Filibusters!

[Rían]

The Republicans are apparently trying to change Senate procedural rules (which is not a big deal - they're just procedural rules) to break the Democratic filibusters against Pres. Bush's judicial nominees, so that the Senate can give every nominee an up-or-down confirmation vote, as they should be able to. The problem is that judicial nominees should receive an up-or-down vote, and a simple majority will OK them. However, filibusters require a 60-vote bloc to kill them off, so senators can read the phone book week after week and call it "debate" and force a vote to NOT be taken.

Here's an article about it. I've bolded some of the sections that I find to be more relevant. There's some posturing by both sides, but let's look at the actual data.

From an article by Citizen magazine:

In a letter to Majority Leader Bill Frist, Minority Leader
Harry Reid indicated his party would refuse to act on most
legislation if the GOP reinstated the 51-vote threshold
for approving judicial nominees.

"We will be reluctant to enter into any consent agreement
that facilitates Senate activities, even on routine
matters," Reid, D-Nev., wrote. He added that exceptions
would be made for national security matters and "critical
government services."

Reid's comments are meant to protest what Democrats have
characterized as a power grab by Republicans, who have
indicated they are willing to change Senate rules to
ensure that Democrat-led filibusters against President
Bush's judicial nominees can be broken and every nominee
can receive an up-or-down confirmation vote.

But conservative activists, joined by some of the nation's
top constitutional law experts, say it's the Democrats who
have wrongly seized hold of power -- and the Founding
Fathers never intended for a handful of senators to be
able to hold nominees hostage.

Focus on the Family Action Vice President of Government
and Public Policy Tom Minnery took Reid to task.

"Today we have witnessed an unbelievable act of arrogance
by Senate Democrats," Minnery said. "By threatening to
effectively shut down the Senate, they have displayed the
true depth of their intolerant and vehement opposition to
judges who would strictly interpret and apply the
Constitution. Sen. Reid and his colleagues have themselves
argued in the past that all nominees deserve an up-or-down
vote -- that is, until it served their agenda to change
their tune."

What's more, one of America's foremost constitutional law
experts, Pepperdine University Law Professor Douglas
Kmiec, said the picture Democrats are painting of what the
media call the "nuclear option" is anything but accurate.

"The 'nuclear option' is not at all nuclear, but
constitutional," Kmiec told CitizenLink. "The 'nuclear
option' is merely the Senate of the United States acting
appropriately with regard to their 'advice and consent'
function."

Kmiec said Alexander Hamilton and the Federalist Papers
anticipated that the full Senate would pass presidential
nominations on to the executive and judicial branches.

"He did not anticipate," Kmiec said, "that these matters
would be handled in committee, or that they would simply
be precluded from taking a vote on the floor, even though
a majority of senators have time and time again indicated
support for these nominations."

The problem, the professor added, is that there is a set
of Senate rules that have been imposed on the Senate down
through the years that "a good portion of the Senate" has
never voted on.

"These Senate rules require a supermajority -- 60 votes --
to close debate," Kmiec said. "They require 67 votes to
change the rules, and members of the Senate have never had
an opportunity to approve these."

Kmiec said it is as if a prior Senate had said something
like, "No Democratic legislation can ever be repealed,
unless there's a unanimous vote."

"Obviously, that would be absurd," he said. "And carryover
rules like the rules that allow these judicial nominations
to be filibustered are equally constitutionally
problematic, if not outright unconstitutional. So, there's
nothing nuclear about the option."

That won't stop Sen. Robert Byrd, D-W.V., from leading a
rally and "national call-in day" Wednesday in Washington,
D.C., organized by the staff of the left-wing political
Web site MoveOn.org. The event's purpose is to demand that
Americans "stand up to Bush's plan to stack the courts" --
as the rally's promotional material puts it.

Speaking last week on the Senate floor, Byrd compared
Republican efforts to reinstate confirmation rules to a
Nazi takeover, declaring: "We, unlike Nazi Germany or
Mussolini's Italy, have never stopped being a nation of
laws, not of men."

Kmiec dismissed the allegation that Bush is attempting to
stack the courts.

"Let's have that debate," he said. "If, in fact, the
minority in the Senate (Democrats) can convince a majority
of their members that President Bush's nominees are
outside of the legal mainstream, that they are
intemperate, that they are incapable of applying the law
in a fair and even-handed manner -- that would be a debate
well-worth having. The problem is, they aren't willing to
have that debate.

