OVER 100 COMMENTARIES ON THE IMPORTANCE



OVER 100 COMMENTARIES ON THE IMPORTANCE

OF MAINTAINING SENATE RULES

THAT PERMIT FILIBUSTERS OF JUDICIAL NOMINEES

TABLE OF CONTENTS

Click on links to go to a column or op-ed, then click on “Back to Top”

Thomas Mann, Roll Call, (Jun. 27, 2006)

E. J. Dionne Jr., Washington Post

(Mar. 22, 2005)

Michael Hammond, The Union Leader [Manchester, NH] (Mar. 21, 2005)

Judd Legum and Christy Harvey, The Nation (Mar. 21, 2005)

Marianne Means, The Day [CT] (Mar. 20, 2005)

George Will, Washington Post (Mar. 20, 2005)

Dawn Miller, Charlotte Gazette [WV] (Mar. 19, 2005)

Stuart Rothenberg, Roll Call [DC] (Mar. 17, 2005)

Bruce Ackerman, The Philadelphia Inquirer (Mar. 16, 2005)

Jim McClure and Malcolm Wallop, The Wall Street Journal (Mar. 15, 2005)

Judd Legum and Christy Harvey, The San Diego Union- Tribune (Mar. 11, 2005)

John W. Leek, The Mississippi Press

(Mar. 11, 2005)

Nicholas F. Benton, The Falls-Church [VA] News-Press (Mar. 10, 2005)

John Hanchette, Niagara Falls Reporter [NY] (Mar. 8, 2005)

Molly Ivins, Creators Syndicate (Mar. 8, 2005)

John Heilemann, New York Magazine (Mar. 7, 2005)

Herman Schwartz, Legal Times (Mar. 7, 2005)

DeWayne Wickham, USA Today (Mar. 7, 2005)

Sarah Binder and Steven Smith, St. Louis Post-Dispatch (Mar. 6, 2005)

Marianne Means, Charlotte Observer (Mar. 6, 2005)

Jim Puzzanghera, San Jose Mercury News (Mar. 6, 2005)

Robert Byrd, Washington Post (Mar. 4, 2005)

Cokie and Steven Roberts, Decatur [IN] Daily Democrat (Mar. 4, 2005)

Jules Whitover, Baltimore Sun (Mar. 4, 2005)

Will Nevin, GW Hatchet [DC] (Mar. 3, 2005)

Kam Williams, the Jacksonville Advocate [FL] (Mar. 3, 2005)

Garrett Epps, The Nation (Mar. 2, 2005)

Butch Mazzuca, Vail Daily [CO] (Mar. 2. 2005)

Dick Morris, The Hill (Mar. 2, 2005)

Katrina Van Heuvel, The Nation, (Mar. 2, 2005)

Clovis News Journal [NM] (Feb. 28, 2005)

Sarakay Smullens, Philadelphia Daily News (Feb. 09, 2005)

Lawrence R. Butler, The Hill (Feb. 8, 2005)

Jean Johnson Indian Country Today [NY] (Feb. 07, 2005)

Jane Wallace Claymore, The Charleston Gazette [WV] (Feb. 01, 2005)

Kevin Drum, The Washington Post

(Jan. 31, 2005)

Sen. Patrick Leahy (D-Vt.), The Hill

(Jan. 26, 2005)

Glenn Scherer, Grist Magazine: Environmental News & Commentary

(Jan. 20, 2005)

Robyn E. Blumner, St. Petersburg [FL] Times (Jan. 16, 2005)

Ryan Sager, Tech Central Station [OH] (Jan. 12, 2005) 

Douglas Waller, Time Magazine (Jan. 10, 2005)

Carl Tobias, The Roanoke [VA] Times (Jan. 09, 2005)

Senate Floor statement of Sen. Richard Durbin (D-IL) Congressional Record, Jan. 6, 2005

George E. Curry, The Sacramento [CA] Observer (Jan. 6, 2005)

Nick Huggler, The Daily Barometer [Oregon State University: Corvallis]

(Jan. 6, 2005)

Steve Horowitz, Political Gateway

(Jan. 5, 2005)

Carl Tobias, The National Law Journal (Jan. 3, 2005)

Tom Teepen, Grand Forks Herald

(Jan. 3, 2005)

John W. Dean, FindLaw (Dec. 31, 2004)

Dick Morris, News-Press [Fort Myers, FL] (Dec. 30, 2004)

Tom Teepen, Palm Beach Post (Dec. 30, 2004)

Interview with Senator-Elect Ken Salazar on CBS’ Face the Nation (Dec. 26, 2004)

Letter to the editor, The Canyon News (So. Cal.), (Dec. 26, 2004)

Arianna Huffington, AlterNet (Dec. 22, 2004)

Paul McLeary, New York Press (Dec. 21, 2004)

Stuart Taylor Jr., Legal Times

(Dec. 20, 2004)

Paul Barton, The Arkansas Democrat Gazette (Dec. 19, 2004)

Norman Ornstein, Roll Call (Dec. 13, 2004)

Alan Bisbort, Hartford [CT] Advocate (Dec. 9, 2004)

George Will, Newsweek (Dec. 6, 2004)

Michael Gerhardt & Erwin Chemerinsky, Los Angeles Times (Dec. 5, 2004)

Paul Rolly, Salt Lake Tribune (Dec. 4, 2004)

Michael King, The Austin Chronicle (Dec. 3, 2004)

Carl P. Leubsdorf, The Dallas Morning News (Dec. 1, 2004)

Lionel Van Deerlin, San Diego Union Tribune (Dec. 1, 2004)

Dan K. Thomasson, Modesto Bee [CA] (Nov. 29, 2004)

Carol Towarnicky, Knight Rider Newspapers (Nov. 29, 2004)

John W. Dean, Findlaw (Nov. 19, 2004)

Norman J. Ornstein, Roll Call (Nov. 17, 2004)

Dick Morris, The Hill (Nov. 17, 2004)

John Nichols, The Capital Times (Madison, Wisconsin) (Nov. 16, 2004)

John Nichols, The Nation (Nov. 15, 2004)

Michael Kinsley, The Washington Post, Los Angeles Times, and Baltimore Sun (Nov. 14, 2004)

George E. Curry, The Seattle Medium (Sept. 1, 2004)

Professor Elliot Slotnick, Jurist, Symposium (April 15, 2004)

Sheldon Goldman, Jurist, Symposium (April 15, 2004)

Professor Michael J. Gerhardt, Jurist Online Symposium (April 15, 2004)

Jack M. Balkin, Jurist Online Symposium (April 15, 2004)

Waldo Proffitt, Sarasota [FL] Herald-Tribune (April 11, 2004)

Juan Non-Volokh, The Volokh Conspiracy Blog (March 24, 2004)

Mary Lynn F. Jones, The American Prospect (Feb. 23, 2004)

Mike McNair, Buckeye Review [OH] (Dec. 1, 2003)

Tom Teepen,

(Nov. 20, 2003)

Mary Lynn F. Jones, The American Prospect (Nov. 19, 2003)

Daryl Lease, Sarasota [FL] Herald-Tribune (Nov. 17, 2003)

Eleanor Clift, (Nov. 14, 2003)

Alfred P. Doblin, The Herald News [NJ] (Nov. 14, 2003)

John W. Dean, (Nov. 13, 2003)

Cheri Delbrocco, The Memphis Flyer (Nov. 13, 2003)

Michael Crowley, The New Republic Online (Nov. 13, 2003)

O. Ricardo Pimentel, The Arizona Republic (Sept. 14, 2003)

Marianne Means, The Houston Chronicle (Sept. 12, 2003

Alfred Doblin, The Herald News [NJ] (Sept. 8, 2003)

Darren Allen, Rutland Herald [VT] (Aug. 9, 2003)

Hank Kalet, South Brunswick Post and The Cranbury Press [NJ] (Aug. 7, 2003)

Richard Condon, Seattle Post-Intelligencer (Aug. 7, 2003)

Matthew Rothschild, The Progressive (July 11, 2003)

James Heflin, The Valley Advocate [MA] (July 10, 2003)

Lawrence Hunter, The Washington Times (June 22, 2003)

Judith Resnik, The New York Times (June 11, 2003)

Albert R. Hunt, The Wall Street Journal (June 5, 2003)

Jack Newfield, The Nation (June 2, 2003)

Mark Engler, (May 28, 2003)

Adam Cohen, The New York Times (May 27, 2003)

Stuart Taylor Jr., Legal Times and National Journal (May 27, 2003)

Maya Valverde, The Olympian (May 27, 2003)

John W. Dean, Findlaw (May 23, 2003)

Steve Chapman, The Chicago Tribune (May 22, 2003)

Peter Beinart, The New Republic (May 22, 2003)

Norman J. Ornstein, Roll Call (May 21, 2003)

Harry Austin, The Chattanooga Times Free Press (May 20, 2003)

Robert W. Bennett, The Chicago Tribune (May 20, 2003)

Susanna Farber, Mustang Daily (May 20, 2003)

Eleanor Clift, Newsweek (May 19, 2003)

Jon Delano, The Pittsburgh Business Times (May 16, 2003)

Lee Davidson, Deseret Morning News [UT] (May 14, 2003)

Ellen Goodman, Boston Globe (May 14, 2003)

Joel Connelly, Seattle Post-Intelligencer (May 14, 2003)

Norman Ornstein, The New York Times (May 14, 2003)

Joe Conason, (May 9, 2003)

E.J. Dionne Jr., Washington Post (May 9, 2003)

Eleanor Clift , Newsweek (May 9, 2003)

Hank Kalet , South Brunswick Post [NJ] (May 9, 2003)

Tom Teepen, The Spokesman-Review (Spokane) (May 5, 2003)

Herman Schwartz , Insight Magazine (April 15, 2003)

Michael Crowley, The New Republic (April 2, 2003)

Mary Lynn F. Jones, The American Prospect (Mar. 17, 2003)

Waldo Proffitt, Herald-Tribune [FL] (Mar. 16, 2003)

Cragg Hines, Houston Chronicle (Mar. 7, 2003)

Tisha R. Tallman & Charles T. Lester Jr., The Atlanta Journal-Constitution (Mar. 6, 2003)

Edward Lazarus, Findlaw (Mar. 6, 2003)

Kevin R. Johnson, Findlaw (Feb. 27, 2003)

Bruce Ackerman, Los Angeles Times (Feb. 27, 2003)

Ernesto Portillo Jr., The Arizona Daily Star (Feb. 27, 2003)

Dolores Huerta, Oregonian (Feb. 24, 2003)

Jay Bookman, Atlanta Journal-Constitution (Feb. 24, 2003)

E. J. Dionne Jr., Washington Post (Feb. 21, 2003)

Judy Ettenhofer, Capital Times (Feb. 10, 2003)

Joanne Mariner, Findlaw (Nov. 25, 2002)

Erwin Chemerinsky & Catherine Fisk, Los Angeles Times (Nov. 11, 2002)

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Excerpts From ‘The Broken Branch’ [on the nuclear option]

Thomas Mann, Roll Call, June 27, 2006

On Aug. 1, Oxford University Press will release “The Broken Branch: How Congress Is Failing America and How to Get It Back on Track” (part of the Institutions of American Democracy Series), written by Thomas Mann of the Brookings Institution and the American Enterprise Institute’s Norman Ornstein (a contributing writer for Roll Call). What follows are excerpts from the book, printed with permission from the publisher.

* * *

Excerpts From ‘The Broken Branch’ [on the nuclear option]

Roll Call, June, 27, 2006



On Aug. 1, Oxford University Press will release “The Broken Branch: How Congress Is Failing America and How to Get It Back on Track” (part of the Institutions of American Democracy Series), written by Thomas Mann of the Brookings Institution and the American Enterprise Institute’s Norman Ornstein (a contributing writer for Roll Call). What follows are excerpts from the book, printed with permission from the publisher.

* * *

The Nuclear Option

Nothing underscores more the indifference to institution — and the decline in Senate pride — than the flap over Rule XXII and the filibuster when it came to President Bush’s judicial nominations in 2003-2005. Unlimited debate defines the uniqueness of the Senate. As discussed in chapter 2, from its early days, the Senate had no way to stop debate. The “filibuster” as we know it — and the supermajority requirement for cloture — was actually a reform to expedite action, not to block it. Prior to 1917, there was, in effect, no limit on debate in the Senate. Any one senator, or any small group of senators, could keep debate going indefinitely.

That ability was a part of the unique role of the Senate, which was designed by the framers to slow the process and add to its deliberative nature. Just as the Senate itself is not representative of the majority of the country — senators from small states, which collectively represent a fraction of the overall population of the country, command a majority of votes in the body — the Senate’s unique legislative procedures, including its reliance on unanimous consent and its tradition of sensitivity to minority viewpoints via unlimited debate, are extensions of the framers’ conservative views on governance. The rules change that provided some limits on debate — creating a hurdle in that it required two-thirds of senators present and voting to end debate and proceed to a vote — was urged upon the Senate by then-President Woodrow Wilson and instituted after a handful of senators blocked action to arm merchant ships prior to American entry into World War I. The two-thirds rule remained in effect until 1975, when frustration over the use of filibusters led to a lowering of the bar to sixty senators. That is where it stands today — with one deliberate exception. Debate on any change in the Senate rules can only be halted by votes of two-thirds of senators present and voting — a clear sign of the determination of the Senate to preserve its longtime rules and practices. Real filibusters, by which the Senate comes to a screeching halt and debates around the clock to try to overcome the objections of intense minorities, are a thing of the past. Most middle-aged Americans remember them from the 1950s and early 1960s, when the filibuster was employed by Southerners trying to block civil rights legislation for blacks. Since then, filibusters have worked more as a threat than a reality — senators declare their opposition to a bill or a nomination, and the body works to pass a cloture motion, requiring sixty votes, to halt debate after one hundred hours.

But the tradition of the filibuster, the nod to the importance of each individual senator and to the centrality of minority rights and viewpoints in our constitutional system, has been central to the Senate for more than two centuries.

That tradition was shaken to the core in 2005 over judicial nominations. In the modern age of partisan parity and ideological polarization, few issues have had the impact and high stakes of federal judicial nominations. As the Congress has more frequently found itself stymied on controversial issues, one way out has been to pass the buck on to the courts, allowing policy decisions to be resolved through litigation. This has been true, for example, on many environmental matters in such areas as clean air. As left and right have found themselves losing on issues in the legislature, they have been more inclined to refuse to accept defeat and try to reverse the outcomes in the courts. As judges have been given more opportunities, they have not shrunk from a larger policy role, whether or not they label themselves strict constructionists.

As a consequence, the battles in the Senate over judges, including even district court and appeals court judges, have become more acrimonious and routine. During George W. Bush’s first term, Senate Democrats employed many of the tactics used by Republicans under Clinton to challenge his judicial nominees. Most of the conflict occurred with circuit court appointments. Bush won confirmation of 87 percent of his district court nominees but only 53 percent of his circuit court appointees between 2001 and 2004 (slightly better than Clinton’s record on the former, slightly worse on the latter). Prior to the May 2001 change in the Senate majority, when Jim Jeffords of Vermont moved from Republican to independent status and gave the Democrats a one-vote opportunity to take the helm, Judiciary Committee Chairman Orrin Hatch had scheduled no hearings on the president’s judicial nominees. When Patrick Leahy took over as committee chair, he reinstituted the ABA review of nominees, which further delayed their consideration. The summer recess, September 11 attacks, and anthrax-laced letters sent to the Senate, including Leahy’s office, kept them waiting in the queue.

More serious obstacles were looming, however. Leahy complained that Bush, unlike Clinton, refused to negotiate with the chairman of the Judiciary Committee; nor would the president work with home-state senators of judicial nominees. Democrats considered several of his nominees especially provocative. In March 2002, the Judiciary Committee rejected a nomination for the first time in Bush’s term — that of Charles Pickering — on strict party lines. The battle was joined once again, with the parties simply switching positions and arguments. Now it was the Republicans who denounced Senate obstructionism and lamented the vacancy crisis on the federal bench while Democrats pointed to the large number and percentage of district court nominees confirmed and criticized some of the Bush appointees as being out of the mainstream. The most controversial nominees were bottled up in the Senate Judiciary Committee during the months leading up to the election and never brought to a vote, although several were confirmed in the post-election session when it was apparent that the Republicans would return to the majority in January. A week before the election, President Bush presented a proposal to “Ensure Timely Consideration of Judicial Nominees,” which included mandating a ninety-day-or-less window between a presidential nomination and a Judiciary Committee hearing as well as an up-or-down vote in the Senate.

The return of unified Republican government with the 2002 elections did little to diminish the acrimony. Both sides spoiled for a fight. The president resubmitted thirty nominations that were not confirmed by the Senate during the 107th Congress, including Priscilla Owen, Charles Pickering, and Miguel Estrada. Encouraged by an alliance of liberal interest groups, the now minority Senate Democrats — no longer able to block the most controversial nominees in committee — resorted to the filibuster. While not without precedent, the systematic use of filibusters to defeat nominees with majority support in committee and on the floor was clearly an escalation of the war over the courts. In February, Democrats successfully filibustered the confirmation of Miguel Estrada to the District of Columbia Court of Appeals. Later in the year they blocked William Pryor and Priscilla Owen from being seated on the appeals court. Although many noncontroversial nominees were confirmed during 2003, leading to a very low vacancy rate (39 out of 859 seats), the political struggle over the courts intensified. In early 2004 the president made a recess appointment of William Pryor to the 11th Circuit Court of Appeals. Later in the year, Michigan’s two Democratic senators blocked three Bush nominees, admitting that their move was also retaliation for Republicans blocking Clinton’s appointees to those same seats for years, keeping the slots vacant for the time when their president could fill them.

That struggle further intensified after Bush was reelected in 2004 and Republicans picked up four seats in the Senate — increasing their majority to fifty-five, but leaving them still five short of a so-called filibuster-proof margin. Bush quickly resubmitted his most controversial court nominations, those that had been successfully filibustered by the Democrats.

No effort was made by the White House to negotiate a settlement with Senate Democrats on the disputed nominees. Instead, Majority Leader Bill Frist seized on an issue that had been raised in 2003 and began building an aggressive public case for a radical change in Senate procedures — dubbed the “nuclear option” by Senator Lott — to prohibit the filibuster on judicial appointments.

Senate rules and precedents were clear: the Senate is a continuing body because every election involves only one-third of its members, and the rules are a constant, able to be changed only if two-thirds agree. Frist proposed a radical alternative: achieve the same result by making a parliamentary point of order that extended debate on a pending judicial confirmation is out of order. He would then have that point of order upheld by the president of the Senate (Vice President Dick Cheney) and follow with a vote of a simple majority upholding the ruling of the chair. Doing so would require ignoring or overruling the Senate Parliamentarian, since a constitutional point of order is itself debatable (and could be filibustered).

The ploy here was laid out by Senate rules guru Martin Gold, an adviser to Frist. While he and other former Republican Senate staff members built the case that such a move was consistent with Senate precedents, the argument was lame. There was no mistaking the purpose and potential consequences of the nuclear option. The Senate would by fiat overrule an established procedural principle to serve the immediate interests of the president and respond to the demands of a vocal constituency. And in so doing, it would establish a precedent that would threaten to change the essential character of the institution, making the Senate much more like the House.

This was at many levels a struggle over arcane procedural chess moves. But it became a major political issue. A vigorous public debate ensued, featuring television ads run by groups on both sides of the debate, all of whom saw this battle as critical to the upcoming struggle to fill expected vacancies on the Supreme Court. Proponents of the nuclear option argued that never before had filibusters been used to block judicial nominations. Columnist Charles Krauthammer wrote, “One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees.” He called the threats by Democrats to filibuster several of the Bush nominees “historically unprecedented” and “radical,” saying they have “unilaterally shattered one of the longest-running traditions in parliamentary history.” Frist, in a USA Today op/ed, said there had been a 214-year-old tradition of having up-or-down votes in the Senate on judicial nominations. He added that, since President Bill Clinton’s judicial nominees only required fifty-one votes, “why should George W. Bush’s be treated differently?”

Here was the reality: For more than two hundred years, hundreds of judicial nominees at all levels had their nominations buried, killed, or asphyxiated by the Senate, either by one individual, a committee, or a small group of senators, before the nominations ever got anywhere near the floor. To be sure, most were not filibustered in the “Mr. Smith” sense, or in the modern and direct version.

Consider the history of Supreme Court nominations — the most visible and prized of all. Of the 154 nominations to the Supreme Court between 1789 and 2002, thirty-four were not confirmed. Of these, eleven were rejected by a vote of the full Senate. The remaining twenty-three were postponed, referred to a committee from which they never emerged, reported from committee but not acted on, or, in a few cases, withdrawn by the president when the going got tough. At least seven nominations were killed because of objections by home-state senators. Five others were reported to the Judiciary Committee (which was created in 1816) and never made it out. And, of course, there was the case of Abe Fortas, whose nomination by Lyndon Johnson to be chief justice was filibustered in 1968 until other problems forced Fortas to withdraw.

As for other levels of judicial nominations, there is a long-standing tradition, exercised countless times, giving one or two senators from the home state a veto power over district court nominees. (This is the unwritten rule, incidentally, that was shattered by Orrin Hatch, then the Judiciary chairman, when Clinton was president.) This “blue slip” power was applied less frequently to appeals court nominees, but many in the past were killed far short of a vote on the Senate floor. Why weren’t more of them filibustered? Because it was easy enough to kill most of the controversial ones without resorting to a filibuster.

Some retired conservative Republican senators, including Malcolm Wallop of Wyoming, understood this history and the implications of an abrupt change in the rules and deplored the move. But as Frist moved closer and closer to detonating the nuclear option, the silence of Republican pillars of the institution — Thad Cochran, Pete Domenici, and Dick Lugar — was deafening. Lugar warned that the consequences of pulling the nuclear trigger could be severe and backfire against Republicans and conservatives, but he then said that if the Republican leader asked him for support to do so, he would give it.

As many of us thought and wrote at the time, if they won’t defend their institution, who will? In the end, a bipartisan group of old bulls, mavericks, and moderates — referred to as the Gang of 14 — pulled the Senate back from the brink. Their informal agreement, entirely self-enforcing, to oppose both the nuclear option and filibusters on judicial confirmations except under extraordinary circumstances forced a temporary de-escalation of the judicial arms race. How long it would last was far from certain.

There is a long-standing tradition in the Senate regarding judicial nominations. That tradition calls for a vigorous and independent Senate playing its role of advice and consent. Because they represent lifetime appointments that cannot and should not be easily rescinded, judicial nominations require higher hurdles than simple legislation, which can always be amended or repealed. Charles Krauthammer called the nuclear option “restoration.” It’s not even close. And the willingness of dozens of senators to apply it spoke volumes about their indifference to the body’s essence when they confronted short-term political expedience.

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Will Republicans Go Nuclear?

By E. J. Dionne Jr.

Washington Post

March 22, 2005

Harry Reid, the Senate Democratic leader, called an urgent meeting last week with leaders of civil rights, civil liberties, environmental and women's groups. His message: The Senate faces a nuclear winter that could engulf them.

What emerged at that meeting was an order of battle that could mark American politics for years. Reid told the participants that he had learned from friendly Republican senators that Bill Frist, the majority leader, intended to push forward with what has come to be known as the "nuclear option," a fiddling with Senate rules that would block filibusters of judicial nominees.

And Reid warned the groups that the Republican effort to curb the rights of the Senate minority would not stop with judges. If Frist won on judges, Reid predicted, Republicans would be emboldened to roll other legislation through on narrow majority votes.

The battle over the filibuster seems like an insider's game. In fact it is a historic fight over the structure of U.S. government that could affect almost every issue in the public realm.

The details are clear enough: Democrats filibustered 10 of President Bush's first-term judicial nominees while confirming 204 others.

Under current filibuster rules, it takes 60 votes to shut off Senate debate on most subjects. That means that if the Senate's 44 Democrats stay united, they can block Bush's appointees. Republicans say it should not take 60 votes to confirm a judge.

Under the nuclear option, Republicans would use a simple majority to amend Senate Rule 22, the filibuster provision, even though the rule itself explicitly requires a two-thirds vote for any filibuster changes. They would do this by having Vice President Cheney, in his role as president of the Senate, uphold a "point of order" that would have the effect of ending filibusters on judges. And it takes only a majority to uphold a point of order.

If this sounds convoluted, that's because it is a blatant effort to twist the rules and -- this ought to bother conservatives -- ignore the traditions of the Senate.

Reid's argument to the liberal groups is important because it raises the stakes. (Reid wouldn't confirm the substance of the private meeting, though he did not dispute the account offered by other participants.) On the narrow issue of judicial nominations, Republicans might muster a bare majority to overturn the filibuster. But there is genuine worry across the usual political divides that the precedent set on this one issue would be disastrous for minority rights on all others.

Conservatives say that liberals are a strange bunch to be defending the filibuster -- and the conservatives have a point. Liberals fought the filibuster when it was used by the Senate's Southern segregationist minority to stall civil rights bills. I'll acknowledge that when Republicans used the filibuster to obstruct health care reform and other pieces of progressive legislation in the first years of President Bill Clinton's term, I was tempted to support changes in the filibuster rules.

But conservatives who support the nuclear option are utterly unwilling to acknowledge their own convenient change of heart. They defended the filibuster as long as they were in the minority, but would cast it aside now that they have grabbed the presidency and narrow majorities in both houses. The liberals, moreover, never tried to twist the rules to get rid of the filibuster, as the conservatives are doing.

And if the principle at stake is "majority rule," consider that the Senate is, by its very nature, an affront to majoritarian principles. The 52 senators from the nation's smallest states could command a Senate majority even though they represent only 18 percent of the American population.

According to the Census Bureau's July 2004 population estimates, the 44 Democratic senators represent 148,026,027 people; the 55 Republican senators 144,765,157. Vermont's Jim Jeffords, an independent who usually votes with the Democrats, represents 310,697. (In these calculations, I evenly divided the population of states with split Senate delegations.) What does majority rule really mean in this context? If the Republicans pushing against the filibuster love majority rule so much, they should propose getting rid of the Senate altogether. But doing so would mean acknowledging what's really going on here: regime change disguised as a narrow rules fight. We could choose to institute a British-style parliamentary system in which majorities get almost everything they want. But advocates of such a radical departure should be honest enough to propose amending the Constitution first.



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Senate Republicans will do themselves in by killing filibuster

Michael Hammond, Guest Commentary, The Union Leader [Manchester, NH], March 21, 2005

BETWEEN 1989 and 1992, U.S. Senate opponents of New Hampshire's Presidential primary waged a quiet but important battle do away with the Granite State's first-in-the-nation status and replace it with a system of regional primaries. Their legislation was passed out of the Senate Rules Committee by an overwhelming bipartisan margin. It surely would have garnered a substantial majority in both the Senate and the House.

New Hampshire's primary survived - at least in part - because New Hampshire's senators threatened to wage the mother-of-all-filibusters.

Now, some inexperienced and short-sighted "conservatives" are working to do away with the "filibuster" - the United States Senate's tradition of unlimited debate.

Their ostensible purpose is to expedite the approval of the Bush administration's judicial nominees. But anyone with an historical knowledge of the Senate will understand that this could be done much more easily through all-night filibusters and a rigid enforcement of current Senate rules.

In his recent trip to Manchester, Senate Majority Leader Bill Frist, R-Tenn., made no pretense of supporting the legislative filibuster.

But make no mistake about it: Even though some contend that the judicial filibuster and legislative filibuster are distinguishable, it is impossible to destroy the nomination filibuster without effectively destroying the legislative filibuster as well.

If the nomination filibuster is eliminated by declaring that the Senate is not a "continuing body," every Senate rule expires every two years - except, arguably, those rules the majority leader "implicitly" allows. Does anyone believe the legislative filibuster would last through the first Democrat-controlled Senate?

If, on the other hand, Frist argues - as he may - that the Senate has the constitutional authority to change any Senate rule at any time, without debate, by majority vote, the legislative filibuster will disappear the first time it becomes "inconvenient."

What will be the consequences of losing the legislative filibuster?

Issues which will almost certainly enjoy a Senate majority by that time will include:

on gun control, the semiautomatic ban, the .50 caliber ban, the gun show ban, and the trigger lock mandate;

On abortion, the "health of the mother exception," which will set the stage for abortion on demand with taxpayer dollars;

On family issues, a craftily worded homosexual rights measure that will ultimately be determined to be a constitutional mandate for same-sex marriage;

In the political realm, the "campaign finance reform" proposals pushed by Democrats for two decades - measures that would send the Republican Party into permanent minority status;

And, of course, a legislative end to New Hampshire's first-in-the-nation Presidential primary.

So be careful what you wish for.

Turning the Senate into a majoritarian institution may or may not produce small benefits now. But rest assured that, when the Democrats come to power - and they will - they will use the parliamentary tools we give them to destroy us.

Michael Hammond is a political consultant who lives in Dunbarton.



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Filibustering the Truth

by Judd Legum and Christy Harvey, The Nation, March 21, 2005

The 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.'"

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.



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The Judicial Blame Game

Marianne Means, The Day [CT], March 20, 2005

President Bush has heaped new coals on the partisan bonfire that threatens to consume the Senate over his crusade to stack the federal bench with extreme right-wing judges.

During his press conference Wednesday, the president seemed unconcerned that his insistence on winning confirmation for 10 ultraconservatives previously rejected was in danger of sabotaging the rest of his political agenda.

He egged on Senate Majority Leader Bill Frist to change Senate rules to deny Democrats the traditional right to filibuster offensive judicial nominees. The Republicans have a 55-vote majority, not enough without Democratic support to reach the total of 60 required to end a filibuster.

"I don't think it's fair to the candidates and I don't think it's fair to the administration for this policy (of filibustering) to go forward," the president said.

He ignored the thrust of a reporter's question asking which he thought most important, a few judges or his overall agenda. By failing to make any conciliatory gesture that might head off the pending legislative crisis, Bush demonstrated he is prepared to see the Senate shut down.

His GOP supporters chortle that the Democrats will be blamed.

Minority Leader Harry Reid and two-dozen Democratic colleagues warned at a rally earlier this week they would use parliamentary procedures to block all but the most essential Senate business if Republicans wipe out Democrats' minority rights. Democrats have filibustered only 10 of Bush's 214 judicial nominees, whom they deem unacceptably out of the legal mainstream.

The Reid rally publicized the Democratic case that confirming judicial appointees for lifetime jobs with power over a wide range of national issues, from environmental protection to civil liberties, should require at least a minimal level of bipartisan support. Their view is that if a nominee can't command 60 votes there is insufficient consensus to generate public support for his or her judicial rulings.

This is particularly true of the Supreme Court, where ailing chief justice William Rehnquist may retire soon. Only one successful high bench nominee in this century failed to meet the 60-vote threshold: Clarence Thomas, widely regarded as a weak jurist. In 1991 Thomas narrowly won confirmation 52-48.

Frist is being pressed to lower the 60-vote threshold to 51 now, before the next Supreme Court fight. It is Bush's fault that his nominees have been blocked; he shouldn't have picked such partisan extremists in the first place, let alone re-nominated them for a second go-around.

But will he get the blame for provoking such a donnybrook? Shouldn't he have guessed the Democrats wouldn't meekly roll over?

Who gets the blame depends on how well each side makes its case. Both parties are working hard at it.

"They refuse to acknowledge the results of the last election," snorts Brian Nick, a National Republican Senatorial Committee spokesman.

"President Bush is drunk with power" counters Reid.

There is some truth to both charges. But in a bitterly, nearly evenly divided nation, such insults do nothing to solve the stalemate.

The last time the federal government shut down, congressional Republicans got the blame. They deserved it. In mid-1995, the GOP was heady with power following its stunning victories in the 1994 elections. Rep. Newt Gingrich was speaker of the House. The new majority demanded sharp tax cuts and reductions in Medicare, Medicaid, education and environmental funding that President Clinton rejected. In the ensuing budget standoff, federal funding expired and the government was forced to close for 21 days.

The Republicans were gleeful. Texas Sen. Phil Gramm, a Republican, memorably predicted on television that no one would miss the government. But voters did miss their government and wanted it functioning again, without the massive cuts in entitlement programs the Republicans had demanded.

Clinton kept his cool, promised to balance the budget and restored most of the funding for key federal programs. The Republicans, hit badly in the polls, quietly compromised. In the looming climax of the current legislative crisis, neither side is inclined to budge. This isn't just about the federal bench; it's about political power - who has it, and how much.

The first of Bush's recycled rejected nominees, William Myers, an anti-environmental lobbyist, is moving through the Judiciary Committee and likely to be called up for a floor vote any day now.

This will provide Frist an opportunity to invoke the so-called "nuclear option" of ending the right to filibuster judges. The Democrats will be powerless to stop him unless some moderate Republicans are willing to help protect that right - out of a reverence for constitutional precedent or pragmatic concern that they too could be in the minority some day. Let us hope.

Marianne Means is a syndicated columnist



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Why Filibusters Should Be Allowed

George F. Will, Washington Post, March 20, 2005

With Republicans inclined to change Senate rules to make filibusters of judicial nominees impossible, Democrats have recklessly given Republicans an additional incentive to do so. It is a redundant incentive, because Republicans think -- mistakenly -- that they have sufficient constitutional reasons for doing so.

Today 60 Senate votes are required to end a filibuster. There are 55 Republican senators but not five Democrats who will join them. Republicans may seek a ruling from the chair -- Vice President Cheney presiding -- that filibustering judicial nominees is impermissible, a ruling that a simple majority of senators could enforce.

Democrats say they would retaliate by bringing the Senate to a virtual halt -- easily done within Senate rules. Republicans rejoice that such obstructionism would injure the Democrats. But conservatives would come to rue the injury done to their cause by the rule change and by their reasoning to justify it.

Some conservatives call filibusters of judicial nominations unconstitutional because they violate the separation of powers by preventing the president from doing his constitutional duty of staffing the judiciary. But the Senate has the constitutional role of completing the staffing process that the president initiates.

Some conservatives say the Constitution's framers "knew what supermajorities they wanted" -- the Constitution requires various supermajorities, for ratifying treaties, impeachment convictions, etc.; therefore, other supermajority rules are unconstitutional. But it stands conservatism on its head to argue that what the Constitution does not mandate is not permitted. Besides, the Constitution says each house of Congress "may determine the rules of its proceedings."

Some conservatives say there is a "constitutional right" to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.

Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms -- separation of powers, bicameral legislature, etc. The filibuster is one such mechanism -- an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.

The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Robert Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. So, conservatives, think:

The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?

And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?

Exempting judicial nominations from filibusters would enlarge presidential power. There has been much enlargement related to national security -- presidential war-making power is now unfettered, Congress's responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?

The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.

It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.

No Democratic filibuster can stop the 2006 elections. Those elections, however, might stop the Democrats' filibusters.



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A Frenchman's conscience

Dawn Miller, Charlotte Gazette [WV], March 19, 2005

An old French history professor will not leave me alone. He has been calling me from the bookshelf for more than two years now.

His name was Marc Bloch. In a word, he was brilliant. He was an ordinary foot soldier in World War I. Between the wars, he wrote with laserlike precision both history, and texts on how to write it. After the Nazis rolled their tanks into France in 1940, he returned to military service, and somehow, during that time, he marshaled his thoughts sufficiently to set down for future generations exactly how the French were so easily overrun. It's a searing little book called "Strange Defeat." I dug it out in 2003 during the run-up to this war in Iraq. I've turned to it since, and it tugs at me again as we pass the two-year mark on this war.

Bloch took pains to expose every section of French government and society responsible for his nation's quick defeat. He blames the military, headed by old men who were still trying to fight the slower war of 1918, the ridiculous bureaucracy that obstructed vital information among units, military schooling that prepared graduates for anything but war, shortsighted government officials who failed to prepare after Hitler signaled his plans by invading Poland. Bloch blamed bloated trade unions that discouraged efficient work and the miserly and idle middle class that starved public schools of proper instructors and deprived the nation of citizens able to think critically and to meet unexpected challenges. He blamed his own class of historians and other intellectuals for not protesting more loudly when they foresaw danger, for being afraid of losing their positions or being mocked by colleagues.

But the paragraph that kept calling to me was just a few almost apologetic lines.

"I do not joyfully or lightly embark on this part of my task," Bloch wrote. "As a Frenchman, I feel constrained, in speaking of my country, to say of her only what is good. It is a harsh duty that compels a man to make a public show of his mother's weaknesses when she is in misery and despair."

But he did make a public show of those weaknesses in hopes that the country and people he loved would make amends and save themselves.

The first time I read Bloch's book, I was surprised, naively as it turns out, at the pains he took to explain his motives. They seemed so self-evident. Since then, I've seen how concerned critics are treated in this country.

Earlier this month, Sen. Robert C. Byrd criticized the Senate - not the President, mind you - but the Senate, for its willingness to cede too much power to the executive branch. Specifically, Sen. Byrd faulted his colleagues for backing a plan to limit debate and prevent a filibuster over the president's judicial nominees. Sen. Byrd has long criticized Congress for giving away power to the executive branch, weakening its role as a balance to protect the nation from any excesses of the White House. Obviously the minority party has its own goal in mind - to block some of the president's nominees. But this erosion of power is a valid concern no matter who controls Congress or who sits in the Oval Office. If the rules can be manipulated to help you today, they can be used against you tomorrow.

Byrd's critics did not debate his point. Instead, they clutched their hearts in righteous indignation that anyone would dare point out as a cautionary tale that the German legislative branch of the 1930s also handed over its power to the executive branch.

Many Americans were apparently upset with the comparison. Perhaps that's because they see more parallels between themselves and Nazis than anyone has actually pointed out, or than anyone would like to admit. In January, we learned of yet another round of prisoner abuse charges. When we read of Americans breaking the fingers of a 73-year-old woman and sexually abusing her with a stick, whose mind could help but recall similar images of Nazi torturers. To most of us now, they are just so much flickering black and white footage. The mind recoils at the comparison, and yet, to the person being tortured, how is it different?

I never before wondered about the decent German people of the 1930s and how they felt when they learned what their government did in their name. Now, I wonder about them all the time. Americans have trouble with such ideas because these actions are repellent. Most Americans know themselves to be decent, respectful and respectable people in their own lives. How could their collective efforts be any different? We are the good guys. How could such atrocities be committed in our name, on our dime?

As long as the level of our civil discourse is to attack the messenger who makes an unflattering comparison, rather than debate the message, we shall never know. Unfortunately, when the subject gets too prickly, Americans gasp. An upturned palm flies to the forehead, and we feel an attack of the vapors. Help us to the couch. As long as we are too squeamish even to consider that which makes us uncomfortable, that we may not, indeed, always play the role of the good guys, we shall be ever surprised at atrocities committed in our name.

"It is a good thing, and a sign of health, that those in a free country who represent contrasted social theories should freely air their differences," Bloch wrote. "Society today being what it is, class interests are bound to be at odds. Antagonisms there must be, and it is well that they should be recognized. It is only when this state of social friction ceases to be regarded as normal and legitimate that the country as a whole begins to suffer."

