Judges and filibusters
As you may or may not be aware, several of Bush's nominees on the Circuit Court level are being filibustered by the Democrats in the Senate. Several more have been delayed by other measures, but I'll focus on the filibustering for the moment.
Quick civics lesson for those who might be rusty: The Senate has 100 members (two for each state). Normally, a simple majority of those voting is all that is required to pass a bill, confirm a nominee, pass a resolution, pass an amendment to a bill, and the like. However, the Senate is allegedly a deliberative body, and, to that end, requires a three-fifths vote to break off debate and force a vote when some senator (or some group of them) essentially doesn't want to shut up and allow a vote (most senators don't want to shut their mouths, but they usually at least allow votes). That would be a filibuster; it once was the case that if you wanted to filibuster something, you'd actually have to talk the time away. This led to senators reading the phone book from the floor of the Senate and other shenanigans. However, in more recent times, the minority alerts the powers that be that they intend to filibuster, a vote is taken, and if a three-fifths majority is not attained, then they just put the issue aside.
There are two things I want to address here -- the filibuster of judicial nominees itself, and the Republican tactics opposing the filibusters.
As for the filibuster itself, I would say that it is unconstitutional. It creates the de-facto need for a supermajority to confirm judges. However, the Constitution explicitly states the requirement for a supermajority where it calls for one. Creating the need for a supermajority increases the power of the Senate to act as a check on the President's nominees.
Even putting all of that aside, claims by democrats that a rules change to remove the filibuster from judicial nominees would be unconstitutional are laughable at best. The Constitution says "Each House may determine the Rules of its Proceedings" (Article I, Section 5, Clause 2). The filibuster did not exist at all in the earliest Congresses, and has been changed several times over the years. There are already 26 laws that curtail the filibuster (it can't be used on resolutions for the budget, those for use of force, or international trade agreements, for example). In 1995, 19 democrats wanted to end all filibusters (which includes Sens. Harkin, Lieberman, Kennedy, and Kerry -- some of those making the most noise against ending it now).
Furthermore, this filibustering of appeals court nominees is unprecedented. Some point to the nomination of Abe Fortas to Chief Justice (as I recall) and say that it was filibustered, but a) that's in dispute; and b) he didn't have majority support -- if it went to a vote, he would have been rejected. All of Bush's nominees have majority support. I believe Ben Nelson (D-Nebraska) is willing to vote for all of them, too, and a few other dems have expressed a willingness to consider some of the nominees (John Breaux and Zell Miller were democratic supporters of Bush's nominees in the previous two Congresses, but neither sought reelection in 2004).
Some state that the rate of approval for Bush's nominees is similar to that of his predecessors. This distorts the scenario. When you look at just Circuit Court nominees, the rate of approval for Bush's nominees is abysmal is comparison. Professor Bainbridge has a nice graphic that was in the Economist, and Daily Thoughts takes a deeper look at the numbers (the data for the graphic from the former link are in the latter link, but, well, graphics are nice).
Now, as to Republican tactics:
Quick civics lesson for those who might be rusty: The Senate has 100 members (two for each state). Normally, a simple majority of those voting is all that is required to pass a bill, confirm a nominee, pass a resolution, pass an amendment to a bill, and the like. However, the Senate is allegedly a deliberative body, and, to that end, requires a three-fifths vote to break off debate and force a vote when some senator (or some group of them) essentially doesn't want to shut up and allow a vote (most senators don't want to shut their mouths, but they usually at least allow votes). That would be a filibuster; it once was the case that if you wanted to filibuster something, you'd actually have to talk the time away. This led to senators reading the phone book from the floor of the Senate and other shenanigans. However, in more recent times, the minority alerts the powers that be that they intend to filibuster, a vote is taken, and if a three-fifths majority is not attained, then they just put the issue aside.
There are two things I want to address here -- the filibuster of judicial nominees itself, and the Republican tactics opposing the filibusters.
As for the filibuster itself, I would say that it is unconstitutional. It creates the de-facto need for a supermajority to confirm judges. However, the Constitution explicitly states the requirement for a supermajority where it calls for one. Creating the need for a supermajority increases the power of the Senate to act as a check on the President's nominees.
Even putting all of that aside, claims by democrats that a rules change to remove the filibuster from judicial nominees would be unconstitutional are laughable at best. The Constitution says "Each House may determine the Rules of its Proceedings" (Article I, Section 5, Clause 2). The filibuster did not exist at all in the earliest Congresses, and has been changed several times over the years. There are already 26 laws that curtail the filibuster (it can't be used on resolutions for the budget, those for use of force, or international trade agreements, for example). In 1995, 19 democrats wanted to end all filibusters (which includes Sens. Harkin, Lieberman, Kennedy, and Kerry -- some of those making the most noise against ending it now).
Furthermore, this filibustering of appeals court nominees is unprecedented. Some point to the nomination of Abe Fortas to Chief Justice (as I recall) and say that it was filibustered, but a) that's in dispute; and b) he didn't have majority support -- if it went to a vote, he would have been rejected. All of Bush's nominees have majority support. I believe Ben Nelson (D-Nebraska) is willing to vote for all of them, too, and a few other dems have expressed a willingness to consider some of the nominees (John Breaux and Zell Miller were democratic supporters of Bush's nominees in the previous two Congresses, but neither sought reelection in 2004).
Some state that the rate of approval for Bush's nominees is similar to that of his predecessors. This distorts the scenario. When you look at just Circuit Court nominees, the rate of approval for Bush's nominees is abysmal is comparison. Professor Bainbridge has a nice graphic that was in the Economist, and Daily Thoughts takes a deeper look at the numbers (the data for the graphic from the former link are in the latter link, but, well, graphics are nice).
Now, as to Republican tactics:
- I think that they're fully justified in changing the rules to prevent filibusters and should do so. It sounds as though not all Republicans are on board at the moment, though. It looked like they did have the numbers to do it, but a couple of them got skittish. If any of you want to contact your Senator if he might be skittish, it would be a good idea -- offhand, I'd say McCain for Arizona, Hagel for Nebraska, Snowe and Collins for Maine, Voinovich for Ohio, Chafee for Rhode Island, possibly Specter for Pennsylvania (although, by other comments he's made, it sounds like he'd be on board; I'm just throwing his name out here) ... there are a couple more, I can't think of who at the moment.
- They should have been forcing genuine filibusters. This modern filibuster is just a cheap tactic to thwart the will of the majority. A classic filibuster would require effort on the part of those filibustering, plus provide some nice footage of senators reading from the phone book on the Senate floor and similar things. Once that started happening, I think more Americans would start getting fed up, and enough democrats in the Senate would grow skittish that it would end the filibusters. Bad move by Bill Frist here.
- When they tried to draw attention to the filibuster, they did it in a really cheap way. They basically had a 24-hour (straight) debate session; bringing cots into the Senate was enough to get some tv time, but it looked gimmicky and most people didn't give it much of a thought. It probably came off as much Republican showboating as anything else. Again, you gotta wonder what Bill Frist was thinking.
- There are rumors of a partial deal in the works whereby the democrats withdraw their filibusters of two nominees (from Michigan) for the Sixth Circuit in return for Bush nominating someone the two senators from Michigan (both Democrats) want on that court. Sounds like a bad deal to me; the president shouldn't be bargaining away his nomination power to the Senate.
- Bill Frist wants to run for president in 2008, according to the rumors. He's not going to get very far the way he's handled this issue.
Well, that just about wraps it up. I could start going into defences for each of the individual nominees, but this post is already long enough.
posted by DC | 1:31 AM
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