Jan. 14, 1975, Mondale said quite clearly that the Senate could change cloture rules "unencumbered" by any rules constraining prior Congresses.
carlitoswhey,
Ah, I see. So the Weekly Standard (a Bill Kristol pub, I do believe) did some research on Mondale being for bringing down the fillibuster in the Senate, and so if he is against it now, he must be a hypocrite.
Well, I'm sure the real story is a bit different. For instance, what were the Republican reactions to the Senate majority? Looks to me like a compromise was made on both ends -- down to 60 from 67 votes for breaking fillibuster, and sessional rules reviews. Okay, a give and take was going on.
Guess our reps were more into working politics back then. I do remember that. Nobody was claiming that it was God's will to follow the Republicans anywhere they want to take us.
Times, they have changed. Looks to me like Fritz has changed too. Who did he lose to for the presidency? Oh yeah, Ronald Reagan and the beginning of the Religious Right movement. Now we have the results of that election, finally.
Well, I digress. Fighting against the tyranny of the majority -- seems to be the issue these days. I think it's working too -- on a side note, pro stem cell research bills are in the House and Senate, looking like they will pass. Bush is expected to veto, but vetos can be overridden.
However you feel about stem cell research doesn't matter -- what does is that actual politics is going on here, not tyranny. Eh, let the fillibuster get busted. There are bigger battles to be fought. Besides, by the time these questionable judges are up to be Supremes, the majority could very well shift.
That would be nice and ironic.
Ah, I see. So the Weekly Standard (a Bill Kristol pub, I do believe) did some research on Mondale being for bringing down the fillibuster in the Senate, and so if he is against it now, he must be a hypocrite.
Well, I'm sure the real story is a bit different. For instance, what were the Republican reactions to the Senate majority? Looks to me like a compromise was made on both ends -- down to 60 from 67 votes for breaking fillibuster, and sessional rules reviews. Okay, a give and take was going on.
Guess our reps were more into working politics back then. I do remember that. Nobody was claiming that it was God's will to follow the Republicans anywhere they want to take us.
Times, they have changed. Looks to me like Fritz has changed too. Who did he lose to for the presidency? Oh yeah, Ronald Reagan and the beginning of the Religious Right movement. Now we have the results of that election, finally.
Well, I digress. Fighting against the tyranny of the majority -- seems to be the issue these days. I think it's working too -- on a side note, pro stem cell research bills are in the House and Senate, looking like they will pass. Bush is expected to veto, but vetos can be overridden.
However you feel about stem cell research doesn't matter -- what does is that actual politics is going on here, not tyranny. Eh, let the fillibuster get busted. There are bigger battles to be fought. Besides, by the time these questionable judges are up to be Supremes, the majority could very well shift.
That would be nice and ironic.
QUOTE(AuthorMusician @ May 11 2005, 01:31 PM)
carlitoswhey,
Ah, I see. So the Weekly Standard (a Bill Kristol pub, I do believe) did some research on Mondale being for bringing down the fillibuster in the Senate, and so if he is against it now, he must be a hypocrite.
Well, I'm sure the real story is a bit different. For instance, what were the Republican reactions to the Senate majority? Looks to me like a compromise was made on both ends -- down to 60 from 67 votes for breaking fillibuster, and sessional rules reviews. Okay, a give and take was going on.
Guess our reps were more into working politics back then. I do remember that. Nobody was claiming that it was God's will to follow the Republicans anywhere they want to take us.
Ah, I see. So the Weekly Standard (a Bill Kristol pub, I do believe) did some research on Mondale being for bringing down the fillibuster in the Senate, and so if he is against it now, he must be a hypocrite.
Well, I'm sure the real story is a bit different. For instance, what were the Republican reactions to the Senate majority? Looks to me like a compromise was made on both ends -- down to 60 from 67 votes for breaking fillibuster, and sessional rules reviews. Okay, a give and take was going on.
Guess our reps were more into working politics back then. I do remember that. Nobody was claiming that it was God's will to follow the Republicans anywhere they want to take us.