Bloch might have made similar observations about the Germany of his day. Odd that conquered and conqueror should have so much in common.

After France's formal military resistance collapsed and as the Nazis approached, Bloch changed out of the uniform of an old soldier and into the civilian clothes of an old professor. He blended into the surroundings, the better to gather intelligence for his cause. Marc Bloch was killed by a Nazi firing squad in 1944.

I do not compare our president with Adolph Hitler, because President Bush does not deserve so heinous a comparison. But I compare docile Americans of today with the Germans of the 1930s. I compare our Senate, notwithstanding some notable exceptions, to Germany's fawning Reichstag of 1932.

Methinks the nation doth protest too much.



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'Nuclear Option' Could Damage Both Parties

Stuart Rothenberg, Roll Call, March 17, 2005

Back in the 1960s, when talk of a nuclear exchange between the United States and the Soviet Union was all too real, everyone agreed that both countries would suffer heavy losses from a nuclear war. And that made a nuclear attack and the inevitable nuclear response unthinkable.

Maybe that's something Republican and Democratic legislators and strategists should consider as the two parties veer toward a confrontation over judges on Capitol Hill.

The "nuclear option" in this case refers to the potential GOP strategy to avoid a Democratic filibuster on Bush-nominated judges, combined with the Democratic reaction to that strategy. It would come into play if the Senate's presiding officer rules that only a majority of the Senate is needed to force a vote on judicial nominees and if Senate Republicans are able to sustain the ruling of the chair.

Democrats say that if the Republicans "blow up the Senate" by ending filibusters during the confirmation of federal judges including, of course, nominations to fill expected Supreme Court vacancies they will retaliate with every weapon at their disposal, including essentially shutting down the Senate.

Regardless of whether you believe that the Democrats have gone too far in stopping the confirmation of a handful of high-profile conservative jurists nominated by President Bush, or, conversely, see a GOP-led attempt to end judicial filibusters as inappropriate and even dangerous, most people should be able to agree that it would be better to avoid a legislative and constitutional crisis.

But, purely from a political point of view, how would the parties fare if they came to blows over judges?

Let's assume that the Democrats use all the procedural tools available to them and are committed to blocking Senate business until the Republicans agree to recognize the need for a supermajority to confirm judges. How would the country react?

The Republicans almost certainly would be the first ones to absorb a negative media hit, as journalists report that Senate Republicans have "changed the rules of the game" and are abusing their power in their efforts to confirm judges that the Democrats oppose.

Democrats would encourage the media's line of argument by noting that Republicans blocked many Clinton nominees in committee, preventing those nominees even from reaching the Senate floor. And Democratic officeholders of all kinds would attempt to paint the Republicans as waging a political jihad to cripple the Democratic Party and destroy the two-party system.

Barring the existence of a news story of equal importance, such as the capture of Osama bin Laden or a major terrorist attack, the Senate "nuclear option" story would dominate the news for days, even weeks.

While Republicans would seek to put their strategy into a more positive historical context and demonize the Democrats for frustrating the will of the majority and politicizing judicial confirmations, the GOP tactic would probably draw most of the attention. And if so, the party would be at risk of a backlash.

However, the longer that the confrontation on Capitol Hill continued, the more the Democrats' vulnerability would grow.

After a couple of weeks of bringing the Senate to a halt, public opinion might well begin to shift, with Democratic tactics coming under increased scrutiny and generating increased criticism.

Even if voters agree that the Republicans were wrong in changing the rules of the game by requiring only a majority in the Senate to confirm judges, they might also tire of Democrats' tactics of protest. After all, in adopting delaying tactics, Democrats would be blocking Congress from dealing with Social Security, education and taxes not to mention appropriations.

Like the Republicans who "shut down the government" in 1995, Senate Democrats would likely be viewed ultimately as behaving irresponsibly.

Voters believe that they are sending their Representatives and Senators to Washington to deal with the major issues of the day. The average American tends not to focus on process issues, whether redistricting or parliamentary maneuvering on the floors of Congress, but rather on output, results and action.

The most politically active partisans would blame the other party. But most other Americans, even if they understood and sympathized with the Democrats' complaints, would likely hold the Democrats responsible for shutting down Congress.

Ultimately, both parties would be at risk, giving an effective weapon to third-party or Independent political hopefuls who would point to the gridlock as evidence that neither of the two major parties is capable of governing. The system, they would say, is broke.

It's been more than a dozen years since Ross Perot's 1992 race for the White House. A dozen years before him, in 1980, John Anderson ran as a credible Independent. A dozen years before that, in 1968, American Independent Party candidate George Wallace ran a high-profile race for the White House.

A "nuclear" confrontation over judges could well sour many Americans on both parties, quite possibly giving rise to another wave of outsider, change rhetoric and a producing a political figure who promises to change the way Washington works.

Stuart Rothenberg is editor of the Rothenberg Political Report.



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Play by the rules; 'Option' a bad idea

By Bruce Ackerman

The Philadelphia Inquirer

March 16, 2005

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Bruce Ackerman is Sterling Professor of Law and Political Science at Yale University

Senate rules require Republicans to reach across the aisle to gain the confirmation of the President's judicial nominees. Since 60 votes are needed to override filibusters, Republicans (who now number 55 in the Senate) must obtain the support of five other senators to win a victory. To make life easy for themselves, however, they are considering a plan that would eliminate this remaining obstacle to hard-right appointments.

Their plan relies on Vice President Cheney, whom the Constitution designates as president of the Senate. Rather than following the existing Senate rules, Cheney would announce that further debate on a judicial nomination was dilatory, and order the Senate to proceed to a final vote. Under this scenario, 41 Democrats could no longer hold off the nomination. They would need 51 to overrule the Senate president. This is called the "nuclear option" inside the Beltway, since it would eliminate all further cooperation between Democrats and Republicans, bringing Senate business to a halt.

Is there a legal basis for Cheney's action? In a recent article, Martin Gold and Dimple Gupta make the Republican case. Gold has been a floor adviser to Senate Majority Leader Bill Frist, and Gupta has recently been hired by the Republicans on the Senate Judiciary Committee. So the essay deserves attention.

The writers point, correctly, to a constitutional problem raised by the fact that the Senate, unlike the House, does not vote on its rules at the beginning of each new Congress. This position is entrenched by two centuries of practice, and the Senate rules explicitly state that such rules "shall continue from one Congress to the next Congress unless they are changed as provided in these rules." Under this traditional understanding, there is no need for a new vote on the rules since the Senate is a continuing body and only one-third of its members are new.

Despite its pedigree, this position is constitutionally questionable. Article One grants each house the power to determine "the rules of its proceedings," and this may be read to imply that a majority of the Senate, at its first meeting, has the authority to reject old rules. If Cheney had raised this matter when the Senate first convened in January, he would have been acting well within the precedents established by previous Senate presidents.

But he did not do so. Instead, the Republican majority allowed the Senate to organize itself under its customary procedures. Cheney and the Senate are now operating under the rules, which explicitly require a two-thirds vote for any change. This is the point at which Gold and Gupta move onto forbidden ground. They claim the Senate president may simply ignore the rules in determining when debate should end. This is to advocate utter lawlessness. Although the Constitution gives each house the right to change its rules, nothing in the Constitution remotely authorizes the Senate president to ignore them.

Such an abuse of power would be particularly egregious in the present case. Most Senate rules don't implicate the balance of power between the different branches. But the filibuster rule is different. It determines the extent to which the President can override senatorial resistance to his nominees. By acting lawlessly, Cheney would be using his power as a representative of the executive branch to weaken the Senate and undercut our system of separation of powers.

An enduring constitutional order requires political restraint. Using the Senate presidency as a battering ram will hurt everyone in the long run - not least the "strict-constructionist" judges propelled onto the bench by this illegal maneuver.

If the majority of senators wish to change the rules of the Senate, they should wait until the next Congress opens, not indulge in lawless action in the meantime.

Bruce Ackerman (bruce.ackerman@yale.edu) is author of a multivolume constitutional history, "We the People."



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Don't Go Nuclear

By Jim McClure and Malcolm Wallop

The Wall Street Journal

March 15, 2005

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The United States Senate is heading toward a crisis of sorts over the Democratic minority's use of extended debate to prevent votes on many of President Bush's most important judicial nominations. Together -- and as Republicans -- we served a combined 36 years in the Senate. We are no strangers to the filibuster and, in the past, did not hesitate to employ or to support that instrument on extraordinary occasions. Even so, we have been appalled by the way Senate Democrats have turned the filibuster from a last-resort means of making the Senate take another look at a bill or a nominee into a first-resort tactic of wholesale partisan obstructionism. In short, barring some extraordinary circumstances, we believe the Senate should be able to vote on almost all of any president's judicial appointments.

The current abuse of the filibuster requires a strong response, and we need positive action from the president. It is, after all, his prerogative which Senate Democrats have attempted to nullify. We need from George Bush more than a few lines in his stump speech, more than a paragraph or two in his State of the Union Address. The situation calls for forceful, and even outraged, presidential leadership.

But it does not call for what is being referred to as a "nuclear option" from the Senate majority leader.

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Over the past year, that "option" has been variously, and vaguely, defined. In his opening remarks to the Senate on Jan. 4, however, Sen. Bill Frist made things suddenly clear. Read carefully: "I reserve the right to propose amendments to Senate Rule XXII [concerning extended debate] and do not acquiesce to carrying over all the rules from the last Congress." The first clause is innocuous; every senator has the right to propose rules changes. But the second clause is dynamite, capable of blowing out the foundations of the Senate itself. It means the majority leader will eventually propose, against history and common sense, that the Senate is not a "continuing body." Or, to be precise, a continuing body with continuing rules, for there is the heart of the matter.

Some of the public may need to be reminded that, when the 109th Congress convened in January, only about one-third of the Senate was sworn in, namely, those members elected or re-elected last November. The other two-thirds of the membership did not stop being senators after last year's adjournment, and they did not mysteriously lose the body of rules and precedents under which the Senate operates from year to year and, ultimately, from generation to generation.

Sen. Frist's carefully crafted remarks suggest an intention to ignore all that by implying that his acquiescence is needed to "carry over all the rules from the last Congress." Without those rules, how does the Senate decide anything? How does it change the rules? How does it cut off a judicial filibuster? By simple majority vote.

Conservatives, in and out of the Senate, are now being assured that this extraordinary approach will not be applied to the legislative filibuster, which, in the not-so-distant past, was our only defense against the excesses of a bipartisan liberalism. There are several problems with that argument. First and foremost, as a matter of principle, we should not accept the contrary-to-fact assertion that the Senate and its rules do not continue from election to election.

Second, setting aside principle -- ouch! -- it is naive to think that what is done to the judicial filibuster will not later be done to its legislative counterpart, whether by a majority leader named Reid, or Clinton, or Kennedy.

Third, even if a senator were that naive, he or she should take a broader look at Senate procedure. The very reasons being given for allowing a 51-vote majority to shut off debate on judges apply equally well -- in fact, they apply more aptly -- to the rest of the executive calendar, of which judicial nominations are only one part. That includes all executive branch nominations, even military promotions.

Treaties, too, go on the executive calendar, and the arguments in favor of a 51-vote cloture on judicial nominations apply to those diplomatic agreements as well. It is little comfort that treaty ratification requires a two-thirds vote. Without the possibility of a filibuster, a future majority leader could bring up objectionable international commitments with only an hour or two for debate, hardly enough time for opponents to inform the public and rally the citizenry against ratification. Conservatives should consider that possibility in the context of the Law of the Sea Treaty or the U.N. Convention on the Rights of the Child or another version of the Kyoto Protocol.

All this -- in effect, turning the Senate into a high-end version of the House of Representatives -- is too high a price to pay in order to stop Senate Democrats' abuse of the filibuster on judicial nominations. It is disheartening to think that those entrusted with the Senate's history and future would consider damaging it in this manner. And it is not as if there are no other options.

For starters, the president can "go to the country," barnstorming the home states of certain members to force a change of heart. Within the Senate itself, there is the two-speech rule limiting the number of times a member may speak on the same topic within a "legislative day," which could continue indefinitely. Like all the other Senate rules, the two-speech rule has been carried over from the last Congress, no matter what anyone asserts to the contrary. It could eventually strangle an initial judicial filibuster, and it would make subsequent ones far less likely.

The alternate "nuclear" strategies under discussion are also problematic. A Constitutional point of order, for example, would, according to Senate tradition, be referred to the full Senate, where it is debatable (i.e., filibusterable). The only other option is for the chairman to rule, without citing the Constitution, that judicial nominations cannot be filibustered. That course would have no basis in either law or Senate rules.

At this point, no one knows how the "nuclear option" drama will play out, but we would respectfully offer to senators, both Republican and Democratic, a bit of back-country wisdom: When you find a bear in your cabin, it's not smart to try to burn him out.

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Messrs. McClure and Wallop, Republicans, are former senators from Idaho and Wyoming, respectively.

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Confirming judges: Filibustering the truth

By Judd Legum and Christy Harvey

The San Diego Union- Tribune, March 11, 2005

 

The 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, R-Tenn., have already launched a determined campaign to ensure 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 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 9th U.S. Circuit Court of Appeals. 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, R-Utah, 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 60 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.

 

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 Sen. 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. (Sen. 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 60 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 41 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 60 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.

 

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Legum and Harvey are members of the American Progress Action Fund, the sister advocacy organization of the Center for American Progress. This article was written for The Nation magazine.



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The duty of the opposition

By John W. Leek

The Mississippi Press

March 11, 2005

 

 Sen. Edward Kennedy, D-Mass., is a well-meaning partisan. He consistently works for America's working men and women. He fights to preserve federal programs benefiting the working poor, overtime pay protections, and for raising the minimum wage. That's the good.

The bad is unfortunately he is a partisan and like President Bush doesn't let the facts get in the way of a good issue.  

When Democrats lost control of the Senate, allied organizations began digging for anything that could be used to block extreme nominees. They also believed that they could block some conservative ones by grouping them with the extremists.

Such was the fate the honorable Charles Pickering faced when nominated to the federal appeals court. Leading Democrats accused him of being "racially insensitive," leaving many with the misconception that Pickering is racist. This tactic was disgraceful and completely dishonest. Charles Pickering has served honorably as a judge, has in the past risked his life helping the FBI prosecute the Klan, and has the support of many Mississippi blacks. I doubt Sen. Kennedy, ranking Judiciary Committee Democrat Sen. Patrick Leahy, D-Vt., and Sen. Chuck Schumer, D-N.Y., ever determined if those claims were true.

Now we study the actual extremists who would be given lifetime appointments on federal appeals courts. First is Judge Terrence William Boyle, nominated to the Fourth Circuit of Appeals, who is no less an "activist judge" than anyone sitting on the Massachusetts Supreme Court. The No.1 reason Boyle hasn't been confirmed is he simply isn't an effective judge. The Fourth Circuit is considered one of the most conservative, and even it has found Boyle to be too radical in his judgments. The Fourth Circuit had reversed Boyle's decisions one hundred fifty times for judgmental errors and "fundamental legal mistakes." For example, the court has reversed him for failing to give plaintiffs a chance to present evidence before dismissing their cases.

During the 1990 redistricting of North Carolina, the state created a congressional district to reflect the strong black population of the area. Boyle tried to block the district's creation and twice declared it unconstitutional. His decision was reversed twice by the U.S. Supreme Court. The first time, writing for a unanimous court, Justice Clarence Thomas found Boyle's ruling was "clearly erroneous." The Supreme Court sent the case back to Boyle and his colleagues. Boyle wrote another opinion and the Supreme Court rejected it also. His rulings have been overturned multiple times when he erroneously sided with employers in workplace discrimination cases.

He is opposed a wide variety of groups including those representing the disabled for his attacks on the Americans with Disabilities Act, the North Carolina Police Benevolent Society who oppose him due to his pattern of dismissing cases brought by police officers who were penalized for telling the truth in court, and fellow judges who cite his "abuse of discretion."

Boyle does have one thing over the next two nominees though. He's actually a judge.

William G. Myers III is an unqualified choice for a seat on the 9th Circuit of Appeals. He is opposed by 180 different groups, including some that rarely enter the political fray, for his flagrant disregard for federal environmental laws. He has publicly railed against environmentalists in cases involving logging in national forests, racial discrimination in the placement of waste treatment plants and protection of irrigation canals from toxic chemicals. Federal regulations prohibit any activity on protected lands which could cause "undue impairment." Myers argued that the term "undue impairment" was meaningless, and a 1,600-acre open-pit mine could be dug. A federal judge ruled against him, rightfully identifying the government's "clear mandate" to prevent degradation of public land. Myers has been a long-time lobbyist for ranching, mining and timber interests. His legal experience is not nearly broad enough to justify a seat on the bench.

Brett Kavanaugh's nomination to the D.C. Circuit of Appeals is laughable. In addition to having never been a judge, Kavanaugh has never even participated in a jury trial. His biggest qualification appears to be his work as a deputy to Ken Starr in his multiple investigations.

These three didn't get through because they are extremist and unqualified. Senate Democrats, understanding that these are lifetime appointments, blocked them the best way they could with the filibuster. Republicans are now saying that the filibustering of judicial nominations is unprecedented, but that simply isn't so. It was the Republicans who first used the tactic successfully blocking President Johnson's choice of Abe Fortas for Supreme Court chief justice. As recently as 2000, Republicans attempted to filibuster two of Clinton's nominees.

The Republicans, visibly angry, have proposed one solution to rid themselves of the pesky minority. Forgetting that they too can become the minority, they have proposed suspending the filibuster altogether. After all, who can stop them now that they control every branch of the federal government?

John W. Leek is a student at Ocean Springs High School. He can be reached at mseditor@.



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Will Cheney Go Nuclear?

By Nicholas F. Benton

The Falls-Church News-Press [VA]

March 10, 2005

 

The countdown to nuclear holocaust begins today, and it will all take place in the U.S. Senate.

The very nature of the U.S. Senate is being threatened by a Bush administration willing to torpedo over 200 years of U.S. Constitutional tradition in order to ramrod through the appointment of the worst of his right-wing judicial nominees.

Today, the first of these, William Myers III, comes before the Senate Judiciary Committee as a nominee for the U.S. Court of Appeals, the second highest court in the land. Myers, a former lobbyist for the mining and ranching industries demonstrated at a hearing last week that he is an anti-environmental extremist. He has written that all habitat conservation laws are unconstitutional because they interfere with potential profit.

Democrats in the U.S. Senate had no problem confirming the vast majority of judicial nominees brought forth by Bush in his first term. There were only 20 among over 200 that the Democrats could not stomach, those with arch-extremist views, like Myers.

For those 20, Democrats reverted to the Senate's time-worn tradition of the filibuster, just as Republican Senators did to block the confirmation of Clinton nominees and as Senators from both parties have done back to the founding of the nation.

But now the Bush administration has decided it will not accept the Senate's rejection by filibuster of his 20 extremists, and with the beginning of its second term, has re-submitted them all.

While undoubtedly lacking the 60 votes in the Senate required to end a filibuster, the Bush administration has another option for ramming through its beloved 20, and it is lovingly called the "nuclear option."

That's because it will have the effect of a nuclear bomb going off in the Senate. It will trigger a level of chaos and disintegration never seen before in that august body.

But the option exists. It has for a long time, but it has almost never, except in a handful of very specific cases with extenuating circumstances, been invoked. Very few have been sufficiently irresponsible or indifferent to the role of the U.S. Senate in this democracy to exploit it for partisan purposes. But it is in keeping with the degenerate character of this administration that it very well might try.

The option gives the President of the Senate the technical prerogative to rule Senate rules out of order. That is, he can override the rule requiring 60 votes to close a debate with one that says only a simple majority will do.

Vice President Cheney, therefore, as President of the Senate, might do just this when the judicial nominees come to the floor for a confirmation vote of the full Senate.

The wisest counsels in both parties have cautioned against the extreme danger in reverting to such a move. They are calling on Bush to confer with Senate leaders of both parties to find an alternative, even if it means withdrawing the names of his these nominees.

It is not at all clear, for example, that any of the more moderate Republicans will go along with a scheme to decimate the Senate for the sake of appointing a few right-wing crackpots to the judicial bench. At some point, even they might draw the line.

The eloquent Sen. Robert C. Byrd (D-WVa) unleashed a firestorm of controversy last week when he equated a possible recourse to the "nuclear option" to the legislative actions of Hitler in Nazi Germany. The reference caused many predictable howls, but almost no adequate news coverage of what he was actually trying to say.

Byrd prefaced his remarks about Hitler with a lengthy discourse on the role of the Senate in the U.S. Constitutional system. It was never intended, he explained, to be a body governed my majority rule. Set up with two members per state, regardless of the size of the states, it is intended to be "the forum of the states."

Unlike the House, "the Senate is intended for deliberation, not point scoring. The Senate is a place designed, from its inception, as expressive of minority views...Unfettered debate, the right to be heard at length, is the means by which we perpetuate the equality of the states...The Senate was deliberately conceived to be a...guardian of the rights of the minority. The Senate is the watchdog because majorities can be wrong and filibusters can highlight injustices," Byrd explained.

It is in this context that Byrd noted a keen insight by Hitler scholar Alan Bullock. Hitler's dictatorship rested on the constitutional foundation of a single law, the Enabling Law, Bullock had noted. "Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the state...Hitler never abandoned the cloak of legality. He recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal," Byrd cited Bullock.

It seems the similarities between invoking the "nuclear option" in this case and Hitler's M.O. are entirely plausible and well worth noting.



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Mountain Views: Senators waste time maneuvering

By John Hanchette, Niagara Falls Reporter [NY], March 8, 2005

OLEAN -- Here's a prediction: The coming session of Congress will draw the historical label of a do-nothing body of lawmakers that frittered away several chances to improve the nation and body politic in a crucial period of the American experience by bloviating endlessly.

Why? Two words little recognized or understood by Americans -- filibuster and cloture. The lawmaker logjam will occur in the Senate, where these maneuvers are used, and it will completely cripple the federal legislative procedure for months.

A filibuster occurs when members of one party in the U.S. Senate use extended debate -- sometimes weighty and intellectual, sometimes nonsensical -- to block legislation. They do this when they know they are on the losing side of the potential vote tally. In the history of this illustrious body, some senators have recited poetry, read irrelevant letters from relatives, referred to nursery rhymes, recited recipes and sonorously intoned long passages from the Bible to avoid a vote and defeat of their position. Both Republicans and Democrats have used this tactic.

Cloture is the mustering of enough votes to break a filibuster. In the six decades before 1975, that number necessary for ending debate and calling the vote was two-thirds of the Senate (today that would be 67 votes). The cloture rule number was changed 30 years ago to three-fifths, or 60 senators, to cut off a filibuster.

Trivia and uninteresting minutiae, you say? Hardly.

In the upcoming battle over these procedures, the shape of American jurisprudence and judicial behavior will be settled for decades to come.

At the root of this impending floor struggle are two factors -- growing bitterness from Democrats over President George W. Bush's judicial selections and growing anger from conservative Republicans over the prospect of seeing their "mandate" from recent elections to mold a conservative judiciary ruined by filibustering liberals and moderates.

The Senate has the constitutional job to advise and consent on White House nominations to the federal judiciary -- from the Supreme Court, through the appellate system, right down to federal judges at district court level.

To invoke cloture and break a filibuster, the conservatives need 60 votes. The numbers shake out this way: the Senate currently is composed of 55 Republicans, 44 Democrats and one independent. This portends some grim algebra for right-wingers and the White House if Senate opponents of Bush's judicial nominations get their act together.

So, the Bush administration's strategy for smoother judicial appointments is typical of the current power structure -- change the rules.

Many GOP senators want to alter the cloture rule so that a simple majority could cut off debate -- 51 votes. That would be a number relatively easy for Republicans to obtain if current head-counts are accurate, although some GOP senators (think: John McCain of Arizona, or Chuck Hagel of Nebraska) probably will oppose the change. Going from three-fifths for cloture to a simple majority vote would almost certainly castrate the power of Democrats to block Bush's federal bench picks. Not that the Democrats have been able to wreak much confirmational havoc with Dubya's choices so far -- of more than 200 of Bush's first-term judicial nominees, Democratic filibusters, or the mere threat of one, halted only 10 appellate court choices.

This new rule, if passed by the Republican majority in the Senate, would mean a mammoth change in the way the "world's greatest deliberative body" (as the chamber's boastful members like to characterize themselves) does business. It would be such a stark transition that the idea has taken on an evocative nickname within Senate corridors -- first bestowed by former Senate Majority Leader Trent Lott of Mississippi -- "the nuclear option."

Ending debate with a simple majority vote has political tendrils that reach all the way to our cherished idea of checks and balances, of maintaining a healthy two-party system, of taking into consideration minority arguments.

One assured result of the change would surely make Page One headlines -- a smooth confirmation of whomever Dubya selects for the Supreme Court to replace Chief Justice William Rehnquist, who is suffering from thyroid cancer and is expected to step down soon.

So why would this cripple Congress?

Because Democrats swear an all-out partisan war will ensue if the cloture requirement is changed to a simple majority -- and they have some tactical weapons available. Senate rules accord the minority other chances and means to effectively oppose the majority. The Senate, in day-to-day activity, is most efficient when it runs on "unanimous consent." The average daily load of maybe a dozen nominations to this or that post and perhaps a half-dozen bills are usually greased along the legislative path without time-consuming reading of the bill itself and numerous amendments -- lubricated by motions, usually approved by voice, for "unanimous consent."

Any one senator, however, can insist that each and every bill be read in toto, or that every vote be taken by laboriously calling the roll. It can bring the venerable chamber to a screeching halt.

Sen. Arlen Specter, the Pennsylvania Republican who chairs the Senate Judiciary Committee, told the Washington Post in late February that going to the "nuclear option" would mean "the Senate will be in turmoil and the Judiciary Committee will be in hell."

One of the reasons Senate Democrats are unnerved and angry is the determination (they view it as obstinacy) of President Bush to renominate conservative judicial choices who had already been filibustered successfully by the minority in 2003. Usually, such rejected nominees are not even mentioned again as possible judges.

"This crowd wants to shove everything down our throats," complains Sen. Joseph Biden, the Delaware Democrat who chaired the Judiciary Committee in the Ronald Reagan years. Filibusters, he told writer Jeffrey Toobin in "The New Yorker" magazine, "make sure that a minority gets a voice." The Bush conservatives, Biden said, "don't pull back on anybody."

Both Democrats and Republicans have effectively used filibusters to stop nominations and legislation favored by opposition-party presidents.

Some Democrats still are sore that, in Bill Clinton's first term, conservative senators used the windy procedure to block the Arkansan's first choice for surgeon general, an otherwise qualified home-state gynecologist who had performed abortions. Republicans are still fuming over minority use of the filibuster two years ago to stonewall Bush's nomination of the respected Miguel Estrada to the U.S. Court of Appeals for the District of Columbia.

Some usage has been scurrilous. Filibusters were particularly effective for southern senators who wanted to block civil rights legislation in the 1950s and 1960s. In fact, the longest Senate filibuster on record was fashioned by the late Strom Thurmond of South Carolina in opposition to the Civil Rights Act of 1957 -- 24 hours and 18 minutes.

During the Great Depression, Louisiana's famously colorful Huey P. Long employed Senate filibusters whenever he thought a bill favored the rich over the poor. He once held the Senate floor for 15 hours, reciting Shakespeare and reeling off recipes for Cajun "pot-lickers."

The rhetoric is heating up over this issue.

Sen. Robert Byrd, the West Virginia Democrat who's considered the best parliamentarian and historian of that chamber, took to the floor last week to unburden himself of a fervid and subsequently criticized speech in which he summoned images of Mussolini and Hitler to predict totalitarian consequences if the conservatives prevail. Without the right of debate, he asked, "what will forestall plain muscle and mob rule? ... We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not of men."

Byrd even brought in religious allusions: "Jesus Christ was killed by a majority; Columbus was smeared; and Christians have been tortured. Had the United States Senate existed during those trying times, I am sure these people would have found an advocate."

Going to court over the imminent change in filibuster-cloture rules is not a realistic option for the Democrats. Judges traditionally defer to the executive and legislative branches of government when it comes to decisions over internal governing of those bodies. The GOP would welcome a court fight. Conservative senators keep citing a recent article in the "Harvard Journal of Law and Public Policy" by Martin Gold, a former aide to Senate Majority Leader Bill Frist. Titled "The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster," this work notes there is absolutely nothing in the Constitution about needing a supermajority concerning any Senate function of advise and consent. It will likely be used as a blueprint by Republicans for changing the cloture rule.

Under Gold's envisioned process, a senator (Republican) could rise to a point of order during extended debate or filibuster over a judicial nominee, and claim further argument would be "dilatory" and thus out of order. If the presiding officer of the Senate -- in important debate likely to be Vice President Dick Cheney -- sustained the point of order, as he would, it would create lasting and binding precedent. That's the way that chamber operates. If Democrats challenged that ruling, it would take only a majority vote -- as it does now -- to sustain a ruling by the presiding officer. Pretty simple power play.

It is possible, of course, that this history-making contretemps can be avoided. But the rabid partisanship and division now afflicting the body politic augurs not well for that desired outcome. Bush's probable triumph in this maneuver may fall under the category of Answered Prayers -- things fervently wished for that turn out bad for the wisher.

Republicans who change the filibuster and cloture rules, predicts former Clinton political guru Dick Morris in The Hill newspaper, "will be undermining their own president and their electoral fortunes for years to come."

The "simple truth," Morris holds, is that Dubya actually needs the threat of a Democratic filibuster on his judicial nominations: "It is only by pointing to the threat of Democratic intransigence that Bush can justify appointing a moderate conservative, instead of a doctrinaire one, to the Supreme Court."

Don't hold your breath waiting for the White House to heed that warning. My guess is if President Bush is reading that passage right now, he's laughing himself silly.

John Hanchette, a professor of journalism at St. Bonaventure University, is a former editor of the Niagara Gazette and a Pulitzer Prize-winning national correspondent. He was a founding editor of USA Today and was recently named by Gannett as one of the Top 10 reporters of the past 25 years. He can be contacted via e-mail at Hanchette6@.



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Giving Bush's renominees the Byrd

By Molly Ivins, Creators Syndicate, March 8, 2005

In the magical upside-down world of right-wing blogs, it is now an accepted article of faith that Sen. Robert Byrd compared George W. Bush to Hitler last week. Republicans are demanding an apology, many have taken to high dudgeon, and another pointless flapette is on.

Actually Byrd, a noted scholar of the Senate and its procedures, made an interesting speech opposing the "nuclear option" of cutting off Senate debate on judicial nominees. "Rumor has it there is a plot afoot in the Senate to curtail the right of extended debate in this hallowed chamber, not in accordance with its rules, mind you, but by fiat from the chair," said the elderly Byrd. He is also famed for his magniloquent speaking style, a splendid old-fashioned oratory known to older Americans who had to study rhetoric. Byrd tangentially mentioned Hitler, quoting historian Alan Bullock to make the following point:

"Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the state: The correct order of events was first to secure access to that power and then begin his revolution. Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side. Instead, he turned the law inside out and made illegality legal."

A point worth pausing over. Byrd went on to suggest the "nuclear option" ploy is similar in that it involves the same premise: If you can't win under the rules, you change the rules. Certainly a case of rhetorical overreach, but then, that is a hazard of public speaking.

The blogger Wonkette posted an amusing collection of Republican politicians comparing this, that and the other to Nazi Germany -- a ruling on abortion, stem cell research, even the Kyoto protocol. In 2002, former Sen. Phil Gramm of Texas managed to find a tax bill like something "right out of Nazi Germany. I don't understand ... why all of a sudden we are passing laws that sound as if they are right out of Nazi Germany." Rhetorical overreach plagues many: George W. Bush once managed to invoke the tragic memory of 9-11 in aid of a capital gains tax cut.

Byrd's really quite thoughtful speech should appeal to conservatives with its emphasis on historical precedent, constitutional responsibilities, and the system of checks and balances. Byrd also made a spirited attack on Franklin D. Roosevelt for his misbegotten plan to "pack" the Supreme Court.

All of this was about Bush's decision to renominate 20 of his choices for the federal bench who never got a vote in his first term because of threatened filibusters. For some reason, Republicans have chosen to treat these rebuffs as though they were World War III, accusing Democrats of the dread "obstructionism." Their own record during the Clinton years of knocking off dozens of President Clinton's judicial nominees gives not the slightest pause.

The 20 retreads include some real dogs. One of these prizes is William G. Myers III, nominated for a lifetime seat on the U.S. Court of Appeals for the Ninth Circuit. His qualifications consist of having spent most of his adult life as a lobbyist for Western mining, timber and oil companies. Bush named him top lawyer in the Interior Department in 2001, apparently on the grounds that Myers once compared the federal government's management of federal lands to the tyranny of King George III.

Another gem is Janice Rogers Brown of California, nominated for the D.C. Court of Appeals, who described the New Deal as "the triumph of our socialist revolution" and praised an infamous line of Supreme Court cases from 1905 to 1937 striking down worker health and safety laws as infringing on the rights of business. (Of course your employer has a right to kill you -- what are you, out of the mainstream?)

Still another prize in this package is Claude A. Allen, who believes abortion rights are causing genocide of black people. A supporter of abstinence education, Allen backed the administration's decision to remove information about condoms from the Web site of the Centers for Disease Control.

My personal fave is Priscilla Owen of the Texas Supreme Court, who is so far out that Alberto Gonzales once denounced one of her decisions as "an unconscionable act of judicial activism."

Then there's William Haynes, principal author and defender of the administration's dubious handling of several torture issues.

All in all, a lovely bunch of coconuts, with a collective record showing opposition to human rights, civil rights, abortion rights -- pretty much everything but property rights.

Go, Byrd.



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The Big Bomb in the Senate

The Republican right is desperate to implement what's called the nuclear option, ending filibusters. There may be blowback.

By John Heilemann, New York Magazine, March 7, 2005

Since last October, when the Supreme Court made public that William Rehnquist was suffering from thyroid cancer, it’s been plain that the chief justice is firmly ensconced in the Court’s departure lounge-the only question has been when, exactly, Elvis would leave the building. Now we know. With Rehnquist doing his work from home, he seems committed to hanging on until the term ends in June. Then, retirement. And then, as surely as night follows day, a battle over his replacement that’s likely to make the tussles over Robert Bork and Clarence Thomas look almost civilized.

And that, I hasten to add, is Dr. Pangloss’s forecast. For down in Washington, another fight is brewing over the future of the Supreme Court-a fight, in fact, whose consequences, both political and jurisprudential, can’t be overstated. Ever since November 2, Republicans have been threatening a procedural maneuver known in Washington parlance as the “nuclear option”-a change to the rules of the Senate, advanced by Majority Leader Bill Frist, that would effectively bar Democrats from filibustering judicial nominations. And at some point in the next few weeks, they just might push the button.

Though the nuclear option was ostensibly designed to overcome Democratic filibusters of George W. Bush’s appellate-court nominees-twelve of whom he recently, defiantly renominated-it would apply to Supreme Court appointments, too. With Rehnquist on his way out and more justices soon to follow, Republicans, with nothing more than a bare 51-vote majority (as opposed to the 60 needed to halt a filibuster), could confirm anyone they pleased. “I keep saying to people, ‘I know you care about the Supreme Court,’ ” says People for the American Way president Ralph Neas. “But in the next four to eight weeks, there could be a vote that would render moot all the future votes on Supreme Court nominees. The right knows this is its 45-month window to shape the Court for the next 30 to 40 years. If Republicans win on the nuclear option, they could get John Ashcroft confirmed as chief justice, or Pat Robertson.”

For Democrats, opposing the nuclear option tooth and nail is obvious, instinctive, almost a matter of muscle memory. But for the GOP, the issue is already turning out to be a good deal trickier, and in ways that are quite revealing: about the hairline fissures now appearing in the edifice of Republican Party unity; about the difficulties of being a radical party in control of what are, at bottom, fundamentally conservative (in the old-fashioned sense) institutions; and about the challenges of building a stable, lasting political majority while keeping the red-meat-scarfing loyalists who elected you happy and sated.

Among the scarfers, the desire to storm what they see as the last branch of government controlled by the decadent left and pillage at will is ferocious and all-consuming-a point hammered home for me when I flew down to Washington in February for the Conservative Political Action Conference. For more than 30 years, CPAC has been the movement’s revival meeting, attended by several thousand of the most ardent Reaganauts, Falwellians, and dittoheads you could ever hope to meet. This year, they sang in unison, assailing the filibuster rule as an impediment to their counterrevolution.

Here was Rick Santorum, clucking about his hope that Democratic Senate leader Harry Reid “will come to his senses,” but warning that if he doesn’t, Santorum would be “happy to go to the country and say, ‘I’m for the Constitution.’ ” And here was Senator John Cornyn of Texas, a Judiciary Committee member, being roundly cheered for his suggestion that “we shouldn’t call it the nuclear option-we should call it the majority-rule option.”

The substance of the claims made in its favor by the CPAC folks was almost comically thin. The arguments, as best as I can make out, boil down to two: that filibustering to block political appointees is unconstitutional and that the Democratic use of it to thwart Bush’s nominees is wholly unprecedented. The second of these founders on reality: Republicans blocked almost exactly as many of Bill Clinton’s nominees as Democrats have George W. Bush’s. And the first claim founders on consistency: If filibusters are unconstitutional now, they must’ve always been unconstitutional, yet when Republicans were in the minority in the Senate, no one apparently thought to mention it.

The obvious weakness of the Republican arguments is grist for Ralph Neas’s mill. Heavily bankrolled by liberal funders the right would consider borderline satanic, he’s built himself a high-tech war room for the anti-nuclear campaign. He’s also enlisted an A-list cast of Democratic operatives, from former Clinton press secretary Joe Lockhart, media guru Carter Eskew, and pollster John Martilla to a coterie of former Judiciary Committee staffers he dubs the “sons and daughters of the Senate.”

Neas has played a part in the efforts to defeat pretty much every controversial conservative judicial candidate since Bork, including Charles Pickering and Miguel Estrada during the first Bush term. He believes that if Frist does decide to push the button, it will be after a Democratic filibuster of one (or more) of the president’s appellate nominees, and not in conjunction with replacing Rehnquist. “With a Supreme Court nominee, the whole world is watching,” he contends. “They want to do this when as few people as possible are paying attention.”

To win, Neas and the Democrats will need to persuade six Republicans to break ranks. Four moderates, including John McCain, have already publicly declared their opposition; two others, including Chuck Hagel, are perched awkwardly on the fence. And three conservatives have refused to cough up an opinion. Meanwhile, at least one Democrat, Ben Nelson, has voiced dismay over his own party’s use of filibusters against judicial nominees. “It’s too close to call,” Neas admits, “but we’ve just started our lobbying.” Last week alone, he and his people met with fourteen Republican senators in their state offices.

