The reasons given for filibustering of various judicial nominees, have varied as the wind blows. Some are said to have an unacceptable stance on abortions. Others are feared to get too much of their moral guidance from religion. Yet more are said to have used improper methods for researching past controversial cases. It seems more and more that judges must walk an extremely narrow path and never stray off it, to be confirmed.

But when George W. Bush was asked at a recent press conference, whether some of his nominees were being blocked because of their faith, he replied, "No. The people blocking them, don't' like their judicial philosophy.", or words very close to that.

Bush may have been referring to a characteristic that all these blocked nominees have in common: They all tend to cite the letter and spirit of the law, particularly the Constitution, in deciding whether the government has the authority to do the various things that are brought up in court cases. Some say that, previous USSC cases notwithstanding, there is no "right to privacy" listed in the Constitution, and so the Federal government does not have the authority to regulate abortion, though the states do have the authority if they choose to exercise it. Others say that the 1st amendment does not prohibit displays of a religious nature in public buildings, but merely prohibits the Federal government from forcing or preventing people from practicing a certain faith.

Some of the nominees decry the recent tendency to find authority in places where it was never intended to exist, such as regulating guns by saying that some of them are shipped in "interstate commerce" and, since Congress is authorized under the Constitution to regulate interstate commerce, they are also authorized to regulate firearms. And they also castigate the tendency to invent wholly new reasons for govt intrusion, with no attempt at all to find authority in the Constitution, such as the idea that racial discrimination in college admissions can be justified by citing a "need for diversity"... despite no such need being mentioned as an exception in the 14th amendment.

These disagreements can all be traced to a difference of opinion on how much, and in what fields, the Federal government is permitted to exercise influence. Some say they must be restricted to the fields listed in the Constitution, and that certain phrases such as "interstate commerce" and "general welfare" must be interpreted narrowly to exclude much of Federal participation. Others say that government should be allowed to exercise a wide latitude of discretion, regulating and influencing whatever they think will be good for people, and not worrying about finding explicit justification in a document written long before any of us were even born. And the courts, holding the power to discard or permit acts of Congress, should either reject such wide latitude according to some, or should embrace and encourage it according to others.

Question for debate: 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?

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 he's not, the reason the senate Democrats are threatening to use the filibuster is because these judges really shouldn't be confirmed. Bush screams about activist judges and then he seeks to appoint his own brand of activist judges.

But, what I'd rather comment on is some of the inaccuracies in your position post.

Guilty of believing a little right wing spin are we? That's Ok, I can help.

I posted a lot of this here but I don't mind reposting because it is relevant to the topic at hand.

Do you realize that Bush has successfully confirmed 219 out of 229 judicial nominees in his first term alone? That is the highest number of first term appointments in two decades - source.

This article was written back in 2003, but it still applies and now makes the vacany rate at a 15 year low for the federal bench - source.

As you can see most of Bush's nominees have had no problems getting confirmed, except for the ones with extremist positions.


I think you have a long way to go in proving that. If you are under the impression that Bush wants to appoint libertarian/strict constructionist judges then you are sorely mistaken. Bush wants to appoint activist judges that agree with his agenda.

If you really believe these judges are strict constructionists as I'm sure you and many others would prefer to see on the bench, you are going to have to cite actual examples from their record.

I agree with Cube Jockey. The 10 judges being blocked do represent a distinct conservative judicial movement, the "Constitution in Exile" movement, to basically try and revert the country back to the "golden years" before the New Deal. Followers believe that the programs which made up the New Deal were unconstitutional, giving government more power than the founding fathers intended. Their wish is to roll back powers gained by the federal goverment in the past seventy years. This includes enviromental protections, labor protections(like a mandatory minimuim wage), and myriad of other areas that they believe would be better left without government involvement.

In order to do so judges would actively (hence the hypocrisy of labeling liberal leaning judges as activist) overturn previous judicial decisions to match their interpretation of what the founding father's intended. They would also rule legislation like the minimium wage act, as unconstitutional if given the chance. This is a radical agenda.

Even Scalia thinks this movement aims to go to far, ''Every era raises its own peculiar threat to constitutional democracy...The reversal of a half-century of judicial restraint in the economic realm'...comes within that category".

Republicans are using the same tactic, nominating minority judges with extreme conservative views, as they did with Claurence Thomas, and trying to shame democrats into confirming them, an ironic use of affirmative action. Luckily it seems that democrats will not allow republicans to use race as a cover for their agenda. Preventing 10 nominations out of 229 is not an attempt to bring the judicial system to a halt, it is an effort to prevent the extreme minority from deciding for the general majority.

Jeffery Rosen had a good piece in the New York Times entitled "The Unregulated Offensive" that I took my facts and quotes from here's the link, its a rather long piece;
http://www.nytimes.com/2005/04/17/magazine...d=all&position=

Your statement is very misleading CJ. Your numbers lump all judicial nominations into the mix i.e. both district court and circuit court of appeals. The most important nominees are those to the circuit courts of appeal. Why is that? First, because, the Supreme Court takes very few cases. Most circuit courts have the last word on constitutional issues. The Court will generally only take a case from a circuit court of appeals where there is a “split” in the circuits. Thus, most of the decisions rest as the law. They are extremely important positions and they are the ones that count. Second, and equally important, potential supreme court nominees come from this group. And the democrats have blocked an unprecedented percentage of these appellate judicial nominees: almost half. The confirmation rate of Bush 43’s appellate judges is a meager 53%-- the lowest in our history.