Scott Johnson is an attorney based in Minneapolis, not that it matters. I realize that you are upset, but the words I underlined are Mondale's, not Bill Kristol or whomever. If you read the Harvard Law article, you'll see that the Senate rules have changed over and over again for 200 years. The current power struggle is the rule rather than the exception.
QUOTE(carlitoswhey @ May 11 2005, 03:01 PM)
QUOTE(AuthorMusician @ May 11 2005, 01:31 PM)
carlitoswhey,
Ah, I see. So the Weekly Standard (a Bill Kristol pub, I do believe) did some research on Mondale being for bringing down the fillibuster in the Senate, and so if he is against it now, he must be a hypocrite.
Well, I'm sure the real story is a bit different. For instance, what were the Republican reactions to the Senate majority? Looks to me like a compromise was made on both ends -- down to 60 from 67 votes for breaking fillibuster, and sessional rules reviews. Okay, a give and take was going on.
Guess our reps were more into working politics back then. I do remember that. Nobody was claiming that it was God's will to follow the Republicans anywhere they want to take us.
Ah, I see. So the Weekly Standard (a Bill Kristol pub, I do believe) did some research on Mondale being for bringing down the fillibuster in the Senate, and so if he is against it now, he must be a hypocrite.
Well, I'm sure the real story is a bit different. For instance, what were the Republican reactions to the Senate majority? Looks to me like a compromise was made on both ends -- down to 60 from 67 votes for breaking fillibuster, and sessional rules reviews. Okay, a give and take was going on.
Guess our reps were more into working politics back then. I do remember that. Nobody was claiming that it was God's will to follow the Republicans anywhere they want to take us.
Scott Johnson is an attorney based in Minneapolis, not that it matters. I realize that you are upset, but the words I underlined are Mondale's, not Bill Kristol or whomever. If you read the Harvard Law article, you'll see that the Senate rules have changed over and over again for 200 years. The current power struggle is the rule rather than the exception.
And the side not in power have historically complained to high heaven about being an abused minority.
Tough beans. The GOP earned their position through a free and open election. It's time to end the tyranny of the minority when it comes to judicial nominees.
Erassmussimo wrote:
Carlitoswhey is correct in his reading of the Constitution not requiring a supermajority of senators to approve judicial nominees. The Constitution states:
The legal term expressio unius est exclusio alterius is a canon of statutory construction: "Expression of the one is exclusion of the other". You apply a canon of construction when reading a specific text or portion of a text of a statute (in this case the constitution). The expression of the supermajority requirement for a treaty is in the same sentence as the direction on nominations to the Supreme Court (with no supermajority requirement). Accordingly, this canon would apply in a legal reading of this portion of the Constitution and it must be concluded that there is no supermajority requirement for judicial nominations.
I don't think there can be any argument that the Constitution in any way contemplates a supermajority requirement here. It has no such requirement. I also think it is very telling that the Constitution has no supermajority requirement for the nomination of judges with life time appointments. Never in the framers wildest imaginations did they contemplate how politicized the judiciary has become. If people were being honest about this and acknowledging that the Supremes are making law and not just interpreting it, there would be a persuasive argument that there should be a supermajority requirement. But no one is coming out and saying this. Because, if they did, we would have to take a long hard look at what constitutes judicial activism.
QUOTE
there's a long Latin phrase (expressio unius est exclusio alterius) that constitutes a legal term for what you are describing. The purport of it is that a list of specifications is assumed to be complete and to exclude any other specifications, unless language is otherwise entered that specifies otherwise. This is the foundation for the boilerplate phrase "including but not limited to". The most common interpretation is that this rule applies when all the elements of the list are gathered together into a single whole. In other words, if the document says, "A, B, C, E, H, and J" in a single place, then the most common interpretation is that D, F, G, and I are excluded. However, where the document scatters items, they are not interpreted to be a list under expressio unius.
A working knowledge of English here is not what is needed; it's a working knowledge of legal English that must be applied.
A working knowledge of English here is not what is needed; it's a working knowledge of legal English that must be applied.
