Monday, April 25, 2005

The GOP Filibuster Snowball

Well, the three people that read this blog can verify that I predicted it first.

From an AP wire story on U.N. Ambassador John Bolton's nomination:

"I think the best policy is to have his nomination come to the full Senate, not decided by a committee because the Constitution says that advice and consent are the province of the Senate itself," said Sen. Arlen Specter, R-Pa., on CNN's "Late Edition."

So now the Senate Judicial Committee chairman is on the record saying that what committees decide about a nominee should have no effect on whether the nomination receives a vote from the full Senate. I will give Chairman Specter credit for being logically consistent.

Why have Senate committees and hearings if the committees vote means nothing? The fact is that the committee hearings do and should continue to mean something. I hope the Democrats pick this up and insist on an amendment that ties the termination of the filibuster to the end of nominations going through the committee vetting process. You can't justify one without the other and it's time to call the GOP's bluff.

It's already established Supreme Court precedent that the Senate may delegate its constitutional authority to a Senate committee or subcommittee. See, Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732 (1993). So, this is yet again, another GOP misrepresentation on the issue. The U.S. Constitution does not mandate that each and every nominee receive a vote from the full Senate. If that was so, does that mean that the subsequent appointments made as a result of GOP's success in denying Clinton nominees are invalid and that the Clinton appointees denied a floor vote or, as in some cases, even a hearing, should be considered duly appointed?

To go with the GOP view, then anything the Ethics Committees have done is unconstitutional. Does this mean that Jim Traficant was illegally removed from office? The U.S. Supreme Court, in Nixon, said no. Therefore, Specter's constitutional interpretation on political appointments is misguided.

27 comments:

jerry said...

Make that four. And thanks!

Mumon said...

Good post. It made me look up the constitution (and I quoted you on my blog).

It's good to actually read the damn thing once in a while to see that the volks like Dobson are simply liars.

Monkey 99 said...

I'd say "make that five", but I'm sure its more by now. Congrats on getting tapped by TPM.

Kagro X said...

Whoops, stuck my comment in your previous thread, but as I said there...

Woohoo! Gotcha by two days! Excellent call though. And as the commenter above says, congrats on the tapping.

Anonymous said...

Make it Six.

Jay C said...

OK, I'll stake a claim to No. 7 - at least - and add my (constitutionally protected - so far) opinion that the "nuclear option" for eliminating the "filibuster option" in the Senate will go down in History (about which I care little, as long as the option goes down) - as the equivalent of FDR's "Court-Packing" scheme of 1937 - and much on the same grounds. A wrong-headed and (one hopes) ultimately futile attempt to "game the system" for cheap ideological "victories".

OLS said...

Modern - I'm so proud of you! Look at all these comments . . . you know I'm taking full credit for them (even though I'm sure I deserve no credit). Nice post - this is why I still stay friends with you. That & your impeccable love advice!

Anonymous said...

OK, so I'm not one of the chosen four, five, or whatever. However, I'm glad I followed the link here from Talking Points Memo. I was watching the talking heads shows yesterday too and, as my girlfriend will attest, I perked up at one point and said "Did he just say that all Senate business should be done by the full Senate and not committees? That's nuts!" I'm glad to see someone more important than I also noticed it. :-)

Modern Esquire said...

Obsessive Law Student:

While I won't deny the gratutious plug maybe helped. But I also got plugged by Joshua Marshall's Talking Points Memo blog (which is one of my personal favs).

Here's my shameless plug: http://www.talkingpointsmemo.com/archives/week_2005_04_24.php#005513.

Not bad for a blog only three days old!

Modern Esquire said...

I hardly consider that I'm more important than anyone, but my gigantic ego nonetheless appreciates the comment.

As I posted earlier, one wonders how long the GOP will stick to this line of reasoning once the Democrats take the White House and Senate back.

As a law student, I find the term "unconstitutional" having the upmost seriousness. To call something unconstitutional means that any past practice would be invalid. The idea of procedurally blocking nominations in the Senate is hardly novel. Indeed, as I said in my first post, IT WAS INTENDED.

The only thing our Founders feared more than the tyranny of the government is the tyranny of the majority. This proposal throws the Republic to both wolves.

OLS said...

Hey - you're supposed to be paying attention in class!

OLS said...

btw, Modern - I caught on to the TPM thing in a few of the earlier comments - I'm not that egotistic.

tracinamarie said...