For an excellent statistical analysis of the appellate nominees (i.e. to the circuit court of appeals), see this web site:

http://dalythoughts.com/index.php?p=2983

You can find a bar graph of these statistics here:

http://www.professorbainbridge.com/2005/04...ructionism.html




The charge that Bush's nominees are extremist is unfounded. This is the tack taken by groups who do not want a strict constructionist on the bench. I challenge you to cite actual examples in their record of "extremism" beyond a talking point from a left wing organization seeking to discredit these nominees.




There is a movement called the constitution in exile. It is extreme, because it advocates judicial activism to take constitutional law to a pre-1937 state where the congress does not have unfettered power to pass federal laws under the commerce clause. However, it is an academic position and not one grounded in current jurisprudence. Those who oppose Bush’s nominees are trying to paint them into this camp of intellectuals who advocate conservative judicial activism to take the country back to a pre-1937 concept of the commerce clause. Rosen’s piece in the New York Times is perfect example of this tactic. But if you read it carefully, you can see that he is making a broad and unfounded presumption. He is presuming that all who hold economic libertarian views also advocate judicial activism. This could not be further from the truth. Scalia himself, favors such a view, but more importantly, Scalia respects the Constitution and understands that his proper role in interpreting the Constitution and does not seek to overturn established precedent. A strict constructionist like Scalia and like those that Bush will nominate to the bench, will not overturn a half century of legal precedent.
It is inflammatory to lump all of Bush's nominees in with this group with no proof in their jurisprudence other than decisions that may happen to favor an economic libertarian view.




Janice Rogers Brown is not outside the mainstream, she was reelected by 76% to the California supreme court.

http://www.townhall.com/columnists/debrasa...s20031023.shtml

GWB is a sales person using "judicial philosophy" as a code word that his base understands.

For example, a judge who accepts money from an industry and then stays on the bench when judging cases in that industry is not following a "judicial philosophy." This kind of judge is, in the common sense of things, a lackey. Dishonest is another basic term for this behavior.

We don't want dishonest lackey judges.

The basic philosophical difference has to do with integrity and honesty, a sense that with power comes responsibility, and that political positions should not be for sale to the highest bidder.

You cannot serve both money and God is another way of putting this, for folks who like a religious context. Rendering unto Caesar what is Caesar's is another little bit of philosophy to consider.

I know the present leadership wants to roll back the clock to 1900, where the little people had no influence or power. It thinks that being Third World is pretty darn cool. It has no vision for the future except the destruction of the world, which is part of its faith-based initiatives to exploit as much as possible before the end of everything. If this is a philosophy, it is a pretty pessimistic one. But some make a lot of money off this stuff, and so they are willing to hold non-profit political rallies to change the way government works, under the name of God.

The name is not to be used this way under another philosophical stance.

Ah well, another sad attempt at selling a sow's ear as a silk purse. That's all this is.

Funny, because you ended your post with a defense of Justice Brown from townhall.com, a quote that included these wonderful (and so impartial) tidbits:



I mean really, come on! That one paragraph is enough to discount the entire article. Let's see, lots of presumption, no support. Not a good start!

I think one has to at least consider the possibility that the reason opposition to these candidates is so high, is because they do represent a more extreme judiciary philosophy than what we've seen before. Clinton had a pretty good rate, at least until the Republicans decided anything he did was super-bad-evil, and the reason is that his nominees were decidedly moderate.

It's just silly (to me) to blame Democrats for this. Perhaps if a president submits nominees who are more representative of widespread American views, more of them will get confirmed.

Quark, the reason I cited that portion of the townhall site is that it specifically mentions the PFAW. This is a common source used by democrats to justify erroneous assertions about the nominees.

It is not silly to blame democrats for this. They are the ones blocking the nominations by filibustering under the guise that these judges hold views outside the mainstream. I want more proof of this than what organizations such as PFAW are saying or broad inferences being drawn in pieces from the New York Times.

"Lies, damn lies, and statistics." Shall we take a look at the last 6 years of the Clinton administration under your filter for "unprecedented"?

After the "Contract with America" succeeded in recapturing the House and Senate for the GOP, Clinton received exactly 54.7% of his appellate nominees confirmed. (using your link). Or does 1.7 % more (though less actual candidates) cross some mystical bright line to spur outrage in this area?

This is hardly unprecedented. The GOP has been just as gifted in blocking court nominees as the Democrats have been. The only difference is the means.

Numbers like these can tell many stories. The bottom line is that the Democrats are hardly unique in this case. The hypocrisy of Bill Frist begging for an "up or down" when his party has held/stalled/tabled many nominations prior to this presidency is just laughable.

I disagree with CJ on a few of the nominees, though. I do think some are being blocked on ideology, though not all. Some are just plain bad choices no matter which judicial philosophy they subscribe to.