Carlitoswhey is correct in his reading of the Constitution not requiring a supermajority of senators to approve judicial nominees. The Constitution states:
QUOTE
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The legal term expressio unius est exclusio alterius is a canon of statutory construction: "Expression of the one is exclusion of the other". You apply a canon of construction when reading a specific text or portion of a text of a statute (in this case the constitution). The expression of the supermajority requirement for a treaty is in the same sentence as the direction on nominations to the Supreme Court (with no supermajority requirement). Accordingly, this canon would apply in a legal reading of this portion of the Constitution and it must be concluded that there is no supermajority requirement for judicial nominations.
I don't think there can be any argument that the Constitution in any way contemplates a supermajority requirement here. It has no such requirement. I also think it is very telling that the Constitution has no supermajority requirement for the nomination of judges with life time appointments. Never in the framers wildest imaginations did they contemplate how politicized the judiciary has become. If people were being honest about this and acknowledging that the Supremes are making law and not just interpreting it, there would be a persuasive argument that there should be a supermajority requirement. But no one is coming out and saying this. Because, if they did, we would have to take a long hard look at what constitutes judicial activism.
QUOTE
Scott Johnson is an attorney based in Minneapolis, not that it matters. I realize that you are upset, but the words I underlined are Mondale's, not Bill Kristol or whomever. If you read the Harvard Law article, you'll see that the Senate rules have changed over and over again for 200 years. The current power struggle is the rule rather than the exception.
carlitoswhey,
Oh, I'm not upset in any way. Just for the record, Kristol is the editor and Ruppert Murdock is the owner of the Weekly Standard.
It is enlightening to know that the Senate rules have changed regularly and that Walter Mondale can take credit for allowing sessional changes. Also for reducing the number of votes to bust a filibuster. Those were good compromises, and the compromises indicate a change in thinking. Do you suppose he might have continued to change his thinking over the years? That would be a valid assumption for Mondale. He is a thinking man, not just a rubber stamper for the RNC (or is it Murdock?).
You're right about the irrelevance of being a lawyer in Minneapolis. That's an appeal to emotion of sorts, or a non-sequitur maybe. Or is it an appeal to authority? It's like saying I know everything about Senator Whoever because I live in Wholand and spend time in courtrooms. Non-sequitur appeal to authority it is, with a little home state loyalty emotion thrown in.
Anyway, let the nominations go through, assuming they still have majority support. They might not after the lengthy debates on the subjects. Dink Bush on something bigger, like stem cell research. That would be a good way for Congress to reestablish its powers over a president who has already used and abused the institution. Election time approaches -- better do something, eh?
QUOTE(hayleyanne @ May 11 2005, 01:38 PM)
The legal term expressio unius est exclusio alterius is a canon of statutory construction: "Expression of the one is exclusion of the other". You apply a canon of construction when reading a specific text or portion of a text of a statute (in this case the constitution). The expression of the supermajority requirement for a treaty is in the same sentence as the direction on nominations to the Supreme Court (with no supermajority requirement). Accordingly, this canon would apply in a legal reading of this portion of the Constitution and it must be concluded that there is no supermajority requirement for judicial nominations.
Black's Law Dictionary defines expressio unius as follows:
QUOTE
A canon of construction holding that to express or include one thing implies the exclusion of the other, or the alternative. For example, the rule that "each citizen is entitled to vote" implies that noncitizens are not entitled to vote.
This definition applies only in clear either/or situations where there are two symmetric cases (citizen versus non-citizen). The situation we face, where a sentence contains a clause relating to ratification of treaties, and a list of other powers, doesn't fall within the strict application of expressio unius. The strict application of expressio unius would apply if there were two symmetric items. However, expressio unius was extended long ago to apply to items not present in a list of specifications; in such a case, anything not included in the list is excluded. That's not the case here.
For those readers unfamiliar with these dense legalisms, here's an example: If a law declares that "dogs, cats, otters, and lions must have rabies shots", then under expressio unius, a court would conclude that rabies shots are not required for elephants. However, if the law says only that "dogs must have rabies shots", that does not suggest that cats are not required to have rabies shots. HOWEVER, if there were only two species in the world that could conceivably have rabies shots -- dogs and cats -- then expressio unius applied to the above law would indicate that cats are specifically excluded from the requirement for rabies shots.