"In fact," he added, "if anyone is trying to 'stack' the
court, it's the effort of the Senate minority, who's
consistently using political outcomes and ideology to keep
fair-minded men and women from being nominated and
appointed to the court."

[Rían]

and another article:

SUMMARY: The blockade of President Bush's judicial
nominations is illegal -- and the Democrats know it.

The way liberal senators like Robert Byrd and Ted Kennedy
have talked of late, you'd think the Constitution
guaranteed them the right to twist Senate rules to block
President Bush's judicial nominees.

The reality, though, is that no article, section,
amendment -- or stray sentence -- in our nation's founding
document authorizes the Senate's Democratic minority to
abuse filibusters as they have for the past four years: as
a means of keeping those with whom they disagree
ideologically from serving on the federal bench.

Byrd, Kennedy & Co. know this, of course, despite their
furrowed-brow pontificating in recent weeks about how
democracy itself would be threatened if their Republican
colleagues opt to change the Senate's rules regarding
filibusters. How do we know they know it? Because they
said so, back before it served their agenda to pretend
there was something sacrosanct about exploiting
parliamentary procedure to prevent full chamber votes on
-- and certain confirmation of -- the nominations of 10
social conservatives bound for federal appeals courts.

"I have stated this over and over again on this floor . .
. that I would object and fight against any filibuster on
a judge, whether it was somebody I opposed or supported,"
Vermont Democrat Patrick Leahy said in 1998. "If we don't
like somebody the president nominates, vote him or her
down. But don't hold them in this anonymous unconscionable
limbo, because in doing that, the minority of senators
really shame all senators."

Others now leading the filibuster charge have said similar
things, whether it's Illinois' Richard Durbin noting in
1997 that holding up judicial nominations "does a great
disservice to this country," or California's Dianne
Feinstein acknowledging in 1999 that allowing an
up-or-down vote on a nominee "is the honest thing to do."

It is also the constitutional thing to do. The legal
requirement for confirming judges is a simple majority
vote (51 of 100 senators), not a supermajority vote (60,
the number currently required to end a filibuster). Prior
to 2001, in fact, every judicial nominee who was supported
by a simple majority of senators was confirmed, including
10 who received fewer than 60 votes.

It is for this reason that Republican leadership is
contemplating restoring the threshold for ending a
filibuster on judicial nominees to 51 votes. Big media --
dutifully fulfilling its role as the political left's No.
1 ally -- has dubbed such action the "nuclear option," but
there is nothing "nuclear" about it. Our founding fathers
didn't employ filibusters at all, and there are at least
26 laws on the books today limiting their use in certain
situations, such as during consideration of a federal
budget resolution or an international trade agreement.

More to the point, though, a majority of senators has
always had the constitutional authority, under Article I,
to establish the standing rules of the Senate. In fact,
Sen. Byrd, widely hailed as the chamber's fount of all
knowledge on procedures and traditions, led the charge to
establish new Senate precedents in 1977, 1979, 1980 and
1987 -- including many designed specifically to stop
filibusters and other minority-party stall tactics.

Even Sen. Kennedy seemed to realize all of this -- back in
1975.

"The filibuster rule is not enshrined in the
Constitution," he noted then. "Instead, it is a rule that
was made by the Senate, and it is a rule that can be
unmade by the Senate."

It is a rule that should be unmade by the Senate. The GOP
majority has put up with far too much obstruction, for far
too long; the time is now, before a vacancy opens up on
the Supreme Court, to stop these purveyors of liberalism
-- increasingly rebuffed at the ballot box -- from
hijacking the rule of law to impose their agenda on our
nation the only way they still can: through judicial fiat.

As New York Democrat Charles Schumer has so eloquently
noted:

"This delay makes a mockery of the Constitution, makes a
mockery of the fact that we are here working, and makes a
mockery of the lives of very sincere people who have put
themselves forward to be judges -- and then they hang out
there in limbo."