I see a logical flaw in comparing the "contract with america" era to today. When the Republicans were "pocket filibustering" nominees and delaying votes in 1994-1998, they were the majority in the Senate. Same for the Democrats in Bush's first 2 years - 50-49-1, they were effectively the majority. Meaning that, on a party line vote, the judge wouldn't necessarily win approval on the Senate floor.

Today's Democrats are the minority. Moreover, the majority (today's Senate Republicans) quite openly campaigned that they would work to put Bush's judicial nominees into the courts. Bush himself campaigned for Senators saying that they would help approve his judges. The American people voted on this.

The only difference is the "means"??? No way. During the last 6 years of the Clinton administration, the Republicans held the majority in congress. One would expect that radical judges, nominated by Clinton, would be opposed. After all, that's what the people who ELECTED THEM sent them there to do.

Yet, the democrats lack any majority as representatives of the people. They don't hold the house, the senate, or the executive branch. They only cling to the judiciary which they've packed with liberal activist judges who don't mind inventing law where they see fit.

There is a HUGE difference in these cases. In one case, the republicans acted as elected representatives to the PEOPLE and upheld the values they were sent there to represent. In the other, the democrats have overcome the WILL OF THE PEOPLE through a parliamentary trick, a loophole in the rules, and an unprecedented show of arrogance to block well qualified judges who have vowed to interpret the constitution as written, not twisted through liberal activism.

The two cases aren't in the same league. What the democrats are doing should be done away with by force (the constitutional option) if required.

One of the more amusing twists to come out of the last few years' debate on judicial filibusters, is the notion that judges who would stick to the basic meaning and intent of the Constitution, are somehow "activist judges".

This is laughable, of course. An activist judge is one who makes rulings in opposition to what the Constitution and lower laws require. This tendency has become so prevalent in the last 70 years, but especially in the last decade. It's gotten so bad that, for a judge to go against the flow and decide, say, that guns cannot be banned from schools under the Commerce Clause because that clause was not meant to implement a ban on guns, is regarded as "different", or even "radical".

This is similar to a society in which police are corrupt, taking payments from burglars and thieves and turning a blind eye to their activities, but one cop decides to arrest the burglars and throw them in jail. The burglars may scream and protest that he's not going with the flow. But in fact, he is the one who is right, and is the only one who is correctly doing his job. Note that this does not guarantee his survival, of course.

The basic philosophy behind the Constitution was, and is, that the Federal government should have only limited powers, specified in that document; while the states and lower government could assume many more sweeping powers if they wanted. for the first 2/3 of the country's existence, it was fairly strictly enforced that way by the Supreme Court. But a sharp left turn was made in the 1930s, when the Federal government started usurping many state powers and giving itself authority that was never assigned in the Constitution (and so prohibited by the 10th amendment). At first excuses were made, such as increasingly stretched interpretations of the Commerce Clause, General-welfare clause, and other parts. And in the last few years, the Supreme Court has not even bothered to address parts of the Constitution at all when making decisions.

One example is their openly permitting the U of Michigan to continue racial discrimination in their admissions policies, in clear contravention of the 14th amendment. The justices didn't even bother to cite the Commerce Clause or any other part of the Constitution; but merely announced the government had the authority to support "diversity" - a task found nowhere in the Constitution. It was a classic example of "judicial activism", where the majority of justices decided that their own personal desire for "diversity" superseded the Constitution's clear ban on the acts they were now permitting.

GWB said before the last election, that Antonin Scalia was his favorite Supreme Court judge, and that he'd like to appoint more like him. He also praised his tendency to stick with the basic meaning of the highest law of the land. And the voters elected him.

This is the basic difference in judicial philosophy that GWB referred to in the press conference. His opponents may call the (minority) justices who disagreed with that ruling "radicals" or "activists", but calling a tail a leg does not make the name fit. And it is precisely that difference in judicial philosophy, which separates the sides in today's debate. Excuses might get flung around such as "religion", "abortion", "diversity", etc. But it all comes down to the question:

Should the Federal government be restricted to the authority originally given to it by the Constitution, and forbidden any other unless the Constitution is amended by the Congress and the states?

Many authorities have pointed out that, if it is not so restricted, then we are throwing out the advantage of having a written Constitution in the first place. What good is it, if we can blithely disobey it at the whim of a President, or a COngress, or a Court?

GWB nailed it in his press conference. Nearly every one of the various issues his opponents cite as reasons for this nominee or that one to be blocked from a vote, has at its core a disagreement over whether the Federal government should have certain powers reserved to it by the Constitution, and the states should be allowed the rest with little mixing and matching between them.

This is perhaps the most honest statement so far from the side that wants Bush's renominated judges to receive a vote. Self-serving, maybe a mistake to admit, but honest.

In a nutshell, Republicans procedurally blocking Clinton's nominees wasn't "as bad" because they represented a... larger will of the people, represented a larger portion of American interests, or whatever safety net phrase you want to use, and were steered in part by "right thinking" conservative lobbying groups like the Judicial Selection Monitoring Project, and the Constitution crosses the finish line last.

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?

I'm not sure philosophy coins it or covers all of it. The US Constitution Secular or Judeo-Christian Based, Constitutional Spirit & Intent thread just about ended with this post:



This inconsistency illustrates liberal skepticism towards judicial restraint, originalist, etc., is not unfounded.

