Sunday, April 24, 2005

Going Nuclear

Apparently the Senate GOP is hell-bent on getting rid of the judicial filibuster without any consideration of its future implications (or maybe, if your a theorist like me, because of them).

After viewing their strategy over the past few weeks, I'm amazed at two things 1) that the GOP keeps winning elections; and 2) the GOP strategy on this matter seems to be nothing more than to win the battle of diction. In case you haven't noticed lately, the GOP has stopped referring to their proposal to get rid of the Senate's ability of the judicial filibuster as the "nuclear option" and have begun to start calling it the "constitutional option."

According to the revisionist at the RNC, they have every right to call every reporter, publisher, TV station, newsroom, etc. to demand that they not use the term "nuclear option" unless they are essentially quoting a Democrat using that term because the term is nothing more than a Democratic rhetorical attempt to frame the issue as an unprecedented, over-reach by the GOP.

Unfortunately for the GOP, it's not a Democratic term. Sen Trent Lott (R-MS) (perhaps they still remember him, he used to be their Senate Majority Leader) was the first to coin the term and countless conservatives have used it. Indeed the term "nuclear" would seem to be a more accurate term than "constitutional." There's nothing constitutional about what the GOP is doing as the judicial filibuster does not, in any way, infringe on the constitution.

It reminds me of the term "voodoo" economics. That's what George H.W. Bush called Ronald Reagan's "trickle down" economic theory during the 1980 Republican Presidential Primaries (of course, "H.W." Converted in time to become the VP nominee later that year.)

Semantical arguments aside, the GOP has yet to give a rationale for why this change is necessary. By anyone's estimate, all it would do is get seven of President Bush's nominations through that couldn't currently. Each of those were nominations the President knew would not receive bipartisan support as they were rejected in his first term. Instead, all this change does is make it easier for this President (and future ones) to nominate partisan judicial activist.

What's even more disgusting is that Frist & Co. Used Senate rules to SINGLE-HANDEDLY deny Clinton nominees the right to a Senate floor vote, and even, in some cases, a committee hearing. Indeed, if the GOP genuinely believes the U.S. Constitution REQUIRES the Senate give each and every Presidential judicial nominee and "up-or-down" vote by the whole Senate, then why are they just getting rid of the filibuster? What the GOP does not discuss changing is the rule that gives the Senate Judiciary Committee jurisdiction over each and every one of the President's judicial nominations, nor is the GOP discussing getting rid of the Rules of the Senate which allow the Senate Judiciary Chairman from holding hearings on the nomination or allow the committee to decide not to allow a nomination to go forward to the entire Senate. Why keep the Senate Judiciary Committee but get rid of the filibuster, especially when it's been the committee and its processes which has historically blocked more judicial nominations than filibusters?

In the end, how long is the GOP's new-found "fairness" doctrine going to last when the Democrats take over both the White House and Senate? Or hell, just either of those?

7 comments:

Sacramentohop said...

The "Constitutional Option" is an un-Constitutional option. The Constitution, by giving Congress the authority to set their own rules, also gives those rules the weight of being Constitutional requirements. One of the Senate rules requires a two thirds vote to change any rule. The nuclear option would be to side step that requirement and change the cloture vote rule using a simple majority to do so. And, that violation of Senate rules makes the option un-Constitutional.

Modern Esquire said...

I have to disagree.

While the GOP attempt is radical and short-sighted, it is clearly constitutional.

However, that does not mean that the use of the filibuster to block the appointment of judicial nominees is somehow unconstitutional as Republicans are suggesting. That's my point.

The U.S. Constitution is rather indifferent about the debate. Which is why I don't think either side has a clear claim to the "constitutional" label.

But if anyone did it be those in favor of the filibuster. The Framers, at best, had a preference for Senate involvement in the process. However, Art. II recognizes that the Congress could, by statute, divest themselves of their role. (See my "Advise and Consent?" post later today).

Thanks for your comments! I hope you enjoy my blog.

Anonymous said...

Unconventional Wisdom Since 1865 subscribe | donate | advertise | about | shop | classroom | archive


Home Issues March 21, 2005 issue Filibustering the Truth LOGIN







comment | Posted March 3, 2005

Filibustering the Truth
by Judd Legum & Christy Harvey

Print this article
E-mail this article
Write to the editors
Take Action Now!