In plain language, the idea behind expressio unius is simple: we can reliably resolve an ambiguity in the law if it's a bipolar situation and one pole is expressly defined in one fashion, in clear contrast to the other pole; or, when a list of items is grouped together, in which case we can assume that anything not on the list was deliberately omitted.
QUOTE(hayleyanne @ May 11 2005, 01:38 PM)
I don't think there can be any argument that the Constitution in any way contemplates a supermajority requirement here. It has no such requirement.
If you're correct that the Constitution specifies a simple majority for all votes not otherwise specified, then the history of the Congress would teem with court cases in which litigants tried to overturn the supermajority requirement. The fact that no such cases have ever been decided by the Supreme Court flatly contradicts your claim, and, further, actually reverses it: there is no case that the supermajority requirements in the Congress (not otherwise specified in the Constitution) are in any fashion unconstitutional.
QUOTE(hayleyanne @ May 11 2005, 01:38 PM)
Never in the framers wildest imaginations did they contemplate how politicized the judiciary has become.
I agree with that point. They never anticipated this problem.
QUOTE(hayleyanne @ May 11 2005, 01:38 PM)
If people were being honest about this and acknowledging that the Supremes are making law and not just interpreting it, there would be a persuasive argument that there should be a supermajority requirement. But no one is coming out and saying this. Because, if they did, we would have to take a long hard look at what constitutes judicial activism.
That's another topic; you're welcome to reincarnate this issue there.
QUOTE(Erasmussimo @ May 11 2005, 06:05 PM)
snip
QUOTE(hayleyanne @ May 11 2005, 01:38 PM)
Never in the framers wildest imaginations did they contemplate how politicized the judiciary has become.
I agree with that point. They never anticipated this problem.
snip
Exactly! That's why my characterization of what the democrats are exploiting as a "loophole" is 100% correct!
To fill that loophole, and to fulfil the constitutional intent that Hayleyanne illustrated concisely and without doubt, the constitutional option that Frist is proposing must be implemented, and soon.
QUOTE(lordhelmet @ May 11 2005, 03:17 PM)
Exactly! That's why my characterization of what the democrats are exploiting as a "loophole" is 100% correct!
An ambiguity in the Constitution is not a loophole. A loophole is a flaw in a law that permits individuals to circumvent the intent of the law. Inasmuch as there is no indication of the intent of the Founders in this case, there can be no loophole.
If the Supreme Court issues a ruling on this matter, or if we ratify an Amendment to the Constitution, then the ambiguity might be resolved. In the absence of such an eventuality, it remains an ambiguity.
QUOTE(lordhelmet @ May 11 2005, 03:17 PM)
To fill that loophole, and to fulfil the constitutional intent that Hayleyanne illustrated concisely and without doubt, the constitutional option that Frist is proposing must be implemented, and soon.
You know, that phrase "constitutional option", is another example of spin: all icing and no cake. The Republicans coined the term "nuclear option" and are now trying to pin it on the Democrats. What do you say we just avoid all the spin and refer instead to eliminating filibusters on judicial nominations?
QUOTE(Erasmussimo @ May 11 2005, 06:25 PM)
QUOTE(lordhelmet @ May 11 2005, 03:17 PM)
Exactly! That's why my characterization of what the democrats are exploiting as a "loophole" is 100% correct!
An ambiguity in the Constitution is not a loophole. A loophole is a flaw in a law that permits individuals to circumvent the intent of the law. Inasmuch as there is no indication of the intent of the Founders in this case, there can be no loophole.
If the Supreme Court issues a ruling on this matter, or if we ratify an Amendment to the Constitution, then the ambiguity might be resolved. In the absence of such an eventuality, it remains an ambiguity.
QUOTE(lordhelmet @ May 11 2005, 03:17 PM)
To fill that loophole, and to fulfil the constitutional intent that Hayleyanne illustrated concisely and without doubt, the constitutional option that Frist is proposing must be implemented, and soon.
You know, that phrase "constitutional option", is another example of spin: all icing and no cake. The Republicans coined the term "nuclear option" and are now trying to pin it on the Democrats. What do you say we just avoid all the spin and refer instead to eliminating filibusters on judicial nominations?