[Insidious Rex]

Yes the old Nuclear Option. The republicans are asking for serious trouble now. I guess all that mumbling about a one party state was true. 214 nominies and 10 extreme right wing nominies were blocked by the democrats (thank god!) and suddenly we need to scrap the age old rules of the congress? Pretty sad in my opinion. Why not just get it over with and declare marshall law already. If its not about following the democratic rules of the land then why pretend. Why not just have Bush impose whatever decree he wants on us without recourse. If getting these extremists into the courts is important enough to you to stop the vast majority of business within the congress then dont say I didnt warn you. Did the democrats ever actually change the rules so that they could get everything their way and impose things on the american people when they held the house and senate for decades? I dont recall. Correct me if Im wrong.

[Rían]

What about the quotes from Democrats opposing filibusters for judicial nominees?

How is Bush imposing his views on us? Did Bush somehow engineer all those Republican senators getting put into office? We're talking about senators, who were voted into office by the people of the USA, being free to vote according to the Constitution.

We're not scrapping "age-old" rules in Congress - they've been changed before, and by Democrats!

The article notes Sen. Byrd's changes to procedures, so yes, it appears you're wrong.

What do you think about the idea of filibusters - I"m not talking real, honest debate, I'm talking reading the phonebook to block a legal vote as outlined in the Constitution.

[Rían]

Originally Posted by Insidious Rex

If getting these extremists into the courts ...

See, the problem is that judges that YOU like, I would consider "extremists" So I think the senators should be able to vote, as the Constitution specifies. Reading phone books and calling it "debate" in order to block a fair vote is just WRONG, IMHO - don't you agree?

[Insidious Rex]

Originally Posted by RÃ*an

[b]How is Bush imposing his views on us? Did Bush somehow engineer all those Republican senators getting put into office?

Last time I checked they were Bush's nominations are they not?

We're not scrapping "age-old" rules in Congress - they've been changed before, and by Democrats!

The article notes Sen. Byrd's changes to procedures, so yes, it appears you're wrong.

when did Bryd or any other democrat insist on enacting the nuclear option to destroy filibustering? When did they insist on changes so draconian as to parallel what the republicans want to do now? Most of the mysterious rule changes you alude to above were partial tweaking of house standards that had been tweaked before NOT an all out nuclear bomb dropping that would essentially dismantle the filibuster in whole form as a tool of USEFUL and PURPOSEFUL legislating.

The filibuster is a time-honored Senate procedure that prevents a bare majority of senators from “running roughshod� as a well known republican once put it. It was PURPOSEFULLY put in place as a check in our grand system of checks and balances. Controversial legislation or apointments were never supposed to be rammed through without a whimper of protest. There was supposed to be DELIBERATE and SUBSTANTIAL interaction and compromise between the varying points of view in congress. And you want to talk about hypocrisy. Have a look at your OWN party I say. Republican leaders are suddenly claiming that judicial nominees are entitled to an up or down vote now that they are in power. When the democrats were in power republicans filibustered Clinton's choice for surgeon general and forced him to choose another. And your beloved Bill Frist, the CURRENT Senate majority leader, who now finds judicial filibusters so offensive, once lead one against Richard Paez who was a Clinton appeals court nominee. So spare us this OH THOSE DIRTY DEMOCRATS talk. Politicians will be politicians no matter what party they come from. Its just the republicans have decided that they are going to do what they want without following the normal rules of the game anymore. And once again they call themselves moral…

Do this and good bye to unanimous consent in congress. Do you know what kind of effect that would have? MOST things are passed unanimously and quietly and account for the 98% of the daily work of the congress. Its how things get done on the hill and in this country. But because the republicans want to have their cake and eat it too they are willing to risk bogging down EVERY procedure, EVERY vote that comes along. All because they want to ram down the throat of the democrats 10 out of 214 nominees so extreme that even many republicans are leery of risking civility in congress to force these people in:

William Myers is a former lobbyist for the mining and ranching industries. He is an anti-environmental extremist of the highest order and one who OTHER MAINSTREAM judges have described as “lacking the evenhandedness necessary to be a federal judge.�

Janice Rogers Brown has called the New Deal a “socialist revolution that should be rolled back completely�. She has a clear record of hostility to fundamental civil and constitutional rights. She is also the dream judge for the Enron sect. She has consistently sought to expand the freedom of corporations to make false or misleading statements without any effective legal mechanism for holding them accountable. And you think this person shouldn’t be blocked from the federal courts at all costs? she would be an unmitigated disaster.

And anyway do you really want to take such drastic and unprecedented steps when it could come back to work AGAINST you in just two or four or six or eight etc… years? Do you really think your party will hold the majority for ever? Seems rather short sighted to say the least if you ask me….