To answer the debate question directly, Bush can hit any nail he wants. Both sides see the issue fundamentally different. It's Frist's job to slum it for the base, just as Democrats did not long ago. Except after deriding their liberal colleagues for politicizing race and sex the Republicans are kicking it up a notch by tossing religion into the fomenting brew.

Really, I don't see anyone here making that argument Little-Acorn. None of the judges Bush is nominating are "strict constructionists". He is nominating his own brand of activist judges that will try and enact his agenda.

You can rail about judges not following the constitution all you want, you are certainly not alone there. But if you believe the people that Bush is appointing agree with your philosophies then you are sorely mistaken.


Also great, but you do of course realize that isn't anywhere close to the goals of the Republican party right? The Republicans are interested in consolidating power themselves and they gave up the "smaller government" lie a long time ago. Just look at the huge bureaucracy they have created with the Department of Homeland Security alone, a completely uneccessary entity when other organizations could work together to do the job.

They want to ban gay marriage at the Federal level because they are afraid that some states might eventually allow it. That doesn't seem to be in line with your philosophy does it?

I'm sure that if they had their way they'd ban abortion on the federal level again taking power away from the states.

Finally, the whole Schiavo mess is probably one of the biggest violations of state's rights in a long time.

So being for state's rights, and being for a strict interpretation of the constitution is fine. But if you ally yourself with either the Republicans or Democrats here then you are always going to defeat your principles if you believe in limited federal government.


And in Scalia's own words he is not a strict constructionist, do I need to dig that quote up again for you? I seem to remember you being involved in that thread. Scalia is the conservative version of an activist judge, he just likes to use the term "textualist".


So do you think the religious right is on board with this? How will we ever discriminate against homosexuals, ban abortion, and enforce morality if the federal government should have limited powers? How will remove civil liberties in the name of fighting the war on terror if the federal government only has limited powers? Your argument doesn't pass the smell test. You are looking at Bush and seeing what you'd like to see instead of reality.

Oh, but you can draw upon quotations from Townhall.com, a right-wing web site to support your case for the likes of Janice Rogers Brown? Okay, I'll play along with the game.

Here's a lil' sumpthin sumpthin' by Cynthia Tucker courtesy of the Atlanta Journal-Constitution. Not a "left wing organization" even by your standards (I presume).

She labels herself so conservative -- among the rare "true conservatives" -- that she should be "included on an endangered species list." Her views are somewhere to the right of Genghis Khan.

Her flair notwithstanding, she has no business on the federal bench. Her views are well outside the mainstream.

While most Americans support Social Security and the other workers' protections that grew out of the New Deal, Brown holds to a peculiar constitutional view that characterizes the New Deal as "the triumph of our own socialist revolution." Speaking to the Chicago chapter of The Federalist Society five years ago, she said: "The New Deal ... inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document."

She has no respect for precedent and frequently uses her rulings to express far-reaching opinions on matters not directly before the court. When parents of a child who had committed suicide sought to hold the school district responsible, Brown went beyond disagreeing with them. She also wrote: "The public school system is already so beleaguered by bureaucracy; so cowed by the demands of due process; so overwhelmed with faddish curricula that its educational purpose is almost an afterthought." She is a true "activist" judge, something conservatives claim to abhor.

From The Black Commentator.com website, this was their take on Brown:

Brown is the not fit for the job, by the standards of the profession. The evaluation committee of the California Bar Association rated Brown “unqualified” for state judgeship, in 1996. Among Bush choices for the federal bench, only Ninth Circuit nominee William Myers ranks lower in the American Bar Association ratings. Brown, a legal advisor to former California Governor Pete Wilson, is a purely political creature of the state’s Republican Right. She’s their judge.

Or from Political Affairs Magazine:

Justice Brown has taken positions contrary to the nation’s commitment to civil rights. In the 1999 case Aguilar vs. Avis Rent A Car Systems, Inc., a lower court ruled that the employer had violated a California employment act by permitting a hostile work environment. The employer permitted the use of racial slurs directed against Hispanic employees. Upon appeal to the state’s Supreme Court, the majority agreed with the lower ruling. However, Justice Brown dissented, and argued that the right to free speech protected the use of racial slurs in the workplace, even when it violated federal laws against racial discrimination. Her dissent essentially ignored many previous rulings by the U.S. Supreme Court.

In the case of People vs. Robert Young, Justice Brown authored a position no other California Justice took. The case centered on a prosecuting attorney who was accused of violating California and federal law by excluding Black women from a jury, solely on the basis of their race. Justice Brown argued that it was permissible for prosecutors to do so, because she saw “no…basis [that] black women might be the victims of a unique type of group discrimination….”

In the case of Peatros vs. Bank of America, Justice Brown ruled that a nineteenth-century law actually permits banks to discriminate against employees on the basis of race and age. This decision was contrary to numerous federal rulings that the Civil Rights Act of 1964 and the Age Discrimination in Employment Act make such discrimination illegal. In the case of Stevenson vs. Superior Court, she issued the lone ruling that a plaintiff could not sue an employer for age discrimination. Justice Brown wrote, “Discrimination based on age is not…like race or sex discrimination. It does not mark its victim with a ‘stigma of inferiority and second class citizenship;’ it is the unavoidable consequence of that universal leveler: time.”

http://www.politicalaffairs.net/article/ar...view/1038/1/91/

Oh, and one final goodie from the South Florida Sun-Sentinel that confirms for me that Judge Rogers is firmly out of the mainstream.