Frist, by contrast, has told the Washington Times he already has the votes. But finding someone who believes him in the capital is like locating WMDs in Baghdad. “If we had 51, we’d have done it yesterday,” concedes a conservative judicial activist. “But we’re getting closer.”

Though Frist would never admit as much-he’d say it’s all about principle-the case he’s making to Republicans is that the nuclear option is a win-win proposition. If they prevail, obviously, it’s a judicial jackpot. But even if they lose, the politics of tagging the Democrats as obstructionists works decidedly in their favor. It’s now an article of faith on the right (albeit one with scant evidence behind it) that Tom Daschle’s defeat in November was due primarily to the filibuster strategy he masterminded. As Cornyn put it at CPAC, “Daschle assumed there was no price to pay, but the people of South Dakota got the message, and they threw him out.”

Were Frist to line up the votes, it would be a powerful show of strength on the part of the Christian right. And a victory here would also allow Frist to bank invaluable political capital for his putative presidential run in 2008. “He’s a moderate in many ways,” notes a Democratic consultant. “But if he delivers this, he’s a hero forever to the right.”

Similar thoughts are surely racing through the heads of every Senate Republican who thinks himself a potential inheritor of the keys to the White House from Bush. (That is, most of them.) Self-regard? Hubris? Arrogance? That’s the Senate for you. Yet the largest obstacle to Frist’s plan is another aspect of the culture of the place: the belief that the Senate’s traditions are sacred, that it should be an institution where unbridled majoritarianism doesn’t always carry the day. Or, as McCain puts it, “The Senate should not be like the House.”

Even for those of us who’ve wondered if anything would be lost to democracy if the Senate were burned to the ground, McCain is onto something. And for many other “institutional conservatives,” his argument is the essence of reason. “When senators get up in the morning and look in the mirror,” says a longtime Senate aide, “the first thing they say-after ‘I should be president’-is ‘Thank Christ I’m not in the House.’ ”

In the end, I suspect such views are likely to prove both stubborn and influential. As the prospect of actually dropping the bomb becomes more real, there are signs of Republican nervousness the plan might backfire. In an interview last week, Arlen Specter was speaking, I reckon, for many of his colleagues when he said, “If we go to the nuclear option . . . the Senate will be in turmoil and the Judiciary Committee will be hell.”

Whatever the final fate of the nuclear option, however, the debate over the measure has already illuminated two points.

First: A party that seriously considers, let alone achieves, the demolition of a 200-year-old Senate tradition for essentially political ends cannot properly be called conservative. As Newt Gingrich always honestly advertised, the GOP is now a radical party, in the strictest sense of the term. But being radical, as Gingrich learned to his regret, demands a degree of ideological purity that makes governing damn hard. It also has a tendency to lead to overreaching.

Second: The fact that enacting the nuclear option has not (yet) been a slam dunk for Republicans, despite the implicit backing of the White House, is one of a number of signs that the vaunted party cohesion that characterized Bush’s first term may be on the wane. On Social Security, the budget, and even taxes, there have been more Republican yowls of discontent and disagreement in the first two months of Bush’s second term than anyone could have predicted. And most of them are emanating directly from the halls of the upper chamber.

I’ll say it again: That’s the Senate for you. Pompous, windy, prone to pettifoggery-and maybe, just maybe, more of a pain in Bush’s ass than either he or Rove bargained for. Here’s hoping.

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Welcome Democratic Speech: Senate filibusters are the sound of the Constitution at work

by Herman Schwartz, Legal Times, March 7, 2005

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The judgeship wars are resuming. President George W. Bush has renominated most of the judicial candidates blocked in the last Congress, the Senate Democrats are again planning to filibuster, and Senate Majority Leader Bill Frist is threatening to invoke the "nuclear option" of banning filibusters for judicial nominees.

If he succeeds, the Senate's role in our constitutional system of checks and balances will be seriously undermined.

The judiciary constitutes an independent third branch, a fundamental and indispensable element of our checks and balances system. It is designed to keep Congress within constitutional bounds and the president and his administration within the limits of the law. Judges have the ability to strike down the actions of both branches of government, and the political branches have little recourse other than the cumbersome process of constitutional amendment.

It is thus imperative that both the president and the Senate concur about which individuals are to be entrusted with such extreme power. As explained by Sen. Robert Griffin (R-Mich.), leader of the 1968 filibuster against Justice Abe Fortas' nomination to be chief justice, the Constitution gives the president "only half the power [to appoint judges], and we have the other half, and we ought to assert ourselves."

Even with executive branch nominees, the Constitution does not trust the president. Having lived under the unilateral actions of George III, the Framers granted the president only "half the power" to appoint such officers, and this applies even to members of the Cabinet; the constitutional exception for appointment without the Senate's consent is limited to those lower-level officials considered constitutionally "inferior."

The Senate's rejection of the president's choices was intended to be a serious possibility, and senators of both parties have turned down executive branch nominees, at times with filibusters.

For example, Republicans used filibusters to block President Bill Clinton's choice of Sam Brown to head the delegation to the Conference on Security and Cooperation in Europe and of Dr. Henry Foster to be surgeon general. In 1959, Democrats prevented Adm. Lewis Strauss from becoming secretary of commerce.

Nevertheless, when presidents nominate officers for their administration, presidents have a presumption in their favor. The officers will serve to carry out the president's policies, and the president usually is free to dismiss them if dissatisfied with their performance.

The federal judiciary, however, is not part of a president's administration. Federal judges are not the president's people, and no presumption of acceptance whatsoever attends the president's judicial nominations.

FOR LIFE

Moreover, judges have more power today than ever before. Federal administrative, statutory, and constitutional law affect every aspect of our daily lives, to which the ever-expanding federal court dockets attest. To ensure the just resolution of these disputes, the Constitution grants federal judges life tenure so that they will be independent and impartial. This, of course, also makes them unaccountable.

Judges also are serving for longer time periods than they did in the days of George Washington and John Marshall. Between the early 1800s and 2003, increasing longevity raised the average judge's tenure from about 15 years to 24 years, according to a study by Yale professor Judith Resnik. And judges appointed in their 40s or 30s - as more than a few have been - may serve for much longer.

In light of these decades on the bench, there should be no doubt about a judicial candidate's qualifications. Whatever misjudgments or mistakes were made in the confirmation process cannot be undone. Even if new information casts serious doubt on a nominee's fitness, the decision to confirm is irreversible.

For example, would the Senate have confirmed Jay Bybee to the U.S. Court of Appeals for the 9th Circuit if senators had seen his Aug. 1, 2002, memo advocating a very narrow definition of torture? Once brought to light, that memo was quickly repudiated. Yet even given what we now know about his role in the abuse of detainees, Judge Bybee remains untouchable.

Granting such unaccountable authority to someone for that long fits uneasily in a democracy. The United States is the only democracy in the world that grants to judges life tenure without mandatory retirement age. Within our borders, only Rhode Island has a comparable provision to the federal system.

This irreversible longevity and accompanying lack of accountability distinguish judicial confirmations from virtually all other Senate actions. Legislation can be amended or repealed. Sooner or later, executive appointees leave office, voluntarily or involuntarily. But so long as judges stay on "good behavior" (which in practice means avoiding only the most-egregious misconduct) they are beyond reach for life, no matter how unfit they turn out to be.

Respect for the rights of the minority in the judicial appointment process is especially needed when the same party controls both the presidency and the Senate.

In such circumstances, unrestricted Senate debate is the only check, since the Senate majority will routinely confirm whomever the president appoints. As former Senate Majority Leader Howard Baker (R-Tenn.) wrote in 1993, destroying the right to filibuster "would topple one of the pillars of American Democracy: the protection of minority rights from majority rule. The Senate is the only body in the federal government where these minority rights are fully and specifically protected."

Moreover, the Senate has never been a majoritarian institution, nor was it intended to be. The provision in the Constitution for two senators per state guarantees that.

Senate rules and practices reaching back to the first Congress have allowed extended debate by one or a few senators. When challenged about their exercise of this practice, many senators have responded as did then-Sen. Bob Smith (R-N.H.): "Don't pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution . . . by blocking a judge or filibustering a judge that I don't think deserves to be on the circuit court. . . . That is my responsibility. That is my advise and consent role, and I intend to exercise it."

And despite his current strictures against judicial filibusters, in 2000 Sen. Frist joined 13 other Republicans in filibustering Richard Paez's nomination to the 9th Circuit. A cloture vote cut off the filibuster, but only because of a pre-existing agreement between the then-majority and minority leaders.

The failed Paez filibuster also shows that a successful filibuster can no longer be mounted by a "little group of willful men" in President Woodrow Wilson's words. Rule changes allow other Senate business to continue while a filibuster is in progress, and now it takes 41 senators to block action. This is a large minority, which may in fact represent a majority of the electorate in terms of numerical population. The filibuster thus ensures that controversial matters will pass only with clear majority approval.

A ROADBLOCK OF ONE

Complaints about allowing a minority of the Senate to prevent a vote on a judicial nominee seem particularly unpersuasive when viewed in the full context of how the Senate has handled judicial nominees. Despite limitations on filibusters, it is still possible for individual senators to block nominations. For example:

* Committee chairs. Because judicial nominations must first be heard by the Judiciary Committee and then voted upon, the committee chair can block a nominee by simply refusing to hold a hearing on a nominee or delay it indefinitely. Even if the nominee gets a hearing, the chairman can refuse to schedule a committee vote. As Judiciary Committee chairman during the Clinton presidency, Orrin Hatch (R-Utah) used this power many times.

* Blue slips. Upon taking over the Judiciary Committee chairmanship in 1995, Sen. Hatch reinstated the "blue slip" system that the Democrats had dropped. As he formally notified senators in 1998, "no further proceedings will be scheduled [by the Judiciary Committee] until both blue slips have been returned by the nominee's home state senators." Until recently, senators of both parties frequently used this power to kill a nomination.

* Anonymous floor holds. Even if a nominee is voted out favorably, any individual senator can postpone a Senate floor vote indefinitely by putting a "hold" on that nominee. These holds are usually honored, and the identity of the senator is rarely disclosed.

In 2003, Sen. Hatch unilaterally dropped the blue-slip rule and the requirement that at least one minority party member agree to a vote on a nominee if any senator on the Judiciary Committee objects to holding a vote. In 2004, Sen. Frist abandoned the "Strom Thurmond" rule, whereby the Senate does not consider judicial nominees after the presidential nominating conventions.

After this string of rule changes, Democrats have few options. One is to stop cooperating on other matters. Because so much of Senate business depends on unanimous consent for procedural measures, such as waiving the reading of bills, even a single senator can effectively bring the entire body to a halt.

The other option is to filibuster. As former Senate Republican Whip Alan Simpson of Wyoming put it, when justifying a filibuster that he led in 1993, if "you stiff the minority in committee . . . you know what they are going to do."

NUCLEAR FALLOUT

Arguments about the harm to congressional business from filibusters are not compelling. A legislative filibuster, which Sen. Frist would still permit, can indeed be very harmful. That was true of the filibusters against civil rights legislation, which blocked vitally needed federal action against racial discrimination.

But no such harm can occur from a filibuster that blocks a judicial nomination, for there are always more candidates for so coveted a position. If the president wishes, he can still fill the judicial vacancy with another eminently qualified candidate who is acceptable to the whole Senate.

Nor is there a current problem because of an unusually large number of vacancies. With the confirmation of 166 district judges and 35 circuit judges from 2001 to 2004, the crisis of judicial vacancies created during the Clinton presidency has been resolved.

If Sen. Frist goes nuclear, the tactic will not long be limited to judicial nominations, despite Frist's reassurances. If the president and his allies badly want a piece of legislation that is being filibustered, the temptation to use the nuclear option again will be irresistible.

Impasses and stalemates are common in government, particularly in a system of checks and balances. Normally, these lead to negotiation and compromise, but Bush and his party do not seem interested in such give-and-take.

But the pendulum does swing, and no party rules forever.

Herman Schwartz is a professor of law at American University Washington College of Law and the author most recently of Right Wing Justice: The Conservative Campaign to Take Over the Courts (2004).

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Byrd's Hitler comment eclipses real filibuster issue

By DeWayne Wickham, USA Today, March 7, 2005

 

Sen. Robert Byrd must think the clamor over what he said last week is al ot of bunk - and for good reason. The West Virginia Democrat was attacked for comparing a rule change threatened by leaders of the Senate's Republican majority with a law passed by German legislators in 1933 that gave Adolf Hitler limitless power.

"We, unlike Nazi Germany or (Benito) Mussolini's Italy, have never stopped being a nation of laws, not of men," Byrd said. "But witness how men with motives and a majority can manipulate law to cruel and unjust ends. Historian Alan Bullock writes that Hitler's dictatorship rested on the constitutional foundation of a single law, the Enabling Act."

Byrd's point is that, if carried out, the so-called nuclear option - a threat by Senate Republicans to deny Democrats the ability to filibuster judicial nominations - would be tantamount to the kind of twisted use of legislative power that allowed Hitler to rule by fiat.

Byrd's fear is that such an action would deny Democrats any say in the selection of federal judges in much the same way the Enabling Act empowered Hitler's Nazi Party to emasculate its opponents in Germany's legislature. "It seeks to alter the rules by sidestepping the rules, thus making the impermissible the rule," he complained.

Fuss distracts attention

Byrd's analogy is a stretch, but the claptrap over it is a misdirection that deflects attention away from the nuclear option he decries. Republicans hold 55 of the Senate's 100 seats. It takes 60 votes to stop a filibuster.

During President Bush's first term, Democrats used the filibuster to block confirmation of just 10 of his judicial nominees, while 204 were approved. Republicans say denying the full Senate a chance to vote on judicial candidates violates its constitutional duty to give advice and consent to such nominees.

They didn't always feel that way. When Bill Clinton was in the Oval Office, Senate Republicans used a rule called the "blue slip" to keep some judicial nominees from their home states from getting a Judiciary Committee hearing. But now that Republicans control the White House and Senate, they whine that Democrats who try to use the filibuster to keep a few of Bush's judicial nominees from a confirmation vote are "obstructionists."

Remember 'buncombe'?

That's buncombe - which is a word that found its way into our national lexicon after an 1820 incident when Rep. Felix Walker of Buncombe County, N.C., took to the House floor during the debate over the Missouri Compromise to give a long-winded, frivolous speech. Though he wasn't trying to delay congressional action, his rambling speech had that effect.

In the 1840s, the use of such twaddle to block Senate action was labeled a filibuster - and the practice has continued as a little-used, but acceptable, right of senators ever since. The filibuster is a reasonable check against unfettered decision-making by a Senate majority.

Had the German Reichstag had a similar legislative speed bump when Hitler was pressing it to pass the laws that unleashed his tyrannical rule, the history of that period might have unfolded differently.

Of course, the Republican Party bears no resemblance to the political movement that foisted Hitler upon the German people and the world. But it is obsessed with extending its hold on power, and apparently willing to change the rules of the game to ensure this outcome. And that's the danger Byrd wants to guard against.

"Yes, we believe in majority rule," Byrd said in his speech, "but we thrive because the minority can challenge, agitate and question. We must never become a nation cowed by fear, sheeplike in our submission to the power of any majority demanding absolute control."

He's right. The GOP's nuclear option is an arrogant abuse of power that would give it absolute control over the appointment of federal judges, at least until the next congressional election.

It also is a move that, if taken, would likely unleash an even more troubling era of "what goes around comes around" politics.

DeWayne Wickham writes weekly for USA TODAY.



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This battle isn't new

By SARAH A. BINDER AND STEVEN S.SMITH, St. Louis Post-Dispatch [MO], March 6, 2005

The U.S. Senate is on the brink of parliamentary war over Democrats' filibusters in the last Congress against 10 presidential nominations to the federal appellate bench. Decrying Democrats' tactics as unconstitutional, Senate Majority Leader Bill Frist has threatened to ban judicial filibusters by majority vote, a procedural move dubbed the "nuclear option" since it would invite massive retaliation by Democrats.

Our reading of the Constitution and the Senate's parliamentary history leads us to two blunt conclusions. First, filibusters of judicial nominations are plainly constitutional and come on the heels of years of Republican success in blocking votes on President Bill Clinton's judicial nominees.

Second, Republicans should be careful what they wish for. Republicans claim they can launch a surgical strike against Democrats by banning only judicial filibusters. In fact, the move will be nuclear - not only for the Democrats, but for Republicans and the institution of the Senate.

Citing the Constitution's "advice and consent" clauses, Frist and other prominent Republicans argue that the Senate is obligated to cast a vote on a presidential nomination to the federal courts. Because the Constitution does not stipulate a supermajority vote for confirmation, Republicans contend that requiring any threshold greater than a majority vote for confirmation is unconstitutional. Under the Senate's Rule 22, 60 votes are required to cut off debate on a pending nomination and to bring the Senate to a vote on confirmation. Republicans find this blatantly unconstitutional, since it raises the de facto threshold for confirmation to a supermajority of the Senate's 100 members.

Republicans' constitutional reasoning ignores critical features of the Constitution. The framers of the Constitution provided clear instructions in Article 1, Section 5 that each chamber would be empowered to write its own rules. Except for the seven instances for which the Constitution stipulates supermajorities for passage, the rule-making clause applies. The Senate can set whatever rules it wishes for carrying out its responsibilities of advice and consent. Requiring supermajorities to end debate on nominations is certainly constitutional. After all, the Senate requires only a simple majority for the actual vote on confirmation.

Democrats did not invent obstruction of judicial nominations. Today's battles follow at least two decades of conflict fueled by the growing polarization of the core constituencies of the two parties and by the rising importance of the federal courts. Republicans were equally adept at blocking Clinton's nominees, using their control of the Senate Judiciary panel to block over 60 percent of his appellate bench choices in his last two years. Senators of both parties have used anonymous holds and other means to prevent nominees from going forward. And in 1968 Republicans blocked a vote on the nomination of Abe Fortas for chief justice of the Supreme Court.

Troubled by Democratic filibusters, Republicans initially advocated changing Rule 22 to gradually ratchet down the number of votes required to end debate. But efforts to reform Rule 22 can be filibustered, and it takes a two-thirds majority to end debate on resolutions relating to the rules. Even with 55 Republicans in the new Congress, it seems likely that the Democrats can block a new rule.

Frist now warns Democrats that Republicans may proceed by majority vote to change the rules. The parliamentary machinery would look something like this: A Republican would make a point of order that the Constitution's advise and consent clause implies that the Senate is obliged to vote on judicial nominations. The presiding officer, potentially the vice president, would rule in favor of the point of order. When appealed to the Senate, a motion that is debatable under Senate rules, a motion to table would be advanced by Republicans to quash the appeal and sustain the ruling. Motions to table cannot be filibustered, which means that a simple majority could table the appeal and uphold the ruling. The result would be majority cloture by fiat of a simple majority, at least for the range of matters addressed in the ruling.

Makes little sense

Republicans maintain that their surgical strike against the filibuster will apply only to judicial nominations. Their argument that judicial nominations are a special class makes little sense. If the Constitution implies a Senate obligation to vote on judicial nominations, then it implies a Senate obligation to vote on all matters explicitly mentioned in the Constitution's two "advice and consent" clauses - all presidential nominations and treaties (what the Senate calls "executive business"). Choosing to limit the ruling to judicial nominations guarantees that in the very near future senators will attempt to extend the precedent to all executive business.

Nor can the mechanism proposed by the Republicans be readily limited to executive business. On constitutional grounds, as has been argued in the past, senators might argue that the Senate's constitutional power to make its own rules applies to each new Congress and that traditional parliamentary law, not the Senate's rules of the last Congress, govern until new rules are adopted at the start of a new Congress.

The reform-by-fiat approach is not likely to be limited to procedural matters arising under express provisions of the Constitution. The track record of the Senate on other procedural rulings suggests that majorities will be enticed to ease down the slippery slope of reform-by-fiat to rules that implicate the Constitution only remotely. All bets are off once the Senate accepts the nuclear option mechanism.

Are the Democrats helpless? Hardly. If the ruling is limited to judicial nominations, as Frist hints that it would be, Democrats can filibuster any other debatable measure in anticipation of a Republican move to bring up a controversial judicial nomination.

Would a minority party engage in such massive retaliation? So far, majority leaders have not taken the chance to find out. Colossal damage could be done to the majority party's, and perhaps the president's, agenda at a time when the majority is seeking to exploit the momentum of election victories.

Less brutish option

The right move for the Senate is to change Rule 22 rather than undermining the filibuster by a raw power move. Republicans would have our support for a reform along the lines proposed by Frist and other senators. Guarantee votes on nominees in committee and impose a deadline on the committee, say 120 days. Next, change Rule 22 so that over a two-week period, the number of votes required for cloture would fall from 60 to 57 to 54 and finally to 51. All together, including additional post-cloture debate time currently provided under Senate rules, a minority could delay action for 16 days. It would be hard to argue with more than two weeks of full-time Senate debate that senators had not had ample time to debate and educate the public.

There is little reason to be optimistic. Ending a filibuster on a resolution to change the rules is unlikely under current conditions. And this is about par for the course in the history of the filibuster. Minorities object to the change and individual senators, usually without saying so publicly, do not like to give up the leverage that comes with single-handedly stopping the Senate until they tire or cloture is invoked.

If these realities lead the Senate Republicans to take the nuclear option, we can only hope that the ensuing parliamentary war produces more substantial change in the Senate's limits on debate and its convoluted view that minorities can forever block changes in its rules. This is up to senators - restrain your partisan and ideological impulses, or expect the public to demand fundamental changes in an institution that belongs to all of us.

Sarah A. Binder is a senior fellow at the Brookings Institution and an associate professor of political science at George Washington University. Steven S. Smith is professor of political science and the director of the Weidenbaum Center on the Government, Economy and Public Policy at Washington University [in St. Louis, MO]. Together, Binder and Smith published Politics or Principle? Filibustering in the United States Senate (Brookings 1997).



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Closing down the Senate: Republicans threaten to end the right to judicial filibusters

by Marianne Means, NY Times News Service, Printed in Charlotte Observer, March 6, 2005

WASHINGTON - Suddenly, in the Senate the unthinkable is no longer unthinkable. It is beginning to look inevitable.

The showdown between the Republican majority and the Democratic minority has reached an incendiary impasse. Both sides keep heaping on more burning logs.

President Bush triggered the current firestorm by renominating 10 judicial candidates that Democrats had blocked with filibusters last year, contending the candidates were too far outside the legal mainstream. The crisis had been building for several years but Bush's action was a deliberate thumb in the eye the minority could not ignore.

The Democrats don't approve of those folks now any more than they did the first time around.

However, the majority, although numerically larger since the November election, still does not have the 60 votes necessary to block a filibuster. The proposed solution, once considered too extreme but now debated seriously: End the right to judicial filibusters altogether through a parliamentary maneuver.

And what would the Democrats do then? Shut down the Senate with their own parliamentary maneuvers, that's what. Even without the filibuster, individual senators can tie up the Senate by refusing to sign off with "unanimous consent" on bills and nominations, insisting that every bill be read, every vote be taken. Legislative business would essentially grind to a halt.

The Democrats might look like obstructionists but that beats rolling over like impotent losers.

What this would do to the reputation of the Senate, a revered institution, is too terrible to contemplate. It would eliminate the standing rules of the place and incinerate every senator's traditional right of extended debate. That's why even Republicans call the GOP scheme "the nuclear option."

Sen. Robert Byrd, D-W.V., a noted parliamentary historian, accused the Republicans of seeking to "turn the law inside out" and compared their behavior to that of Adolf Hitler, who used "the cloak of legality" for his own evil purposes.

Such intemperate language naturally did not sit well with Republican National committee chairman Ken Mehlman, who called Byrd's remarks "reprehensible beyond the pale."

But in the thrust of his remarks Byrd was eloquent in defense of the filibuster: "The Senate is a place designed, from its inception, as expressive of minority views. ... Without the filibuster ... the president of the United States can simply rule by executive order if his party controls both houses of Congress and majority rule reigns supreme ... the power of dissenting views will be diminished and freedom of speech will be attenuated."

Senate Majority Leader Bill Frist, R-Tenn., disagrees. As Congress convened, he called the judicial filibusters "an unfortunate break with more than 200 years of Senate tradition" and reserved the right to eliminate them by fiat, without a vote of the Senate.

Technically, Frist is right; but on political substance, he's dead wrong. Senate Democrats have been forced to rely on filibusters more than minorities in previous years because Republicans have systematically eliminated other avenues for raising objections. The GOP blocked more of President Clinton's nominees than the Democrats have blocked Bush's. But they were able to do it out of sight, in committee. A single senator from a candidate's home state could kill a nomination.

But as soon as Bush entered the White House, the GOP majority ruled senatorial objections were merely advisory. The Judiciary Committee dropped a rule that held at least one member of the minority had to agree to a nomination to move it out of committee. That left the Democrats with no voice until a nomination reached the floor.

More than 200 Bush judicial nominees were approved by the Senate in the past four years. Democrats have used the filibuster to stop only 10 appellate court choices. The prospect of an imminent U.S. Supreme Court vacancy, however, has accelerated the issue.

Frist has said he will not seek reelection but may run for president in 2006 instead. The nuclear option will endear him to the GOP right wing, which he needs to win the nomination. But he must get 50 Republican votes to invoke the change, and there are signs some GOP moderates are uneasy about the impact on the institution of such a drastic move.

If judicial filibusters can be outlawed, how long will it be before filibuster bans on other subjects, such as tax reform and Social Security, follow?

Marianne Means is a Hearst Newspapers columnist. Write her by e-mail at marianne@ .

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Fight over judges about to 'blow up'

By Jim Puzzanghera, San Jose Mercury News, March 6, 2005

[pic]Last week's Senate confirmation hearing for appellate court nominee William Myers kicked off the next round in the ever-escalating battle over President Bush's most controversial choices for the federal bench.

This standoff over a handful of judicial nominees may seem an abstract issue that, like many inside-the-Beltway controversies, produces lots of noise but little real impact on average Americans. But this battle, which could soon come to a dramatic conclusion, has implications far beyond the courtroom.

First, the judges are all nominees to the nation's appeals courts, the level just below the Supreme Court and one that is playing an increasingly important role arbitrating disputes in a politically divided nation.

But perhaps more important, the battle threatens to destroy the last bastion of bipartisanship in Washington, the usually courtly halls of the Senate, and to strip away some of the power of minority parties that the Founding Fathers envisioned. Taken together, those changes could affect everything from major legislative initiatives like Social Security reform to a possible Supreme Court nomination later this year.

President Bush triggered the latest round of rancor over the courts when he re-nominated seven judicial choices from his first term whom Democrats had blocked from confirmation with the strongest and most revered tool the Senate minority has for halting action -- the filibuster.

With Democrats vowing to block the nominees again, Senate Republican leaders are threatening to outlaw the filibuster for judicial nominations. Such a change in the longstanding rules of the Senate and the chaos it might trigger has caused senators to give the proposal a chilling name: the nuclear option.

Democrats, and even some Republicans, have seized on the Cold War terminology, warning that such a major alteration of Senate tradition will ``blow up'' bipartisanship. In a political version of the old theory of mutually assured destruction, Democratic leaders warn they will respond in kind, using the Senate's remaining minority rights to virtually close it down.

``The rules of the Senate are such that you can make life very difficult,'' said Sen. John McCain, R-Ariz., who like some other GOP centrists is leaning toward rebuffing his party leadership on the filibuster change. ``It will shut down the Senate. I'm not interested in working here when it's shut down.''

Unlike the House of Representatives, where the majority party has almost all the power and can force through legislation on its own, the Senate was designed to give significant power -- and voice -- to the minority. One of those powers is the filibuster, the ability to launch into endless debate to prevent a vote.

The idea was not only to provide checks on the majority's power, but also to ensure that the Senate would be more deliberative than the House. In the words of George Washington, the Senate would act as a ``cooling saucer'' into which the sometimes politically heated actions of the House could be poured.

Because it now takes 60 votes to defeat a filibuster and the majority party often doesn't command that many seats in the 100-member Senate, those in power are essentially forced to compromise.

Democrats fear that the loss of the filibuster for judicial nominees will open the door for the Republicans to outlaw all filibusters, altering forever the legislative balance envisioned by the Founding Fathers.

``The House was designed to be an institution in which the majority prevailed and the Senate was designed to be an institution in which the minority was empowered,'' said Ross Baker, a congressional expert at Rutgers University. ``The defining characteristic of the Senate is the empowered minority and that's something that would change dramatically.''

The nuclear option proposed by Republicans, Baker said, ``is a particularly dirty bomb'' because of the larger implications.

So why would the Republicans and Democrats risk its detonation, especially over so few judges?

Don't look to the rhetoric for answers. Both sides have carefully drawn their arguments to be correct but somewhat misleading.

The Republicans say the Democrats have been making unprecedented use of the filibuster to block judicial nominees. But the non-partisan Congressional Research Service says there were at least 17 filibusters of judicial nominees between 1968 and 2002, many of them by Republicans. All but one of those attempts failed, so Democrats have been setting a precedent in a way -- but only by successfully using the filibuster to block judicial nominees.

The Republicans also say every nominee approved by the Judiciary Committee deserves an up-or-down vote on the floor of the Senate. But during the last six years of the Clinton administration, Republicans in the majority in the Senate simply refused to hold hearings or committee votes on 63 judicial nominations, effectively killing them.

Republicans say they aren't being disingenuous; they believe they were entitled to block the judges because the GOP was the majority party.

The Democrats, meanwhile, say the Republicans are being petty to fight over such a small number of nominees. They point out that 204 of Bush's judicial nominees in his first term were confirmed -- more than Ronald Reagan had in either of his two terms, more than Bush's father in his one term, and more than President Clinton had in his second term.

But it's also true that the judges that are being held up are all candidates for the influential appellate courts, rather than the lower-level federal courts. While Democrats did not block 35 appellate nominees from confirmation in Bush's first term, they say the 10 they have halted are far out of the mainstream.

The group includes California Supreme Court Justice Janice Rogers Brown, nominated for the D.C. Court of Appeals, who once described the implementation of Franklin Roosevelt's New Deal programs as a ``socialist revolution.'' And there's Myers, who for years worked as a lawyer for private land interests in the West and once compared federal management of public lands to ``the tyrannical actions of King George'' before the American Revolution.

But although Democrats criticize their background, records or prior statements, all 10 received passing grades from the non-partisan American Bar Association. The group investigates each nominee for personal competence and judicial temperament, and while it does not consider a nominee's ideology, it does look for evidence of bias.

The real reasons why the Democrats and Republicans are fighting over the handful of nominees are complicated.

Some of it stems from accumulated bad blood dating back to 1987, when Democrats refused to confirm Robert Bork for the Supreme Court. Republicans responded by blocking some of Clinton's nominees, leading Democrats to block Bush's.

``Each side ratcheted it up, ratcheted it up, ratcheted it up, until you have a situation today where . . . no one wants to back down and no one wants to lose face,'' said Senate Judiciary Committee chair Arlen Specter, R-Penn., who is trying to avoid the nuclear option.

Beyond that, the Democrats want to limit Bush's ability to remake the nation's top courts. Because federal judges are appointed for life, a rush of far-right conservatives could influence the courts for decades.

For the Republicans, meanwhile, this is clearly a battle over just how much power the majority party should have. Many conservative Senate Republicans believe the party's hold on the White House and the Senate means they should be allowed to shape the judiciary, where decisions will be made on such key issues as the reach of government regulations and the role of religion in public life.

But some moderates are more worried about taking drastic action -- fearing not only that they could end up back in the minority and rue the loss of the judicial filibuster, but also that it would threaten their ability to get Democrats to go along with crucial legislation.

By doing things such as forcing the text of all bills to be read into the record, a lone dissenting Democrat could slow the chamber's operation to a crawl. A united group of 44 Democrats could block just about every controversial issue from being approved.

Facing that threat, Senate Republican leaders might not be able to detonate the nuclear option. Fifty-one votes would be needed to change the Senate rules, and the Republicans have 55 seats. But it's unclear if moderates like Specter and McCain would go along.

Sen. Dianne Feinstein, D-Calif., one of the less partisan Democrats, says the nuclear option warrants her party's vow of retaliation: ``I think the nuclear option would be a tragic and terrible mistake.''

But some conservatives say the Democratic threats won't dissuade them if the filibusters continue.

``The threats of shutting the place down don't scare me a bit,'' said Sen. Trent Lott, R-Miss., one of the main proponents of the nuclear option. ``In fact, a lot of people think, good, why don't you just leave town, too.''

JIM PUZZANGHERA is Washington bureau chief for the Mercury News.

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'Nuking' Free Speech

By Robert Byrd, the Washington Post, March 4, 2005

A "nuclear option" is targeting the Senate. No, this isn't some terrorist plot. Rather, some in the Senate are considering dropping a legislative bomb that threatens the rights to dissent, to unlimited debate and to freedom of speech.

President Bush has renominated 20 men and women to the federal bench, seven of whom the Senate rejected last year. To force a vote on these nominees, some senators are hoping to launch a parliamentary weapon aimed at the heart of open and extended debate. By a simple majority vote, a Senate filibuster on judicial appointments would be "nuked" for all time.

It starts with shutting off debate on judges, but it won't end there. This nuclear option could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate's very essence -- the constitutional privilege of free speech and debate.

To understand the danger, one needs to understand the Senate. The Framers created an institution designed not for speed or efficiency but as a place where mature wisdom would reside. They intended the Senate to be the stabilizer, the fence, the check on attempts at tyranny. To carry out that role, an individual senator has the right to speak, perhaps without limit, in order to expose an issue or draw attention to new or differing viewpoints. But this legislative nuclear option would mute dissent and gag opposition voices.

We have heard the president call for an up-or-down vote on his judicial nominees. But nowhere in the Constitution is an up-or-down vote -- or even a vote at all -- guaranteed, and the president cannot reinterpret our nation's founding document to achieve his political goals. Those who disagree with the president in this matter will be labeled "obstructionists," but nothing could be further from the truth.

A federal judge is selected for a lifetime appointment. Senators must apply their best judgment to each selection. If a senator believes a nominee should not be confirmed, that senator has a duty not to consent to confirmation. Yet, for the temporary goal of confirming a handful of objectionable judicial nominees, those pushing the nuclear option would callously trample on freedom of speech and debate.

If senators are denied their right to free speech on judicial nominations, an attack on extended debate on all other matters cannot be far behind. This would mean no leverage for the minority to effect compromise, and no bargaining power for individual senators as they strive to represent the people of their states.

Yes, Americans believe in majority rule, but we also believe in minority rights. Our liberties can be truly secure only in a forum of open debate where minority views can be freely discussed. Leave it to the House to be the majoritarian body. Let the Senate continue to be the one in which a minority can have the freedom to protect a majority from its own folly.

The writer is a Democratic senator from West Virginia and former majority leader.



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In judicial picks, will Bush unite or divide?

By Cokie Roberts and Steven V. Roberts, Decatur Daily Democrat [IN], March 4, 2005

Sen. Arlen Specter has some good advice for President Bush: Pick up the phone, talk to the Senate Democrats, and find a Supreme Court nominee who is "universally accepted" by both parties.

We are not optimistic that Bush will listen to Specter, the Pennsylvania Republican who now heads the Judiciary Committee. The president has often cited archconservatives Antonin Scalia and Clarence Thomas as his ideal justices. And as the health of Chief Justice William Rehnquist deteriorates, the president is under great pressure from his political base to replace him with an orthodox ideologue and force a showdown with the Democrats. But that would be a big mistake.

In order to ram through a controversial nominee, Republicans would be tempted to use the so-called "nuclear option" -- changing Senate rules to ban the use of a filibuster in judicial fights. If that happens, warns Specter, "the Senate will be in turmoil, and the Judiciary Committee will be hell."

Even more serious, changing the filibuster rule would severely damage the system of checks and balances that is the very core of the country's democratic structure. Such a change is not a conservative idea, it's a radical one. And it's wrong.

When it comes to judicial nominations, both sides nurse past grievances, and as Specter rightly puts it, "If you trace it back historically, both parties are at fault."

In 1968, Republicans used a filibuster to block Abe Fortas, Lyndon Johnson's choice for chief justice. In 1987, Democrats prevented a conservative hero, Robert Bork, from taking a seat on the court. During the Clinton presidency, the same Republicans who are now so incensed at Democratic tactics shelved dozens of judicial nominees. They didn't use a formal filibuster because they didn't have to.

As Sen. John McCain (R-Ariz.) recently admitted to writer Jeffrey Toobin of The New Yorker magazine, "We Republicans are not blameless here. For all intents and purposes, we filibustered Clinton's judges, by not letting them out of committee."

During Bush's first term, several hundred judicial appointments sailed through the Senate, but 10 were blocked by the Democrats, and it's those 10 that really alarm the White House. Seven of them were resubmitted in the new Congress, and this week Democrats lambasted the first one to get a hearing, William G. Myers III. Their clear signal: Democrats are willing and able to thwart Bush's picks when they really want to.

That's why Republicans are talking seriously about the "nuclear option." Here's how it would work: Vice President Cheney, presiding over the Senate, would rule that using the filibuster to block a judicial nomination is out of order. Democrats would appeal. But it would take only a majority to uphold the vice president, and since Republicans hold 55 of the 100 seats, they could suffer a few defections and still prevail.

The cost, however, would be enormous. Not only would the Senate grind to a halt, but something very precious would be lost. The great test of democracy is not majority rule, but the protection of minority rights. That is precisely the issue facing Iraq right now, as the Shiite Muslim majority struggles to find roles for the country's two main minorities, Sunnis and Kurds.

How can the Bush administration preach the gospel of minority rights to the Shiite rulers in Baghdad when its agents are trashing minority rights in the U.S. Senate?

And the Republicans who think changing the filibuster rule is such a clever idea should remember something else: No majority is permanent. Republicans might be in the minority again someday, and they will want the same weapons they now seem ready to toss overboard.

This whole fight reflects a much deeper problem in the Senate -- the erosion of the center. Today, there are only a handful of moderate Republicans urging restraint from the president, a far cry from just a few years ago when centrists like Mark Hatfield of Oregon, Lowell Weicker of Connecticut and Charles Mathias of Maryland counterbalanced the party's right-leaning leadership.

The reverse is true with the Democrats, where the party's conservative Southern wing has virtually disappeared, leaving liberals largely in command. It's harder for dealmakers like Specter to operate when they have few like-minded partners on the other side.

Bush campaigned for the White House by calling himself "a uniter, not a divider," but since his first year in office he has seldom governed that way. His first Supreme Court choice presents the perfect opportunity to return to that ideal. All he has to do is pick up the phone.

Steve and Cokie Roberts can be contacted by e-mail at svroberts@.

 

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Dropping bomb to halt filibusters

by Jules Witcover, Baltimore Sun, March 4, 2005

WASHINGTON - Hearings are under way before the Senate Judiciary Committee on the first of President Bush's resubmitted judicial nominations that Democrats blocked last year. There are signs that opponents are no more willing to swallow them now than they were then.