Thank god a few level headed republicans not bent on destroying the US congress just to one up the democrats are wavering about actually voting for this nuclear option. Without them they wouldn’t have the votes to do it and it would go down to defeat.

[Count Comfect]

It should be noted that the reason so many judicial slots are open is that Republicans threatened the same action on President Clinton's nominees. Also, that the record for the longest filibuster in the history of the Senate is held by one Strom Thurmond, who reportedly forced the Senate to allow him to go to the bathroom and still continue his filibuster because he'd have urinated on the Senate floor otherwise. So, it's a grand old bipartisan tradition.

And I don't believe THIS rule has been changed in a long time: it isn't like other Senate procedural rules that are tinkered with occasionally. Filibuster is a time-honored process. And it is clearly in line with the Federalist Papers - the whole concept of avoiding the tyranny of the majority.

Now this is not to say that every single Bush nominee should BE filibustered. But the nuclear option is justly named. It's a radical, extreme change to a very old rule just because it happens to be inconvenient in one case.

P.S. There is no "legal requirement for approving judges" other than whatever procedural rules are in place. The Constitution calls for "advice and consent," which is never defined as a 51-vote, 60-vote, 100-vote or any other majority. It's just happens that filibusters have been set at 3/5 of the chamber for a long time, and that that is a larger hump than a vote on a bill(1/2 + 1 vote) or, say, a motion to hear testimony (1/3 of the chamber).
The motion is technically called "closure," and it required 3/5 to pass. Which is generous, since in committee in the Senate the equivalent motion takes 2/3. So, it isn't like there is some age-old 51-vote structure that would be reinstated: it would be a major change.

EDIT: Motion, not movement, is the correct term. Gah.

[Rían]

Originally Posted by Insidious Rex

Last time I checked they were Bush's nominations are they not?

Um, yes, like when Clinton was in office, he nominated people!

IRex, my point is that Bush can nominate all he WANTS; but these judges have to be APPROVED by the Senate, and the senators are voted in by the PEOPLE.

And anyway do you really want to take such drastic and unprecedented steps when it could come back to work AGAINST you in just two or four or six or eight etc… years? Do you really think your party will hold the majority for ever? Seems rather short sighted to say the least if you ask me….

No, it's not short-sighted, it's fair. I don't care WHO is in power, I think there should be a reasonable limit on filibustering.

[The Gaffer]

This administration seems to be setting new heights for unashamed irony. I particularly liked Bush's recent comment to Syria about how you can't hold free and fair elections in an occupied country (meaning Lebanon)!

They basically vetoed everything for the last 6 years Clinton was in power. As CC said, using the self same tactics.

Checks and balances matter.

[Insidious Rex]

Originally Posted by RÃ*an

No, it's not short-sighted, it's fair. I don't care WHO is in power, I think there should be a reasonable limit on filibustering.

Well where were you when the republicans were doing it for the decades of democratic majority? Now that its the only stop gap the democrats have to keeping the republicans from putting truly scary people into courts you suddenly start jumping up and down and protesting?

[Rían]

I wasn't on Entmoot, so you didn't hear me object to them Now give me a nice Moothug, please

And IMO, the truly scary people are the ones that Democrats often nominate

What exactly was truly scary about, for example, that Latin guy - was it Estrada?

[Count Comfect]

Estrada's main problem was that he had no judicial experience but was being nominated to a very high federal court without a track record, and that his associates seemed to doubt whether he could separate his personal beliefs and the law (which judges often have to do).

[Insidious Rex]

"that latin guy"

[Rían]

where's that hug, buster?

(what, was he not Latin? Didn't you know who I was talking about right away?)

[Insidious Rex]

You dont want a hug from me. I stink of green beer and pizza....

[Rían]

"what's green pizza, preciousss? Is it tasty? Is it scrumptious?"

[Insidious Rex]

Like green eggs and ham but different.

[IronParrot]

I adjudicated one round in a national debating championship this weekend where this was the issue at hand. Part of it hinged on whether or not 40% constituted a reasonable minority given that in what is effectively a two-party state, a simple majority is almost too easy to come by.