On April 24, at the invitation of the Diocese of Bridgeport, federal court nominee Janice Rogers Brown asserted that the nation is in the midst of a "war" over religious values. She was addressing a church-sponsored event for judges and lawyers in Darien, Conn.

All of my statements are honest. And none of them are a mistake.

We live in a representative democracy. The republicans were representing the majority who elected them into the MAJORITY by blocking some of the kooks that Clinton nominated. That was the "will of the people" during that time period.

Are you somehow asserting that the minority party, who could not get enough votes to be elected to the majority position somehow represented the "will of the people"???

The judges that Bush is nominating are vital for the survival of our form of government. Otherwise, democracy means nothing. The three co-equal branches mean nothing. As it stands, a small elite minority can short-circuit the entire grand design of our system through activist judges who represent nobody other than their own narrow minority interests. Democracy has been subverted through this process.

The GOP did Clinton a favor by approving so many of his judges for the 6 years they held congress during his mis-administration. Strictly speaking, they screwed up. They should have blocked ALL of them until he nominated some conservative and non-activist judges (which he never did).

Now that Bush and the GOP have the majority and were put in that position by the PEOPLE they should use their advantage and absolutely PACK the courts with strict constructionists. In addition, they should bring impeachment charges against the most radical of the activist judges particular on the 9th circuit court of appeals. Enough is enough! What use is power if the GOP refuses to exercise it?

And lastly, Frist needs to get the finger out and pass the constitutional option to stop this insane parliamentary tactic of filibusters that the democrats insist on pulling.

No, dear. I'm suggesting you hold the same abacus for your party if you want to be taken seriously when you intone the will of the people and democracy. As it stands with Senate rules it's okay with you that the majority party can administratively obstruct judges because you support the majority. I have a feeling that song and dance would radically change if Democrats took over.

Thanks for playing "I Really Do Care About Advise and Consent." You lose. I'm afraid you're no better than the hacks you denounce.

For all the Eurobashing I hear from conservatives, I think its ironic that there seems to a strong support for a parliamentary type government system, like that of the UK. Where it is true that the Majority party is able to pass whatever they want whenever they want as long as they can get their party to go along with it and the minority party does little more than make speeches and mumble insults while the Prime Minister speaks.

Nevertheless we do not have a parliamentary system, and the minority party does have an active role, much to the frustration of the favored party at the time.

Democrats are making a stand on the judicial nominations because Bush's appointments represent another effort by Conservatives to dismantle the policies and legacies of the New Deal. "Strict Constructionist" are still driven to reverse the expanded powers of the Federal Government gained during the 1930's. Democrats, with the past 50 years of prosperity to back up their argument, are hesitant to revert to a mythical “Golden Age” of Pre-1930 America.

To me its distressful that in the year 2005 there is such a strong desire to return to the society of the first 20 years of the previous century. It is similar to fundamentalist muslims calling for a return to a government based soley upon the Koran.

Look at how much our society has changed in the last 75 years, it is only natural for our interpretation of the constitution to change with it. If it failed to, our country would become stagnate, if not regress. That is the reason that precedent is so important to our judicial system. By building upon previous decisions judges are able to allow society to progress.

The Judicial Activism that Strict Constructions so bemoan is responsible for many of the progressive gains in our country, like the end of segregation, increased protection for the environment and the disabled.

Bush Judicial nominee William Pryor is an example of a strict constructionist, and his decisions have indeed been radical:



He also considers Roe v. Wade: "the worst abomination of constitutional law in our history." Worse than even Plessy v Ferguson

And his respect for the idea of a Separation between Chuch and State is minimal:



http://independentjudiciary.com/nominees/n...fm?NomineeID=46

lordhelmet I don't question your honesty or for that matter that of anyone else who posts here. Regardles of how-far-out-there a statement may be, I rarely doubt the author really believes it. On the other hand your second statement about "none of them are a mistake" is up for grabs. There is a bit of arrogance in such pontification, especially when it is not backed up with ay corroboration on your part. Actually, I don't think your faith in Bush is justified. The most telling argument I've heard for retaining the filibuster is that judges are appointed for life and deserve closer scrutiny than someone like John Bolton, who if confirmed, will be gone when Bush leaves office, if not sooner.

While we are making honest statements, I don't think I'm likely to support the type judges Bush might elevate to the Supreme Court when an opening occurs.

I'm not sure I understand your point. The problem is that the democrats are subverting the will of the people (i.e., their elected representatives) and preventing the Senate from their constitutional role to advise and consent.

The democrats are not representing the majority of Americans. That's why they are in the minority. Frist needs to close this parlimentary loophole that the democrats are shamelessly exploiting and get those judges an up or down vote. But not having a vote at all, that's a big problem.

The Democratic representation is closer to the majority than you might think. If you examine both the population represented by Democratic senators as well as the votes cast, the "minority" party represents 51% of the population (source).