Politicians spin? What a revelation. I'll be sure to remember that one.
An ambiguity in the consitution is "not" a loophole. The ambiguity in the constitution "creates" the loophole.... that the democrats are exploiting.
And the constitution will allow the GOP to slam that trap door shut on the hands of Harry Reid and his moveon.org, People for the American Way, and ACLU handlers.
The sooner the better in my view.
QUOTE
In plain language, the idea behind expressio unius is simple: we can reliably resolve an ambiguity in the law if it's a bipolar situation and one pole is expressly defined in one fashion, in clear contrast to the other pole; or, when a list of items is grouped together, in which case we can assume that anything not on the list was deliberately omitted.
I really don't see how you can even argue the point Erassmussimo. Applying the canon as you describe it means that the constitution does not anticipate the supermajority requirement for judicial nominations. The treaties and nominations are amongst the "list" of items grouped together in a single sentence of the constitution. The supermajority requirement is in a clause that modifies the treaty portion only. Really, there is no argument here. Moreover, grammatically (as carlito points out), it is clear that the supermajority clause applies only to treaties in that sentence.
QUOTE
If you're correct that the Constitution specifies a simple majority for all votes not otherwise specified, then the history of the Congress would teem with court cases in which litigants tried to overturn the supermajority requirement. The fact that no such cases have ever been decided by the Supreme Court flatly contradicts your claim, and, further, actually reverses it: there is no case that the supermajority requirements in the Congress (not otherwise specified in the Constitution) are in any fashion unconstitutional.
Who would have standing to bring such a suit? Even if there is some grounds for standing (not sure exactly how that would work)--when has the simple majority requirement been violated before?
QUOTE(lordhelmet @ May 11 2005, 03:17 PM)
QUOTE(Erasmussimo @ May 11 2005, 06:05 PM)
snip
QUOTE(hayleyanne @ May 11 2005, 01:38 PM)
Never in the framers wildest imaginations did they contemplate how politicized the judiciary has become.
I agree with that point. They never anticipated this problem.
snip
Exactly! That's why my characterization of what the democrats are exploiting as a "loophole" is 100% correct!
To fill that loophole, and to fulfil the constitutional intent that Hayleyanne illustrated concisely and without doubt, the constitutional option that Frist is proposing must be implemented, and soon.
It sure is correct and I don't think anyone has stated differently LordHelmet. Problem is, you don't seem to care when the Republicans are exploiting a loophole, it is perfectly ok in your book - in fact it should be encouraged.
So that doesn't really give you much ground to argue about constitutional intent when the loopholes the Republicans exploit violate the same constitutional intent, you just happen to agree with what they are doing.
QUOTE(Cube Jockey @ May 11 2005, 07:41 PM)
QUOTE(lordhelmet @ May 11 2005, 03:17 PM)
QUOTE(Erasmussimo @ May 11 2005, 06:05 PM)
snip
QUOTE(hayleyanne @ May 11 2005, 01:38 PM)
Never in the framers wildest imaginations did they contemplate how politicized the judiciary has become.
I agree with that point. They never anticipated this problem.
snip
Exactly! That's why my characterization of what the democrats are exploiting as a "loophole" is 100% correct!
To fill that loophole, and to fulfil the constitutional intent that Hayleyanne illustrated concisely and without doubt, the constitutional option that Frist is proposing must be implemented, and soon.
It sure is correct and I don't think anyone has stated differently LordHelmet. Problem is, you don't seem to care when the Republicans are exploiting a loophole, it is perfectly ok in your book - in fact it should be encouraged.
So that doesn't really give you much ground to argue about constitutional intent when the loopholes the Republicans exploit violate the same constitutional intent, you just happen to agree with what they are doing.
What are you talking about with respect to the republicans "violating the same constitutional intent???".
Certainly it can't be judges blocked when the GOP held the majority in congress from 1994 to 2000? That was the majority's right, given their elected status as the majority in congress.
What, specifically, are you referring to??