Committee Chairman Arlen Specter of Pennsylvania has expressed hope that a compromise can be reached. But with the Republicans holding a 10-8 edge on the committee, it's likely that the names of most or all of the Bush appointees to federal appellate courts will be sent to the floor again. There, under the existing interpretation of the rules, the Democrats can once more filibuster them to death.

That Democratic resistance raises the prospect that Senate Majority Leader Bill Frist may use what is being called "the nuclear option" to declare the time-honored minority parliamentary tool of the filibuster unconstitutional in opposing judicial appointments.

The maneuver is called that because of the major ramifications it could have for the tradition of near-unlimited debate on any issue brought before the Senate.

The Senate's Rule 22 requires 60 votes to cut off debate, or 67, if the full Senate is sitting, to change the rule. The nuclear option strategy would have Dr. Frist call for cloture by a majority vote, which the Republicans with 55 members can easily muster.

Then a challenge to the procedure by the minority, which would be certain, would be referred to Vice President Dick Cheney as Senate president. He would rule anything other than a majority vote to be unconstitutional, presumably as an infringement on the executive branch's right to have an up-or-down vote on judicial nominees.

But the Democrats insist much more is at stake. The next step, they say, would be an end to the filibuster on all Senate business, opening the door to straight majority rule - particularly perilous in a government in which one party holds power in all three branches.

While the Republicans control the executive and legislative branches, and arguably the judicial as well, liberal Democratic fears of the nuclear option are intensified by the failing health of Chief Justice William H. Rehnquist and the advanced ages of other justices. Liberals worry that without the filibuster power in the Senate, President Bush could nominate more than one ultraconservative to the Supreme Court, ensuring a right-wing tilt well into the future.

Democrat Robert C. Byrd of West Virginia, the Senate's authority on the Constitution, warned this week that the nuclear option "purports to be directed solely at the Senate's advice and consent prerogatives regarding federal judges. But the claim that no right exists to filibuster judges aims an arrow straight at the heart of the Senate's long tradition of unlimited debate."

Ralph G. Neas, president of the liberal lobby People for the American Way, argues that barring the filibuster "would turn the United States Senate into the House of Representatives," where debate is routinely limited, reducing that body to a rubber stamp for the Republican president.

Democratic opponents of the nuclear option obviously hope that their warnings will also resonate with some Senate Republicans who take a long view and contemplate the denial of the filibuster as a weapon if or when the GOP no longer controls the Senate. Only a handful of them would be enough to defuse this legislative nuclear weapon.

Jules Witcover writes from The Sun's Washington bureau. His column appears Wednesdays and Fridays.



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Nuclear winter comes to the Senate

By Will Nevin, The GW Hatchet [Washington, DC], March 3, 2005

Imagine this: a bleak, inhospitable landscape, once a fertile place for growth and development, is now nothing more than scorched earth. Whatever life remains is twisted and bent on the total destruction of what's left of the environment. The future, if it can be called that, is absolutely depressing.

What is it? A war zone in a third world country? Some foreign planetary body?

Try the United States Senate if some in the Republican leadership get their way and the so-called "nuclear option" is deployed.

The nuclear option refers to a little known procedural ploy in the Senate. In it, a member would challenge a filibuster, the minority party's ability to keep an issue from coming to vote by prolonging debate, when used in connection with judicial nominees. The Senate's presiding officer, the vice president, would then uphold the member's challenge, and the filibuster would end after fifty votes, along with the veep's tiebreaker, were cast.

While the move itself sounds harmless, the real danger would be in the Democratic response. If the Democrats lose the right to filibuster judicial nominees, they could bring the Senate to an absolute standstill. Work, in all forms, would grind to a halt through a variety of procedural methods, like refusing to sign off on any congratulatory-esque bills with unanimous consent and using the traditional filibuster to its fullest extent.

Customarily, the Senate has been a lawmaking body of compromise and deliberate thought. Therefore, minority parties and even smaller coalitions of senators have always had the power to assist or impede Senate function. If the nuclear option were successfully implemented, and the Democrats lose the right to prevent judicial nominees from coming to the floor, they would still have a great deal of power - and all of their options would be on the table.

The net effect? A Senate that can do nothing.

Sen. Bill Frist (R-Tenn.) has been brandishing this senatorial WMD in hopes of ending the filibuster on President Bush's judicial nominees, seven of whom he just re-nominated. "I believe that we need to restore the over 200-year tradition and precedent of allowing every nominee of the president who has majority support an up or down vote on the floor of the United States Senate," said the doctor-turned-congressman in a Feb. 9 interview with The Washington Times. In the same interview, Frist also said that he had the votes to turn his plan into reality.

If nuclear deployment in the Senate?

As the Senate currently stands, there are 55 Republicans, 44 Democrats and one independent who caucuses with the Dems. So Frist could lose the support of five GOP colleagues and his plan would still go through. According to a Feb. 16 article in CQ Today, Sens. Olympia J. Snowe and Lincoln Chafee, both Republicans, are firmly against the measure, and maverick John McCain is "leaning against it." GOP senators Susan Collins, Gordon Smith, John Warner, Chuck Hagel and George Voinovich are all undecided.

If Frist is able to marshal the rest of his forces, he would need only to convince three of the undecided senators. After that, it would be only a matter of time and his ultimate decision to push the button.

And that's the real question here. Would Frist and the rest of the GOP leadership dare take the risk of shutting down the Senate for the rest of this year? Or is this just scare tactics and posturing, like the mutually assured destruction policy of the US and the USSR during the Cold War?

It could very well be just an attempt to scare the Democrats into action. With Frist willing to use the nuclear option, wavering Dems - especially those who are up for reelection in 2006 - might think twice about filibustering when Bill Pryor or Priscilla Owen come up again for confirmation. For Frist, this last resort may be just a deterrent, which would also explain the media buzz surrounding it. After all, it's not a deterrent if no one knows about it.

Then again, maybe Frist isn't bluffing. Maybe, just maybe, he's willing to defy 200 years of precedent to suit a piddling political agenda. Maybe he's willing to trample over the minority rights upon which this country was founded. Maybe he's willing to go down in history as one of the more infamous political leaders of recent history.

Just keep this in mind, dear doctor. If you push this button, if you decide to run roughshod over one of this country's hallowed institutions, the blood will be on your hands.

-The writer, a sophomore at the University of Alabama, is a participant in the Semester in Washington program.

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Trading-In Judges Black Robes for White Sheets Further Fallout of the Bush Mandate

by Kam Williams, The Jacksonville Advocate [FL], March 3, 2005

[pic]

On February 14th, the President sent his loyal supporters a secret Valentine’s Day present by quietly re-submitting to the Senate Judiciary Committee the names of 20 of his arch-conservative cronies for appointment to the federal bench. You might wonder why, in Heaven’s name, Bush isn’t embarrassed to be re-nominating individuals already rejected once by

Congress?

The answer lies in his gleeful, post election declaration of a mandate, followed by that ominous promise to spend his political capital exactly as he sees fit. You see, this go-round, he figures he’s got something he didn’t have last time: numbers. Previously, Democrats valiantly banded together to block Bush’s most extreme right-wing nominees by resorting to a strategic filibuster. But given the Republican gains reflected in their now occupying 55 seats in the Senate, Majority Leader Leader Bill Frist now only needs to convince 5 Dems to cross the aisle to squash any dissent.

The Tennessee Senator has even suggested that his majority might simply resort to re-writing the federal laws on filibuster, if they find themselves meeting with further resistance to his party’s agenda. After all, Republicans control both Houses, and Bush is certain to rubber-stamp any piece of legislation which comes across his desk. Did you know that he’s the first, full-term President in 176 years to never use his veto power Of course, he hasn’t had to, since the silenced opposition party has been unable to get a single bill passed on its own. In fact, the likely trend, tragically, is that more Democratic representatives will begin to compromise beyond recognition in order to attain a few “pork barrel” crumbs for the benefit of their constituents back home, ala recently-retired, Democratic defector Zell Miller. Be forewarned, such selling-out to the detriment of the greater good will come at a significant social cost. For if any 5 Blue State senators decide that best way to weather the Red State steamroll is to approve Bush’s scary judicial appointments, we may as well have Federal judges trade-in their black robes for white sheets and hoods.

Attorney Lloyd Williams, Jr. is a member of the NJ, NY, CT, PA, MA & US Supreme Court bars.



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Judicial Jeopardy: Questions for Nominees

By Garrett Epps, The Nation, March 2, 2005

In the wake of their election victory, Republicans are spreading the idea that judicial nominations are a presidential prerogative, much like visits to Camp David, and that the role of the Senate in the process is a ministerial one. Senate majority leader Bill Frist recently attacked Democratic opposition to Bush nominees as treason: "This filibuster is nothing less than a formula for tyranny by the minority," he said. "If this is allowed to stand, the minority will have effectively seized from the President the power to appoint judges."

Frist's ignorance of the Constitution is unfortunate. The Constitution does not grant the President the power to "appoint judges." Article II says that he may nominate, but judges are appointed only with "the Advice and Consent of the Senate." Lifetime appointments to the federal courts are the nation's business, and both the Senate and the people are expected to play a role in them.

The Republican fatuities disguise a genuine, and dangerous, confusion about what questions may properly be asked of judicial nominees. To question a judge's views on a woman's right to choose--or any other specific issue the courts must deal with--opens the questioner to the charge of imposing a litmus test. That's exaggerated, but it is true that asking about specific legal issues, or about recent or pending cases, can put a nominee in an awkward situation. The result is that judicial confirmation proceedings have come to focus much more than is healthy on alleged ethical lapses or other personal matters far from the heart of the real issue, which is the Constitution.

So I propose a parlor game that all of us--Democrats, Republicans, Independents, liberals, conservatives, moderates--can play. Let's think of questions that both should and properly could be posed to a judicial nominee by senators who worry about the wisdom of awarding him or her a lifetime seat on the Supreme Court. Let's think of questions that really tell us something we want to know--not the candidate's "compelling personal story" or his or her religious faith or the possibility of ethical lapses. Let's think of specific questions that no reasonable, sincere nominee could in good faith refuse to answer, and that are therefore most likely to lead to an actual dialogue that will educate the people about the role of the federal courts and will provide senators with actual reasons to vote for or against a nominee. Here are ten topics for questions, accompanied by some examples--a few of the hundreds that could be proposed.

1. Federal-State Relations. This Court has appointed itself the border patrol between the state and federal domains. Recent cases have suggested that Congress has only limited power to regulate matters like low-level nuclear waste or violence against women. Where is the Court's fondness for the states coming from? Only one sitting justice, Sandra Day O'Connor has had any experience as an elected official in state politics or government. So it would be fair to ask a nominee: Have you had any practical experience in state governments, or do you have any special knowledge of how they operate? Do you think a lack of such experience would hinder you in deciding federalism cases? If you agree, what steps will you take to remedy this lack?

2. Congressional Powers. The current Court evinces a contempt for Congress--even though only one member, Justice Stephen Breyer), has any recent experience working in or with the institution. What is your view of Congress's role in the constitutional order? Do you believe it is the role of the Court to examine and dismiss legislative findings of fact? Is Congress the embodiment of popular sovereignty--or is the Court, not the elected legislature now, as Kenneth Starr recently suggested, "first among equals"? If the Court is paramount, how is that justified under the Constitution?

3. Executive Power in Wartime. Do you agree with the Bush Administration view that the President has the authority to designate any citizen an "enemy combatant" and hold him or her without counsel or judicial review? Do you agree with former Attorney General John Ashcroft that even modest review of executive detention "can put at risk the very security of our nation"? [See Ashcroft's Federalist Society speech, November 12, 2004.] Do you see any corresponding danger in an executive branch that usurps the functions of the courts?

4. "Judicial Accountability." Congress--and Justice Department officials--are systematically attempting to intimidate judges who dissent from the Administration line or issue criminal sentences that are too "lenient." Rep. Tom DeLay who may soon change his mind about "lenient" sentences) recently formed a "Judicial Accountability Working Group" in the House, which claims to put judges on notice that "we are watching you." What is your view of judicial independence today? Is it proper for other branches to target and threaten judges with whose rulings they disagree? Would you resist this kind of attempt to manipulate and intimidate the courts--even when practiced by one of your political sponsors?

5. International Law. What are your views on Congressman Tom Feeney's "Reaffirming American Independence Resolution," which implicitly threatens impeachment of American judges who draw on international law or on the law of other countries for guidance? Do you believe--as many important jurists have throughout our history--that American law incorporates the norms to which we as a nation have agreed by treaty and otherwise? Do you agree that international human rights norms developed out of the horror of World War II and that the Holocaust should be part of the legal landscape against which our government's actions should be judged? Do you believe, as the Attorney General apparently does, that the Geneva Conventions for the protection of prisoners of war are "quaint" and optional?

6. Separation of Church and State. When you use the term "freedom of religion," or "free exercise of religion," do you refer to an individual right or to a right of the majority? Do you agree that freedom of religion focuses on the individual confronted by the power of the state and the intolerance of the majority? Or do you believe that the "free exercise" of religion protects the majority when it wishes to bring religious beliefs, prayer and the concept of the divine to solemnize and somehow sanctify the machinery of government. How do you see the First Amendment's religion clauses? Do they focus on the outsider, the heretic, the solitary conscience? Or does it empower those who proclaim "traditional" American beliefs and insist that dissenters must give them at least outward fealty?

7. Rights of Citizens. What is the proper role of federal courts in redressing harms done to citizens by state and federal governments? Are constitutional guarantees meaningful without reliable procedures to redress government's violation of them? What is your view of the scope of 42 U.S.C. § 1983, the basic statute that lets citizens sue state officials who violate their rights? How do you interpret Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, in which the Court held that the Constitution extends the same right to citizens damaged by lawless federal officials? Recent decisions have made it more difficult procedurally for citizens to use these statutes in court. How do you view these statutes and the recent trend in their interpretation?

8. Freedom of the Press. In New York Times v. United States--the "Pentagon Papers" case--a majority of the Supreme Court held that the executive could not enjoin newspapers from publishing truthful reports about government documents on the mere grounds that their publication might be embarrassing to the government. How do you view the doctrine of prior restraint? Under what circumstances may courts or executive officials muzzle the press--in wartime or otherwise?

9. Right to Privacy. In decisions on contraceptives and anti-sodomy statutes, the Court has concluded that no democratic country is truly free if its government can dictate the private sexual decisions of competent, consenting adults. Do you believe that the Constitution guarantees a right to privacy? Do you accept that sexual autonomy is an important part of any regime of ordered liberty? If so, does this autonomy extend to all adults regardless of sexual orientation? If not, what justification would there be for leaving gays and lesbians out of this guarantee? Does privacy protect a genuine right to reproductive choice? Does it protect a right to use contraception in private? If not, why not? What kind of constitutional democracy will we be if majorities may substitute public opinion for private conscience as the determinant of individual moral choice?

10. Voting Rights. The phrase "the right of citizens of the United States to vote" in federal elections (or something much like it) appears in no fewer than five places in the amended Constitution, but the document does not explicitly state that all citizens have a right to vote. Does this textual ambiguity call the right into question? Do you believe a constitutional amendment is needed to guarantee the right to vote? In your view, how important is the Voting Rights Act of 1965, and how should it be interpreted? What is the constitutional status of state laws and regulations that deliberately or negligently put obstacles in the way of citizens seeking to vote? What is the legal status of organized private conduct that seeks to intimidate citizens and prevent them from voting? What about political bodies that band together to challenge and intimidate minority voters? Should a history of voter intimidation disqualify a judicial candidate? What about a history of advising voter intimidators--which Chief Justice William Rehnquist admitted he has? What do you think of state officials who impose needlessly strict requirements on voting registrants, as those in the states of Ohio and Florida have done?

Finally, do you agree with the Court's recent statement, in an important redistricting case, Vieth v. Jubelirer, that " 'fairness' is not a judicially manageable standard"? If so, can you please tell us why any citizen would want you on our nation's highest court?



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Fillibuster constitutional?

by Butch Mazzuca, Vail Daily [CO], March 2, 2005

The Week, a periodical I subscribe to, recently did a piece about the possibility of some Democrats in the Senate to block potential Bush Supreme Court nominees by filibuster if they deem them too conservative. The article went on to review several interesting questions including, what are filibusters, and are they constitutional?

Simply stated, a filibuster is a maneuver by a senator or a group of senators to block a particular piece of legislation, appointment, etc., by the party in power. The filibustering senator simply keeps talking without relinquishing the floor, thus making it impossible to bring a matter to a vote. (Strom Thurmond once filibustered for 24 hours and 18 minutes to block the Civil Rights bill in 1957.)

During the first Congress in 1789, both the House and Senate allowed any debate to be cut off by simple majority vote. The House of Representatives retains that rule to this day. So there is no filibustering in the House of Representatives. However, in 1806 Vice President Aaron Burr convinced a majority of senators that limiting debate might be OK for the House, but the "more exalted" Senate shouldn't endorse cutting off one of their own during a speech. So the rule was dropped. As might be expected, filibustering became an acceptable tactic to keep legislation from reaching the Senate floor for a vote. (By the way, the term filibuster comes from the Spanish word filubusteros, which was a term used for Caribbean pirates who specialized in kidnapping people and holding them for ransom. Thusly, an unknown Washington reporter coined the term "filibuster" and ascribed it to those on the Senate floor who "kidnapped" legislation.)

But are filibusters constitutional? Yes and no. No, because there is no article in the Constitution specifically allowing for filibusters. Yes, because there isn't any language in the Constitution that prohibits them, either. Filibusters were created by a peculiarity in the rules of the Senate, not as a matter of being written into or out of the Constitution.

During the 19th century there was no procedural way to force a senator to relinquish the floor (i.e., to shut up), and filibusters were widely used. But the matter came to a boiling point in 1917 when isolationist senators tried to block President Woodrow Wilson from arming merchant ships crossing the Atlantic before our entrance into World War I.

An irate Wilson told the nation, "A little group of willful men representing no opinion but their own, have rendered the great government of the United States helpless and contemptible." Shortly thereafter, the Senate passed Rule 22, which allowed that two-thirds of those senators present (a super-majority) could end a filibuster. The procedure was called "cloture." Sixty years later, the rule was changed from two-thirds vote to 60 percent, or 60 senators if all senators are present.

Which brings us to modern times. In 1968 conservative Republicans filibustered Lyndon Johnson's proposed appointment of Abe Fortas to be chief justice of the Supreme Court (Republicans also buried about 35 of Bill Clinton's judicial nominees without using the filibuster), and of course the Democrats got in their licks during President Bush's first term, when they resorted to filibusters to block a number of his judicial nominees.

Now the GOP warns that if Democrats attempt use the filibuster again (especially if there's a vacancy on the Supreme Court), the presiding officer of the Senate (by law the vice president, Dick Cheney) will propose to change the rules making a simple majority (51 votes) all that is necessary to end a filibuster instead of the current 60. At last count, the Republicans controlled 55 of the 100 seats in the Senate. Oh, oh. Do you see what's coming?

But first, let look at the question, is filibustering ethical? Senate historian Robert Caro said, "If the filibuster is being used against you, it's a vicious weapon of obstruction whose use in a democracy in unconscionable." By that characterization the Democrats would be an unconscionable lot, right? However, Mr. Caro goes on to say, "If it's you who are using that weapon then it's a great one to have in your arsenal." Viewed from that perspective, the Democrats would simply be "pragmatic" if they chose to make use of a tactic as old as the Congress itself.

So let's hypothetically create a scenario in which the president nominates someone "too conservative" for the liberal Democrats, and the Democrats threaten to block the nomination via filibuster. Would it then be wise for the Republicans with 55 votes and Dick Cheney presiding to change the rule and allow a 51 vote majority stop the filibuster?

In a word, no. Here's why: First, you cannot take the politics out of politics and an out-of-power party should be able to use certain tactics to their advantage, provided those tactics are not abused. (As an aside, it's also a simple fact of human nature that if something desired is restricted or limited in some fashion, an alternative will be found.)

Second, and as a practical matter, if a rule change is forced upon the Democrats, as sure as day follows the night, such a counter-tactic will come back to bite the Republicans in their collective derrieres when the Democrats regain the majority of votes in Congress.

But regardless of how this all plays out, it's guaranteed to make for interesting political theater.

Butch Mazzuca of Singletree can be reached at bmazz68@ mailto:bmazz68@

 

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Bush has made spent fuel of Frist's 'nuclear option'

By Dick Morris, The Hill, March 2, 2005 column

Senate Majority Leader Bill Frist (R-Tenn.) rocked Washington last week by threatening that he might invoke the “nuclear option” and rule that filibusters of judicial nominations are unconstitutional.

He is only spewing hot air. The fact is that the Senate Republicans voluntarily disarmed themselves of the only viable way to block Democratic filibusters when they failed to change the rules of the body at the start of the new Senate session two months ago.

As those who recall the annual liberal efforts to curb Southern Democratic filibusters of civil-rights legislation in the ’50s and ’60s may know, the rules of the Senate are adopted de novo each time a new Senate convenes. Conservative Republicans decided late last year to amass sufficient votes to end the practice of filibusters on judicial nominations totally. Their effort was successful. A majority of the Senate - all that was required to change the closure rule - informally agreed to end the undemocratic practice of filibustering on presidential appointments to the bench.

During the 2004 campaign, the GOP wisely decided not to discuss its plans for fear that it would rekindle a last-ditch stand by Democrats anxious to preserve their relevance to the confirmation process. But the Republicans bided their time until the election was over, fully planning to block filibusters once they came back into session in January 2005.

But then a funny thing happened: Nothing. Despite all the planning and brave talk, no Republican sought to modify the filibuster rule. The Senate reconvened, and the rule stood as it has been for decades - with the 60-vote requirement to terminate debate.

Why didn’t the GOP close down the filibuster when it could? Did the conservatives lose their nerve? Not very likely. Did they suffer an attack of conscience and decide that muzzling the Democrats was unfair? Even less likely. The fact is that with Republican control of the White House assured for four years and domination of the House of Representatives guaranteed until at least 2012, when the next chance will come to undo the pernicious effects of gerrymandering, the Republicans don’t need the filibuster. Only the Democrats do.

So why did the GOP not deliver the mortal blow when they could have easily done so? My guess is that the White House stopped them from doing so. Bush and Rove must have sent signals to lay off the cloture rule. Only an intervention of that order of magnitude would have been sufficiently effective to vitiate the carefully laid plans of the Republican majority.

But if the administration did intervene and stop the emasculation of the filibuster on judicial nominations, why did it do so? Why would the president voluntarily make it easier for Democrats to torpedo his judicial nominations?

President Bush and Karl Rove probably figured that they did not want the power to appoint judges without opposition from the Senate Democrats. They realized that without the filibuster there was nothing to stop them from nominating judges who would cling to a hard right-wing agenda on Roe v. Wade and other issues, permanently alienating much of the country and driving a stake into GOP efforts to reach out to independents and women.

Bush needs the filibuster so that he can nominate judges who will not drive a wedge into the politics of America. He needs an excuse to tell his far-right friends why he is not naming a new Clarence Thomas or William Rehnquist or Antonin Scalia to the court. Bush grasps that such an appointment would be a step that would shatter the unity he is achieving after his reelection. And he needs the filibuster to keep the loyalty of his base even as he disappoints their most earnest expectations.

Bush might submit a nominee who would trigger a filibuster when the Supreme Court vacancy comes. He might then be forced to name a more moderate alternative. Or he might circumvent the process entirely and name a nominee acceptable to all, as Bill Clinton did. But, in any case, Bush needs the filibuster. That’s why it is still on the rulebooks.

Morris is the author of Rewriting History, a rebuttal of Sen. Hillary Rodham Clinton’s (D-N.Y.) memoir, Living History.

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"I Am Free--To Think--To Speak"

By Katrina Van Heuvel, The Nation, March 2, 2005

In a series of extraordinary speeches, Senator Robert Byrd, a longtime historian of the Senate, has persistently sounded the alarm about imperial executive power. He has unflinchingly exposed the grave danger we face from an Administration that routinely abuses power and tramples democracy without batting an eye.

Yesterday, Byrd delivered another wakeup call. Taking aim at the Republicans' threat to use the "nuclear option"--a change to the rules of the Senate that would effectively bar Democrats from filibustering judicial nominations--he assailed those who would aim "an arrow straight at the heart of the Senate's long tradition of unlimited debate."  He didn't stop there. "Many times in our history," Byrd said--perhaps speaking to the hypocrites in power who prefer to lecture the world about democracy rather than protect it at home-- "we have taken up arms to protect a minority against the tyrannical majority in other lands. We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not men."

Read Byrd's warning to the republic:

Stopping a Strike at the Heart of the Senate by Senator Robert Byrd, delivered on March 1, 2005

In 1939, one of the most famous American movies of all time, "Mr. Smith Goes to Washington," hit the box office.  Initially received with a combination of lavish praise and angry blasts, the film went on to win numerous awards, and to inspire millions around the globe.  The director, the legendary Frank Capra, in his autobiography "Frank Capra: The Name Above the Title," cites this moving review of the film, appearing in "The Hollywood Reporter," November 4, 1942:    

Frank Capra's "Mr. Smith Goes to Washington," chosen by French Theaters as the final English language film to be shown before the recent Nazi-ordered countrywide ban on American and British films went into effect, was roundly cheered...

Storms of spontaneous applause broke out at the sequence when, under the Abraham Lincoln monument in the Capital, the word, "Liberty," appeared on the screen and the Stars and Stripes began fluttering over the head of the great Emancipator in the cause of liberty.

Similarly cheers and acclamation punctuated the famous speech of the young senator on man's rights and dignity.  'It was...as though the joys, suffering, love and hatred, the hopes and wishes of an entire people who value freedom above everything, found expression for the last time...

For those who may not have seen it, "Mr. Smith" is the fictional story of one young Senator's crusade against forces of corruption, and his lengthy filibuster for the values he holds dear.  

My, how times have changed. These days Smith would be called "an obstructionist." Rumor has it that there is a plot afoot in the Senate to curtail the right of extended debate in this hallowed chamber, not in accordance with its rules, mind you, but by fiat from the Chair.

The so-called "nuclear option" purports to be directed solely at the Senate's advice and consent prerogatives regarding federal judges.  But, the claim that no right exists to filibuster judges aims an arrow straight at the heart of the Senate's long tradition of unlimited debate.

The Framers of the Constitution envisioned the Senate as a kind of executive council; a small body of legislators, featuring longer terms, designed to insulate members from the passions of the day.  

The Senate was to serve as a "check" on the Executive Branch, particularly in the areas of appointments and treaties, where, under the Constitution, the Senate passes judgement absent the House of Representatives.  James Madison wanted to grant the Senate the power to select judicial appointees with the Executive relegated to the sidelines. But a compromise brought the present arrangement; appointees selected by the Executive, with the advice and consent of the Senate.  Note that nowhere in the Constitution is a vote on appointments mandated.    

When it comes to the Senate, numbers can deceive. The Senate was never intended to be a majoritarian body. That was the role of the House of Representatives, with its membership based on the populations of states. The Great Compromise of July 16, 1787, satisfied the need for smaller states to have equal status in one House of Congress: the Senate.  

The Senate, with its two members per state, regardless of population is, then, the forum of the states.  Indeed, in the last Congress, 52 members, a majority, representing the 26 smallest states accounted for just 17.06 percent of the US population.   In other words, a majority in the Senate does not necessarily represent a majority of the population.  The Senate is intended for deliberation not point scoring. It is a place designed from its inception, as expressive of minority views.  Even 60 Senators, the number required for cloture, would represent just 24 percent of the population, if they happened to all hail from the 30 smallest states. Unfettered debate, the right to be heard at length, is the means by which we perpetuate the equality of the states.  

In fact, it was 1917, before any curtailing of debate was attempted, which means that from 1806 to 1917, some 111 years, the Senate rejected any limits to debate.   Democracy flourished along with the filibuster.  The first actual cloture rule in 1917, was enacted in response to a filibuster by those who opposed U.S. intervention in World War I.

But, even after its enactment, the Senate was slow to embrace cloture, understanding the pitfalls of muzzling debate.  In 1949, the 1917 cloture rule was modified to make cloture more difficult to invoke, not less, mandating that the number needed to stop debate would be not two-thirds of those present and voting, but two-thirds of all Senators.

Indeed, from 1919 to 1962, the Senate voted on cloture petitions only 27 times and invoked cloture just four times over those 43 years.

On January 4, 1957, Senator William Ezra Jenner of Indiana spoke in opposition to invoking cloture by majority vote.  He stated with conviction:

We may have a duty to legislate, but we also have a duty to inform and deliberate.  In the past quarter century we have seen a phenomenal growth in the power of the executive branch.  If this continues at such a fast pace, our system of checks and balances will be destroyed.  One of the main bulwarks against this growing power is free debate in the Senate...So long as there is free debate, men of courage and understanding will rise to defend against potential dictators...The Senate today is one place where, no matter what else may exist, there is still a chance to be heard, an opportunity to speak, the duty to examine, and the obligation to protect.  It is one of the few refuges of democracy.  Minorities have an illustrious past, full of suffering, torture, smear, and even death. Jesus Christ was killed by a majority; Columbus was smeared; and Christians have been tortured.  Had the United States Senate existed during those trying times, I am sure these people would have found an advocate. Nowhere else can any political, social, or religious group, finding itself under sustained attack, receive a better refuge.  

Senator Jenner was right. The Senate was deliberately conceived to be what he called a "better refuge," meaning one styled as guardian of the rights of the minority.

The Senate is the "watchdog" because majorities can be wrong, and filibusters can highlight injustices. History is full of examples.

In March 1911, Senator Robert Owen of Oklahoma filibustered the New Mexico statehood bill, arguing that Arizona should also be allowed to become a state. President Taft opposed the inclusion of Arizona's statehood in the bill because Arizona's state constitution allowed the recall of judges. Arizona attained statehood a year later, at least in part because Senator Owen and the minority took time to make their point the year before.

In 1914, a Republican minority led a 10-day filibuster of a bill that would have appropriated more than $50,000,000 for rivers and harbors.  On an issue near and dear to the hearts of our current majority, Republican opponents spoke until members of the Commerce Committee agreed to cut the appropriations by more than half.

Perhaps more directly relevant to our discussion of the "nuclear option" are the seven days in 1937, from July 6 to 13 of that year, when the Senate blocked Franklin Roosevelt's Supreme Court-packing plan.  

Earlier that year, in February 1937, FDR sent the Congress a bill drastically reorganizing the judiciary.  The Senate Judiciary Committee rejected the bill, calling it " an invasion of judicial power such as has never before been attempted in this country" and finding it "essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the Government."   The committee recommended the rejection of the court-packing bill, calling it "a needless, futile, and utterly dangerous abandonment of constitutional principle....without precedent and without justification."

What followed was an extended debate on the Senate Floor lasting for seven days until the Majority Leader, Joseph T. Robinson of Arkansas, a supporter of the plan, suffered a heart attack and died on July 14.  Eight days later, by a vote of 70 to 20, the Senate sent the judicial reform bill back to committee, where FDR's controversial, court-packing language was finally stripped.  A determined, vocal group of Senators properly prevented a powerful President from corrupting our nation's judiciary.                                                               

Free and open debate on the Senate floor ensures citizens a say in their government.  The American people are heard, through their Senator, before their money is spent, before their civil liberties are curtailed, or before a judicial nominee is confirmed for a lifetime appointment.  We are the guardians, the stewards, the protectors of our people. Our voices are their voices.

If we restrain debate on judges today, what will be next: the rights of the elderly to receive social security; the rights of the handicapped to be treated fairly; the rights of the poor to obtain a decent education? Will all debate soon fall before majority rule?

Will the majority someday trample on the rights of lumber companies to harvest timber, or the rights of mining companies to mine silver, coal, or iron ore?  What about the rights of energy companies to drill for new sources of oil and gas?   How will the insurance, banking, and securities industries fare when a majority can move against their interests and prevail by a simple majority vote?  What about farmers who can be forced to lose their subsidies, or Western Senators who will no longer be able to stop a majority determined to wrest control of ranchers' precious water or grazing rights?  With no right of debate, what will forestall plain muscle and mob rule?

Many times in our history we have taken up arms to protect a minority against the tyrannical majority in other lands.  We, unlike Nazi Germany or Mussolini's Italy, have never stopped being a nation of laws, not of men.

But witness how men with motives and a majority can manipulate law to cruel and unjust ends. Historian Alan Bullock writes that Hitler's dictatorship rested on the constitutional foundation of a single law, the Enabling Law.  Hitler needed a two-thirds vote to pass that law, and he cajoled his opposition in the Reichstag to support it.  Bullock writes that "Hitler was prepared to promise anything to get his bill through, with the appearances of legality preserved intact."  And he succeeded.

Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the State: the correct order of events was first to secure access to that power and then begin his revolution.  Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side.  Instead, he turned the law inside out and made illegality legal.

And that is what the nuclear option seeks to do to Rule XXII of the Standing Rules of the Senate.  

It seeks to alter the rules by sidestepping the rules, thus making the impermissible the rule.  Employing the "nuclear option", engaging a pernicious, procedural maneuver to serve immediate partisan goals, risks violating our nation's core democratic values and poisoning the Senate's deliberative process.

For the temporary gain of a hand-full of "out of the mainstream" judges, some in the Senate are ready to callously incinerate each Senator's right of extended debate.  Note that I said each Senator.   For the damage will devastate not just the minority party.  It will cripple the ability of each member to do what each was sent here to do - - represent the people of his or her state.  Without the filibuster or the threat of extended debate, there exists no leverage with which to bargain for the offering of an amendment.  All force to effect compromise between the two political parties is lost.  Demands for hearings can languish.  The President can simply rule, almost by Executive Order if his party controls both houses of Congress, and Majority Rule reins supreme.   In such a world, the Minority is crushed; the power of dissenting views diminished; and freedom of speech attenuated.  The uniquely American concept of the independent individual, asserting his or her own views, proclaiming personal dignity through the courage of free speech will, forever, have been blighted.  And the American spirit, that stubborn, feisty, contrarian, and glorious urge to loudly disagree, and proclaim, despite all opposition, what is honest and true, will be sorely manacled.

Yes, we believe in Majority rule, but we thrive because the minority can challenge, agitate, and question.  We must never become a nation cowed by fear, sheeplike in our submission to the power of any majority demanding absolute control.

Generations of men and women have lived, fought and died for the right to map their own destiny, think their own thoughts, and speak their minds.  If we start, here, in this Senate, to chip away at that essential mark of freedom - - here of all places, in a body designed to guarantee the power of even a single individual through the device of extended debate - - we are on the road to refuting the Preamble to our own Constitution and the very principles upon which it rests.  

In the eloquent, homespun words of that illustrious, obstructionist, Senator Smith, "Liberty is too precious to get buried in books.  Men ought to hold it up in front of them every day of their lives, and say, 'I am free--to think--to speak. My ancestors couldn't. I can.  My children will."



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GOP needs to let filibuster continue as designed

Freedom Newspapers

Clovis News Journal [NM], Feb. 28, 2005

Jimmy Stewart fans will probably remember the moment in the classic movie, “Mr. Smith Goes to Washington,” where Stewart’s title character explains, “Now, I had some pretty good coaching last night, and I find that if I yield only for a question or a point of order or a personal privilege, that I can hold this floor almost until doomsday. In other words, I’ve got a piece to speak, and blow hot or cold, I’m going to speak it.”

It’s the filibuster, the practice by which a senator may talk as long as biologically possible to block legislation. Under U.S. Senate Rule 22, he or she can be stopped only if 60 senators vote to silence him.

However, Republicans, who control 55 of 100 Senate seats, now are threatening what’s called the “nuclear option” for President Bush’s judicial nominees who have been stalled by Democratic filibusters.

The GOP would use its Senate majority to rewrite Rule 22, to end filibusters with just 51 votes, for judicial nominees. That would mean they could almost at will overturn Democratic judicial filibusters. It especially would be applied to nominees to fill one or more vacancies expected soon on the U.S. Supreme Court.

We’re sympathetic to the GOP’s desire to stop Democrats’ purely partisan obstructionism on judicial nominees.

However, the filibuster, although not a part of the Constitution, is a part of our system of ordered liberty that dates to the country’s founding. The Senate was designed to be the body of slow and somber deliberations, a check on hasty runaway majority impulses that might come from the House, whose number and terms of office made it more directly responsive to the people. The filibuster was designed to slow down actions to make sure they’re well-considered.

And if and when Republicans again become a minority, they likely would regret having changed a rule that gives the minority some power. Better that persuasion, not ending a time-honored Senate rule, should be used to get nominees confirmed.



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Analyze this: Bush's mere words

by Sarakay Smullens

Philadelphia Daily News

February 9, 2005

THE THEME of President Bush's Inaugural address was "America's belief in human dignity will guide our policies."

The president's use of the word "dignity" struck me - my life and work have taught me that without dignity we cannot survive the inevitable unfairnesses, injustices, connivances and betrayals of life.

Dignity allows the development of ideals, ethics and an understanding that, to protect others, when risks inevitably have to be taken, they must be tempered by knowledge, thought and planning.

The two components of dignity are humility and pride. Too much humility, and we are unable to care for ourselves. (If the meek ever inherit the world, they won't be able to keep it very long.) But those with excessive pride devoid of humility become tyrants - bullies abusive to those who rely on them.

So let's examine some of Bush 43's sentiments in his second inaugural address in this context:

"We celebrate... the deep commitments that unite our country."

At his first inaugural, the president promised to unite us. Instead, we have had four years where his policy architects have terrified and tried to control us through issues like gay marriage, abortion and patriotism.

Those who dared to question this do so at grave risk. Just ask outed spy Valerie Plame or her husband, Joseph Wilson, who concluded that the administration knew no nuclear program existed when we attacked Iraq.

"Then there came a day of fire."

Sept. 11, 2001, was the most terrifying and horrific of days. But Europe has known more of them.

And consider the message of a $40 million inaugural extravaganza while our troops are poorly armed and their vehicles inadequately armored, war deaths escalate, Southeast Asia faces unimaginable devastation, nearly 36 million Americans live in poverty.

"Freedom... must be sustained by the rule of law and the protection of minorities."

Threatening to change Senate rules permitting unlimited debate, even filibusters, abrogates the rights of those with minority views and removes a guarantee of free speech at our highest governmental levels.

Our vice president has met secretly with oil lobbyists, and Alberto Gonzales, our attorney general (while stating he is against torture) can't "remember" the treatment he advised at Abu Ghraib.

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 ...but destroy the Senate

Lawrence R. Butler

The Hill

Feb. 8, 2005

 

Out of frustration over Democratic filibusters of some of President Bush's judicial nominees, Senate Republicans are considering a procedural gambit to end such maneuvers. Before they decide, Republicans should examine what happened when similar tactics were used in 1975.

 

Senate Rule 22 states that debate on proposals to amend the standing rules of the Senate can only be limited with the support of two-thirds of all senators. Thus, any effort to change the cloture rules for judicial nominations would require a two-thirds majority vote.