And this loophole is hardly being exploited/abused. We're talking what, 7 nominees? If the democrats were abusing it, the people would hold them accountable.

I will say this, though. I don't like the currently allowed process of letting someone filibuster a nominee by simply saying "I filibuster", and debate shuts down. If you use that tool, you better be ready to actually filibuster the issue. If you want to use it to block a nominee, at least work for it.

Doc

The Senate has a majority of republicans currently. The democrats are not in the majority.

The democrats are using this tactic to block judges from even getting a vote. If those 7 are so bad, then why can't the democrats defeat them in a vote??

Again, the democrats are subverting democracy just like they have done through activist judges to further an agenda that could never be passed at the ballot box.

The Senate has a majority of republicans currently. The democrats are not in the majority.

The democrats are using this tactic to block judges from even getting a vote. If those 7 are so bad, then why can't the democrats defeat them in a vote??

Again, the democrats are subverting democracy just like they have done through activist judges to further an agenda that could never be passed at the ballot box.

Ah, the ole "Might makes right" argument. I'm sorry but our government wasn't set up on a strictly "Mob rules" system. There are checks and balances in place for a reason. You seem to assume that the Republican majority is representing the will of it's electorate but too often they do NOT. Were they representing the will of the people with the Schiavo legislation? Seems to me they weren't, given that the majority wanted them to keep their noses out of it. Are they representing the will of the people with their proposed "Nuclear Option" again the answer is NO, the polls reflect that repeatedly. We the people don't like the abuse of power and do not like the threat of changing the rules to suit the GOP agenda. The people have stated in poll after poll that they DO NOT support ending the filibuster. Likewise the people did not support the proposed ethics rules changes proposed for the sole purpose of shielding Tom DeLay from investigation. The also opposed the attempts to ramrod Bolton's nomination through without fully investigated the accusations against him. They likewise do not support Bush's version of SS reform which he has spent months trying to arm twist American's into supporting. Just because someone wins an election and is in the majority DOESN'T mean they are representing the will of the people. As I've shown, often they are NOT.

As for the held up nominees...How many of the openings Bush has been filling came about because the GOP blocked Clinton's nominees until he left office? Quite a few as I recall. A filibuster by any other name STILL amounts to a filibuster. Bottling nominations up in committee results in the same result...No up or down vote and I likewise seem to recall that Frist had no problem with the filibuster when HE was using it. The reek of hypocrisy has grown so thick it all but chokes any hope of credibility in this arena on the part of the Republican party. Their "majority" may be shorter lived than they believe if they don't stop trying to ram ideology down our throats. It cost the Dems their majority too (and not that long ago) and the GOP seems to be intent on losing their advantage at breakneck speed.

As for the nominees themselves, personally I'm GLAD some of them have been blocked as they seem entirely unfit for the position (unless the sole critera is rubberstamping an ideological agenda).

I don't want to refight the Schaivo case again. All I will say is that the polls were misleading because the question was posed in a biased manner. If the gallup poll had asked whether an ex-husband should have the right to starve his disabled ex wife to death over the vehement objections of her family, and with no evidence supporting the fact that the woman wanted to die in that condition, I suspect the poll numbers would have turned out a bit differently.

Majority holds the power in the government and if you want to characterize it as "might makes right", that's fine with me. The democrats had no problem exercising that authority for the 40+ years they held the majority in congress and republican presidents such as Reagan and Bush I had to accommodate that fact.

When Clinton was in office, the GOP held the majority for 6 years. Stopping radical activist judges that Clinton nominated wasn't a filibuster at all. The democrats didn't have the votes to get those people confirmed. Sorry, but that's the way it works.

The democrats are using a filibuster to create an unconstitutional super-majority requirement to confirm judges when the constitution only requires 50%+1. That's another reason why it is wrong.

The democrats are essentially exploiting a procedural loophole and the GOP, if they have the votes, should close that loophole. Yes, they should follow the ideology that got them elected and a big part of that is putting judges on the bench who do not subvert our democratic process by creating new laws out of whole cloth in order to further THEIR radical left wing agenda.

If the democrats have a problem with that, perhaps they should get more members elected. Perhaps if they stopped drifting further and further to the left, under the leadership of extremists such as Howard Dean and their allies moveon.org, Michael Moore, and other assorted kooks, they'd manage to appeal more to the middle of the road voters?

It's neither wrong nor right. The Constitution gives the Senate leeway to make up its own procedural rules. Republicans want to do away with the judicial filibuster but leave it intact for other debates. In the past the filibuster served a Republican minority well when Democrats wanted to pass anti-gun legislation.

The problem I have with your position, a position you're unable to recognize due to blind party loyalty, or just plain don't care, is that the majority will still have the means to "filibuster" presidential nominees should the nuclear option pass. If you're not interested in taking the moral high ground, LH, do put the mirror you don't look into away.

So when a republican stands firm on principle and doesn't believe the distortions being thrown out there by the democrats, one is practicing "blind party loyalty"?

Frankly, if there is one group in our government that behaves as a union, as though members have taken an oath of group solidarity, and where no dissent is allowed, it's the congressional democrat caucus.