QUOTE(hayleyanne @ May 11 2005, 03:44 PM)
I really don't see how you can even argue the point Erassmussimo.
don't, can't, or won't?
QUOTE(hayleyanne @ May 11 2005, 03:44 PM)
The treaties and nominations are amongst the "list" of items grouped together in a single sentence of the constitution. The supermajority requirement is in a clause that modifies the treaty portion only.
The sentence in question can be schematically represented as:
Clause #1: Treaties (supermajority required)
Clause #2: appointment powers (no reference)
Clause #3: other appointment powers (no reference)
This is not a fully enumerated list because additional powers are described in subsequent sentences. If the sentence in question were the only sentence specifying powers of the President, and if it did not contain Clause #3, then I'd agree that you have a good case for applying expressio unius. But the existence of Clause #3 robs you of the either-or characteristic required for strict application of expressio unius, and addition of other powers in later sentences robs you of the claim that the sentence is an inclusive list.
I agree that this is tricky grammar, but I think that the arguments I offer explain why the case for applying expressio unius here is woefully weak. The killer argument, as I see it, is the absence of any attempt to apply your logic in the history of the Republic.
QUOTE(hayleyanne @ May 11 2005, 03:44 PM)
Really, there is no argument here.
You are certainly sure of yourself, aren't you?
QUOTE(hayleyanne @ May 11 2005, 03:44 PM)
QUOTE
If you're correct that the Constitution specifies a simple majority for all votes not otherwise specified, then the history of the Congress would teem with court cases in which litigants tried to overturn the supermajority requirement. The fact that no such cases have ever been decided by the Supreme Court flatly contradicts your claim, and, further, actually reverses it: there is no case that the supermajority requirements in the Congress (not otherwise specified in the Constitution) are in any fashion unconstitutional.
Who would have standing to bring such a suit?
Any Senator unable to achieve a desired legislative result because of a failure to obtain a supermajority would have standing to file suit against the President of the Senate enforcing the supermajority rule. It is conceivable that a citizen who can demonstrate some injury due to failure to pass the law solely because of the supermajority rule would have standing, although that seems a long shot to me.
QUOTE(hayleyanne @ May 11 2005, 03:44 PM)
Even if there is some grounds for standing (not sure exactly how that would work)--when has the simple majority requirement been violated before?
In any situation where a supermajority vote was required. Filibusters would be the most likely source of such litigation. There's no constitutional differentiation between filibusters of appointments and filibusters of legislation. Thus, if Senator A is upset because Senator B is filibustering his favorite bit of legislation, he would be able to bring suit against the President of the Senate for failing to bring his legislation to a vote. The fact that nobody, in all the history of the Republic, has ever done so suggests that either a. all Senators in the history of the Republic have been compliant fellows happy to go along with whatever the Vice President tells them; or b. they knew that any such suit would surely fail in the Courts because of Article I Section 5.
Remember the position you are arguing: that the Senate does not have the option to decide whether a supermajority vote should apply to cloture on judicial nominations. Your position is a violation of Article I Section 5. And your position is that the Senate has been in violation of the Constitution for the entire time that it has applied the supermajority rule to cloture for judicial nominations. Haul the entire Senate off to the pokey!
QUOTE
The majority holds that position because they were elected by the majority of American voters.
The democrats do not have that position in our representative democracy. They are just obstructing the process even though they do not represent the majority of Americans. They are subverting democracy as a result.
When Clinton was in, he was foolish by nominating judges that couldn't pass the republican held congress. He deserved to have them stopped. Bush is in a different position though. He won and his same party was elected to a majority position in both houses.
The loophole the democrats are exploiting should and must be closed soon. The GOP needs to exercise the power the people gave them though the election process.
The democrats do not have that position in our representative democracy. They are just obstructing the process even though they do not represent the majority of Americans. They are subverting democracy as a result.
When Clinton was in, he was foolish by nominating judges that couldn't pass the republican held congress. He deserved to have them stopped. Bush is in a different position though. He won and his same party was elected to a majority position in both houses.
The loophole the democrats are exploiting should and must be closed soon. The GOP needs to exercise the power the people gave them though the election process.