 

Nonetheless, Senate Republicans have suggested the possibility of using the so-called "nuclear option" of amending the rules by a simple majority vote. This could be done by having the presiding officer, Vice President Cheney, rule that supermajority requirements related to judicial nominations are unconstitutional. The Senate could then vote to uphold that ruling by a simple majority vote. Approving such a reinterpretation by majority vote would achieve the goal of ending filibusters on judicial nominations.

 

On Jan. 14, 1975, a bipartisan group of Senate liberals led by Walter Mondale (D-Minn.) tried a similar tactic in frustration over successful conservative filibusters of progressive reforms in previous congresses. Mondale offered a proposal to reduce the cloture requirement from two-thirds of the Senate to three-fifths. He then moved to end debate, claiming that the U.S. Constitution allows a simple majority of senators to establish the chamber's rules of procedure at the beginning of a Congress.

 

On Feb. 20, the Senate voted 51-42 to adopt Mondale's constitutional interpretation, thereby accepting that Senate cloture rules could be changed by a simple majority vote at the beginning of a Congress. Among current senators, Daniel Inouye (D-Hawaii), Edward Kennedy (D-Mass.), Patrick Leahy (D-Vt.) and Ted Stevens (R-Alaska) voted for this use of the nuclear option, while Robert Byrd (D-W.Va.) and Pete Domenici (D-N.M.) opposed it.

 

However, before Mondale was able to obtain a vote on the substance of his proposal to reduce the cloture requirement to three-fifths, Sen. James Allen (D) of Alabama found a back-door way to launch a filibuster. Allen and his allies blocked all Senate legislative activity until Feb. 28, when Mondale's forces agreed to abandon the nuclear option and use normal procedures in their effort to change the Senate cloture rule. On March 3, Majority Leader Mike Mansfield (D-Mont.) stage-managed a vote to undo the precedent for the nuclear option that had been established Feb. 20.

 

In the midst of Allen's filibuster, a second attempt was made to shut off debate by a ruling of the chair. Vice President Nelson Rockefeller was presiding over the Senate on Feb. 26 while Allen was making a series of dilatory motions to tie up the proceedings. Eventually, Rockefeller ignored Allen's manic cries for recognition and forced a vote. The Senate erupted in bipartisan rage at a vice president who would dare to insult a senator in such fashion.

 

On April 26, Rockefeller addressed the Senate to apologize for his actions. To emphasize that vice presidents are not allowed to impose themselves on the Senate except to cast a tie-breaking vote, Rockefeller was permitted to speak for five minutes, but not to control his own time.

 

What lesson should today's Senate Republicans learn from this story? In the words of that symbol of Southern persistence, Scarlett O'Hara, "Tomorrow is another day."

 

Even if Republicans managed to get a few judges through by majority vote, the precedent would not last long. An agitated minority of 41 can always find procedural mechanisms to bring the Senate to a halt. The only way for Senate Republicans to overcome such a counteroffensive would be to use the nuclear option a second time to eliminate all filibusters. The nuclear option cannot succeed in half-measures; its proponents must be willing to go all the way by eliminating all filibusters.

 

During the Cold War, the nuclear trigger was never pulled because both the United States and the Soviet Union knew that it would lead to mutually assured destruction. The same is true of the United States Senate.

 

A successful use of the nuclear option would demolish the Senate as it has existed for more than two centuries. Out of the rubble would arise a new institution - a mini-House of Representatives - in which a passionate minority would have no way of blocking, or even stalling, the will of a unified majority.

 

Butler is assistant professor of political science at Rowan University and author of the book Claiming the Mantle: How Presidential Nominations Are Won and Lost Before the Votes are Cast.



Philadelphia Daily News

Analyze this: Bush's mere words

Feb. 09, 2005

Sarakay Smullens

THE THEME of President Bush's Inaugural address was "America's belief in human dignity will guide our policies."

The president's use of the word "dignity" struck me - my life and work have taught me that without dignity we cannot survive the inevitable unfairnesses, injustices, connivances and betrayals of life.

Dignity allows the development of ideals, ethics and an understanding that, to protect others, when risks inevitably have to be taken, they must be tempered by knowledge, thought and planning.

The two components of dignity are humility and pride. Too much humility, and we are unable to care for ourselves. (If the meek ever inherit the world, they won't be able to keep it very long.) But those with excessive pride devoid of humility become tyrants - bullies abusive to those who rely on them.

So let's examine some of Bush 43's sentiments in his second inaugural address in this context:

"We celebrate... the deep commitments that unite our country."

At his first inaugural, the president promised to unite us. Instead, we have had four years where his policy architects have terrified and tried to control us through issues like gay marriage, abortion and patriotism.

Those who dared to question this do so at grave risk. Just ask outed spy Valerie Plame or her husband, Joseph Wilson, who concluded that the administration knew no nuclear program existed when we attacked Iraq.

"Then there came a day of fire."

Sept. 11, 2001, was the most terrifying and horrific of days. But Europe has known more of them.

And consider the message of a $40 million inaugural extravaganza while our troops are poorly armed and their vehicles inadequately armored, war deaths escalate, Southeast Asia faces unimaginable devastation, nearly 36 million Americans live in poverty.

"Freedom... must be sustained by the rule of law and the protection of minorities."

Threatening to change Senate rules permitting unlimited debate, even filibusters, abrogates the rights of those with minority views and removes a guarantee of free speech at our highest governmental levels.

Our vice president has met secretly with oil lobbyists, and Alberto Gonzales, our attorney general (while stating he is against torture) can't "remember" the treatment he advised at Abu Ghraib.

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Bush poised to push anti-environmental judge

Jean Johnson

Analysis

Indian Country Today [NY]

Feb. 07, 2005

So far the federal courts have managed to overturn at least some of the Bush administration's attempts to undermine the environmental gains of the past four decades. If the president succeeds in getting the Senate to appoint William G. Myers to the 9th District Court, though, the system of checks and balances that normally keeps the government in a relatively moderate position will be severely tested - at the very least in Idaho, where Myers will sit on the bench for life if appointed. The 9th Circuit Court has jurisdiction over 75 percent of all federal land in the nine western states where oil, coal, mining, grazing and timber interests refer to green: that means cash.

 

President Bush tried to get Myers through last year, but the Democrats filibustered and the slim Republican majority couldn't push the controversial nomination through. Since the elections last fall, all that's changed and thus Myer's chances of winning approval have increased substantially. More, Republican extremists are trying to ban the 200-year tradition of the filibuster, the venerable tool that prevents narrow majorities from abusing power.

 

In 2004, however, when Myers was up before the Senate the first time, papers across the country were full of condemnation. They fingered Myers for calling the Clean Water Act ''regulatory excess'' and branding Diane Feinstein's, D-Calif., California Desert Protection Act as ''legislative hubris.'' The Arizona Daily Star editorial summed up the feelings by stating that Myer's ''chief qualification for the job rests not in his legal acumen but in the fact that his anti-environmental views match those of the president.'' The paper went on to state: ''Myers is a particularly bad choice for this position and should be rejected.''

 

Myers has never served as a judge of any court, and he has not had a lot of judicial experience. In 2004, when asked to discuss 10 significant cases in which he had been involved, he could only list a few. Throughout most of the 1990s, the 48-year-old attorney was first a lobbyist for the mining industry and then worked for the National Cattlemen's Beef Association as executive director of the organization's so-called Public Lands Council. In 2001, Bush tapped Myers as the chief lawyer for the Interior Department, where he served until his resignation in 2003. A majority of the American Bar Association committee that rates Senate appointees withheld the ''highly qualified'' ranking from Myers, and a large minority of the 15-member group did not join in even acquiescing on a ''qualified'' label.

 

John Kerry, of course, opposed Myers' nomination in 2004 along with the National Congress of American Indians and countless environmental organizations across the country. But according to , the group that tracks the ''Bush administration's environmental misdeeds,'' Bush is running a number of nominations - that, like Myers, were rejected last year - through again with the knowledge that this time Republican numbers in the Senate are powerful enough to get his appointees through.

 

Key questions asked by those against a Myers nomination revolve around whether someone who has spent their career on advocacy of the most strident flavor is suited as a federal judge. In particular, Myers has showed himself to share the ideology of Western private property activists, a group dubbed the ''sagebrush rebellion'' in the 1980s. Moreover, while solicitor for the Interior Department, Myers was responsible for allowing a foreign-owned goldmine onto Quechan tribal land in California, a decision he made unilaterally without undertaking the government-to-government consultation with the tribe that all federal agencies are bound by. His decision was later overturned by a federal judge who pointed out that the regulation Myers cited in support of the activity had been written to prevent degradation of the land, something a gold mine clearly would not do.

 

Even as he's known for his conservative views, pundits say the man, who earned his J.D. at the University of Denver in 1981, is sharp and knows the law, particularly as it applies to natural resources and the American West.

 

Nonetheless, critics have a field day with Myers rhetoric. He has compared the reintroduction of wolves into Yellowstone to the British forcing colonists to shelter soldiers. He brandies about thinly-veiled threats about how a revolution of gun-toting ranchers from the West is not out of the realm of possibility if his constituency continues to suffer what it thinks is oppression under the elitist environmental agenda. Indeed, Myers compared federal environmental regulations to King George's tyrannical rule over the colonies.

 

A February 2004 New York Times article published when Myers was up for nomination the first time quotes from both sides of the aisle in order to inject balance into the debate. From Senator Larry Craig, R-Idaho, came the message that ''Mr. Myers's critics 'purposely confuse the roles of a lawyer and a judge.''' And from Senator Edward Kennedy, D-Mass., the words that Myers ''has dedicated most of his career to advocating for mining and cattle industry interests that opposed laws protecting the environment.''

 

Clearly, Myers does not have a mind that appreciates ecological relationships and values long-term environmental sustainability. His cavalier record of favoring industry over the environment and the rights of American Indians is alarming. Nonetheless, under the president's auspices, Myers appears to resonate with the current political climate of the nation. If the Senate approves his nomination, he could sit on the bench for as long as 20 years, ensuring that his opinions - what a Los Angeles Times editorial termed ''caustic and extremist'' - are heard long after the Bush administration recedes from public view.



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Democrats must preserve their right to filibuster

Jane Wallace Claymore

The Charleston Gazette [WV]

Feb. 01, 2005

 

Democrats in Congress gave Republicans a taste of what's in store for this session in the Condoleeza Rice confirmation hearings. She was sweated pretty well with some sharp questions and comments, and was actually called a liar by a senator from Minnesota. I don't recall that ever happening in the Senate's recent history, although there was plenty of intemperate talk in the old days and one actual beating (administered with a knobbed cane) that damaged the beaten man for life.

But this was just a preliminary skirmish, since the Republican majority of senators rubber-stamped Condi's confirmation.

Rice has performed admirably for her Prez and party, and we are accustomed to a favorite tactic of the GOP when on the ropes: attack the questioner, burn up the time, and don't answer the question. Her similar performance at the 9/11 hearings was infuriating but won her this particular promotion.

Forget about Condi. The vote on her confirmation showed everyone who's a real Democrat and who isn't. The senator from Connecticut, Joe Lieberman, voted to confirm her because he's been on the Republican side of the fence for many years (and why not, coming from the state with the highest per capita income?) and I wonder why he doesn't switch parties like Ben Nighthorse Campbell, recently retired senator from Colorado. You may not remember but, elected a Democrat, Campbell switched within days (during the brief tenure of the Gingrich Revolution) to Republican.

Now, women who believe the right to control their bodies resides in themselves, not in government, must pay attention to upcoming federal judge fights. Trying to get along with a doctrinaire president who has a big debt to pay the anti-abortion crowd, Democratic senators confirmed 214 of his judicial nominations during his first term, and filibustered only 10. Contrast that record with the logjam of nominations stopped by Republican Jesse Helms during the Clinton administration. You can almost reverse the numbers.

These 10 (two of whom were given interim appointments by Bush, a sneak ploy never attempted by Clinton or anyone else I can discover, but perfectly legal) have anti-women's rights records so abysmal, anti-civil rights records so atrocious that the Democrats finally drew a line.

Their reward? No new judicial nominees. They were given the same old losers. Now Democrats are being threatened with something the smooth-faced doctor, Bill Frist of Tennessee, calls the "nuclear option" - a rule change to end the filibuster. If Republicans vote in a bloc, they can do it, which would be catastrophic to the original intent of the far more talented framers of the Constitution.

I don't believe it would hold up before the current Supreme Court if a lawsuit is brought, but that could take years. After all, the Supreme Court decision that allowed the South to segregate everything from water fountains to schools was Plessy vs. Ferguson in 1896. That was overturned by Brown vs. Board of Education in 1954 - 58 years later.

The framers of America's Constitution were shrewd observers of human nature, and knew that we are loath to give up what freedom and power we have. They used this cynicism to good purpose, and created a document that allows the filibuster, to prevent the tyranny of a majority from destroying the rights of a minority, even if that minority is small.

I would remind you that the minority party scored 56 million votes last election, while the majority scoured 59 million. That's a huge minority. But if Frist pushes this, he may, like Gingrich, implode. I'll be watching, you should, too. I know one Republican who won't vote for that rule change: John McCain of Arizona.

's+Keeper/2005013121

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Resist the Filibuster Fiat

By Kevin Drum

The Washington Post

January 31, 2005

During President Bush's first term, 10 of his judicial nominees were filibustered by Senate Democrats. This month, when the 109th Congress convened, Senate Majority Leader Bill Frist finally declared war. Calling the filibusters an "unfortunate break with more than 200 years of Senate tradition," he made the Democrats an offer he hopes they can't refuse. "Right now," he said ominously, "we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate Rule XXII and do not acquiesce to carrying over all the rules from the last Congress."

In other words, if Democrats don't play ball, Frist reserves the right to invoke the "nuclear option": a parliamentary ruling that eliminates judicial filibusters by fiat, without a vote of the Senate.

But the majority leader protests too much. Not only have filibusters been attempted against judicial nominees in the past, but Frist himself has even voted for one. In 2000, after Senate conservatives had held up Bill Clinton's nomination of Richard Paez to the U.S. Court of Appeals for the 9th Circuit for four years, Frist joined in an unsuccessful attempt to filibuster Paez -- a judge who was favored by a clear majority of the Senate and who won confirmation after the filibuster was broken by a vote of 59 to 39.

Still, Frist has a point. Senate Democrats have relied on filibusters to block judicial nominees far more often than have minority parties in previous congresses. But there's good reason for this: Republicans have steadily done away with every other Senate rule that allows minorities to object to judicial nominees -- rules that Republicans took full advantage of when they were the ones out of power.

Originally, after Republicans gained control of the Senate in the 1994 elections and Utah Sen. Orrin Hatch assumed control of the Judiciary Committee, the rule regarding judicial nominees was this: If a single senator from a nominee's home state objected to (or "blue-slipped") a nomination, it was dead. This rule made it easy for Republicans to obstruct Clinton's nominees.

But in 2001, when a Republican became president, Hatch suddenly reversed course and decided that it should take objections from both home-state senators to block a nominee. That made it harder for Democrats to obstruct George W. Bush's nominees.

In early 2003 Hatch went even further: Senatorial objections were merely advisory, he said. Even if both senators objected to a nomination, it could still go to the floor for a vote.

Finally, a few weeks later, yet another barrier was torn down: Hatch did away with "Rule IV," which states that at least one member of the minority has to agree in order to end discussion about a nomination and move it out of committee.

These rule changes aren't a direct explanation for every Democratic filibuster. In fact, some of the filibustered judges have been approved by both of their home-state senators, so they wouldn't have been blue-slipped in any case.

But Democratic frustration is still understandable. For better or worse, the Senate has long been dominated by rules that give minorities considerable power over the legislative and appointment process. The usual justification for this is that it forces compromise and curbs extremism.

When Democrats were in the majority, Republicans defended these traditional Senate rules and used them freely to block judges they had strong objections to. But when they became the majority party themselves, they gradually decided the rules should no longer be allowed to get in the way of unbridled majority power. It was only after Democrats were left with no other way to object to activist judges that they resorted to their last remaining option: the filibuster.

It's arguable, of course, that none of these rules made sense in the first place. Why should home-state senators be allowed to kill nominations to a federal court? Why should minorities be allowed to block committee reports at all?

The same question could also be asked about "anonymous holds," a tactic that allows a single senator to obstruct a nomination -- and one that was used extensively by Republicans during the Clinton administration.

There are powerful arguments that these arcane Senate rules are fundamentally undemocratic -- arguments to which I am sympathetic. But it's harder to see any good argument for allowing the rules to be cynically changed based solely on who's in power. If one blue slip is the rule when your opponents hold the presidency, then that should be the rule when your own party holds the presidency. Ditto for the rules on reporting nominees out of committee.

Given this history, fair-minded Republicans would be better advised to restore some of the rules they themselves once defended so fervently than to attempt to tear down the last one remaining. After all, no majority lasts forever. Legislators should keep in mind the question posed by Thomas More in "A Man for All Seasons" when his daughter's suitor says he would cut down every last law to get at the Devil. "And when the last law was down," More asks, "and the Devil turned round on you, where would you hide?"



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Don't go 'nuclear' on judges

What’s wrong with this picture?

By Sen. Patrick Leahy (D-Vt.)

The Hill

January 26, 2005

 

Federal court vacancies have fallen to their lowest rate in 16 years, since the Reagan era. With Democratic support, 204 of President Bush’s judicial nominees have been confirmed during the past two sessions of Congress — more district and circuit court judges than were confirmed in the first terms of Presidents Reagan, George H.W. Bush and Clinton. Though Republicans blocked more than 60 of President Clinton’s judicial nominees, Democrats have filibustered only 10 Bush nominations and have done so openly — not anonymously and without hearings or votes, as Republicans did with Clinton’s nominees.

President Bush, the day after the second divisive presidential election in a row, pledges to the American people that he will work with Democratic members of Congress and be the president of all Americans. Now, to complete the scene, the same President Bush, without reaching across the aisle, and just before Christmas Eve, summarily renominates 20 of his most controversial nominees, and he and Republican leaders in the Senate again speak ominously about flattening the Senate with their “nuclear option” to ensure that each and every judicial nominee is confirmed — something that no president has ever expected under our Constitution, which splits judicial appointment and confirmation authority between the president and the Senate.

When it comes to judicial nominations, the bald rhetoric and the raw threats from the other side of the aisle certainly do not fit the facts. Nor do they match the president’s long-ago pledge to be a uniter and not a divider, or his lofty after-election language about reaching across the aisle. It does seem perhaps that they doth protest a bit too much.

We can hope this is not a sign of things to come. If and when a vacancy occurs on the Supreme Court, the president still may follow precedent and consult with Democrats in the Senate in a meaningful way. As Sen. Orrin Hatch (R-Utah) has noted, President Clinton’s consultation with him as then-ranking member of the Judiciary Committee on Supreme Court nominations made a world of difference, and the confirmations of Justices Ruth Bader Ginsburg and Stephen Breyer were models of cooperation.

The confirmation process begins with the president, and, in his selection, he sets the course for controversy or cooperation. He can choose a conservative Republican nominee who could garner the support of a large majority of the Senate.

Let us also hope that cooler heads prevail before the so-called “nuclear option” is triggered. Let’s review the facts. Judicial filibusters, though rare, are not, as some have argued, unprecedented or unconstitutional. In fact, the current majority leader participated in one such judicial filibuster just five years ago. And the Framers clearly understood that, by giving the Senate the power to advise and consent, they left open the possibility of withholding that consent. The Framers also gave the Senate the power to devise its own rules.

In the 108th Congress, judicial filibusters were used sparingly and as a last resort, only after the majority systematically bent, broke or changed long-standing rules and practices of the Senate that had long protected the rights of senators in defending the interests of their states. We hope they will not be needed at all in the 109th Congress, but neither should the Senate stoop to the radical, transparent and destructive proposal to change the Senate’s rules to take away any senator’s rights or the rights of a principled minority.

The nuclear option would break those rules for self-serving ends and destroy the character of the Senate, with its protection for the rights of senators, by knocking down one of the two pillars that define the Senate as a unique deliberative body — the freedom of debate unless a substantial number agrees to end debate (the other being the right to offer amendments). It would forever weaken the Senate as a powerful check on any president in the area of nominations as well as treaties and legislation and would risk giving this and future White Houses effective control over the Senate.

One of the great strengths of the Senate is its role as a continuing body with continuing rules that have been respected and followed under either Democratic or Republican control. Our rules must not change to give whoever is in the majority the power to jerry-rig whatever results the current majority desires. The Senate’s rules should not be treated like a child’s game of king of the hill.



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Courting Disaster

Bush judicial nominees could shake the foundations of environmental law

By Glenn Scherer

Grist Magazine: Environmental News & Commentary

January 20, 2005

 

William G. Myers III is George W. Bush's choice for a lifetime position on the U.S. 9th Circuit Court of Appeals. That court's jurisdiction covers three-quarters of all federal lands, in nine western states where contentious battles rage over energy, mining, timber, and grazing.

Unlike most judicial nominees, Myers has never been a judge. Instead, his qualifications include decades as a paid lobbyist and lawyer to the coal and cattle industries. In his recent position as the Bush Interior Department's chief attorney, Myers tried to give away valuable federal lands to a mining company and imperiled Native American sacred sites. "His nomination is the epitome of the anti-environmental tilt of so many of President Bush's nominees," says Sen. Patrick Leahy (D-Vt.).

Democrats aggressively blocked Myers' appointment with a filibuster in 2004. So when his nomination lapsed at the end of this past congressional session, many legal experts assumed it was dead, along with the nominations of nine other judicial candidates that were blocked by Senate Democrats for their extremist ideology, industry ties, and/or ethical problems. But on Dec. 23, while Americans were distracted by the holidays, the president gave his corporate backers (especially those in the energy and mining industries) a Christmas present: He announced his intent to renominate seven of the filibustered candidates, including Myers. (The other three were given the option of being renominated, but withdrew themselves from consideration.)

"Renomination on this scope and scale of so many judges who the Senate has refused to confirm has never happened before," says Glenn Sugameli, senior legislative counsel for Earthjustice , a nonprofit public-interest law firm. Noting that Congress has already confirmed 204 of Bush's appointees, Sugameli asserts, "President Bush is trying to convert the Senate into a rubber stamp that will confirm 100 percent of his judicial nominees. That is what is really at stake here."

Also at stake is the future of the U.S. environment. While much attention over natural-resource protection is focused on the executive and legislative branches of government, most decisive battles for the environment are won or lost in the judicial branch. And with Supreme Court Chief Justice William H. Rehnquist fighting cancer, and three other justices in their 70s or 80s, the president may have the chance to fill up to four Supreme Court vacancies with right-leaning anti-environmentalists.

But as important as those nominations are, Bush's nominations to the lower federal courts are as crucial to the environment. While the Supreme Court takes on less than 100 cases per year, the circuit (or appellate) courts hear more than 40,000 appeals annually and set most legal precedents that become the law of the land.

There are currently 37 federal judicial openings, with 15 of those on the circuit courts of appeal. For the environment, some of the key open judgeships include three vacancies on the District of Columbia Circuit (the court that hears most environmental cases involving executive-branch regulatory agencies such as the Interior Department, the U.S. EPA, and the Army Corps of Engineers), as well as seven vacancies on the West's 9th Circuit.

"In many ways, the courts are more important than either Congress or the executive-branch agencies," says Patrick Parenteau, professor of environmental law and director of the Environmental and Natural Resources Law Clinic at the Vermont Law School. "Congress may enact the laws, but it does so in very broad, sweeping terms. It is the courts that interpret, apply, and enforce the statutes." Without the courts, such landmark legislation as the Clean Air and Water acts could have been stillborn, he says. "If you don't have courts and judges willing to take a strong stand, those laws never take effect on the ground. They don't change how things are done. The courts give teeth to environmental laws."

President Bush, however, seems intent on extracting those teeth. And one of his key strategies for doing so is to pack the federal courts with right-wing extremists. The likely result could be one of the most heated Senate battles over judicial nominations ever, with some experts predicting the struggle will be a defining moment of Bush's second term.

 

Taking Care of Business

 

Perhaps the most disturbing trend in Bush's judicial appointees is their increasingly common links to industry. More than a third of Bush appointments to appellate courts and the U.S. Court of Federal Claims during his first term -- 21 of 59 nominations since 2001 -- have worked as lawyers and lobbyists for the oil, gas, and energy industries, according to a new investigation by the Center for Investigative Reporting . Three of these energy industry-linked Bush nominations have been made to the critically important 9th Circuit (with one confirmed so far), another nominated but not confirmed to the D.C. Circuit Court, and four confirmed to the little-known Court of Federal Claims, which deals with "takings" property claims made by developers and industry against the government. "The placement of the nominees suggests an administration strategy of nominating corporate-friendly judges in circuits where they will make the greatest impact," notes CIR. "In many cases, these same corporations and industries are also major campaign contributors to the Bush administration and the Republican Party."

Sheldon Goldman, a political science professor at the University of Massachusetts at Amherst and expert on the history of the nominating process, notes that reliance on special-interest lobbyists to fill prime posts on the federal bench has been rare under past presidents, and he raises questions about the Bush justices' ability to be "fair-minded and objective." Goldman reveals in a 2003 Judicature journal article that 9.6 percent of Bush district-court appointments had come from large law firms with 100 or more lawyers, of the type that represent large corporations, while the percentage was just 2 percent under Jimmy Carter, 6.2 percent under Ronald Reagan, and 6.6 percent under Bill Clinton. Of recent presidents, only Bush Sr. recruited a slightly higher percentage of appointees from large law firms, coming in at 10.8 percent.

But Roger Pilon, vice president for legal affairs and director of the ultra-right Cato Institute's Center for Constitutional Studies , denies and downplays such industry ties. "Twenty-one out of 59 judicial nominees had close ties to mining and other extraction industries? It is factually nonsense," he says. "And even if it were true, so what?" Pilon contends that just because judicial nominees lobbied or lawyered for big business and big polluters, that's no reason to think that, once appointed, they will show bias toward their old clients and against the environment. He calls such thinking "Marxist class-analysis claptrap."

But obviously the National Association of Manufacturers thinks otherwise. This powerful business lobby is about to launch a multimillion-dollar campaign to aid the White House in its bid to win approval for its judicial nominations, reports the Los Angeles Times . The head of the association, former Michigan Gov. John Engler (R), a longtime friend of the president, implied in his Times interview that the appointment of federal justices is important to business, partly because of judges' roles in civil liability cases. (Such cases might include corporations being held liable for oil spills, damaged fisheries, toxic waste-causing cancers or birth defects, etc.) It's expected that pressure from the association's powerful members, such as General Motors, might force the reversal of some Democratic senators who fought Bush's most egregious corporate-connected nominees in his first term.

All of this strife over judicial nominations seems to challenge the old stereotype of an impartial U.S. judiciary. And indeed, a new study shows that political party affiliation does make a difference when it comes to the environment and judges. The study, by the nonpartisan Environmental Law Institute, looked at 325 federal trial and appellate court rulings between 2001 and 2004 concerning the National Environmental Policy Act, a foundation of U.S. environmental law that requires all federal agencies to take into account the impact of their actions on the environment.

It found that a plaintiff with pro-environmental goals had less than half the chance of success before a Republican-appointed judge (a 28 percent success rate) than before a Democratic appointee (59 percent success rate). Conversely, plaintiffs with pro-development or industry goals were successful only 14 percent of the time before Democratic appointees, but 58 percent of the time before Republican appointees.

The GOP judges' anti-environmental stance has grown more pronounced under Bush. Of the 23 NEPA cases heard by the president's appointees, only four were decided in favor of the environment -- that's 83 percent of cases decided in favor of industry, a marked decline from the already poor environmental success rate scored with nominees of past Republican presidents. (The report does note, however, that the Bush judges have served for such a short time that more data will be needed to fully affirm this trend.)

The NEPA study "may or may not show bias on one or both sides," notes Sugameli. "But what it does clearly show is that who sits on the courts matters. It makes a difference, and affects people's ability to breathe clean air, drink clean water, and to enjoy special places."

 

Law and Disorder

  

Bush appointees, though relatively new to the federal bench, are already attempting to reinterpret landmark environmental decisions and change the way the statutes apply. In defiance of precedents and the public interest, the 9th Circuit's Richard R. Clifton in a dissenting opinion would have allowed a national forest timber sale to go forward despite an environmental group's injunction to stop the sale. Meanwhile, the 5th Circuit's Edith Brown Clement and Charles Pickering (both Bush appointments) have joined in a dissenting opinion that would have allowed a commercial and residential development in Texas, despite the risk to listed endangered species living on the site.

But as troubling as this initial erosion of environmental statutes might be, and as damaging as it could eventually become to specific locales and species, worse may lie ahead. Though individual judges can do severe environmental harm, higher courts can still overturn their decisions. Now, though, some ultra-conservative Republican-appointed judges are working to challenge the very constitutionality of environmental law. And new Bush nominations to the appellate courts and Supreme Court could provide the majorities needed to achieve that goal.

"The most important long-term issue before the U.S. Supreme Court, and the lower courts, is New Constitutionalism," says Sugameli. This extreme anti-regulatory philosophy, also called New Federalism, has been refined by corporations, right-wing think tanks, and the ultra-conservative Federalist Society. Born in the Reagan era, New Federalism opposes big government, and especially the intrusion of the federal government into state and local public services and economic and regulatory matters, according to the Cato Institute website.

New Federalism would repudiate a broad interpretation of the U.S. Constitution's Interstate Commerce Clause, upon which much of federal environmental law is based. Until the 1930s, this clause was used primarily to regulate trade between states. But from Franklin Roosevelt's New Deal era to the present day, judges have interpreted the clause as granting Congress the power to regulate business with regard to wage-and-hour limitations, healthy and safety, and the environment.

Some Bush nominees, however, say Congress has no authority to enact such measures. William G. Myers, for example, has argued in amicus briefs submitted to the Supreme Court that federal clean-water and endangered-species safeguards are unconstitutional. The Cato Institute's Roger Pilon agrees: "The Endangered Species Act is utterly unconstitutional," and so are the Clean Air and Water acts "for the most part," he asserts. "The commerce power was written to ensure the free flow of commerce among the states," period.

Destroy that constitutional foundation and you deny Congress the authority to provide most environmental protections, thereby causing the entire federal environmental regulatory structure as it exists today to collapse. It is a radical strategy that, if successful, would shred the safety net of federal laws that has safeguarded the environment for more than 30 years, and which Americans have come to take for granted. Pilon urges that this safety net be replaced with a patchwork of state environmental laws, an approach whose utter failure helped prompt the creation of the federal EPA by Richard Nixon in 1970.

New Federalism doesn't stop there. Anti-regulatory judges -- led by right-wing Supreme Court Justices Antonin Scalia and Clarence Thomas -- also want to severely limit public access to the courts. In particular, they would like to outlaw most citizen lawsuits, thereby barring nonprofit environmental groups from launching cases against polluting industry, uncontrolled development, and unresponsive government.

Pilon contends, along with many Bush nominees, that environmental groups do not have "standing"-- that is, they are not directly harmed (as an individual might be) by environmental damage, so they have no right to sue. Conservatives also say that neither environmental groups nor individuals have a right to sue when private industry damages the commons -- public lands or waters owned by all of us. If a polluter harms the commons, they say, only the government has the right to sue. And if the government fails to act, the public's only recourse would be to vote out the unresponsive officials.

Barring access to courts is antithetical to democracy, says Sugameli. It biases the system against nonprofit citizen's groups and in favor of businesses. It is also prejudicial. "There is no question that corporations will continue to be able to go to court whenever they don't like an environmental protection," he says. "But there is a serious question as to how much citizens will continue to be able to go to court when they feel that environmental laws are protecting corporations and not people."

Bush conservatives have hit upon still another strategy for attacking the environment: property rights. If Scalia and Thomas were to be joined on the Supreme Court by like-minded Bush-appointed justices, they would have the majority needed to set precedents giving industry privileged private property rights. "For at least 25 years, since President Reagan, the property-rights movement has asserted that property ownership is absolute and enshrined in the Constitution," says Jay Feinman, a professor at Rutgers University School of Law and author of Un-Making Law . That movement sees property rights as a core value of democracy, trumping the authority of Congress to make laws reducing pollution or preserving natural resources. When the government wants to protect air quality, wildlife, or wetlands, the movement contends, it must pay for all profits lost in the forsaking of economic activity, which industry leaders have cleverly -- if erroneously -- labeled "takings."

This very broad definition of property rights, based loosely on the 5th Amendment of the Constitution, has been repeatedly asserted by conservative Republican judges on the federal bench, and especially by Bush appointees. Myers has taken the extreme view that property rights should receive the same level of constitutional scrutiny as free speech. "What we've seen in the Bush administration is appointees who come out of this property-rights movement and have ties to industry, and who we can expect to advance the cause to undermine government regulation," says Feinman.

Going Nuclear 

 

With Republican control over the executive and legislative branches of government nearly total, Bush's second term will likely be defined by a struggle to solidify control over the judiciary. Two of the best predictors of the probable intensity of that struggle will be the willingness of the Senate to ignore its own time-honored judicial appointment-approval rules, and the extremism of Bush's nominees for open judgeships.

In 2004, conservative Republican senators, angry over Democratic resistance to Bush appointments, began threatening to change Senate rules that would prohibit the blocking of judicial appointments through filibusters. The new rule would do away with the required 60 votes needed to approve judges and replace it with a simple majority vote. "This is called the nuclear option by its proponents, because even they recognize that such a move would blow up the Senate, ending all chance for cooperation on any issue," says Sugameli.

As the 2005 congressional session got under way this month, Senate Majority Leader Bill Frist (R.-Tenn.) set the stage for this "nuclear war" by announcing that he will seek approval in February for an unnamed Bush judicial nominee. If Democrats filibuster that nominee, he says, then the nuclear option could come into play, reports the Associated Press.

Richard Epstein, a conservative law professor at the University of Chicago, is critical of the nuclear option but doesn't think it would "blow up" the Senate. "What is important is that the same rules apply to a Republican president and Congress as to a Democratic president and Congress," says Epstein. Democrats are hopeful that Frist will not dare launch the nuclear option, especially since Sen. John McCain (R-Ariz.) has come out against it, citing the divisiveness it would cause.

As for the extremism of Bush's second-term nominees, his reappointment of the seven candidates already blocked by the Senate doesn't bode well for the environment. Among them are such property-rights extremists as Myers and Janice Rogers Brown, who was nominated to the D.C. Circuit and opposed by 35 national and state environmental groups. Brown has declared that the Supreme Court's 1937 decision upholding the New Deal as constitutional "marks the triumph of our own socialist revolution." And her extreme views on property rights caused her to claim that private property is now "entirely extinct in San Francisco" and that the city is implementing a "neo-feudal regime."

As for the Supreme Court, "All the indications are that the people being looked at to fill those vacancies [should they arise during Bush's second term] would include many with very extreme positions," says Sugameli. Bush could also try to elevate either Scalia or Thomas, his two favorites and the two most anti-environmental justices, to the chief justice position.

Bush's lifetime appointments to the federal courts -- most of whom seem to be intentionally selected because of their youth -- will shape and dominate environmental jurisprudence for many decades to come.

 

Right Young Things 

 

Parenteau believes that the right-wing judicial strategies being pressed by the Bush administration amount to a corporate coup d'etat in which private special interests trump the public good and democracy. "It is probably not hysterical to characterize our situation as a constitutional crisis, because I feel that the majority values of this country are still strongly in support of strong laws protecting the environment. But what is happening is that those laws are being picked apart, dismantled, and deceptively, stealthily, slyly undermined. I think that our government's checks and balances are breaking down," as corporations gain a death grip on all three branches of government.

Sitting Supreme Court Associate Justice David Souter has long warned against the judicial use of constitutional arguments to invalidate Congress's authority to regulate commerce -- a tactic that could negate environmental, public-health, labor, minority, and women's civil-rights protections in one massive strike. New Federalism is not new, he contends, but will march America back to the Lochner era of the courts, which lasted from the post-Civil War period until Roosevelt's New Deal.

Joseph Lochner was a New York baker whose corporate right to force employees to work 60-hour weeks was upheld by the Supreme Court. For seven decades, the courts maintained a laissez-faire attitude about business practices, ruling that the economic sphere was off-limits to congressional regulation, and that private property, especially corporate private property, was sacrosanct. That era's policies spurred political and corporate corruption, spawning the Robber Baron industrialists, a yawning gap between rich and poor, civil unrest, labor strikes and riots, bomb-throwing anarchists, two presidential assassinations, fierce government repression, genocide against the American Indians, and the near extinction of the American buffalo. It was an era whose gross human injustices were only reversed by New Deal reforms.

In the face of a kind of Lochner-era redux, environmental groups have little recourse, Feinman fears. "Other than opposing judicial nominations, we have a real problem here. We can't just wait for the next election, or defeat a bill in Congress. With the judiciary, we are dealing with a matter of constitutional law. Once high courts rule in an area, there is nothing that can be done by executive action, or by legislation, to change things. That's the end of the story. We could see a rollback of environmental law as part of a much broader rollback of government protection of the public interest. Once again, what is good for General Motors is good for the U.S.A."

"Maybe the Cuyahoga River has to burst into flame again," concludes Parenteau, referring to a pivotal outrage in 1969 that helped launch the environmental movement in the following years. The United States may need to see drastic climate shocks, or Bhopal-scale tragedies, before the public becomes determined enough to reverse the Bush administration's judicial excesses. The political and social shape that such a rebellion might take -- and how long it might take to emerge -- is anyone's guess.



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Congress heads toward nuclear winter

By ROBYN E. BLUMNER, St. Petersburg Times Columnist, January 16, 2005

 

Will the nuclear option be detonated? And if so, when? This is likely on the mind of every U.S. senator. It could happen as soon as next month.

The term "nuclear option" sounds like an 11th-hour war plan hatched in the bowels of the Pentagon. Actually, it refers to a parliamentary maneuver that Senate Majority Leader Bill Frist is considering as a way to make sure all of President Bush's judicial nominees are voted on by the full body. It's called "nuclear" because of the devastation its use is sure to cause to any remaining cooperation across the aisle.

If this raw power is asserted, Democrats have promised to throw a wrench in the Senate's works. But Republicans don't seem to care. The GOP is in control of the chamber with a 55-to-44 majority (with one independent), and Frist has indicated that the nuclear option is a distinct possibility if the Democrats filibuster any nominees. "One way or another, the filibuster of judicial nominees must end," Frist told the conservative Federalist Society in November.

It doesn't matter that President Bush had 204 judicial nominees confirmed in his first term - more than any president in four of the last five terms. Senate Republicans are stuck on the 10 ultraconservative nominees who were successfully filibustered. Bush has vowed to renominate those 10 plus another 10 whose confirmations had not been voted on by the time the 108th Congress adjourned.

With Bush's in-your-face decision comes a virtual certainty that Democrats will have to resort to the filibuster again.