When the constitutional option passes (not soon enough), the judges will have an opportunity to be voted up or down by the full senate. If your party votes in lockstep (which is completely expected) and manages to pull a few lilly livered republicans who are more interested in what the elite media thinks of them rather than doing the right thing, you'll defeat those judges.

I don't accept your premise that doing what the democrats want is the "moral high ground". In most cases, it's proven to be exactly the opposite.

I think Lesly sums up my feelings pretty well on this issue. I have personally grown tired of what *I* percieve as whining on the part of some conservatives about the Dem minority doing the same things they did gleefully when THEY were the minority party. Ethics rules that are only "good" when they nail a Democrat but suddenly need to be changed when they hurt a fellow Republican. Bottling up nominees is a GOOD thing when WE do it and a BAD thing when YOU do it. As I said, the double standards are astounding to me. For a party that used to bemoan the "victim" card when the Democrats were using it, they seem to have embraced it fully when it serves their own ends.

As for the Schiavo case, I don't believe the wording of the question was biased, I believe that perhaps your perception of it was biased. You had people crossing party lines on this issue.

You're talking in circles, LH. And put words in my mouth to boot. I didn't claim my party has the moral high ground because as the Constitution is written it's not about being right or wrong. However, when you put forth a moral argument that the minority should not be enabled to block judges you should expect that argument can carry over into other scenarios.

Is it right for the majority to block judges from receiving a vote? Just answer that.

Of course it is right for the majority to block judges from receiving a vote if they disagree with the choice. Absolutely! They were elected to represent those views.

You have to be voted out of committee first and then confirmed by the entire senate. What the democrats are doing is subverting that entire process. The judges that they are blocking have the votes to get our of committee and have the votes to be confirmed.

Why are they acting like such immature children by throwing a parliamentary stunt to block well qualified judges that have the votes required to be confirmed? Is that a moral high ground?

So by "advise and consent" the Senate can bar judges that don't agree with the majority's views from receiving an up or down vote, regardless of who the people elect to the White House, whose views don't matter as much. It just so happens that your party is the majority in the Senate. What a coinkydink.

LH, even though I'm on the losing side I'll consider myself fortunate you're not.

Do they have the votes to confirm because they are "voting in lockstep", the very practice you condemned? Or is voting in lockstep appropriate if you happen to be on the side you agree with? Are you "lilly livered" if you vote against your party or only if you disagree with the one dissenting? So is party line voting good or bad? I'm confused.

Factcheck.org, a reputable non-partisan group, that watchdogs information, especially advertising, from both Republicans and Democrats has a take that's entirely different than lordhelmet’s.



http://www.factcheck.org/article324m.html

Actually this is completely inaccurate, the Democrats have agreed 100% on very few issues in the past several years. You want proof? Go check the votes on any of the major bills passed recently, the bankruptcy bill is a good place to start.

Before you go throwing things like this around it pays to check your facts.

I have been silent for awhile, but that time has passed. It is so hypocritical to say the democrats are doing something never done in our history by filibustering judges. When like many people have shown how many Clinton nominees were never even given a hearing, by either being bottled neck in committee never getting a hearing or have one anonymous senator holding up the nominee from ever getting a hearing.

The funniest reply that we here over and over again and has been thrown at us again this time from lordhelmet is.



Although facts don't hold well in this case calling Clinton's nominees activist judges when they have been some of the most moderate judges to be nominees and some being confirmed.

But what I can't grasp is, if what you are saying you actually believe that they did not have enough votes to be confirmed why did they get held up from getting hearings? If they didn't have the votes to be confirmed then the issue is done and they get voted down on the floor, but you can't say that with a straight face that they did not have the votes so what the republicans did to Clinton's nominees is right but what the democrats are doing now is wrong. Especially when during the short time the democrats held the majority during Bush Jr. first term they had a lot of judges confirmed out of committee and finally confirmed for the federal bench.

Leave it to Chuck Hagel to render some sanity in this debate.

That's one area that I don't think has gotten much discussion in this and the other filibuster thread. The Senate was by design supposed to be the arm of the legislature to protect the minority party from being overrun by the "Tyranny of the Majority". This rule is one of the means to achieve that.

Hagel rightfully doesn't want the nuclear option used either:


Yet another reason he's one of my favorite Republicans in the senate.

Doc

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.

We are NOT a democracy; we are constitutional republic. The key difference is that the majority is constrained from abusing the minority. This is fundamental to our system. The Democrats are acting well within the spirit of this system; it is your attack on it it that is subversive to our political system.

And in our constitutional republic, the republicans have the votes to change the rules and should do so. They are in the majority. When the democrats were in that same position they exercised their power in a ruthless fashion. The republicans need to get a clue in that regard.

The minority has no right to abuse the majority through the exploitation of loopholes.

The judge issue is clearly one of these. The constitution mandates a simple majority for judicial confirmation, not a supermajority as the dems are trying to impose, in an unprecedented defacto way.

What is fundamental to our system is respect for precedence. The democrats have thrown that out the window in their subversive attempt to manipulate the system in order to act in a childish, and obstructionist way.