For more on judicial nominations, see Garrett Epps's "Judicial Jeopardy: Questions for Nominees."
he greatest impact of George W. Bush's second term will likely be from his judicial nominations, including the appointment of one or more Justices to the Supreme Court. The President's selections will have long-lasting effects on all aspects of American life, including our health, our freedoms and our privacy. Senate conservatives, led by majority leader Bill Frist, have already launched a determined campaign to insure that any potential opponents are silenced--principally by attacking the Senate's most effective tool, the judicial filibuster. A closer look shows right-wing arguments for doing so are based on a series of myths about the Constitution, history and the right wing's own conduct.

Myth 1: Judicial filibusters are unconstitutional. Frist and other Republicans adamantly argue that efforts to challenge Bush's judicial nominees via filibuster are unconstitutional. This past November Frist said, "After much debate and compromise, the Framers concluded that the President should have the power to appoint. And the Senate should confirm or reject appointments by a simple majority vote. This is 'advice and consent.'"


ADVERTISEMENT Frist and company love talking about the Constitution and what the Framers intended. But they should get their facts straight. There is nothing in the Constitution requiring the Senate to "confirm or reject appointments by a simple majority vote." The Appointments Clause of the Constitution requires the consent of the Senate before judicial nominees are appointed. The Rules of Proceedings Clause gives the Senate the power to determine the method of consent. It doesn't matter how many times Frist says it: There is no requirement for the Senate to confirm or reject a nomination. No vote means no consent: And that's OK.

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

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

Myth 2: Judicial filibusters are unprecedented. Republicans insist that judicial filibusters never happened before. Frist put it this way: "In February 2003 the minority radically broke with tradition and precedent and launched the first-ever filibuster of a judicial nominee who had majority support." In truth, no one should understand the legitimacy of judicial filibusters better than Bill Frist. On March 9, 2000, Frist participated in a filibuster of Richard Paez, President Clinton's nominee to the Ninth Circuit. When confronted about his vote late last year, Frist claimed he filibustered Paez for "scheduling" purposes. Not true. A press release by former Senator Bob Smith titled "Smith Leads Effort to Block Activist Judicial Nominees" plainly states that the intent of the filibuster was to "block" the Paez nomination.

In fact, Paez was only one of at least six filibusters Republicans attempted during the Clinton years. Senator Orrin Hatch and others argue that these filibusters don't count because they ultimately weren't successful in blocking the nominees. All that proves, however, is that Clinton's nominees were moderate enough to secure sixty votes. It also suggests the remedy to Bush's problem: Stop nominating extremist judges to the federal bench.

Myth 3: Republicans have the moral high ground. According to Republicans, their opposition to judicial filibusters is motivated by a nonpartisan commitment to law and decorum. Frist said Republicans in the Senate "are the stewards of rich Senate traditions and constitutional principles that must be respected." Frist talks a good game. In reality, Republicans aren't motivated by a desire to protect the hallowed pages of the Constitution. Rather, right-wing zealots have shown themselves ready to do anything--and everything--to force through their judicial nominees while blocking those of their opponents. One of the more egregious examples of dirty tricks occurred in 2002-03, when Republican staffers from the Judiciary Committee hacked into Democratic computers and stole hundreds of files. Fifteen of those confidential memos, which detailed Democratic strategies for fighting the most extreme Bush judicial nominees, were then leaked to friendly conservative media outlets like the Washington Times, columnist Bob Novak and the Wall Street Journal editorial page.

That wasn't the first time Republicans contaminated the judicial nomination process. During the Clinton years, they used a slew of questionable legislative ploys to smother judicial nominations quietly while in committee. One favorite tactic: In 1994 Senator Hatch added language to the Senate rules for confirming nominees. His objective: to allow a single senator to easily--and secretly--block nominations from leaving committee. It worked. Judge Marsha Berzon's nomination was secretly stymied for more than two years. (Senator Bob Smith finally admitted his role.) The nomination of Judge Ronnie White, who had bipartisan support in the Senate, languished in committee for almost two and a half years. Judge Helen White waited four years for a hearing; she never got one. This behind-the-scenes scheming proved to be so popular, Republicans were able to block more than sixty of Clinton's nominations. (To no one's surprise, as soon as Bush took office, Hatch abandoned this procedure, allowing nominees to sail through.) The bottom line: While a filibuster requires at least forty-one Senators on board to block a nominee, under Republican leadership, it took only a single dissent.