So here's how the nuclear option would work: Senate rules can be altered only by a two-thirds vote, and to end a filibuster (which refers to an endless debate) takes 60 votes - neither of which the GOP has. So rather than rely on these honest and traditional means of moving forward, Senate GOP leaders would seek a ruling from Vice President Dick Cheney, as president of the Senate, that filibustering judicial nominees is unconstitutional. (It's not, of course, but that wouldn't stop Cheney from saying so.) Cheney's determination then could be upheld by 51 votes, a simple majority.

That small step would transform the Senate from a body that has historically encouraged compromise and moderation by granting a modicum of power to the minority party, to one that operates like the House, where might makes right.

Why are we staring down the blade of this bulldozer right now?

One man: Orrin Hatch.

Hatch has done more to sow bitter division and partisanship than any senator since John C. Calhoun. In his role as chairman of the Senate Judiciary Committee, the Utah Republican obliterated a series of longstanding formal and informal agreements on judicial nominees that had ensured input by minority party senators.

Rules that Hatch strictly enforced during Clinton's tenure were suddenly wiped away as soon as Bush took office.

Under Hatch, more than 60 of Clinton's judicial nominees were held up through anonymous "holds" by a single senator and through other procedures. Now, with Bush making the picks, "holds" and other opportunities for objections are no longer honored.

How convenient that Republicans suddenly believe it's unconstitutional - a violation of the Senate's "advice and consent" role - for 41 senators to support a filibuster, thereby keeping some judicial nominations from an up-or-down vote. Yet when Clinton was president, the objection of just one senator was enough to stymie a nomination. (It should be noted that Frist himself supported a judicial filibuster in 2000. He voted against cloture - the end of debate - for Clinton nominee Judge Richard Paez.)

The Senate Judiciary Committee used to recognize the Thurmond-Biden agreement, in which only one controversial judicial nominee would receive a hearing at a time, giving senators a chance to truly explore the nominee's qualifications. That's gone by the wayside, too. In January 2003, Hatch scheduled three such nominees in one panel.

And Committee Rule IV says that in order for a nomination to get a committee vote, there has to be support by at least one member of each party. Hatch has ignored this one as well.

Senate Democrats on the Judiciary Committee, after wiping off the tire tracks from their faces, had no option but to filibuster Bush's worst, most ideologically rigid choices. Hatch had closed off all means of collegial input.

It is worth remembering that because of the Senate's configuration, a minority of its members may actually represent a majority of Americans - one reason the body has traditionally granted some control to senators who are technically in the minority. But those courtesies have now been gutted and may soon be eliminated.

Due to term limits, Hatch has been replaced as the committee's chair by Republican Arlen Specter of Pennsylvania. Specter is an honest broker and a breath of integrity after Hatch. But Specter was crippled by a bruising fight to succeed Hatch, and a Senate staffer says he won't yet commit to resurrecting the rules that Hatch squashed. We'll have to see how he walks this tightrope between his own party's extreme right wing and the Democrats on the committee.

But if Specter fails and the nuclear option is exploded, there's one man to blame: the smarmy senator from Utah.



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The Place for Politics

By Ryan Sager Tech Central Station [OH], January 12, 2005 

 

When Chief Justice William Rehnquist swears in President Bush for a second term on Jan. 20, it may well be one of his last acts as a member of the judiciary. After that, it's anyone's guess as to when the 80-year-old jurist, who is suffering from thyroid cancer, will choose to retire.

It's all-but-certain, however, that Rehnquist has delivered his last year-end report on the federal judiciary. His latest report, issued at the beginning of the month, is a worthy parting shot, taking aim at critics of the judiciary in Congress and elsewhere and making it clear just how little some members of today's Republican Party understand about the Constitution.

 

The Republicans seek to sanitize the nomination and confirmation process, while politicizing the jobs of judges already on the bench. The founders intended quite the opposite.

 

Rehnquist, as a member of the least-political branch of the federal government, is too polite to name names, but he points readers toward the misdeeds of Congress over the last year -- all of them committed by Republicans.

 

A fight over the Pledge of Allegiance led to 2004 being a banner year for attempts to intimidate the judiciary, after the United States Court of Appeals for the Ninth Circuit upheld a ruling that schools can't have students recite the loyalty oath in class. While the decision was legally defensible (if a bit extreme), it put many in Congress in high dudgeon.

 

In September, with an eye to the November elections, the Republicans in the House voted to bar the federal courts -- including the Supreme Court -- from hearing any challenge to the constitutionality of the words "Under God" in the Pledge. The measure passed the House 247-173.

 

The move was a cheap stunt designed to embarrass Democrats on what post-election we would call a "moral values" issue and wasn't pursued further. But the point was made, Congress' saber had been rattled.

 

Similarly, in July, the House passed the Marriage Protection Act, banning the federal courts and the Supreme Court from hearing challenges to the federal Defense of Marriage Act.

 

In the spring, the House passed a resolution criticizing justices of the Supreme Court for citing foreign legal authority in several decisions. One of the resolution's main sponsors, Rep. Tom Feeney of Florida, threatened, upon introducing the law, that judges who based their decisions on foreign precedents risk the "ultimate remedy" of impeachment.

 

Taken independently, each of these incidents could be seen as typical, Constitution-degrading political shenanigans (like the perennially proposed flag-burning amendment or, say, the McCain-Feingold campaign-finance law). But, taken together, they point to the ascendancy of the idea in the Republican Party that the judiciary is "out of control" and routinely subverts the will of the American people.

 

It's an idea that Republicans should get over. Granted, the majority of Americans probably don't want to see the Pledge of Allegiance tossed out of public schools, but that's not a particularly good reason to undertake a campaign to remake the checks-and-balances of the federal government. The judicial branch exists primarily to protect the rights of minorities, and if it goes too far sometimes -- this time in defense of atheists -- that's just the price of living in a liberal society.

 

Outside of the largely symbolic battle over religion in public life (such as public displays of nativity scenes, the Ten Commandments and the like), it's hard to see just where the will of the people is being subverted so terribly. On one of the most substantive church-state matters to come before the court in recent years, whether the government could allow religious schools to participate in school-voucher programs, the Supreme Court gave the green light.

 

Thus, it seems more than a little unnecessary to start talking about impeaching and removing judges or stripping the federal courts of jurisdiction. Impeaching judges for their decisions from the bench, first of all, as Rehnquist points out, is an idea that the republic rejected nearly 200 years ago. As for jurisdiction stripping, it's not been tried and may well not be constitutional. And even if it were constitutional, it would not be desirable. Republicans may find it all well and good to declare their favored policies above judicial review now that they dominate the federal government, but their views are likely to be quite different the next time they find themselves in the minority.

 

Quite the same could be said of the current Republican movement to change the Senate rules to prevent filibusters of judicial nominees. In fact, more scrutiny of -- and more partisan fighting over -- judicial nominees could be just what's needed to weed out the wacky circuit-court judges (such as those on the West Coast) that Republicans so detest.

 

Politics at the confirmation, independence thereafter. The Republicans need to get it straight.



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Bickering Heights

By Douglas Waller

Time Magazine

January 10, 2005

 

Think of them as kids squabbling in the backseat on a long car ride. In the case of Congress, there doesn't seem to be much hope that they'll quiet down and cooperate. Republicans and Democrats can always be expected to bicker, but lately the partisanship on Capitol Hill has become unusually intense. In fact, students of the institution say Congress hasn't been this politically polarized in almost a century.

 

That doesn't bode well for George W. Bush's ambitious second- term agenda, which includes reforming the federal tax code, partially privatizing Social Security and probably naming at least one Supreme Court Justice. To make any of that happen, Bush will have to work with the opposition. But he is getting less of a honeymoon from Democrats after winning an election with a clear majority than he did after winning one decided by the Supreme Court. Leaders of both parties mouth the usual platitudes about wanting to work with the other side, but they are not backing it up with action. Even before the 109th Congress gets down to business in two weeks, "the warning shots that each party is firing across the bow of the other are much more aggressive and direct," says Norman Ornstein, an expert on Congress at the American Enterprise Institute.

 

In the Senate, which in the past prided itself on being the more collegial of the two chambers, majority leader Bill Frist is threatening what is called the nuclear option, a complicated parliamentary maneuver to prevent Democrats from filibustering Bush's judicial nominees. Though Bush had more judges confirmed in his first term than the previous three Presidents had in theirs, Republicans are still seething over Democratic filibusters that blocked confirmation of 10 of his more conservative appeals-court picks. So Republican Senators may seek a ruling from the Senate's presiding officer--who, conveniently, is Vice President Cheney-- that filibusters against judicial nominees are unconstitutional. A majority of 51 votes would be needed to uphold such a ruling, a number far easier for the

 

Republicans, who now have 55 seats, to muster than the 60 required to cut off a filibuster. The filibuster is a cherished Senate tradition, however, and if Frist gets his exemption for judges, Democrats vow to bring the place to a halt with their own moves, such as forcing endless debate and roll-call votes on mundane procedural matters usually approved by unanimous consent.

 

Senate minority leader Harry Reid is acting as if the election season never ended, setting up a war room of press aides whose job will be to respond rapidly to Republicans. Reid angered Republicans by announcing that the Democratic policy committee, an arm of the Senate Democrats, would usurp G.O.P.-led Senate committees by convening oversight hearings on issues--such as flawed prewar intelligence on Iraq--that Democrats feel have not been sufficiently probed. The policy committee normally promotes party positions on issues and has the statutory authority to hold hearings, but it can't subpoena witnesses. Frist spokesman Bob Stevenson says, "This is a political stunt, nothing more, nothing less."

 

Interparty relations are even more acidic in the House. Speaker Dennis Hastert and minority leader Nancy Pelosi have not had a private meal together since Pelosi took over the top Democratic job two years ago. Each thinks the other is a rabid partisan, so they confer only when they must. The sour climate permeates the House. Since 1997, Illinois G.O.P. Congressman Ray LaHood has helped organize a weekend retreat at the beginning of each two-year session for Democratic and Republican Representatives and their families. Two hundred members showed up for the first retreat. The one planned for this March has been canceled because of lack of interest. "The well has been poisoned," says LaHood.

 

Why the ugly mood? One reason is hardball legislative tactics that each side claims the other has used for the past four years. The lines drawn during the 2000 congressional-redistricting exercise made about 90% of the House districts predominantly Republican or Democratic, so incumbents don't have to worry about reaching out to the other side. The percentage of staunchly liberal Democrats or staunchly conservative Republicans in the House is the highest it has been since 1901, according to studies of congressional voting patterns by Keith T. Poole of the University of California at San Diego and Howard Rosenthal of Princeton.

 

And Bush appears more than willing to stoke partisan flames on the Hill. On Dec. 24 he announced that he would renominate 20 conservatives whom Democrats blocked for federal district and appellate judgeships in the previous Congress. Angry Democrats vow to block them again. Be prepared for more squabbling.



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THE ROANOKE TIMES [VA]

Heed Sen. Reid on selecting federal judges

January 09, 2005

Carl Tobias

Sen. Harry Reid of Nevada, the new Senate minority leader, recently criticized Supreme Court Justice Clarence Thomas as an "embarrassment" - but suggested he might support Justice Antonin Scalia for chief justice of the United States because the jurist is "one smart guy."

Reid probably intended his comments as a warning to Republicans and to President Bush about recommending ideologically conservative nominees for the Supreme Court as well as for the appeals and district courts. For example, the incoming minority leader admonished that Republicans should not unilaterally preclude Democrats from filibustering judicial nominees because Democrats would "do whatever we can do to strike back."

Reid's remarks provoked an immediate firestorm of criticism. Many conservatives fervently hope that the president will nominate Thomas should ailing Chief Justice William Rehnquist resign. In contrast, many liberals and numerous moderates view the nomination of Thomas or Scalia as anathema.

Reasonable people can differ about the merits of the Supreme Court service that Justices Thomas and Scalia have rendered. Reasonable people may well differ about the advisability of the new Senate minority leader's commenting on the qualifications of potential nominees for chief justice before the sitting chief justice has resigned and the incoming minority leader had assumed his Senate responsibilities.

One matter about which reasonable people cannot differ, however, is that Supreme Court appointments and federal judicial selection generally are a mess.

Ever since the Senate rejected President Ronald Reagan's Supreme Court nomination of Judge Robert Bork in 1987, recriminations and countercharges, bitter partisan infighting and paybacks have characterized the modern selection process.

For instance, Republicans blame the Democrats' foot-dragging for 100 judicial vacancies at the end of President George H.W. Bush's term. Democrats concomitantly assert that Republicans' recalcitrance in preventing floor votes and even hearings on many nominees explain the 90 openings at the conclusion of President Bill Clinton's second administration.

Republicans now charge Democrats with obstructionism in using filibusters to block 10 appellate nominees over President George W. Bush's first term.

Unfortunately, the controversy generated by Reid's remarks about Thomas and Scalia has obscured numerous salient ideas that the new minority leader articulated.

First, Reid has strongly urged President Bush to consult with Democrats about nominees before submitting them. Consultation is a practice that President Clinton successfully invoked when appointing many federal judges, most notably Justices Ruth Bader Ginsburg and Stephen Breyer.

Second, Reid observed that the Senate had confirmed more than 200 lower-court nominees in the first Bush administration, so that only 30 of the nearly 900 judicial positions remain vacant.

This is the smallest number since the president's father occupied the White House. Indeed, when Sen. Orrin Hatch, R-Utah, chaired the Judiciary Committee (which has major responsibility for confirming nominees) during the Clinton administration, he frequently characterized 60 vacancies as "full employment for the judiciary."

Third, Democrats have blocked only 10 first-term Bush nominees; these individuals have been the most controversial, principally because they are ideologically conservative. When the president has submitted less doctrinaire nominees, such as Fourth Circuit Judges Allyson Duncan and Roger Gregory, they have easily secured confirmation.

Reid's valuable suggestions for improving the troubled judicial-selection process and his cogent explanations for Democrats' actions must not be lost in the rush to castigate him for statements about Justices Thomas and Scalia.



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Senate Floor statement of Sen. Richard Durbin (D-IL)

CONGRESSIONAL RECORD, January 06, 2005

[Page: S57]

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Mr. DURBIN. On Tuesday of this week, the majority leader came to the Senate floor and talked about judicial nominations. He said he was planning to have a vote next month on one of President Bush's judicial nominees. He didn't say which nominee he had in mind, but he gave a clear signal that it would be someone controversial. He warned that if Senate Democrats prevent the nominee from receiving an ``up or down'' vote, then he would try and change the rules and traditions of the U.S. Senate.

I am sorry to see that the majority leader chose to sound such a partisan note on a famously bipartisan day--the first day of the new Congress. On such a day, we swear in our new colleagues and strive for a fresh start.

I do not believe this is the time or the place to engage on this issue. There are too many other, more urgent problems facing this world and this Nation.

But it is important to address a few statements made by the majority leader that I believe are in error.

First, he stated that ``the Senate failed to perform in an essential constitutional duty'' last Congress when we blocked ten judicial nominees. He said that the Senate ``failed to offer advice and consent to the President'' and indicated this was an unconstitutional action on the part of Senate Democrats.

I do not believe that the Senate acted unconstitutionally. The Constitution requires advice and consent--it does not require us to be a rubberstamp. I could just as easily assert that President Bush acted unconstitutionally by not soliciting the advice of Senate Democrats before nominating most of his nominees. After all, Article II, Section 2 of the Constitution requires the advice and consent of the Senate.

There is no constitutional right for any President to have 100 percent of his judicial nominees confirmed. During President Bush's first term, the Senate confirmed 204 judicial nominees. President Bush had more judicial nominees confirmed in his first term than the previous three presidents had in theirs.

A second error made by the majority leader was his statement that ``these filibusters were unprecedented.'' Filibusters of judicial nominees are hardly unprecedented. The majority leader voted to filibuster some of President Clinton's nominees in the 1990s.

But the facts show that President Bush's judicial nominees have received far better treatment than President Clinton's. At least 61 of President Clinton's judicial nominees--representing 20 percent of his selections--were denied an ``up or down'' vote on the Senate floor. In fact, they were denied an ``up or down'' vote in the Judiciary Committee. The majority leader did not mention this critical statistic when he spoke on Tuesday.

I also take issue with his statement that ``I seek cooperation not confrontation.'' If he truly meant that, he would not threaten to change the Senate rules and traditions next month. If he truly meant it, he would have urged the White House not to re-nominate those nominees who were rejected by the Senate last Congress. If he truly meant it, he would have done what Senator Harry Reid did last month and send a letter to the White House urging the President to engage in bipartisan collaboration in the selection of Federal judges.

Finally, I wish to note the majority leader's surprising rejection of the longstanding tradition of the Senate as a continuous body. In his statement, he said that ``I do not acquiesce to carrying over all the rules from the last Congress'' and he specifically named Rule 22 as the rule he objected to. This is the rule that permits 41 Members of the Senate to prevent a vote on any measure, motion, or other matter pending before the Senate.

All of us who have served in the House and the Senate know that one of the most basic differences between our chamber and the House is that the Senate is a continuing body and the House is not. In other words, the Senate does not have to reorganize itself each new Congress by adopting new rules and electing new leaders. The House, on the other hand, must do so.

It is my hope that the 109th Congress can operate with more bipartisanship and less acrimony than the previous Congress on the issue of judicial nominations. But if my colleagues across the aisle try and change generations of Senate rules and traditions, it will not be good for this body, and it will not be good for the American people.

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'Nuclear' showdown over federal judges

Op-ed by George E. Curry

The Sacramento [CA] Observer

January 6, 2005

 

(NNPA) - We've barely ushered in the new year, yet there is already a war brewing over the appointment of federal judges in 2005. President Bush announced last month that he will re-nominate 20 conservative judges, including seven that had reached the Senate floor but failed to win confirmation.

Bush's announcement raises question about the president's veracity when he claimed immediately after winning the election that he wanted to reach out even to those who voted against him.

 

"In this opening shot, the White House is making clear that they are not interested in bipartisanship when it comes to nominating judges," Sen. Charles Schumer of New York says in a statement. "This is a sad day for America because we have approved 204 out of 214 nominations and have only rejected the most extreme nominees."

 

To understand this impending showdown over judicial nomination, one must first understand that years ago, conservatives targeted taking over the federal courts as a way of refashioning the judicial system to their liking. They created the Federalist Society to develop a network for Right-wing law school students, law professors, lawyers and judges. Law school students have been able to clerk under conservative judges, conservative lawyers have been able to win important appointments to the federal bench and once on the bench, these judges have been able to implement an activist conservative agenda while simultaneously deploring the so-called activism of liberal judges.

 

Their plan has worked so well that conservatives see victory within their grasp. By the time Bush leaves office in four years, all 13 federal circuits as well as the Supreme Court will be dominated by Republican-appointed judges. And the upcoming brouhaha in the Senate is a precursor of a bitter fight over future United States Supreme Court appointments.

 

With Chief Justice William Rehnquist being treated for thyroid cancer, it is expected that he will retire soon and Bush will name his replacement. But the larger fight is not expected to be whether Bush replaces a conservative with another conservative on the Court. Rather, it will occur when a liberal or moderate justice is replaced on the court by a conservative.

 

Although you would never know it from the GOP rhetoric, framers of the Constitution devised a system of advise and consent. To prevent the executive branch of government from running amuck, all federal judges must be confirmed or rejected by the U.S. Senate as part of our system of checks and balances.

 

And here's where political intrigue takes on new meaning. When Republicans were in a minority during Bill Clinton's first term, they stalled many of his appointees, even though Clinton only nominated centrist judges in hopes of getting them confirmed. They obstructed even more of his selections in his second term, hoping that unfilled vacancies would later be filled by a Republican president.

 

True to form, once George W. Bush was elected, these same Senators, led by Orrin Hatch of Utah, wanted the Senate to rubber-stamp all of Bush's judicial nominations. In all but the most extreme cases, Democrats in the Senate went along. They refused to confirm or elevate seven of his most radical nominations, including promoting a California Black conservative judge, Janice Rogers Brown, to the Washington, D.C. Court of Appeals.

 

Referring to Brown, Congresswoman Diane Watson [D-Ill.] said, "This Bush nominee has such an atrocious civil rights record that Clarence Thomas would look like Thurgood Marshall by comparison."

 

Democrats were able to hold off a handful of Bush's nominations by filibustering. Under Senate rules designed to protect the party in the minority, the party out of power can refuse to allow a measure to be called up by filibustering. It takes 60 votes in the 100-member Senate to end a filibuster, formally known as cloture. There are 55 Republicans in the Senate, up from 51 but still five votes shy of the 60 needed to end a filibuster.

 

Calling the filibuster the "tyranny of the minority," Senate Majority Leader Bill Frist of Tennessee has threatened to exercise the "nuclear option." In short, the maneuver will terminate a filibuster and allow the Senate to vote on a judge by a simple majority.

 

The normally, weak-kneed Democrats have promised to fight this attempt to change 200 years of Senate tradition, a tradition that protects the minority from being trampled on by the majority in a democracy.

 

If they allow themselves to be steamrolled by Republicans on this issue, they will forfeit the right to be called, in political parlance, the loyal opposition. They will become just another useless rubber-stamp, unworthy of our support.



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Taking away our precious defenses

Nick Huggler

The Daily Barometer [Oregon State University: Corvallis]

January 6, 2005

With the ringing in of a new year and a new Congress installed on Capitol Hill, the knives are already out as a newly bolstered GOP moves to strengthen its position for a year of legislating.

In the Senate, the collapse of old-time Democratic control of the South has given five new seats to the GOP and expanded its hold on the Senate to 55 votes. Here the first volley is an attack by Senate Majority Leader and resident M.D. Bill Frist on the filibuster, a time honored institution of the Senate.

Codified in 1841, the filibuster has allowed the minority party in the Senate to defend against being railroaded by the majority and allow the Senate to fully (and admittedly, sometimes laboriously) explore the issues surrounding the legislation they enact. Whereas in the House the majority party has almost unquestionable control of the agenda and debate due to the size of its body, senators have always had the privilege of saying what they want to say and taking the kinds of stands that require a minority-strong set of rules.

In first Bush administration (please note that I will henceforth be using the term "Bush Sr." in all future columns to refer to the elder Bush), the president had the highest rate of approved judicial nominees in recent memory. However, this has apparently not been good enough for the GOP, who have used the high profile battles of Charles Pickering and Miguel Estrada as a base upon which to attack Democrats. The Frist plan, referred to as the "Nuclear Option" on Capitol Hill, would use parliamentary procedure to allow 51 votes (a simple majority) to stop debate on a judicial nomination, instead of the 60 currently in place. With only 51 votes needed, GOP lawmakers will have an easy time halting debate on nominees and allowing votes to move forward.

It is hard to tell whether Frist's threat of a change will pan out or not, but what is sure is that the posturing on this issue is creating a more openly hostile environment on the Hill, and actual action on the issue will be considered a declaration of open war on Democrats by the GOP. The Senate, a consistently more collegial body than the House, may soon become more vitriolic as we move deeper into conservative domination of the federal government.

The issue may come to head soon, with the ailing Chief Justice William Rehnquist maintaining his tenuous hold on his position and White House wonderkid Alberto Gonzales being very obviously groomed for his seat (Sen. John Cornyn, a fellow Texan, has openly stated as much on numerous occasions). Gonzales is a fairly controversial nominee for attorney general, but will most likely be confirmed despite some tough questioning regarding memos he has written dealing with detainee torture. However, the same may not be said for a lifetime position on the Supreme Court, and if Rehnquist leaves soon after Bush is inaugurated, Gonzales may find his tenure as attorney general very short indeed. His nomination to the high court will almost certainly be the torch that ignites the pyre.  

The actions of Senate Republicans to attempt to change such longstanding rules to their temporary advantage will have a massive effect on the judicial selection process in the United States. Despite what members of the GOP may think, their rule is neither absolute nor guaranteed into perpetuity, and it can be assured that a slight to the minority of this magnitude will be repaid in kind after a change in the balance of power. The memory of the Senate is long (Ted Kennedy took his seat in 1960 after the promotion of his brother) and there is no doubt that this change will result in a further deterioration of the collegiality of the Senate, a crucial element in the operation of the body.

Judicial nominees deserve a thorough examination by senators before their approval to their respective courts. The minority in the Senate has approved all but a bare handful of the most ideological and secretive of President Bush's nominees, and it is a sure bet that were the tables turned, a GOP minority would want to examine the memos of nominees to ensure that they were not advocating ideas unacceptable to the values of the United States government.

Senators should know whether Alberto Gonzales advised the president that torture was acceptable, purely to understand the character of a man who, if confirmed, would spend a lifetime shaping constitutional interpretation in our country.

The ways in which the Senate operates should not be modified for temporary partisan agendas, as the static nature of these institutions is one of the few defenses that ordinary citizens have against a hostile political party working in opposition to their best interest without legitimate opposition.

Let's hope the members of the Senate Republican caucus remember that as they meet this week and in the future.



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Genius in jeopardy

by Steve Horowitz

Political Gateway

January 5, 2005

 

Part of the genius of our Constitution has always been the built-in constraints that discourage elected officials from veering too far from mainstream sensibilities.

Those constraints become moot, of course, when the mainstream itself becomes warped, as when Oklahomans elected the clearly disturbed Tom Coburn to the Senate. By and large, however, our system's inherent checks and balances work -- preventing, for example, presidents from appointing radicals and extremists to his Cabinet and the federal judiciary.

But an idiot is waging war on that genius. George Bush refuses to accept any limits on his determination to turn our democracy into a conservative theocracy. He seems hell-bent on overcoming the moderating influences of procedure, courtesy and simple decency in order to get his way. And with thugs like Bill Frist and Rick Santorum standing by, menacingly slapping blackjacks into their open palms, Bush will brook no opposition in his attempt to ram ideologues down the throats of the American people, rendering all the more bitterly laughable his promise to be a uniter, not a divider.

Consider this statement from the White House website about Bush's intent to resubmit the names of 20 judicial nominees who weren't confirmed in the last Congress:

"An effective and efficient judicial system is vital to ensuring justice for all Americans. The President nominated highly qualified individuals to the Federal courts during his first term, but the Senate failed to vote on many nominations. Unfortunately, this only exacerbates the issue of judicial vacancies, compounds the backlog of cases, and delays timely justice for the American people. The Senate has a Constitutional obligation to vote up or down on a President's judicial nominees and the President looks forward to working with the new Senate to ensure a well-functioning and independent judiciary. When the Senate reconvenes, the President intends to nominate again ... 20 individuals who did not receive up or down votes in the President's first term, 16 of whom were nominated more than a year ago."

Now consider the truth:

The Senate approved 204 Bush nominees.

The federal judicial vacancy rate is now the lowest it's been in 15 years, outpacing the approval rate of Reagan, Bush Sr. and Clinton.

Ten of the 20 nominees never even made it out of the Republican-controlled Judiciary Committee, meaning even some Republicans voted against them. (You can imagine how unqualified and/or extreme a nominee must be for that to happen.)

The Senate has no "Constitutional obligation" to provide an up or down vote on judicial nominees. Article II, Section 2 of the Constitution mandates only that presidential appointments be made "by and with the advice and consent of the Senate." How that advice and consent is or is not rendered depends entirely on centuries-old procedures and traditions.

If Bush were really worried about "timely justice for the American people," he wouldn't be renominating such unacceptably extreme and partisan jurists, since he knows full well that Democrats will vociferously oppose them and still have the numbers to sustain a filibuster.

But Bush has political capital to spend, as he boorishly reminded us after his election. And these, as the Center for American Progress points out, are the kinds of people he wants to spend it on:

Pentagon general counsel William J. Haynes IV. Haynes led the group of attorneys responsible for the memos contending "the president wasn't bound by laws prohibiting torture and that government agents who might torture prisoners at his direction couldn't be prosecuted by the Justice Department." Haynes's nomination was derailed when "he was asked by the Judiciary Committee to provide material about his role in the [torture] issue and failed to do so." Haynes also developed and defended the administration's policy of incarcerating "U.S. citizens without counsel or judicial review" which was rejected as illegal by the Supreme Court. Another Haynes product: the rules for military tribunals planned for Guantanamo Bay that was described as "unjust, unwise, un-American" by the Economist magazine.

California Supreme Court Justice Janice Rodgers Brown. The New York Times described her record as a "war on mainstream legal values that most Americans hold dear." It's not hard to see why. Brown on seniors: "Today's senior citizens blithely cannibalize their grandchildren because they have a right to get as much "free" stuff as the political system will permit them to extract." Brown on New Deal programs, such as Social Security: "The New Deal...inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document...1937...marks the triumph of our own socialist revolution." Brown, ignoring Supreme Court precedent, has argued that racially discriminatory speech in the workplace is protected by the First Amendment. She has also denounced the Supreme Courts landmark ruling U.S. v. Carolene Products; a view which, if adopted "would signal the death-knell for a vast range of health labor, and environmental standards it enacted during the last century." Learn more about Janice Rodgers Brown.

Alabama Attorney General William Pryor. His confirmation to a lifetime appointment on the federal bench would be a huge blow for women's rights. Pryor considers Roe v. Wade to be "the worst abomination of constitutional law in our nation's history." Further, he has defended restrictions on abortion in Alabama even when they lacked "the constitutionally required exception to protect the health of the pregnant woman." Pryor supported legislation in Alabama which would have required Alabama to appoint "a lawyer representing the state whenever a female under age 18 sought to have an abortion without her parents' consent." Pryor argued that the government attorney "should be involved to protect the state's interest in preserving life." The AP reported that Pryor "envisioned attorneys with networks like the Alabama Lawyers for Life, of which he used to be a member, agreeing to represent the state for free and 'potentially' taking an adversarial stand against abortions." Learn more about William Pryor.

Texas Supreme Court justice Pricilla Owen. During their time together on the Texas Supreme Court, Attorney General-nominee Alberto Gonzalez repeatedly criticized Owen for ignoring the law. In one case, relating to requirements for minors to "judicially bypass" parental consent requirements for abortion, Gonzalez characterized Owen's narrow view of the statute as "directly contradicted" by the legislative history and "an unconscionable act of judicial activism." In another case, where Owen would have effectively rewritten the law to protect manufactures of products that cause injury, Gonzales called Owen's opinion an attempt to "judicially amend the statute." Gonzales also joined an opinion that described an Owen dissent, which would have allowed certain private land owners to exempt themselves from environmental regulations, as "nothing more than inflammatory rhetoric."

It's unfortunate that a small, antagonistic simpleton, a man with so little understanding of revered constitutional principles, intends to subvert them no matter what the cost to the nation in bitter division and legislative paralysis. We can only hope that Senate Democrats have enough spine to stand up to the little dictator -- an iffy proposition, given their fear of being Daschled.

Even more chilling is whether the Constitution itself can withstand the assault. Because if Bush gets his way, radical judicial activists will be working to shred its protections and freedoms for decades to come.

But then, genius has always been the target of hateful, insecure bullies, and almost always triumphs.

Eventually.



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Breaking the Logjam

by Prof. Carl Tobias.

The National Law Journal

January 3, 2005

 

Last month, the White House threw down the gauntlet on federal judicial selection. President George W. Bush announced that he will resubmit 12 highly controversial appellate nominees, most of whom Senate Democrats filibustered in the 108th Congress, when the new Congress convenes in early January. Illustrative are Janice Rogers Brown and Thomas Griffith for the U.S. Circuit Court for the District of Columbia.

 

Several explanations may underlie the decision to renominate these individuals whom the Democrats have vociferously opposed and have publicly stated they will continue fighting, despite Bush's conciliatory remarks about bipartisanship. First, Bush asserts that he has a mandate to name politically conservative judges. The chief executive made judicial selection an issue in his re-election, pledging to stop Democratic "obstructionism" and to choose jurists who would apply the law, rather than legislate from the bench. Second, the enlarged GOP Senate majority has fortified Bush's position.

 

Third, forcing this question seems politically cost-free and allows the chief executive to motivate his base. Tendering nominees who oppose reproductive choice, favor prayer in public schools or hold conservative perspectives on other "hot button" issues that federal judges resolve is viewed as a "win-win" strategy. If these nominees gain approval, the president will create or enhance conservative majorities on the 12 regional circuits, which are basically the courts of last resort in their geographic areas, as the Supreme Court hears so few appeals. Even should Democrats prevent confirmation, Bush assumes he can win politically by claiming that he fought against Democratic obstructionism and for the nominees, regardless of their ideological views or qualifications.

Fourth, the chief executive thinks his administration will be strongest at the new term's outset, when it may capitalize on a fresh re-election victory and a putative mandate. Bush apparently reasons that he must act forcefully now to attain his selection goals, and that compromise would only be warranted near the second term's end.

 

Yet renomination of these judicial candidates and vigorous promotion of their approval will clearly have deleterious effects. The actions will continue the pernicious dynamics of recriminations and countercharges, partisan infighting and paybacks that have suffused appointments since 1987. For instance, Democrats have vowed that they will filibuster the nominees. In addition, the tactics will further undermine severely eroded respect for the process, the Senate, the Executive and even the courts and the judges named.

 

Also, lengthy judicial openings impede prompt and fair case resolution. For example, the 6th Circuit, which hears appeals from Kentucky, Michigan, Ohio and Tennessee, has functioned without a quarter of the court's judges since 2000. These prolonged vacancies have made circuit disposition rates the nation's slowest. Insofar as forcing the issue on appellate nominees exacerbates tensions between the GOP and Democrats, this could also poison Supreme Court appointments. Given Chief Justice William Rehnquist's poor health, and the justices' advanced ages, the president might name several to the high court. If Bush's appellate selection plan worsens already deteriorated relations between Republicans and Democrats, that may jeopardize high court nominees or seriously delay approval. The Senate in turn will consider no appeals court nominees while protracted, divisive confirmation hearings for justices proceed.

 

Numerous options hold greater promise than the course of action on which Bush will soon embark. First, attempts should be made to decrease the overheated rhetoric and partisan bickering. Second, the chief executive should consult with the Senate, a measure that President Bill Clinton used to good effect when the GOP had a majority. If Bush broached candidates before nomination with Democrats, such as Senate Minority Leader Harry Reid, D-Nev., the process would operate more smoothly.

 

Third, the president may wish to tender some nominees who have rather centrist views, which can facilitate their approval. Congress might also pass legislation that would authorize new judges to treat increasing work and case loads. Bush may even permit Democrats to suggest candidates in exchange for agreeing to his nominees or a judgeships bill and, thus, inaugurate a bipartisan judiciary.

 

Other bold strokes would be to resubmit Clinton nominees or elevate his district court appointees, as Bush did with Circuit judges Roger Gregory and Barrington Parker. Indeed, the 6th Circuit logjam might break if the president recommended a Clinton nominee for the court.



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Beware of judicial excesses

Tom Teepen

Grand Forks Herald

January 3, 2005

President Divider is at it again, dividing. The White House has said that President Bush will renominate 20 candidates for the federal judiciary whose nominations previously flopped with Congress.

Some were just lost in the procedural shuffle but included are several rejected by Democrats - often to the quiet relief of moderate Republicans - because of their records of extremism. And those include seven appointees to appellate benches, where judges can shape cases for the kinds of reactionary outcomes Bush apparently seeks.

The president could avoid a further partisan clash by nominating candidates whose conservatism falls within the broad mainstream. After all, by far and away that the larger number of his 229 judicial nominees has sailed through Congress without encountering a contrary Democratic wind.

But with the GOP Senate majority beefed up by the recent election, Bush seems to have decided this is the time to ram what he can down the losers' throats. He probably is counting on the surviving red-state Democrats to have been cowed out of continued opposition even to his most lurid appointees.

Failing that, the GOP leadership may pull the trigger on the so-called "nuclear option" - that is, using its simple Senate majority to overthrow the traditional requirement that 60 senators must endorse a nomination to avoid a filibuster. Filibusters sometimes have been used wrongheadedly but in the main, they have been a useful check against installing partisan excess in the judiciary.

And judging from the president's comments and some of his appointees, excess is just what Bush has in mind for the federal bench.

Bush has said that Supreme Court Justices Antonin Scalia and Clarence Thomas are his models - both of them, though in slightly different ways, reactionary activists. And while not every nominee in the president's class of fringe candidates fits every crease of the mold, they incline to a judicial nostalgia that yearns for the restoration of, in the trendy phrase, "the Constitution in exile."

That is to say, a body of jurisprudence in which, until the 1930s, property rights trumped human rights, in which states' rights prevailed and where it was even an open question whether the Bill of Rights applied at all to the states. The right has felt aggrieved ever since the New Deal Supreme Court of Franklin D. Roosevelt found, in the Constitution's commerce clause, a means by which Congress could legislate in the broad national interest.

Hot-button issues such as abortion and affirmative action will seem like small stuff if the president is indulged in his worst instincts and can install a throwback judiciary that would broadly would reverse three generations' worth of gains in civil liberties, individual rights and common-interest legislation.

If Bush would stick to nominees in the moderate-to-conservative range, he would serve the public interest and, incidentally, the neglected cause of comity. His persistence with candidates who are well outside the mainstream is in-your-face governance that cannot be justified by even an expansive reading of his re-election.



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Jim Haynes As a Stalking Horse In Torturegate:

Why President Bush Renominated Him for A Federal Appellate Judgeship

By John W. Dean

FindLaw

December 31, 2004

 

Recently, President Bush renominated twelve men and women whom he had previously nominated for federal appellate court judgeships. During Bush's first term, the Senate had refused to confirm any of the twelve - and had filibustered the nominations of seven. Now, Bush has asked the Senate to think again.

Bush is not the first president to resubmit judicial nominees. But he is the first to re-nominate seven who were blocked by Senate filibusters.

What is the thinking behind Bush's in-your-face strategy? I believe it is intended to test Senate Democrats in several ways - one obvious, and one much less so.

The first test is this: Will Democrats filibuster again - and risk having Republicans invoke the so-called "nuclear option" of rewriting the rules so a filibuster can be overridden? (I described this option in an earlier column.) If so, Democrats have opted to play a high-stakes game that could forever change the nomination process.

The second, subtler test is this: Will Democrats continue to oppose William J. "Jim" Haynes, currently the general counsel of the Department of Defense, to the point of filibustering his nomination if necessary?

It is the Haynes matter on which I will concentrate in this column.

Key Background: The Exchange of Letters Between Haynes and Leahy

To understand the nomination of Haynes, it's important to understand some key context. On June 2, 2003, the ranking Democrat on the Senate Judiciary Committee, Senator Patrick Leahy (D -VT), wrote to National Security Adviser Condoleezza Rice, concerned about reports and rumors of prisoner abuse and torture.

On June 25, 2003, in his capacity as Defense Department General Counsel, Haynes responded -- assuring the Senator in an artfully worded letter that the Administration's "policy" was "to comply with all of its legal obligations in its treatment of detainees, and in particular with legal obligations prohibiting torture."

Seeking further specifics, Leahy wrote back to Haynes. But months went by with no response. Meanwhile, on September 29, 2003, Hayes was nominated for a seat on the U.S. Court of Appeals for the Fourth Circuit. Haynes's confirmation hearing was scheduled for November 19, 2003.