I think some of us may be confusing the filibuster itself with the current crisis caused by filibustering judicial nominees. The filibuster is not in danger. Therefore, the rights of the minority party are not threatened. What's under consideration is the right of the minority party to obstruct judicial nominees via the filibuster. In this sense, the current obstruction by the minority party is unprecedented. Article II gives the President the right to nominate judges, and does not specify a super-majority vote for "advise and consent" in the Senate.

Judges are not like legislation. If legislation is filibustered, it can then be modified, amended, compromise achieved. Even if a bad law is passed, it can be vetoed by the president (quick - someone tell W, as he's forgotten about this part). A judge is a person who is nominated given their qualifications, and should receive an up-or-down vote.

As for Senator Hagel...his presidential ambitions apparently preclude him from taking a principled position on anything. His "moderation" is truly spineless, and his misunderstanding of the Senate's "unique in the world" minority rights is appaling. The voters in Nebraska deserve to know where he stands, but he'd rather torpedo his own party and get the resultant media glow as a moderate maverick. If he keeps this up, he'll end up filibustering his own nomination come primary time.

You are flatly incorrect; the Constitution does not mandate a simple majority for judicial confirmation. It leaves such procedures to the Senate.



Precedent in this case is slightly in favor of the Democrats. The Republicans filibustered the Abe Fortas nomination, forcing its withdrawal. On the other hand, there have been few if any other cases of filibusters of judicial nominees until recently.

I would suggest that loading up your claims with all manner of insinuating terms (subversive, manipulate, childish, obstructionist) doesn't accomplish much if there's no reasoning behind them. If you want to claim childishness, then make a case for it. Smearing a thick layer of icing all over a brick doesn't make it a cake.

I agree that this is not a question of legality; the Senate makes its rules and if the Republican majority wants to change the rules, that's their right. The issue is prudence governance, not legality. If the Republicans throw out the filibuster in this case, then when the Democrats gain control of the Senate -- which is certain to happen eventually -- then they will throw out the filibuster on legislation if it serves their interest. This is not good for the country. We want minority parties -- be they Republican or Democrat -- to be able to draw a line on issues that they regard as extreme. It's the only thing that keeps our system on an even keel.

There are a lot of things that keep our system on an even keel, but the liberals seem intent on ignoring them. Precedence, history, tradition, etc., all are in the gunsights of the democrats.

The democrats have subverted our system and our constitution by appointing activist judges who have short-circuited the entire checks-balances system. Now, they're trying to similarly short-circuit the constitutional requirement for judicial appointments with the unprecedented, and wrong, filibuster tactic to block judges that WOULD be confirmed by the Senate.

I tip my hat to the democrats for their cleverness in their subversive intentions.

Now it's up to the GOP to show some spine in this matter and start exercising the power they EARNED through a free and open election.

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.

Frankly, the democrat party, which used to have people like FDR, Truman, and JFK at the helm (all staunch pro-Americans) have the corrupt Reid, Pelosi and Dean the Scream in charge now. Michael Moore is their moral compass (due to his overwhelming density and mass no doubt). No more needs to be said about them.

Lordhelmet, I see nothing in your posting that constitutes an argument or point or logical analysis -- it strikes me as a diatribe. Nor does any of it appear to be on topic. If you have some point you'd like to discuss with respect to this topic, I'll be happy to discuss it with you.

LH
I have a problem trying to realize if you are being careless, or distorting,or perhaps tossing in a few falsehoods. Maybe you know better or just trying to create a little smokescreen. Maybe with someone that is unread, your antics might succeed.



Surely you are talking about Frist,Bush and his Religious Right in trying to get the state and federal judges to be activist judges in the Schaivo rulings. And poor Judge Greer and some others were conservative judges. But throw the BUMS out,they were basing their rulings on the law.



If I remember correctly, The Senate is given permission to set up whatever procedural rules that they(the majority of the senate) agree upon. The filibustering of judicial nominations is not unconstitutional under Senate procedures. So, I would be careful throwing the word unconstitutional around.



Now this statement is so hypocritical, I don't quite know whether to laugh or give an appropiate answer. The statement that the left is drifting farther to the left and being radical. Lets turn this around and ask about the radical right. Throwing a temper tantrum in the Schaivo case and Frists Religious Sunday. By God you GODLESS Democrats better get your act straight.



Why call it the constitutional option, when Senator Lott called it the Nuclear Option. Of course all the MSM tells us that the Democrats named it the Nuclear Option,first. Those old Godless Democrats again.

I hope the Nuclear Option comes up for a vote, and Senator Hagel(and a few other lilly livered republicans, in your words), vote against it. I guess they won't be voting the "moral high ground" anymore.



Now the Democrats are the "immature children and acting in a childish and obstructionist way". Since the Senate is following their procedural rules which have been in effect for a good number of years, it would seem that the Republicans are being childish wanting to change the procedures in midstream.



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.

You're right CW, they aren't. They're far more significant than legislation. Their appointments in some instances last a lifetime and thus should carry far greater gravity in "advice and consent". The Democratic Party has chosen 7 such judges out of well over 200 to say "we think these folks would be poor/inappropriate additions to the Federal judiciary in their appointed roles." And they believe it strongly enough to use available Senate rules to prevent those 7 from obtaining appointment.