Then they realized that senators actually get free votes in the U.S., unlike officials in both houses in the Canadian Parliament where there's a lot of rubber-stamping by party lines. I'm not very informed in this respect, so how often and to what extent does such dissension within a party happen? Have a significant number of Republican senators ever rejected a Bush appointment, or come close to it?

The real issue, then, is whether or not filibusters actually contribute to reaching a consensual agreement on better legislation (or in this case, better appointments). As a stalling tactic in their purest form, they don't. I do think, nevertheless, that in some cases the extension of debate is necessary - so long as it leads to an actual extension of debate.

In this case, I think both parties are exploiting procedural loopholes to play dirty, or the elimination thereof to confer an advantage. Some things have to be solved through responsible leadership and not convoluted rules. It's subjective and unenforceable, but in a democracy the citizens should at least get that much respect.

The far more significant problem is that in the United States, I see both parties trying to fight a proxy war by using the courts as an instrument of ideology - basically, favouring or disfavouring judges because of where their bias swings and not on the grounds of their ability to be impartial. This is unacceptable.

[Rían]

Originally Posted by IronParrot

The real issue, then, is whether or not filibusters actually contribute to reaching a consensual agreement on better legislation (or in this case, better appointments). As a stalling tactic in their purest form, they don't. I do think, nevertheless, that in some cases the extension of debate is necessary - so long as it leads to an actual extension of debate.

That's the real issue to me. When senators read phone books or something along those lines to prevent a legal vote, that's NOT debate, IMHO. Then the session finally ends and the thing never gets voted on.

In this case, I think both parties are exploiting procedural loopholes to play dirty, or the elimination thereof to confer an advantage. Some things have to be solved through responsible leadership and not convoluted rules. It's subjective and unenforceable, but in a democracy the citizens should at least get that much respect.

I agree.

The far more significant problem is that in the United States, I see both parties trying to fight a proxy war by using the courts as an instrument of ideology - basically, favouring or disfavouring judges because of where their bias swings and not on the grounds of their ability to be impartial. This is unacceptable.

I agree. With Estrada, I think his hearing lasted over 2 YEARS, IIRC. Two YEARS of his life. And he was getting asked by the Democrats HOW he would rule on certain issues, like abortion! He would reply, it depends upon the validity of the individual case. IMO, that is the CORRECT answer. Yet the Dems said that they couldn't confirm him because they had no assurance he would uphold the current legal right to abortion. Yet why do they not complain when the Supreme Court justices overturn a current legal right? They do this all the time - it's their job to determine if it's constitutional or not.

A ruling should be made on MERIT! and NOT what the issue is.

[Insidious Rex]

Thought this was somewhat timely:

Ecuador Police Fire Tear Gas on Congress

Wed Mar 23,10:36 AM ET

By GONZALO SOLANO, Associated Press Writer

QUITO, Ecuador - Police fired tear gas into Ecuador's Congress before dawn Wednesday to disperse opposition lawmakers who refused to leave after a legislative session that cut short a debate on candidates for attorney general.

Congressman Omar Quintana, president of the legislature, ordered the electricity cut off to disrupt a sit-in by about 40 lawmakers, then authorized police to move in at about 2 a.m. to force the 15 remaining legislators to abandon the building.

Ecuadorean TV broadcast images of two policemen firing tear gas into the darkened chamber and lawmakers rushing out through a side door. There were no injuries or arrests.

Quintana abruptly ended the legislative session late Tuesday just as the opposition appeared on the verge of mustering enough votes to block a government-backed candidate from consideration for attorney general.

The confrontation followed a surprise decree by President Lucio Gutierrez's government declaring an extended Easter holiday. But Gutierrez revoked the decree after mayors in Ecuador's principal cities responded with a call on the population to wage "civil disobedience" to protest the move.

The government decree said Wednesday and Thursday would be added to the traditional Good Friday public holiday to boost tourism, but opponents said the measure was designed to downshift the nation into holiday mode and pull attention away from political conflict.

Gutierrez and a government aligned majority bloc in Congress have faced a broad political backlash since December, when pro-government lawmakers replaced 27 of Ecuador's 31 Supreme Court judges in a simple majority vote that violated the nation's constitution.

The judges were replaced with magistrates mostly affiliated with the populist, pro-Gutierrez Roldosista and PRIAN parties.

See what can happen when you start ignoring rules to ram through judges with simple majority votes? Lets hope the Tear Gas Option isn’t something the republicans have mulled over as well…