Late at night, on the eve of the hearing, Senator Leahy received a letter -- not from Haynes but a subordinate. "That letter was completely unresponsive to my questions," Senator Leahy said. He also complained that earlier assurances Haynes had given to him and others "were not true." As a result, Senate Democrats tried to put the brakes on Haynes's nomination.

Blocking The Haynes Nomination: How and Why Democrats Did It

Haynes had a thin resume for an appointment to the U.S. Court of Appeals. Yet Republicans forced the nomination through the Senate Judiciary Committee on a straight party vote, with all ten of the Committee's Republicans approving. (Three Democrats voted against the Haynes nomination; six passed.)

Democrats asked to reopen Haynes's confirmation hearing. But the Republicans refused to do so. Nevertheless, the media, at least, pursued the case against Haynes.

The New York Times described Haynes as "an architect of some of the Bush administration's most unenlightened policies" and opposed his confirmation. Senator Teddy Kennedy, laying out the case against Haynes in The Washington Post, said, "Nominations do not get much worse than this." And after CBS News revealed the Abu Ghraib photographs of American soldiers abusing Iraqi prisoners, the Wall Street Journal reported that even Senate Republicans believed Haynes's "chances for confirmation were slim."

In late May 2004, Senate Democrats and the White House struck a deal to clear the way for votes on some twenty-five of the less controversial judicial nominees. Haynes, however, was left behind.

The Torture Memoranda: They Emerged After Haynes's First Nomination

At the time, Haynes's - and others' - infamous memoranda on torture had not yet surfaced. When they did, they proved to be as shocking to lawyers as the Abu Ghraib photos had been to the general public.

There is no question that this country faces a difficult enemy: terrorists who don't fight by the rules of war. But no one could have expected this country's top government lawyers to respond to that reality by claiming that the Geneva Conventions and other international treaties to which the U.S. is a party - as well as related federal statutes -- simply do not bind the President at all.

After all, Haynes had specifically assured Senator Leahy, in so many words, in his letter, that the U.S. recognized its obligation to "conduct[] interrogations in a manner that is consistent with the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT)" and "the Federal anti-torture statute," which implements CAT.

Plainly, the case in favor of Haynes's nomination - extremely poor even before the torture memoranda came before the public eye - is now appallingly poor. So why in the world is Bush renominating Haynes?

There are two possibilities: One may be that Haynes is such a poor nominee, Democrats will feel they have no choice but to filibuster and thus invite the "nuclear option."

Another is that Bush is stealing a page from Nixon's strategy book, and "pricking the boil" - that is, seeking to defuse a festering scandal. The scandal, of course, is Torturegate. "I think we've got to prick that goddamn boil. And take the heat," Nixon would say. Perhaps Bush, behind closed doors, is saying the same thing.

"Pricking the Boil": Can Bush Control and Thus Survive Torturegate?

Here's the key: Torturegate isn't just about Haynes.

It's also about the former assistant attorney general, of the Office of Legal Counsel, Jay Bybee - now on the federal bench. Bybee stonewalled his way through his confirmation hearings. But now that the memos are out, there is a good case for Bybee's impeachment: He counseled the President to ignore the law.

More to the point, it is also about Alberto Gonzales -- heading for confirmation hearings for his Attorney General nomination. Perhaps Bush hopes that if Torturegate plays itself out in these nominations, it will end the scandal before it gets worse. After all, why bore viewers with the "same" issues they've already seen exhaustively debated?

Haynes, then, may prove to be a stalking horse, a clay pigeon, or a fall guy - choose your metaphor - for Torturegate. Of course, Haynes is entirely blameworthy too. Depending on which nomination proceeds first - Gonzales's or Haynes's - either nominee could cost the other his job (as well as costing himself his own). And this stalking horse business is risky.

The Parallel to Nixon: Attempting to Take the Steam Out of a Scandal

The "pricking the boil" strategy didn't work in the Nixon Administration. Let's hope it doesn't work here, either.

During the Watergate investigation, Pat Gray had been acting director of the FBI. He was actually proud of his work. (No doubt Haynes and Gonzales are proud of theirs, too.) To try to take away some of the steam of Watergate, Nixon nominated Pat Gray to head the FBI.

He knew it would be a bloody partisan battle: Democrats controlled the Senate. But he still thought the nomination would help, for, as he wrote in his diary at the time, "At least getting Gray before the committee he can tell a pretty good story."

No doubt Haynes and Gonzales are good storytellers as well. There's one problem, though: Gray's testimony only stoked the fires, and theirs may, as well..

But Bush, like Nixon, is a gambler. If his strategy succeeds, he can control the scandal over his use of torture in the war on terror. If it fails, war crimes are as ugly as it gets.



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Move to change Senate rules would only betray voters' trust

News-Press [Fort Myers, FL] Opinion (December 30, 2004)

By Dick Morris

Threat of filibuster helps president get moderate conservative judicial nominees and avoid the ideological warfare that could ruin his legacy.

If Senate Republicans change the filibuster rule to permit closure on judicial nominations by a simple majority vote, they will be undermining their own president and their electoral fortunes for years to come.

The simple truth is that the president needs the threat of a Democratic filibuster to save himself from his party's right wing. It is only by pointing to the threat of Democratic intransigence that Bush can justify appointing a moderate conservative, instead of a doctrinaire one, to the Supreme Court.

If the filibuster is made impotent by the rule change Republicans are considering, the president will have no political choice but to charge straight ahead into the kind of confrontation that could ruin his administration and give his party the kind of black eye from which it would not recover easily…

If President Bush nominates a Supreme Court justice who is a conservative in the mode of Sandra Day O'Connor or Anthony Kennedy, he will meet with a broad public level of support. But if he tries to add another knee-jerk reactionary to the court - and jams the nomination through by changing the rules to block a Democratic filibuster - he will shatter the national moderate consensus that impelled his reelection. The nation will not tolerate seeing an electoral victory impelled by terrorism hijacked to put another William Rehnquist, Antonin Scalia or Clarence Thomas on the court. If Bush tries it, he will not be able to govern effectively for the balance of his term…

The filibuster has become an accepted institution in our society. With our intense partisanship - with blue and red states glaring at one another - voters want the checks and balances a filibuster offers. No longer a device to block civil-rights legislation, it is now a needed tactic to moderate the agendas of both political parties.

If Republicans change the rule to eliminate the 60-vote cloture requirement and then use the resulting power to jam right-wingers down the nation's throat, defying popular views on choice, they will incur the enmity of all Americans.

On the other hand, if the filibuster rule remains in force at 60 votes and Bush nominates conservatives to the court, Americans will not feel it is a sneaky maneuver. They understand that Bush is pro-life and expect him to name judges who are as conservative as the Democrats will permit. But to change the rules, midstream, as FDR tried to do in 1936, having made no mention of his intentions during the entire fall campaign, would be seen as dirty pool by moderate voters…

- Dick Morris was an adviser to Bill Clinton for 20 years.

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Bush's juris mis-prudence

Palm Beach Post Column (December 30, 2004)

By Tom Teepen

President Divider is at it again, dividing. The White House has said that President Bush will renominate 20 candidates for the federal judiciary whose nominations previously flopped with Congress.

Some were just lost in the procedural shuffle, but included are several rejected by Democrats - often to the quiet relief of moderate Republicans - because of their records of extremism. And those include seven appointees to appellate benches, where judges can shape cases for the kinds of reactionary outcomes Bush apparently seeks.

The president could avoid a further partisan clash by nominating candidates whose conservatism falls within the broad mainstream. After all, by far and away that the larger number of his 229 judicial nominees has sailed through Congress without encountering a contrary Democratic wind.

But with the GOP Senate majority beefed up by the recent election, Bush seems to have decided this is the time to ram what he can down the losers' throats. He is probably counting on the surviving red-state Democrats to have been cowed out of continued opposition even to his most lurid appointees.

Failing that, the GOP leadership may pull the trigger on the so-called "nuclear option" - that is, using its simple Senate majority to overthrow the traditional requirement that 60 senators must endorse a nomination to avoid a filibuster. Filibusters have sometimes been used wrongheadedly but in the main they have been a useful check against installing partisan excess in the judiciary.

And, judging from the president's comments and some of his appointees, excess is just what Bush has in mind for the federal bench…

If Bush would stick to nominees in the moderate-to-conservative range, he would serve the public interest and, incidentally, the neglected cause of comity. His persistence with candidates who are well outside the mainstream is in-your-face governance that cannot be justified by even an expansive reading of his re-election.

Tom Teepen is a columnist for Cox Newspapers. He is based in Atlanta. E-mail: teepencolumn@.

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Interview with Senator-Elect Ken Salazar on CBS’ Face the Nation

December 26, 2004

 

SCHIEFFER: Senator Salazar, as a Democrat, what do you think would happen if Republicans tried to rule the filibuster out of order?

 

Sen.-Elect SALAZAR: You know, I think it's going to be a bloody fight and I would hope that it can be avoided and I would ask my colleagues to try to avoid that in the US Senate. I think that the best thing to do is for the president to have consultation both with Republicans and with Democrats prior to making the appointments and that way when you actually get into the confirmation process, you're going to get a judge appointed without having all the difficulty and controversy that you've seen in the limited number of appointments. I think that to abandon a precedent which has been a part of the history of the United States Senate for more than two centuries is something that we ought not to do. I think it would send out the wrong signal of the kind of approach that both Senator Thune and Senator Isakson and others have been trying to take and that is that we're going to work on the issues of the country together.



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Appointing Justices to the Supreme Court, Letter to the editor

The Canyon News (So. Cal.)

December 26, 2004

 

In his December 12, 2004 op-ed entitled “Appointing Justices to the Supreme Court,” attorney John Armor claims that Associate Press writer Jim Abrams must be “ignorant” because he failed to see that “every Congress since [the First Congress] to the present day, has recognized that Advise and Consent requires only a majority vote in the Senate, and no more,” in order to confirm a judicial nominee.  However, Mr. Armor should get his facts straight before he calls someone else “ignorant.” 

 

In 1968, Republicans in the Senate filibustered the nomination of Abe Fortas to be Chief Justice of the United States.  More recently, in the year 2000, Senate Republicans—including Senator Frist, who is now the Republican leader—joined the filibuster of the nominations of Marsha Berzon and Richard Paez, President Clinton’s nominees to the Ninth Circuit Court of Appeals in San Francisco.  Now that they are in the majority in the Senate, many of those same Republicans are “shocked, shocked!” to see that Democrats in the Senate have used the same long-standing rule to block 10 of President Bush’s judicial nominees, while allowing more than 200 to be confirmed.  During Clinton’s presidency, Republicans used “secret holds” and other tactics to block more than 60 of Clinton’s judicial nominees.

 

The legal argument that Mr. Armor uses to support his view that filibusters are unconstitutional is one that any first-year law student could debunk:  according to Mr. Armor, whereas the Constitution is silent on the number of votes it takes to confirm a nominee, it specifies that certain measures, like ratifications of treaties, require a two-thirds vote.  Thus, by inference, the Founding Fathers must have meant for the confirmation of nominees to require only a majority vote.  But if one is going to extract inferences on the meaning of the Constitution, why not infer a unanimous vote?  An argument can be made that such a requirement would ensure that only non-controversial, consensus nominees would be confirmed, resulting in a far more mainstream judiciary.

 

The point is, according to both the literal text of the Constitution, and the interpretation that Congress has operated under since its inception, “Each House [of Congress] shall determine the Rules of its Proceedings.”  The courts have refused to get involved in disputes pertaining to “political questions” that involve the internal workings of Congress.  Thus, both the filibuster rule and the ‘simple majority’ rule are clearly within the Senate’s powers to adopt under the Constitution, as would be a rule requiring unanimity.

 

It is curious to note that Mr. Armor—who clearly prepared his opinion piece using GOP talking points that have been circulated in anticipation of the nomination of one of President Bush’s “strict constructionists” to the Supreme Court—is using a non-strict-constructionist argument to pave the way.  Strict constructionists believe that the Constitution’s meaning should be derived from its plain language, not through inferences; and yet Mr. Armor uses a huge extrapolation of the Constitution’s language to come up with a meaning that suits his purposes.

 

Because it demands greater consensus, the ability to filibuster judicial nominees is a moderating tool that prevents extreme ideologues from both sides of the aisle from being confirmed to lifetime seats on the courts.  Like other Senate practices—including committee practices and the power to create the Senate schedule—it sometimes allows the perceived will of the majority of senators to be thwarted.  But a minority of senators can represent a majority of the population of our nation, as is often the case, and is the case now on the issue of judicial nominations.  And on the issue of lifetime nominees to our federal courts—where senators are not able to go back and correct their mistakes—few other issues have more at stake.



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Will the GOP Nuke the Constitution?

AlterNet COLUMN (December 22, 2004)

By Arianna Huffington, AlterNet.

The plan to do away with judicial filibusters is an out-and-out power grab by the president and his Congressional accomplices.

Right now, somewhere in the White House, administration strategists are hatching plans to go to war. Battle plans are being drawn. Timing and tactics are being finalized. A nuclear option is even being openly discussed.

 

The designated target? Iran? Syria? North Korea?

 

No, much closer to home: the United States Senate.

 

Salivating at the chance to radically remake the Supreme Court, the president and his loyal lapdogs in the World's Most Exclusive Club are plotting to obliterate over 200 years of Senate tradition by eliminating the use of filibusters against judicial nominees. The Robert's Rules of Disorder scheme would involve - who else? - Vice President Dick Cheney, in his role as presiding Senate officer, ruling that judicial filibusters are unconstitutional and Majority Leader Bill Frist squashing the Democrats' inevitable objection to such an edict by tabling the motion. As long as we're "spreading democracy" abroad, no reason to leave out the home front, right?

 

This is the so-called "nuclear option," embraced with a wink and a nudge by Frist in November when he told the conservative Federalist Society: "One way or another, the filibuster of judicial nominees must end."

 

Invoking this parliamentary dirty trick would eliminate unlimited debate on judicial nominations and lower the number of votes needed before a nominee can be confirmed from the 60 necessary to break a filibuster to a simple majority of 51, and would drive a stake through the heart of the Senate's longstanding commitment - indeed one of its founding purposes - to defending the rights of the minority.

 

This scorched-earth approach is entirely in keeping with what Time magazine lauds this week as President Bush's "ten-gallon-hat leadership" style - a my-way-or-the-highway approach rooted in arrogance and laced with an intolerance of dissent that has already delivered him a rubber stamp Cabinet. Now he wants a rubber stamp Senate. Over the course of his first term, 204 of Bush's judicial nominees received Senate approval; just 10 were blocked. This is the highest number of lower-court confirmations any president has had in his first term since 1980 - including President Reagan. But, apparently, the highest is not enough. This president wants total approval of his every wish.

 

One small problem: That's not the way the Founding Fathers designed things. They had these funny notions about three separate but equal branches of government, free and open debate, and the value of checks and balances to ward off the overreaching for power by those in the majority. They built an entire system of government to counteract the abuse that inevitably goes with overreaching.

 

Yet that is precisely what the plan to do away with judicial filibusters is: an out-and-out power grab by the president and his Congressional accomplices. An underhanded scheme to kneecap the Constitution and take away the only weapon vanquished Democrats are left with to defend against Bush's "ten-gallon-hat" juggernaut. It would be impossible to overstate the importance of this battle. It is nothing less than a fight for the soul of our democracy - for what kind of country we want to live in. "George W. Bush," Ralph Neas, President of People for the American Way, told me, "has made it clear, both through his public comments and through the judges he has nominated to appellate courts, that he is committed to advancing an ideological agenda that would roll back many of the social and legal gains of the last century."

 

According to Neas, who has been at the forefront of judicial battles since the fight against Robert Bork in 1987, this is not just about Roe vs. Wade - it's also about turning the clock back to a time when states' rights and property rights trumped the protection of individual liberties and the ability of Congress to act in the common good on issues as far-ranging as civil rights enforcement, environmental protection, and worker health and safety.

 

This is not overheated partisan rhetoric but a realistic appraisal of the rulings handed down by the federal judges Bush has already appointed - and of the written opinions of Antonin Scalia and Clarence Thomas, the Supreme Court Justices the president has cited as his models for future nominees to the High Court. "Courting Disaster 2004," a study by People for the American Way Foundation, found that adding just one or two Scalia/Thomas clones to the Supreme Court would put at risk more than 100 precedents and the legal protections they safeguard.

 

We're talking about the Voting Rights Act, affirmative action, worker protections, access to contraceptives and legal abortions, laws protecting our clean air and drinking water, and on and on.

 

Senate rules regarding filibusters are not something most Americans will find themselves discussing over a glass of eggnog during the holidays. But the impact these rules can have on our lives is staggering. And it must be made clear right now - not when Chief Justice Rehnquist resigns and Cheney and Frist team up to push the nuclear button. By then it will be much too late, and all Harry Reid will be able to do is duck and cover. True leadership is being able to see not just the crisis staring you in the face - but the one lurking just around the corner.

 

President Bush is pulling on his oversized Stetson and gearing up for battle. And here, unlike Iraq, he's making sure his political troops have all the armor they need. The Democrats need to pre-emptively launch an all-out campaign to educate the American people about what will be at stake during the coming assault on our democratic values. If they succeed, they will have the public with them, even if it becomes necessary to resort to threats of Mutually Assured Legislative Destruction. Let's hope that's not what it will take to protect the Senate, the Constitution, and over 65 years of hard-won social victories from the GOP's looming nuclear winter.

 

Find more Arianna at .

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MAJORITY OVERREACH

Media complicity in the power plays of the new Republican Congress

By PAUL MCLEARY, New York Press (December 21, 2004)

…ANOTHER EXAMPLE OF the new Republican tendency to overreach is what has been labeled the "nuclear option." Advocated by Senator Trent Lott, the tactic has been proposed and endorsed by party leadership as a way to force the president's judicial nominees through Congress by declaring Democratic filibusters are unconstitutional, due to the fact that they impede the business of the government. For the past 200 years, the filibuster was the one option given the minority party to keep debate open on any subject, with the votes of at least 67 senators needed to end debate.

 

Under Lott's plan, a simple majority of Senators, 51, will be able to pass judicial nominees, without having to deal with the minority party whatsoever. Call it a "majority of the minority" rule. What it boils down to is that senators representing a minority of the population shut out the remaining senators, who represent a majority of the population.

 

As Michael Gerhardt and Erwin Chemerinsky recently pointed out in the L.A. Times, "The GOP plan to eliminate the filibuster for judicial nominations would do lasting damage to the Senate. Not only do the Republicans hope to do it without following the long-established rules for changing Senate procedure but, if they're successful, they would eliminate a key check, guaranteeing their party's absolute control over Supreme Court appointments."

 

Granted, this option has not yet been used, because the president hasn't tried to nominate any judges to the bench in his second term, but what of the fact that it has been floated at all? Again, as we've seen, the media has been mostly absent on this issue. Aside from a few purely rule-based pieces, few have bothered to examine the long-range consequences of doing away with a Congressional procedure in place since 1790…

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Make Nice, Not Nuclear

President Bush and Democratic senators should cooperate in choosing the next justices Stuart Taylor Jr.

Legal Times

December 20, 2004

Consultation. Conciliation. Compromise. Such concepts are in eclipse these days in Washington. Everyone is getting ready for the mother of all confirmation battles.

As soon as one of the nine aging Supreme Court justices retires, sports fans expect, President George W. Bush will pick a clone of Antonin Scalia or Clarence Thomas. Liberal groups will "Bork" the nominee as a retrograde, right-wing judicial activist bent on forcing women into back-alley abortions, pushing gays back into the closet, resegregating higher education, imposing a fundamentalist Christian theocracy, and promiscuously paving the habitats of endangered species. And then there will be all the dirt-digging for ethical lapses, libidinous excesses, and other embarrassments.

Senate Democrats will filibuster. Republicans will invoke the "nuclear option," with Senate President Dick Cheney ruling from the chair that filibustering nominees is unconstitutional; a party-line vote will then ram his ruling home. The Senate's defining feature -- protection of minority rights -- will be in ruins. The nominee will be confirmed. But Democrats will thereafter roll out an arsenal of parliamentary techniques to bring Senate business to a screeching halt. Bush's hopes for Social Security reform will be dead. Tax reform and tort reform -- dead. It will be total war -- nasty, brutish, and long.

Some seem to relish the prospect. A Nov. 9 Wall Street Journal editorial, for example, arguing that a Supreme Court fight "is inevitable no matter what," pushes a list that includes one candidate who has suggested that Roe v. Wade be overruled and another who has tarred as "the triumph of our socialist revolution" the Court's decisions upholding major New Deal programs almost 70 years ago. If Democrats defeat one nominee, the editorial adds, "send up another, and another after that." And if William Rehnquist retires early, "we'd recommend a recess appointment."

 

TRY SOME STATESMANSHIP

I'd recommend that the president and Senate Democrats try a little statesmanship. They should consult with one another, chuck their most combative supporters under the chin, and compromise on candidates conservative enough to honor the president's campaign pledges but not so radical as to scare reasonable Democrats.

Meeting those criteria won't be easy. But if each side combines a modicum of restraint with an understanding of the other side's political imperatives, it could be done.

Suppose, for example, that Rehnquist, the ailing, 80-year-old chief justice, decides to retire in the coming weeks or months. Bush should bow to the Constitution's mandate of advice and consent by inviting Senate Democrats to meet with him or his aides to discuss possible nominees. Nobody would expect him to follow the Democrats' advice, unless they have damaging information of which the White House is unaware. But flattery never hurts. Consultation looks good. And Bush would have nothing to lose but some of his arrogance.

The key decision for Bush would be whether to pick an archconservative nominee [or nominees] who would delight his conservative base -- and be a stick in the Democrats' eye -- or someone a notch closer to the center. Nobody would delight Bush's base more than Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit. Luttig is a brainy conservative whose powerfully reasoned opinions have convinced many conservative and liberal activists alike that he would push the law hard to the right. This perception -- even if wrong -- would send liberals to the barricades. The same reaction could unfold were Bush to nominate Thomas or Scalia to be chief justice.

Given the 55-vote Republican majority in the Senate, Bush could be pretty confident of confirming just about any presentable nominee to replace Rehnquist. Because the chief justice is allied with Scalia and Thomas on most big issues, opponents couldn't plausibly claim that the Court's balance would change much. And for all the symbolic importance of the position, the chief justice has only one vote, and not much more power than any of his eight colleagues. Wiser heads among the Democrats would know better than to put their ultimate weapon, the filibuster, at risk in what would probably be a losing battle.

So Bush would likely win any battle over replacing Rehnquist. But if he forced a provocative conservative down Democrats' throats, it might prove to be a Pyrrhic victory in terms of its effect on his congressional agenda. And for what gain? To energize a political base that will never cast another vote for him? To increase the odds that conservatives will have an edge on complex jurisprudential issues about which [in most cases] Bush cares little and knows less?

The truth is that nobody can predict with any confidence what would be the difference in Supreme Court voting patterns between a Luttig and a seemingly more moderate conservative such as his 4th Circuit colleague J. Harvie Wilkinson III. Or Judge John Roberts Jr. of the D.C. Circuit. Or former Deputy Attorney General Larry Thompson. It's especially hard to tell to what extent any of the prospects who appear to be on Bush's short list, once confirmed, would defer to the Supreme Court's own precedents. Lower-court judges have to defer to Supreme Court precedents. For the justices, it's voluntary.

 

GET A MAINSTREAM CONSERVATIVE

So the best way for Bush to keep his legislative agenda alive while filling a Rehnquist vacancy would be to pick a mainstream conservative such as Wilkinson, Roberts, or Thompson. This assumes that Democrats understand that they cannot realistically expect Bush to move the Court to the left by replacing Rehnquist with a centrist. It would violate the spirit of Bush's campaign pledge to name "strict constructionists" who will not legislate from the bench.

In this context, a move by Bush to consult Senate Democrats before making a nomination could serve a more-than-just-ceremonial purpose. "Listen," Bush could tell them, "I hear that some Democrats are saying they'll attack any conservative I nominate, even if I choose someone acceptable to reasonable Democrats. If you're going to attack anyway, there's no percentage in trying to accommodate you. I might as well pick someone you hate.

"And you know what'll happen then: You'll get huge pressure from liberal groups to filibuster. If you do, we'll go nuclear. And we'll win. You'll end up with my nominee on the Court, with the filibuster destroyed, and with your power -- and mine -- to get anything done diminished. I don't want that. And I can't believe you do. So let's make a deal. I'll pick a nominee you should find acceptable if you'll promise not to fight him."

The temptation on both sides to go to war will be at its maximum if one of the more liberal justices, such as 84-year-old John Paul Stevens, steps down. That would raise the specter of a sudden shift to the right in the Court's precarious ideological balance. The 5-4 majority that in 2003 upheld racial preferences in university admissions could become a 5-4 majority to strike down such preferences; the majority favoring Roe v. Wade could go from 6-3 to 5-4; any hope of the justices' legalizing gay marriage could be dead; and much more.

If Bush chose an archconservative to replace Stevens, it would amount to a declaration of war against Senate Democrats. They would respond with rhetorical carpet-bombing, multimillion-dollar ad campaigns, a frenzy of dirt-digging, and -- if all else failed -- a filibuster. Bush might be able to smash it. But in the process, he would be smashing any hope of bipartisan cooperation on anything.

And if Bush pushed the dwindling band of moderate Northeastern Republicans too hard, that could backfire big-time. They are not keen on blowing up the Senate to pack the Court with archconservatives. At some point, they might bolt the party. That 55-vote majority would shrink. And if the public came to fear that Bush was making the country too conservative, Republicans could feel a backlash at the polls -- and the party's majority might disappear entirely.

So if one or two of the more liberal justices retires, Bush would be wise to look to the more moderate conservatives on his short list. He will get the first move and will set the tone. He could do worse than to recall the words of Rodney King: "Can't we all just get along? . . . I mean, we're all stuck here for a while. Let's try to work it out."

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Moderate senators to control filibusters

BY PAUL BARTON,

The Arkansas Democrat Gazette

December 19, 2004

 

WASHINGTON - Republicans may have increased their numbers in the Senate, but they are going to need moderate Democrats such as Blanche Lincoln and Mark Pryor of Arkansas to pass much of President Bush's next-term agenda, some congressional observers say. In fact, moderates of both parties could be the center of attention when the Senate takes up marquee issues such as Social Security and tax reform next year.

 

The 109th Congress, which begins in January, will see the Republican majority in the Senate at 55, an increase from 51 in the 108th. The election brought Republicans much closer to the 60 votes they need to stave off Democratic filibusters on contentious judicial nominations and legislative proposals, assuming their own ranks hold together.

 

But many congressional experts say there are still enough moderates on both sides of the aisle to impact key issues - if the modedrates decide to act together.

 

"They [Republicans] have 55 votes, but they don't have 55 conservative votes," said political analyst Norm Ornstein of the American Enterprise Institute.

When they need a filibuster-proof majority, Republican leaders, and maybe even the White House, are likely to come calling on moderate Democrats such as Lincoln, Pryor, Mary Landrieu of Louisiana, Bill Nelson of Florida and Ben Nelson of Nebraska, some analysts say.

"The persons who hold those last two or three votes that allow you to get to 60 will be very influential," predicted Calvin Jillson, expert on American politics at Southern Methodist University.

The list of moderates is longer than many realize, others add.

For the Democrats, the list commonly includes not only Lincoln, Pryor, Landrieu and both Nelsons but also Joe Lieberman of Connecticut and Tom Carper of Delaware. Some also count Dianne Feinstein of California and Senatorelect Ken Salazar of Colorado.

Even new Senate Minority Leader Harry Reid of Nevada is "kind of a model of a moderate," said Thomas Alan Schwartz, political historian at Vanderbilt University.

Among Republicans, those often identified as moderates include Olympia Snowe and Susan Collins of Maine, Lincoln Chafee of Rhode Island and Arlen Specter of Pennsylvania.

John McCain of Arizona and Lindsey Graham of South Carolina, also Republicans, are among an additional group of "closet moderates," said Ross Baker, congressional scholar at Rutgers University.

Meanwhile, Republicans such as Chuck Hagel of Nebraska and George Voinovich and Mike DeWine of Ohio are seen as more conservative than the moderates but "willing to oppose the administration on some issues," said Jillson, the SMU expert.

'ENORMOUS POTENTIAL' Moderates from both sides, including Lincoln and Pryor, met on Capitol Hill last month as part of a bipartisan "centrist caucus" that will be chaired by Snowe and Lieberman.

"They [moderates] are still crucial in any legislative body," said John Hibbing, congressional expert at the University of Nebraska. "You have to look at where the median voters are, [where] the ideological fulcrum is."

Snowe and Lieberman are confident that moderates will be major players. "Both believe there is enormous potential for them to be active," a Lieberman aide said.

Added Chafee spokesman Stephen Hourahan, "Sen. Chafee feels there are a lots of potential combinations that are going to get together to stop things or move them along."

The Republican aide said Chafee feels a natural kinship with Democrats such as Lincoln and Feinstein. In turn, Lincoln said she feels a natural kinship with senators such as Snowe. "She is focused on solving the problem and getting it right," Lincoln said.

Expanding child tax credits this year was a prime example of the type of issue that attracts moderates from both parties, Lincoln added. "The important point with moderates is that they bring more sustainable solutions," she said. "Moderates will always be a key voting block."

Pryor, in a statement, said: "Neither side has the votes they need to get everything they want, therefore fair and pragmatic policies will be needed. I believe moderates on both sides of the aisle can deliver those policies and move legislation forward."

On many issues, especially Social Security and taxes, the administration will have to reach out to moderates on both sides, some say. "They [moderates] will have to be convinced that the proposals from the administration are workable," said Jillson.

Others point out that votes to end filibusters - cloture votes - will be more difficult for moderate Republicans now that the party is much closer to 60. "For a number of Republicans, cloture votes were pretty much pro forma, because they knew they could never reach cloture," Baker said. "Now it counts."

Social Security revision is definitely "going to be one of those issues" where a centrist coalition can form, said Gary Jacobson, political scientist at the University of California at San Diego. "I think moderates are going to be very nervous about this."

ACROSS PARTY LINES A Democrat such as Lincoln, Jillson said, could find herself with enough leverage to ask the administration "what can be brought to Arkansas" in exchange for her support. Lincoln, he added, "will wait for the debate to be brought to her."

Similarly, Ornstein of the American Enterprise Institute predicted that the administration and Republican leaders will "spend some time talking to people like [Bill] Nelson, Lincoln, Landrieu and Pryor." Those senators, he said, are known as "people who want to work across party lines."

Ultimately, the power of moderates will be decided by their ability "to cooperate with each other and resist pressures from their parties," said James Pfiffner, government professor at George Mason University in Fairfax, Va.

He is not at all confident about their ability to do so. "It's going to be very difficult for moderates to resist those pressures," Pfiffner said.

Some political scientists say moderate Republicans who stray too far from the party line could find themselves in trouble.

They note how Specter was recently left exposed to several days of public pressure from conservatives who opposed his becoming the next chairman of the Senate Judiciary Committee.

Following that "spectacle," Jillson said, Republicans "will think twice about opposing the president's judicial nominees."

But Chafee's spokesman said the Rhode Island senator does not fear punishment for following his centrist tendencies. "The Republican leadership understands that he is the only Republican who is going to get elected in Rhode Island," Hourahan said.

Southern Democrats are another story. On crucial votes, the White House will be sure to remind them that they all come from "red states," states that voted for Bush over Democrat John Kerry, Jillson said.

"Those are the ones that the administration will try to convince that their proposals are in their own interest."

The most telling moment for moderates, many agree, could come if Bush sends more contentious judicial nominations to the Senate, something seen as likely.

Hibbing, the University of Nebraska expert, said, "On judicial appointments, the moderates are going to be crucial."

But Ornstein wonders how much the administration will be willing to compromise.

"I think the attitude of Republicans is going to be, 'We won the election; we get our appointments. We want an up or down vote. If we don't get it, there is going to be Armageddon,"' he said.

This article was published 12/19/2004

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Ghost of Abe Fortas Hangs Over Discussion of Judicial Filibusters

Roll Call, COLUMN (December 13, 2004)

By Norman Ornstein,

Roll Call Contributing Writer

[pic]

Time for a history lesson, boys and girls. The lesson is about the filibuster, and in particular about the filibuster against the nomination of Abe Fortas to be chief justice of the Supreme Court in 1968. The lesson is precipitated by Sen. Orrin Hatch’s (R-Utah) letter to Roll Call last Monday.

First, let us look at the basics of what happened in 1968. On June 13 that year, Chief Justice Earl Warren informed President Lyndon Johnson of his intention to retire, subject to the confirmation of his successor. Two weeks later, LBJ nominated Associate Justice Abe Fortas for the post, also nominating Judge Homer Thornberry of Texas to fill Fortas’ seat on the court. Before his confirmation to the court earlier in Johnson’s presidency, Fortas had been one of Johnson’s closest friends and advisers.

As soon as the nomination was made, sharp opposition arose, driven especially by Sen. Robert Griffin (R-Mich). He challenged the legality of a nomination when there was no vacancy, and accused Johnson of “cronyism.” Other Republicans joined in the effort, which also was driven by the fact that the vacancy occurred late in the presidential term. Many Republicans saw a benefit in waiting until after the election to confirm a new justice, on the hope that GOP nominee Richard Nixon would win in November.

Whatever the motives, as hearings on the Fortas nomination proceeded during the summer, more questions arose about his ethics and his continued involvement, while on the court, in White House political matters. Other opposition, including from several Southern Democrats, built because of Fortas’s left-of-center ideology. But at the time, it was clear that Fortas had majority support in the Democratic Senate, and it was equally clear that Griffin, to prevail, would filibuster.

During the hearings, Griffin was challenged by Democrat George Smathers of Florida on his intention to filibuster the nomination, saying it would prevent the Senate from fulfilling its constitutional advise-and-consent duties. Griffin angrily responded that presidents did not have the sole authority in this area. “He’s only got half the power, he said. “We’ve got the other half and it’s time we asserted ourselves.”

When the nomination came up on the Senate floor in late September, a filibuster ensued. After five days of extended debate, there was a vote on a cloture motion. It failed, 45-43 with 59 votes (two-thirds of those present and voting) needed to pass it. The next day, Fortas withdrew. Johnson termed the behavior of the Senate “tragic.”

At its heart, Hatch’s recent letter suggested a sharp difference between how Fortas was treated (primarily by Republicans) and how appeals court nominees have been treated by Democrats in the past two years — all part of an effort to boost the idea of declaring filibusters against judicial nominees unconstitutional on their face.

The argument that Hatch makes, first articulated by former White House Counsel C. Boyden Gray, is essentially that there was no real filibuster against Fortas, because he didn’t have the votes to get confirmed in the end. I must confess, I find the distinction between “majority-supported filibusters” and “non-majority-supported filibusters” to be, shall we say, a strain.

The logic that Gray has used — trying to suggest that in the public statements of Senators on Fortas, a minority offered support — is flawed. Why filibuster if you have the votes to block a nomination? Besides, I am waiting for someone to show me where in Rule XXII it makes any distinction between filibusters that have majority support or lack it.

The delay caused by the filibuster in 1968 did allow time for opposition to Fortas to build, to a point where Johnson withdrew the nomination. But if Republicans were confident that Fortas would fail on a vote, they would have allowed the vote. And of course, to argue that a filibuster is not a filibuster — or to argue that one is legitimate when others are not because there was not a majority for the nominee in the first place — is like arguing, “Yes, I shot him, but I can’t be charged with murder because he would have died of cancer anyhow.”

In any event, the best way to interpret the actions of Senators in 1968 is to look at what they said then — in particular, what was said by Griffin, who was not just some crazy maverick but a card-carrying member of the Republican Senate establishment (and subsequently Republican Whip in the Senate). So here are a few quotes from Griffin on the Senate floor from that September debate:

“It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the Court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote. ...

“As more senior members of this body know so well, the Senate works its will in various ways. In the situation confronting us now, there are good and sufficient reasons for refusing to take up the nomination. ...

“If ever there is a time when all Senators should be extremely reluctant to shut off debate, it is when the Senate debates a Supreme Court nomination. If Congress makes a mistake in the enactment of legislation, it can always return to the subject matter and correct the error at a later date. But when a lifetime appointment to the Supreme Court is confirmed by the Senate, the nominee is not answerable thereafter to the Senate or to the people, and an error cannot be easily remedied. ...

“Whatever one’s view may be concerning the practical effect of Senate rules with respect to the enactment of legislation, there are strong reasons for commending them in the case of a nomination to the Supreme Court.”

Cloture, the ability to shut off debate in the Senate, first was put into the rules in 1917. Until 1949, it could not be invoked on nominations (meaning they could be talked to death without challenge.) As Congressional Research Service analyst Richard Beth has pointed out in a superb paper, it was attempted only twice before 1980. Between 1980 and 2000, cloture motions were filed and votes were held on 14 appeals court nominations, including against several Clinton nominees who were being held up by Republicans.

Many Republicans now arguing that filibusters against judicial nominations are unconstitutional on their face voted at least once against cloture (and thus for talking a nomination to death.) And, as I mentioned in an earlier column, many appeals court nominations were killed by never bringing them to hearings and votes at all.

Some of my most memorable and pleasant experiences in Congress have been testifying before Hatch in the Senate Judiciary Committee, often on constitutional amendments that he supported and I opposed, but also often in areas where we were in accord. He was invariably polite, engaged and thoroughly knowledgeable with the material, and the questions were smart, penetrating and always to the point. He is a great Senator and a good guy (and by the way, would make a great chief justice).

But on this one, he is wrong on the facts, wrong on the history, and wrong on the strategy. I hope he and Majority Leader Bill Frist (R-Tenn.) think longer and harder before they take the plunge down this slippery slope.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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No Checks, No Balance

The U.S. Congress is a disgrace to democracy

Alan Bisbort, Hartford [CT] Advocate, December 9, 2004

 

GOP Pluribus Unum.

The U.S. Congress is the most useless legislative body in the free world.

 

Historian Barbara Tuchman was hip to this as early as 1974, when she penned an op-ed for the New York Times called "Defusing the Presidency" (in her book Practicing History). It was written right after Pres. Nixon resigned, but her fears were that, because of the power of his office, he could have survived that scandal, as ugly as it would have been to the body politic.

 

"The American Presidency has become a greater risk than it is worth," wrote Tuchman. "The time has come to consider seriously the substitution of Cabinet government or some form of shared executive power."

 

While she feared the nearly unchecked power and secrecy of the presidency, what really concerned Tuchman was the sad state of the Congress. She wrote, "The Framers may have been the most intelligent and far-seeing political men ever to operate at one time in our history, but they could not foretell the decline of the Congress."