Many people are claiming that since Republicans are in the majority, they have the right to do whatever they want. That statement isn't even close to true. It turns out that the 44 democrats represent more americans than the 55 republicans.
Each state is allowed 2 senators, and democrats control states with larger populations (such as California and New York). While Republicans seem to control more rural areas with less people.
By the way, republicans will not always be in the majority. I think it would be silly of them to take away power from themselves in the future.
Even Bole Dole and Newt Gingrich are against Frist's descision to get rid of the fillibuster.
QUOTE(SirAjh @ May 11 2005, 09:11 PM)
QUOTE
The majority holds that position because they were elected by the majority of American voters.
The democrats do not have that position in our representative democracy. They are just obstructing the process even though they do not represent the majority of Americans. They are subverting democracy as a result.
When Clinton was in, he was foolish by nominating judges that couldn't pass the republican held congress. He deserved to have them stopped. Bush is in a different position though. He won and his same party was elected to a majority position in both houses.
The loophole the democrats are exploiting should and must be closed soon. The GOP needs to exercise the power the people gave them though the election process.
The democrats do not have that position in our representative democracy. They are just obstructing the process even though they do not represent the majority of Americans. They are subverting democracy as a result.
When Clinton was in, he was foolish by nominating judges that couldn't pass the republican held congress. He deserved to have them stopped. Bush is in a different position though. He won and his same party was elected to a majority position in both houses.
The loophole the democrats are exploiting should and must be closed soon. The GOP needs to exercise the power the people gave them though the election process.
Many people are claiming that since Republicans are in the majority, they have the right to do whatever they want. That statement isn't even close to true. It turns out that the 44 democrats represent more americans than the 55 republicans.
Each state is allowed 2 senators, and democrats control states with larger populations (such as California and New York). While Republicans seem to control more rural areas with less people.
By the way, republicans will not always be in the majority. I think it would be silly of them to take away power from themselves in the future.
Even Bole Dole and Newt Gingrich are against Frist's decision to get rid of the filibuster.
Sorry, but that's not the way the American system was designed. Bill Clinton received only 43% of the vote during his first term and under 50% during his second. Should he have allowed Bob Dole and Newt Gingrich to set his policies given that reality?
The GOP isn't trying to "get rid of the filibuster". They are moving to remove the loophole that the democrats are exploiting that is allowing them to subvert the intention of the constitution and regain the precedent which is that judges require a simple, not super majority.
Yes, republicans won't be in the majority forever. That's why they are FOOLS if they throw away this historic opportunity to make some real changes in their favor and in the favor of the majority of citizens who voted for them.
QUOTE(lordhelmet @ May 11 2005, 05:00 PM)
What are you talking about with respect to the republicans "violating the same constitutional intent???".
Certainly it can't be judges blocked when the GOP held the majority in congress from 1994 to 2000? That was the majority's right, given their elected status as the majority in congress.
What, specifically, are you referring to??
Certainly it can't be judges blocked when the GOP held the majority in congress from 1994 to 2000? That was the majority's right, given their elected status as the majority in congress.
What, specifically, are you referring to??
The quote which constantly comes from republicans whether they are politicians, pundits or posters like yourself is something to the effect of "judges should be voted up or down by a senate vote". What they are really saying is that Democrats shouldn't be utilizing a loophole in the filibuster rules to prevent these judges from coming up for a vote on the senate floor.
However, during Clinton's administration the Republicans used various loopholes in the senate rules to ensure that certain judicial nominees never came up for a vote either. I believe there are various techniques that were used, one of them being holds. I don't recall any cries from these same Republicans that these judges should be voted up or down on the floor at that time.
You have made a point of mentioning that the Republicans held a majority during the latter part of Clinton's administration so why wouldn't they just vote these judges up or down on the floor? Because they didn't want to be on record as doing so of course.
The fact that the Democrats are a minority and they are trying to block judicial nominations is irrelevant. Your constitutional intent argument is completely full of holes because you excuse the Republicans from blocking judges and come down on the Democrats when both groups have exploited various loopholes in the rules to try and exercise political power and get their way. If you are going to make a constitutional argument you have to be consistent and not side with your party.
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