Great post! I followed the link from TPM, and I cannot believe more people aren't following this! You'd expect children to want to change the rules when they're losing in the middle of a game, not your elected officials!

Anonymous said...

The Democratic Stretgy writes itself, then doesn't it?

If you argue that a filibuster of judicial nominees is unconstitutional, we file a federal lawsuit saying that the GOP blockage of all of Clinton's judicial nominees in Committee was also unconstitutional, and they all deserve an up and down vote in the Senate as well.

Then we'd have the Repubicans maybe voting down, on the merits, black judges, latino judges, asian judges and female judges.

Wouldn't that be fun?

OLS said...

In response to anonymous @ 3:06 - the courts would never decide the case you suggest, abstaining instead under the "political question" doctrine. Furthermore, remember that Marbury v. Madison centered on a very similar fact patter - when President Adams had attempted to appoint a number of individuals to the bench, but the commissions had not been delivered. Madison sued, attempting to force then-Secretary of State James Madison to deliver his commission. While recognizing the Court's power to hear the case, the Court refused to require Madison to deliver the commissions. The courts will not require the Republicans to go back and vote on President Clinton's appointments and the Republicans are well aware of this. They would probably just laugh at the Dems if they brought that as a claim. And then they'd use it as evidence of the Dems reliance on the judiciary to "make laws."

Katinula said...

Congrats on the tap from TPM...only three days. Thats impressive. I'm not bitter (blogging now for 7 months)!!
I love TPM and am always up for reading more intelligent debate--its amazing how hard it is to find that.
Isn't it funny how the GOP resorts to everything in the book when an idea is not working then 'ding'--fixing the idea. Now we have the 'constitutional option' to go along with the 'personal savings accounts'. Its amazing how little forethought they have put into the consequences of going 'nuclear'.
Feel free to check out my blog and comment at will...always looking for more opinions, especially ones perhaps more informed than myself.

whizkid1950 said...

Enjoyed the post, will continue to check in here from time-to-time.

groupie said...

me too! me too! i wanna jump on this rising star and be one of your first commenters!

but, yeah, good catch.

the Gun Toting Liberal said...

Glad to have you out there, TME. I'm a recent blogger and like you, a public school graduate (mine were in Brooklyn, NY).

It's important that people in the blogosphere remember what the Right says because a week or a month later, when they get the polling data and have to change all of their terms, we need to be able to remind them that anyone who uses the word "privatization" or "nuclear option," or whichever term comes next, is quoting - not slandering - them.

Peace to you and to your readers. Come see me at guntotingliberal.blogspot.com! All are welcome!

Anonymous said...

great to see more blogs getting attention from progressive thinkers. glad tpm tagged you for more readers to find another voice of reason! will check back often, tpm is how i found steven clemmons, another "diamond in the rough!"

TJM said...

I'm a bit older than you and not a lawyer, but a good part of what I do involves negotiations. I learned early on to never make a threat I wasn't prepared to make good on and to never just let the threat linger. The Republican Senators have made the "nuclear option" threat for at least six months now as if the Dems, who are in an untenable position, will simply roll over. The only possible response is to make the majority act. Yet the majority seems reluctant to do so and is expending an inordinate amount of energy talking about it. To convince themselves? I think they could save a lot of time (and possibly get back to dissembling about Social Security, ignoring the budget deficits,etc.) by changing the Senate rule to one that says if the President is the same party as at least half the Senate ( the Vice President has said he'd be glad to help out), then each judicial nomination is deemed confirmed. That way they wouldn't need a committee or a vote and would have a lot more time.

Anonymous said...

Very insightful. Thank you.

The Christian Progressive Liberal said...

James Dobson and his ilk gives Christians a bad name. Kudos on your observance and a prop from Josh Marshall on your first time out! I've blogged for five months before I got a "Recommended Diary" on DKos. Keep up the good work.

cal said...

Absolutely superb post.

Modern, you are on my daily list in addition to Buzzflash, TPM, Atrios, Kos, Digby and Altercation

Joe said...

Not bad indeed for a three day-old blog. Excellent point about Specter and the filibuster controversy.

elyria said...

Maybe Specter is preparing for Durbin's comment on PBS Lehrer Report that the Dems response to the nuclear option would be a Senate where Senators are in their seats, where unanimous consent is abolished...

Great blog, Modern. Thank you TPM.

Anonymous said...

Fine catch, Modern. Got to it a couple of days late, but I'm sure glad you're on my radar now. Obviously the public schools are doing some excellent work these days.