Myth 4: Filibusters are more appropriate for legislation than judges. Hatch claims that filibusters of judicial nominations are unacceptable. However, "filibusters of legislation," he argues, "are different." He's got it backward. Yes, the filibuster plays an important role in protecting minority interests when it comes to legislation. But unfair laws can be overturned or amended at any time. If minority interests are trampled, the aggrieved parties can take their case to the American people and set the country down a new path. Federal judges, however, are nominated for life. Those confirmed by this Congress will be issuing important rulings long after the current group of politicians is history. These judges should not be hard-line ideologues for the controlling political party. They should be acceptable to a broad range of Americans. In other words, if a judicial nominee can't secure sixty votes in the Senate, he or she is not a good choice for the federal bench.

Bush may make the nominations, but federal judges interpret the law for all Americans. Members of the Senate have the responsibility to use every tool they have to make sure the right judges are confirmed. There is no reason that taking a hard look at every nominee precludes a civil, substantive and productive process. But the first step toward ending the acrimony over judges in Washington is putting a stop to Frist's partisan propaganda campaign.

Get The Nation at home (and online!) for 75 cents a week!

If you like this article, consider making a donation to The Nation.



about
Judd Legum
Judd Legum is the deputy research director at the American Progress Action Fund.

more...





about
Christy Harvey
Christy Harvey is the deputy director of strategic communications at the American Progress Action Fund.

more...





also by
Judd Legum
100 Facts and 1 Opinion: The Non-Arguable Case Against the Bush Administration
11/8/2004 issue
Vote for Bush or Die
09/27/2004 issue
more...




related articles
Senate
Legislative Bomb
04/25/2005 issue
The Boxer Rebellion
John Nichols
02/28/2005 issue
Models of Opposition
02/14/2005 issue
Dick Durbin: Bush Fighter
John Nichols
02/14/2005 issue
more...
related articles
The Courts
Tom DeLay and the Courts
Calvin Trillin
05/2/2005 issue
Legislative Bomb
04/25/2005 issue
In Contempt of Courts
Max Blumenthal
04/25/2005 (web)
Schiavo as Prologue
04/18/2005 issue
more...
related articles
Presidential Appointments & Nominations
George Bush Nominates John Bolton, a 'Kiss-Up-Kick-Down Sort of Guy,' to Be Ambassador to the United Nations
Calvin Trillin
05/9/2005 issue
Legislative Bomb
04/25/2005 issue
The Judiciary Wars
Jack Newfield
06/2/2003 issue
More Bush Poor Picks
David Corn & Emily Weintraub
01/28/2002 issue
more...




related sites
Senate

US Senate
Project on Government Oversight

more...




related sites
The Courts

The Federal Judiciary Homepage
The National Association of Judiciary Interpreters and Translators

more...






About/Contact | Media Kit | Privacy Policy Copyright © 2005 The Nation

Anonymous said...

bill pryor is not an "extremist".

Anonymous said...

It is not entirely clear whether the "constitutional option," as framed by Martin Gold and Dimple Gupta in the Harvard Journal of Law and Public Policy is constitutional (it is freely available on the Web). There are strong arguments that it is not. Even they concede that it has never been ruled constitutional in a binding ruling of the Senate, or by any court. And it has been proposed and/or tried on at least four occasions before.

The argument of whether its constitutional is pointless. Dick Cheney would rule on that question if proposed, and we know how he will rule, so it all comes down to votes.

Anonymous said...

"While the GOP attempt is radical and short-sighted, it is clearly constitutional," is, I think, clearly an overstatement. One need only google the phrase "rules of its proceedings" to find ample controversy over the constitutionality of changing the rules. It all hinges on whether the Senate's rules governing changing the rules are constitutional, and whether the rules as a whole are considered to automatically carry over to each new Senate.

Some choice links turned up via the above search:

Senate Rules on Filibuster
Senate Rules on Filibuster Part II
Notes on the Nuclear Option
Nuke option: Confused that "Byrd Did it too?"

Anonymous said...

It's intersting that you make reference to Ohio Northern as if it is a bottom of the barrel, safety net school. The same bar exam that you took (July 2005) where Cincinatti's passage rate was 85%;Ohio Northern's was 84%.
Standards, eh?