 

Indeed, in the 30 years since this was written, the situation has worsened. Each branch of government -- legislative, executive and judicial -- has some constitutionally structured means of preventing the other branches from abusing power, since all power, in theory, derives from We, the People. Yet, as never before, the three branches are working in collusion. The result is that the office of the presidency is accountable to no body, and the Constitution can be flouted, American people lied to and political enemies destroyed with nary a whimper from anyone in Washington. The Congress is now an assemblage of 535 yes-men and women, as unimpressive a group of lackies as has ever disgraced the hallowed halls of the U.S. Capitol. While one need only pick a week, any week, to confirm this, the past week has been particularly instructive.

 

Take Speaker of the House Dennis Hastert, next in line of succession, after the VP, to the presidency. Hastert, a career apparatchik inserted to cauterize the wound left by Newt Gingrich, embodies the uselessness of Congress. He recently vowed that he'd only allow bills to be considered that were backed by "a majority of the majority party." In other words, even legislation that would benefit all Americans, help kids, seniors, the poor, the infirm, etc., would be killed before even getting a hearing if Republicans were not its prime movers. This raw, and apparently shameless, power brokering and lack of moral vision is now the GOP standard. If Democrats weren't such spineless wimps, this would be a disastrous strategy.

 

Or take Sen. Norm Coleman (R-Minn) whose mere presence in the austere body is an insult to the memory of the man whose seat he occupies, Paul Wellstone, killed in a plane crash. Last week, Coleman wrote an op-ed for the Wall Street Journal in which he demanded that UN Secretary General Kofi Annan resign because, well, it's not clear what was Norm's point but his ostensible reason is the corruption of the UN's Oil for Food program in Iraq -- corruption Annan has appointed Paul Volcker to independently investigate -- it's part of a larger strategy, dictated by Karl Rove, to demonize the UN for blocking Bush's rush to war.

 

Or take Tom DeLay ... please. Republicans get worked up about a man of integrity like Annan, yet turn their beaks when a real crook like the Bug Man soils their nest. DeLay, the subject of a probe by a Texas prosecutor for illegal political contributions by corporations in which three of his associates have been indicted, has such Stalinesque power that even his boss Hastert is scared of him. Thus, the GOP caucus met in secret to decide whether DeLay keeps his majority whip post should he be indicted. Natch, they overwhelmingly said it's A-OK. Connecticut's GOP legislators, according to Chris Shays, all voted against waiving the rule. For doing the right thing, Rep. Rob Simmons has already been "punished." Transportation dollars for his district have been cut and a new sub base in Groton may get the axe. Watch if Simmons doesn't get back in line now.

 

Congress also wants to waive the filibuster rule for confirmation of federal judges while refusing to address a record budget deficit, record trade deficit, crashing U.S. dollar, 45 million Americans without health insurance, loss of jobs, lack of flu vaccine, climate change, war, more war and...



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Newsweek, COLUMN (Dec. 6, 2004 issue)

Shock and Awe In the Senate

The filibuster protects minority rights, enabling government to measure and respect not merely numbers but intensity in political disputes

By GEORGE WILL

“Republican senators, justifiably indignant about Democrats' filibustering to block confirmation votes for judicial nominees, are contemplating a parliamentary version of shock and awe. Evincing what historian Richard Hofstadter called "the ruthlessness of the pure in heart," Republicans might change Senate rules to make filibusters of judicial nominees impossible.

Actually, some Republican senators' hearts are about as pure as the driven slush after the treatment they dished out to some of President Clinton's judicial nominees. Republicans respond that Democrats opened this front in the political wars with their 1987 defeat of the Supreme Court nomination of Robert Bork. Democrats reply that in 1968 Republicans filibustered Lyndon Johnson's nomination of Abe Fortas to be chief justice. But Republicans say the issue then was not ideology but corruption. And so it goes. . . .

It takes 60 votes to invoke cloture, ending a filibuster. Come January, there will be 55 Republican senators but probably not five Democrats prepared to join them. Therefore the shock-and-awe temptation: Republicans could get a ruling from the chair—from Vice President Cheney presiding—that filibustering judicial nominees is an abuse of the Senate's power to advise and consent to nominations. The ruling, which 51 senators could enforce, would be that such filibusters are unconstitutional because they prevent the president from fulfilling his constitutional duty to staff the federal judiciary.

But that argument fails, on two counts. First, his duty is not to staff the judiciary but to initiate a staffing process in which the Senate has a constitutional role. Granted, that role has been radically enlarged as a result of the Bork episode: the Senate now feels entitled to judge the fitness of potential judges in terms of their judicial philosophies. Still, although this certainly overturns tradition and arguably violates the spirit of the Constitution, it is compatible with the Constitution's text: the requirement that judicial nominees receive Senate consent does not require the Senate to vote at all. Second, a filibuster, which effectively requires a supermajority for a confirmation, does not prevent the president from doing his duty; it prevents him only from getting exactly what he wants, when he wants it.

Furthermore, it is a short slide down a slippery slope from the postulated illegitimacy of filibustering judicial nominees, to the illegitimacy of filibustering any sort of nominees, to the illegitimacy of filibusters generally. That is not a position conservatives should promote.

In 2003, after many years of stoutly defending the filibuster, this columnist, his reason unhinged by the unconscionable filibuster against Miguel Estrada's confirmation to an appellate court, endorsed changing Senate rules to prevent such things. Now to make amends, herewith a credo:

The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the governmental juggernaut. Conservatives, who do not think government is sufficiently inhibited, should cherish this blocking mechanism. And someone should puncture Republicans' current triumphalism by reminding them that someday they will again be in the minority.”

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Los Angeles Times, Commentary: Senate’s ‘Nuclear Option’ (Dec. 5, 2004)

By Michael Gerhardt and Erwin Chemerinsky

Michael Gerhardt is a professor of law at William & Mary Law School. Erwin Chemerinsky is a professor of law at Duke Law School.

“The GOP plan to eliminate the filibuster for judicial nominations would do lasting damage to the Senate. Not only do the Republicans hope to do it without following the long-established rules for changing Senate procedure but, if they're successful, they would eliminate a key check, guaranteeing their party's absolute control over Supreme Court appointments.  Filibusters are possible because of a parliamentary rule that allows a minority of senators to keep debate open on any subject; the votes of at least 60 senators are needed to end debate. This reflects the Senate's historic commitments to protecting minority viewpoints and encouraging consensus. Without the filibuster, 51 senators reflecting a minority of the population could pass anything and not bother to consult with the remaining senators, who represent a majority of the population. The filibuster is a key check in our system of checks and balances.

 

The filibuster is as old as the Senate itself, as Sen. Bill Frist (R-Tenn.) recently noted. The first one was in 1790, when senators from Virginia and South Carolina sought to prevent the location of the first Congress in Philadelphia.

 

For Republicans today to denounce filibusters of judicial nominations as obstructionist is disingenuous. Republicans used filibusters when they were the minority party -- just as the Democrats do now. In 1968, Sen. Strom Thurmond (R-S.C.) led a successful filibuster blocking the confirmation of Abe Fortas as chief justice and Homer Thornberry as associate justice. During Bill Clinton's presidency, most Republican senators each voted at least once to filibuster one of his judicial nominations.

 

In President George W. Bush's first term, the Senate has confirmed 203 of his judicial nominations, and Democrats have filibustered only 10. Although Republicans are unhappy with this, it is the highest success rate ever for a president's judicial nominations. Republicans apparently want to give Bush the unique legacy of 100% success in confirming his judicial nominations.

 

But here's one problem: GOP leaders lack the two-thirds vote needed to change the rules and end filibusters of judicial nominations. Their only chance is called the "nuclear option." It entails procedural moves culminating in a ruling by the Senate's presiding officer -- Vice President Dick Cheney -- declaring filibusters of judicial nominations unconstitutional. Democrats may appeal the ruling to the full Senate, but only 51 votes are needed to uphold it. With 55 members next year, Republicans believe that they will have sufficient numbers to uphold such a ruling. Once the nuclear option is used, the Senate as it has been for more than 200 years will cease to be. The filibuster has had the salutary effect of encouraging compromise, but without it the majority would have no incentive to consult the minority.

 

What's more, a precedent would be set under which the Senate could change the rules to suit its needs. The Senate would become permanently trapped in a vicious cycle of payback. Even if Democrats were to deny the unanimous consent required since 1846 to schedule floor business, Republicans could do away with those rules too.

 

The major problem with the nuclear option is that it is a cynical exercise of raw power and not based on constitutional principle or precedent. The deployment of the nuclear option would transform the Senate into a rubber stamp.

 

Recently, some GOP senators begrudgingly agreed to allow Sen. Arlen Specter (R-Pa.) to become chairman of the Judiciary Committee pursuant to its rules as long as he promised "to support all the president's judicial nominees." But the Senate's duty is not to support all judicial nominations. The Constitution empowers the Senate to give its "advice and consent" on nominations. The president has earned the privilege of nominating federal judges. But the Republicans' triumph on Nov. 2 does not entitle them to ignore Senate rules or to eliminate a "tradition," which Frist describes as uniquely responsible for making the Senate "the world's greatest deliberative body."”

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SALT LAKE TRIBUNE, COLUMN (Dec. 4, 2004)

Republicans change tune when it comes to their guy's ethics

By Paul Rolly

“Couple the look-the-other-way-when-it-comes-to-Delay attitudes of the majority party in Congress, including Utah's own, with the about-face tactics in judicial confirmations during the years Utah Sen. Orrin Hatch has been calling the shots in the Senate Judiciary Committee.

Republicans holding the majority in the Senate have threatened   to employ the "nuclear option" to stop Democratic filibusters of judges nominated by President Bush, simply by changing the rules on filibusters.

It wouldn't be the first time rules were so flippantly altered to serve the purposes of the majority party when it comes to judicial nominations.

For decades, when Democrats had the majority, a judicial nominee could be scrapped if both senators from the judge's home state objected to the appointment. When Republicans took control of the Senate during the Clinton presidency and Hatch was judiciary chairman, the policy was changed so that only one senator needed to object. When Bush became president, however, it was changed back to two. Then even those objections became advisory in nature and the name could still be moved to the floor of the Senate.

Hatch's complaints about Democrats' attempts at blocking Bush's nominations were seen with humor in some circles since Hatch was the one accused by Democrats of using all sorts of parliamentary tricks to block Clinton's nominees, especially during a time of crisis because of a shortage of federal judges.

Utah Democrats were constantly howling that their own Democratic president bowed too easily to the threats of Hatch and continuously appointed Hatch-approved nominees over the objections of the Democrats.

Utah Democratic legislative leaders even accused Hatch of reneging on a deal to go along with the nomination of a favored Democrat to the federal bench if Democrats didn't put up a fuss over Hatch's nomination of Paul Warner, a Republican, for United States attorney for Utah.

It all fits into a trend in which the party in power uses its majority status to further reduce the voice of the minority in legislative and judicial branch corridors.”

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The Austin Chronicle, COLUMN (Dec. 3, 2004)

Sore Winners

The GOP seems determined to make representative government a game of "winner-take-all'

by MICHAEL KING

“The new Republican order promises to be entertaining, in a morbid sort of way. Last week the U.S. Senate leadership was once again discussing the "nuclear option" in order to impose all of President Bush's federal judicial appointments on the country, instead of just 95% of them (203 have been confirmed, 10 have been blocked by Democratic filibusters). Determined to demonstrate that a 55-member majority equals unilateral power, they say they'll move simply to alter the rules on Senate debate, effectively abolishing the minority filibuster for voting on judges.

The week before, it was the House's turn to change the rules of the game in favor of the winners…”

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The Dallas Morning News, COLUMN (Dec. 1, 2004)

Bush's goals may suffer if GOP partisanship continues

By CARL P. LEUBSDORF / The Dallas Morning News

“As historian Alan Brinkley noted recently in The American Prospect , "Republicans have abandoned bipartisanship as either a goal or a value."

President Bush has often acquiesced in this approach. It's a sharp reversal from the bipartisanship he practiced in Texas and undercuts his oft-stated – but only occasionally followed – vow to be a uniter rather than a divider.

More important, it could threaten a number of the president's second-term goals: simplifying the nation's tax system, reshaping Social Security and reforming immigration laws. ...

As Charles Babington pointed out in an excellent analysis in The Washington Post last week, Mr. Hastert has adopted an explicit policy of not bringing bills to the floor unless they have the support of "the majority of the majority."

That gives a majority of the 230 Republicans – or 26 percent of the House – a virtual veto.

That's a smaller minority than the 41 senators whose ability to use Senate filibuster rules to block nominations has prompted such complaints from GOP leaders.

Angered because the Democrats used the filibuster to block votes on 10 of more than 200 Bush judicial nominations, Majority Leader Bill Frist has threatened to use the GOP's 55-seat majority to force a rules change barring the tactic against judicial nominees.

If approved, it would give Republicans power beyond that of previous majorities.

But while a Senate rules change might produce short-term GOP gains by ensuring confirmation of embattled conservative judges, it would further exacerbate relations between the parties.

That could be a dangerous step, considering that resistance from some Republicans will likely require Mr. Bush to attract Democratic votes to pass tax, Social Security and immigration changes. …

The more prudent course for Mr. Bush might be to make a real effort to strengthen his shaky ties with congressional Democrats, rather than encourage policies that increase partisanship. . . .”

Carl P. Leubsdorf is Washington Bureau chief of The Dallas Morning News. His e-mail address is cleubsdorf@

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San Diego Union Tribune, OP-ED (Dec. 1, 2004)

The shifting sands of conservatism

By Lionel Van Deerlin

“An issue of the moment turns on the selection of federal judges, possibly including a new chief justice of the Supreme Court. And even before the new Congress convenes, conservative critics have been jumping all over the chairman-designate of the Senate Judiciary Committee – the man on whom Bush must rely to get his judicial choices confirmed. . . . What Specter had in mind was a long-standing Senate rule which permits unlimited debate on any matter unless and until three-fifths of members decide to end discussion and put the pending matter to a vote.

Cloture, this is called. In effect, it allows any 41 or more senators who feel strongly enough against a bill (or against a court nominee) to block legislative action by refusing to yield the floor. Until the mid-20th century, a daunting two-thirds were needed to shut off debate.

Probably the most famous filibuster of all time was conducted not by a real-life senator, but by actor Jimmy Stewart in "Mr. Smith Goes to Washington." . . .

Conservatives leery of "moving too fast" thought filibusters a useful brake against radicals. They never forgave Sen. Thomas Kuchel, the late California moderate, for making easier cloture his first goal in Congress.

But that was then. Today, the filibuster seems judged good or bad depending on who's doing what to whom. From the religious right and across the full "family values" front, dozens of organizations are beating on Senate Majority Leader Bill Frist, demanding that he end unlimited debate or find a way to make cloture still easier. Frist has promised that he will try.

So the current conservative credo is to cut the controversy – bring everything to a vote? Well, yes. But then again, maybe not. Or only if your party knows what it really wants. How else to explain Speaker Dennis Hastert's refusal to count the House on reform of the nation's intelligence apparatus?”

--Van Deerlin represented a San Diego County district in Congress for 18 years.

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Modesto Bee [CA], OPINION Column (Nov. 29, 2004)

GOP way or the highway

By DAN K. THOMASSON

Scripps Howard News Service

“In 1994 after they had overthrown 40 years of Democratic Party rule, the Republicans pledged to bring a more just, bipartisan approach to the business of lawmaking, which is Congress' primary responsibility. The byword, they piously proclaimed, would be civility seasoned with integrity and fairness, that is, after they cleaned up a few things left over from all those years of barbarian rule.

It took only a few weeks for that promise to disappear in an avalanche of retribution that continues to this day. . . .

Well, if the Democrats in both Houses had any idea that the worst of the last 10 years was over with generous appeals for unity from the White House to Capitol Hill in the wake of the decisive Republican victory, that notion has been dispelled by GOP leaders in both the House and Senate who have made it clear that as far as they're concerned generosity is a foreign word and there is only one party. There is no such thing as the loyal opposition or any kind of opposition for that matter. . . .

At the same time in the Senate, Majority Leader Dr. Bill Frist wants to overturn the time-honored filibuster with its 60 vote barrier, effectively emasculating Democrat dissent. He also has taken steps to treat dissidents in his own party to some of the same medicine. Frist will pack the top Republican committee assignments with only those who pass a conservative litmus test. He has brought about a rules change that allows him to pick the first two vacancies on all committees, a move his critics contend will undercut the seniority system and punish anyone out of step.

All this does not bode well for presenting Americans with rational solutions to such pressing problems as Social Security and intelligence reform, issues that because of their importance would always be better solved if possible with bipartisan input. History is certainly replete with examples of that. . . .

Indiscriminate, revengeful use of power also deprives minority constituents of their voice in the government. The millions of Americans who did not vote for the majority Republicans have a legitimate claim of disenfranchisement under those circumstances. Of all people, Republicans should be the first to realize this, having suffered all those years under Democratic regimes that were at times despotic. . . .

[S]tifling dissent and altering the system so viciously as to carry out a policy of political absolutism for one's own interests are not the stuff of good government. This is a country of many voices. No one expects the Republicans not to act like the majority. They earned it. But if they are to reflect the nature of the nation, they should use their force judiciously. Or have they forgotten so soon?”

Dan K. Thomasson is former editor of the Scripps Howard News Service.

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The Looming Threat to Roe

By Carol Towarnicky, Commentary, Knight Rider Newspapers, November 29, 2004

 

Even now, with religious Rumpelstiltskins claiming their payback for spinning the Bush campaign into gold, some analysts say reproductive rights are safe.

 

They claim Roe v. Wade will stand despite a hailstorm of pray-ins against Sen. Arlen Specter's suggestion that the Senate might actually fulfill its responsibility to "advise and consent" - and even when Senate Majority Leader Bill Frist threatens to "go nuclear" and eliminate the filibuster if Senate Democrats raise objections to judicial nominees.

 

These analysts say: Don't get excited. Nothing's going to change immediately. I say: Get excited, be worried, get ready.

 

It still is possible that President Bush will stiff the religious right and appoint justices who will keep the right to choose abortion as it is now: burdened in some states with waiting periods but still obtainable.

 

It's also possible that they fear that returning abortion decisions to the states, as overturning Roe would do, will jeopardize the GOP's current majority. After all, some polls show that a wide majority of Americans still believe abortion should be "generally legal" in the first trimester of pregnancy. (Ask the question differently, as the anti-choice crowd likes to do, and the majority evaporates.)

 

But if this election showed anything, it was that Bush paid no price for governing from the extreme right in his first term, including several appalling nominations to the federal bench. At this point, the only hope to save our privacy rights may be to plan for Roe's eventual demise.

 

If Americans finally understand what's at stake, they might oppose the minority now calling the shots from their pulpits (religious and bully).



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FINDLAW, COLUMN (Nov. 19, 2004)

Does Bush Now Have Political Capital to Spend?

A Look at the Historical Record Suggests the Answer Is No

By JOHN W. DEAN, Findlaw columnist and former counsel to the president

EXCERPT:

“Republicans have at best a soft majority, but not control of the Senate. To control the Senate requires sufficient votes to stop a filibuster - or 60 votes. And clearly the Senate, with the power to confirm the President's judicial nominations, is seen as vital to the Republicans, who seek to tilt the entire federal judiciary to the right - even if Bush has neither a mandate, nor the political capital, to do so.

Controlling Senate Filibusters In Confirmation Proceedings

In Washington, there is now serious talk of the GOP majority's "going nuclear," since the President does not have enough votes to control the Senate. As I discussed in a previous column, that means they may make a bid to change the Senate Rules to allow a simple majority to cut off a filibuster regarding judicial confirmation proceedings.

Former Majority Leader, and current Chairman of the Senate Rules Committee, Senator Trent Lott (R-Miss.) is one who favors the "nuclear" option. His strategy would be to request that the Senate's parliamentarian reject Democratic filibusters regarding judicial confirmations as unconstitutional. Republicans believe the parliamentarian, who works for them, will rule for them - and if he does, their simple majority of 51 would suffice to uphold his ruling.

Similarly Senate Majority Leader Bill Frist, in a recent speech to the Federalist Society, complained that Democrats were obstructing the selection of Bush's hard-right conservative and ideological judges, and he was not going to let them continue. Frist accuses the Democrats of unprecedented action in filibustering judicial nominations. But that's nonsense: In 1968, Nixon got Senate Republicans to filibuster and successfully block President Lyndon Johnson's nominee for Chief Justice, Abe Fortas.

Frist would not have given his speech if he wasn't concerned about his ability to force the President's will on the Senate (and nation). If Bush and the GOP really had a mandate and political capital, they'd be in a position to pack the High Court with conservative ideologues.

With court appointments a little-discussed campaign issue, and Senate Republicans far from the magic 60 votes, any claim of a mandate is implausible at best. And if the Republicans do wrest filibuster power away from Democrats to fast-track their nominees into any High Court vacancies, it will merely be a triumph of tricky legal and constitutional strategy - not a triumph of the people's will, as expressed in a mandate.

But this I do know. Going nuclear will cost Bush every bit of political capital he has in the Senate. In fact, the fallout will forever change the Senate -- just as the GOP has, in less than a decade, remade the House of Representatives into a body that resembles the Russian Duma.”

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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ROLL CALL (Nov. 17, 2004)

GOP Should Handle Filibusters the Old-Fashioned Way

By Norman J. Ornstein,

Roll Call Contributing Writer

[pic]

“I didn't want to address the issue again, but Senate Majority Leader Bill Frist (R-Tenn.) made me do it. . . .

Frist called filibustering judicial nominations "radical" and "dangerous" and said it "must be overcome." He openly discussed the so-called "nuclear option" in which Senate Republicans would, in effect, unilaterally change the Senate rules to bar such filibusters. . . .

First, frustration over extended debate in the Senate - and the ability of an intense minority to block the will of the majority - is as old as the Senate itself. Presidents hate filibusters; so do Senate Majority Leaders. . . .

Because cloture, which requires a supermajority to stop debate and force action, is a fundamentally conservative tool to block or retard activist government. . . .

Ironically, the filibuster as we know it - and the supermajority requirement for cloture - was a reform to expedite action, not to block it. Prior to 1917, there was, in effect, no limit on debate in the Senate. . . .

That ability was a part of the unique role of the Senate, which was designed by the Framers to slow the process and add to its deliberative nature. Just as the Senate itself is not representative of the majority of the country - Senators from small states, which collectively represent a fraction of the overall population of the country, command a majority of votes in the body - the Senate's unique legislative procedures, including its reliance on unanimous consent and its tradition of sensitivity to minority viewpoints via unlimited debate, are extensions of the Framers' conservative views on governance. . . .

Frist wants action on President Bush's nominees to appeals courts, and he fears a filibuster led by Democrats against a controversial Supreme Court nomination. So he is making the case that filibusters against court nominees are unconstitutional.

It is a tough case to make, but that hasn't stopped his friends in the Federalist Society, who are using arguments wielded originally by the anti-Federalists. They contend that since the Constitution specifies areas in which supermajorities are required, we can infer that in all other areas, simple majorities will do.

One might think that strict constructionists would look to the direct language of the Constitution, rather than inferences from it. But one can infer from their legal reasoning that, for them, the ends justify the means. …

Of course, the Framers knew all about unlimited debate and its tradition in parliaments and earlier American legislatures. They saw, as George F. Will pointed out many years ago, that there was a filibuster in the very First Congress. When Republicans successfully led a filibuster in 1968 against President Lyndon Johnson's nominee for chief justice to the Supreme Court, Abe Fortas, they and their strict constructionist friends somehow did not see that action as unconstitutional.

But that was then. Now, with 55 Republicans in the Senate, Frist is ready to act to change the rules. Here is the likely option. At some point early next year, as Senate Democrats are blocking action on a Bush judicial nominee and the Republicans have another cloture vote that falls short of the 60 needed to end debate, Frist will raise a constitutional point of order, saying that a supermajority requirement for confirmation of a judicial nominee is unconstitutional. The vice president, sitting in the chair, will agree.

The issue will be brought to a vote, in which a simple majority can affirm the ruling of the chair. But - here's the rub - a constitutional point of order in the Senate is itself debatable, and can itself be filibustered. That issue will undoubtedly be raised by Sen. Harry Reid of Nevada, the Minority Leader, and any honest Parliamentarian will agree.

The vice president will overrule the Parliamentarian and recognize a motion to table, which is not debatable. Over the howls of outrage of Democrats - led no doubt by West Virginia Sen. Robert Byrd - the Republicans will vote, affirm the ruling of the chair, and pass the judicial nomination by a simple majority.

This set of actions is something Frist seriously contemplated last year. He didn't act for several reasons. One is the damage that would come to Senate comity. Another is that he likely didn't have the votes among his 51 Republicans (and his surrogate 52nd, Democrat Zell Miller of Georgia).

Now, he may well have the votes, but it is not a slam dunk. Republican Sens. John McCain (Ariz.), Chuck Hagel (Neb.), Lincoln Chafee (R.I.), Susan Collins (Maine), Olympia Snowe (Maine), Arlen Specter (Pa.) and Dick Lugar (Ind.), among others, have to be agonizing over the whirlwind that they and everybody else may reap from this action. Other veteran Republican Senators, with a longer view of history, also have to know that there will come a time when activist liberal Democrats are back in the saddle, and that this precedent, which can be extended effortlessly to various and sundry policy matters, will come back to haunt conservatives.

Still, given the presidential ambitions several of these Senators have, the loyalty Republicans feel toward the president, and the squeeze being put on Specter, the votes are probably there.

Still, Frist should think twice, three times and even four, before he acts. Rule XXII, the cloture rule, is not the only tool in the kit for Senators to block action. Consider Rule XIX, which says in part, "No Senator shall interrupt another Senator in debate without his consent." Consider that basically nothing happens in the Senate without unanimous consent - and that in the past, single Senators . . . have been able to tie the Senate in knots repeatedly on their own. Now imagine if the Republicans' action enrages 40 or more Allens and Metzenbaums.

What is most ridiculous here is that Frist has his finger on the nuclear trigger - and is ready to risk Mutually Assured Destruction - without even beginning to use the traditional tools available to him to break these filibusters. . . .

So get serious. When Democrats filibuster Miguel Estrada or Priscilla Owen, make them take to the Senate floor around the clock. Stop every other Senate action. . . .

If the American public believes the president has every right to get votes on his appeals court nominees, and if it believes the Democrats are unfairly blocking action on Social Security, the budget or tort reform, there will be enough of a public reaction that Democrats will eventually defer.

The pampered, prissy, protected Senate apparently does not have the stamina or cojones to do what historically and traditionally has been done to force action in a body where minority rights and power are zealously guarded. So this conventional action is soon to be supplanted by the nuclear bomb. Not smart.”

Norman Ornstein is a resident scholar at the American Enterprise Institute. 

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The Hill (Nov. 17, 2004)

By Dick Morris, The Political Life COLUMN

Thoughts on a second term

“Some second-term ideas for the triumphant Bush administration:

• Filibusters and judicial nominations. Beware of what happened to FDR in 1937 when, fresh from the most resounding reelection victory since the early days of the Republic, he became filled with hubris and proposed to pack the Supreme Court.

Despite overwhelming majorities in both houses of Congress, the public backlash not only killed the plan but doomed his entire second-term agenda to disaster and defeat. The imperial overreach of FDR’s second term is well-explained by Kenneth Davis in his book Into the Storm.

This election was not won over abortion. It was won over the war on terror primarily and gay marriage secondarily. If the right attempts to twist its meaning to suit its purposes and use it to defang the checks-and-balances system, it will be guilty of its own form of imperial overreach. A three-percentage-point win will not sustain such an overturning of the system on which people of both parties rely to assure moderation.

After giving no hint of so radical a step during the campaign — indeed after keeping it well-hidden — for President Bush to spring it now would be seen as an act of treachery by the many pro-choice voters who backed him because of his international leadership, confident that the filibuster would prevent him from going to extremes in his appointments.

Filibusters, obnoxious as they are to democracy, have acquired an accepted place in our democracy. Just as senators no longer feel obliged to vote against cloture, as they once did out of courtesy to one another, so the public no longer feels that the necessity to attract 60 votes for judicial nominations is too onerous.

If Bush jams through a ban on filibusters on nominations and then jams through Clarence Thomas as chief justice (by itself this would be OK) and then pushes a Thomas or Antonin Scalia clone for the open spot on the court, he will squander a huge segment of the political capital on which he is relying for more important tasks ahead. . . .”

Morris is the author of Rewriting History, a rebuttal of Sen. Hillary Clinton’s (D-N.Y.) memoir, Living History.

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Why La Follette Favored Filibusters

John Nichols

The Capital Times (Madison, Wisconsin)

November 16, 2004

Senate Majority Leader Bill Frist, the health insurance industry heir who went into politics for the sole purpose of protecting his family's financial interests against even the most tepid federal regulation, is not exactly an expert on the workings of Congress.

But that has not stopped the Tennessee Republican from launching an attack on one of the Senate's most time-honored traditions.

Speaking to the Federalist Society, the conservative legal affairs group that has become the nation's premier proponent of judicial activism, Frist lashed out against Democrats who have threatened to use filibusters to block corrupt, incompetent or ideologically extreme nominees for federal judgeships.

"One way or another, the filibuster of judicial nominations must end," griped Frist, whose new cause offers another reminder that nothing really changed when he replaced former Senate Majority Leader Trent Lott, the segregationist-praising Republican from Mississippi.

"This filibuster is nothing less than a formula for tyranny by the minority," argued Frist, who claimed that if Democrats succeed in using procedural tactics to block some of President Bush's nominees, they "will have effectively seized from the president the power to appoint judges."

Frist's rhetoric is dramatically overblown. Democrats have cleared the way for the approval of the overwhelming majority of Bush's judicial picks; they have used the threat of a filibuster to block only the nominations of 10 particularly unfit nominees for federal appeals court positions.

There is no tyranny of the minority. In fact, Democrats have been forced to employ the threat of a filibuster -- which halts Senate action as one senator or a group of senators discuss an issue -- in order to get Senate Republicans and the White House to consult with the opposition party in the manner that the nation's founders intended.

Frist delivered his bombastic remarks to the Federalist Society in order to threaten Senate Democrats before the new session of Congress begins. If the Democrats launch a filibuster, or even threaten to employ the tactic in order to slow down the process of making judicial nominations, Frist was signaling that GOP leaders in the Senate might implement what is referred to as "the nuclear option."

When he employed the phrase "one way or another, the filibuster of judicial nominations must end," the majority leader indicated a willingness to sanction an effort by some Republicans to circumvent Senate rules and declare filibusters against executive nominations to be unconstitutional. This dubious strategy would likely be upset by the courts, but not before Senate Republicans had forced through a stack of judicial nominations.

But Senate Republicans won't have the guts to bar filibusters if Americans express support for the use of the tactic as it was intended -- to prevent the Senate majority from doing something that would harm the country.

Frist's attempt to portray the tactic of filibustering as a new and dangerous phenomenon is a lie. The tool was more than a century old when former U.S. Sen. Robert M. La Follette, the essential man of Wisconsin progressivism, used it in the first years of the last century to battle against the takeover of the Senate by crony capitalists, military adventurers and war profiteers.

* How big a fan of filibusters was La Follette? Burton K. Wheeler, the progressive Democratic senator from Montana who was La Follette's running mate in the 1924 presidential campaign, wrote about the subject in his classic autobiography "Yankee from the West." Wheeler recalled that La Follette's most passionate advice to him as a young senator was to always support the right of fellow senators to filibuster.

"Never vote for cloture," said La Follette, referring to the procedure used to counter filibusters by getting 60 senators to vote to force an end to the debate. Even on an issue where a progressive senator disagreed with colleagues who were filibustering, La Follette argued that it was always wrong to stifle debate on important issues and nominations.

La Follette was right. The filibuster is one of the few tools that a minority party can use to counter the worst excesses of an out-of-control majority party. The practice should be defended and, yes, it should be used -- even in the face of Bill Frist's threats.

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The Nation, Column (Nov. 15, 2004)

Frist’s Fury Over Filibusters

By John Nichols

“Senate Majority Leader Bill Frist, the health insurance industry heir who went into politics for the purpose of protecting his family's financial interests against even the most tepid federal regulation, is not exactly an expert on the workings of Congress.

 

But that has not stopped the Tennessee Republican from launching an attack on one of the Senate's most time-honored traditions.

 

Speaking to the Federalist Society, the conservative legal affairs group that has become the nation's premier proponent of judicial activism, Frist lashed out against Democrats who threaten to use filibusters to block corrupt, incompetent or ideologically extreme nominees for federal judgeships.

 

"One way or another, the filibuster of judicial nominations must end," griped Frist, whose new cause offers another reminder that little changed when he replaced former Senate Majority Leader Trent Lott, the segregationist-praising Republican from Mississippi.

 

"This filibuster is nothing less than a formula for tyranny by the minority," argued Frist, who claimed that if Democrats succeed in using procedural tactics to block some of President Bush's nominees, "they will have effectively seized from the president the power to appoint judges."

 

Frist's rhetoric is dramatically overblown. Senate Democrats have cleared the way for the approval of the overwhelming majority of Bush's judicial picks; they have used the threat of a filibuster to block only the nominations of 10 particularly unfit nominees for federal appeals court positions.

 

There is no "tyranny of the minority." In fact, if Senate Democrats were to make real on the threat of a filibuster -- which halts Senate action as one senator or a group of senators engage in an extended discussion of a nomination or issue being considered by the chamber -- it would only be because there is no other way to get Senate Republicans and the White House to consult with the opposition party in the manner that the nation's founders intended.

 

Frist delivered his bombastic remarks to the Federalist Society in an effort to try and scare Senate Democrats before the new session of Congress begins. If the Democrats launch a filibuster, or even threaten to employ the tactic in order to slow down the process of making judicial nominations, Frist signaled that GOP leaders in the Senate might implement what is refer to as "the nuclear option."

 

When he employed the phrase "one way or another, the filibuster of judicial nominations must end," the majority leader indicated a willingness to sanction an effort by some Republicans to circumvent Senate rules and declare filibusters against executive nominations to be unconstitutional. This dubious strategy is troubling even to many Republicans, who worry that rewriting Senate procedures in order to advance the Bush administration's court-packing agenda could come back to haunt the GOP when a future Senate is controlled by the Democrats.

 

For all of Frist's bluster, Senate Republicans won’t have the guts to bar filibusters if Americans express support for the use of the tactic as it was intended -- to prevent the Senate majority from doing something that would harm the country.

 

Frist's attempt to portray the tactic of filibustering -- or threatening to filibuster -- as a new and dangerous phenomenon is a lie. This tool has been employed repeatedly over the past two centuries -- most famously in recent years when former President Lyndon Johnson's nomination of Abe Fortas to serve as the chief justice of the U.S. Supreme Court was blocked in 1968.

 

The filibuster was a particularly popular tool of progressive senators at the dawn of the last century. Former U.S. Senators Robert M. La Follette, R-Wisconsin, George Norris, R-Nebraska, and their allies used it in the 1910s and 1920s to battle against the takeover of the Senate by crony capitalists, military adventurers and war profiteers.

 

The Senate progressives who would go on to be remembered as some of that chamber's greatest members were passionate defenders of the filibuster. . . .

 

"Never vote for cloture," said La Follette, referring to the procedure used to counter filibusters by getting 60 senators to vote to force an end to debate. . . . La Follette argued that it was always wrong to stifle debate on important issues and nominations.

 

La Follette was right. The filibuster is one of the few tools that a minority party can use to counter the worst excesses of an out-of-control majority party. The practice should be defended -- and, yes, it should be used even in the face of Bill Frist's threats.”

 

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Op-Ed: The Right’s Kind of Activism

The Washington Post, Los Angeles Times, and The Baltimore Sun (Nov. 14, 2004)

The Union Leader (Nov. 18, 2004) and

The Milwaukee Journal Sentinel (Nov. 20, 2004)

By Michael Kinsley

“What does President Bush mean, if anything, when he says that his kind of judge "knows the difference between personal opinion and the strict interpretation of the law"? Taken literally, this simply means he wants judges who agree with him. Every judge sincerely believes that he or she is interpreting the law properly. . . .

  

Judges make decisions and impose their will all the time. That's their job. When does this generally salutary activity turn into the dread judicial activism? If activism has any specific meaning, it means judges overruling laws and policies put in place by the democratically elected branches of government. It also means federal judges overruling policies enacted by the individual states.

 

George W. Bush may get to appoint as many as four Supreme Court justices, including the chief. But the complaint about activism has been quaint for decades. . . .

 

Complaints about judicial activism are a habit left over from powerlessness. They seem especially retro when held up against today's ambitious Republican judicial agenda. With one apparent exception, the major items on it are demands for federal judges to override Congress or states' rights. Republicans cheer, for example, when courts overturn state or federal -- or even private -- affirmative action programs, and they boo when such programs are allowed to continue unmolested. They have great hopes -- largely unrealized, so far -- for the "takings" clause of the Fifth Amendment as a tool for overturning environmental regulations or any other government policies that might reduce the value of someone's property. There is even a move afoot in the Senate to have Democratic filibusters against Bush's judicial nominees ruled unconstitutional. That would be activism squared. . . .”

 

LA Times full text

Washington Post full text

Baltimore Sun full text

Journal Sentinel full text

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The Seattle Medium (September 1, 2004)

Ditching The Rules To Confirm Conservative Judges

by George E. Curry

[pic]

Speakers at the Republican National Convention have accused Democrats of obstructing the judicial system by not confirming all of President Bush’s nominees to the federal bench. However, an examination of the record shows that not only are Republican nominees being confirmed at a rate faster than judges appointed by Bill Clinton, all but a handful of Bush’s most extreme nominees have been approved by the Senate.

Moreover, this was done as Senate Republicans ignored traditions and rules that had been used for years to assure bi-partisan cooperation.

Political harangues notwithstanding, of the 226 nominations Bush has made to the federal courts, the Senate has approved 198 or 88 percent of them. During Clinton’s first term, he nominated 239 judges and 202 or 85 percent were confirmed. Of the 876 federal district and appellate seats, only 28 - 3 percent - are now vacant. That represents the lowest vacancy rate in two decades.

Bush - who considers Clarence Thomas and Antonin Scalia paragon Supreme Court justices - has run into difficulty only when he has tried to get his most extreme appointees seated.

For example, he wanted to appoint California Supreme Court Justice Janice Rogers Brown to a seat on the U.S. Court of Appeals for the District of Columbia. Brown, a frequent dissenter on a court where six of the seven justices were appointed by Republican governors, was described by People for the American Way as “to the right of Thomas and Scalia.” She was never approved.

When Bush couldn’t get Judge Charles Pickering Sr., whose rulings have generally been hostile to civil rights, elevated to the appeals level by the Senate, he appointed the Mississippi judge during a congressional recess, bypassing the confirmation process. He did the same with former Alabama Atty. Gen. Bill Pryor, another nominee with a similar background.

Judiciary Committee Chairman Orrin Hatch (R-Utah) typifies the hard-ball politics that Republicans play. The committee has had in place what it calls a “blue slip” policy, meaning that if either home-state senator objected to a nomination to the federal bench, it would not go forward. When Clinton was president, Hatch did not allow a single nominee to be considered without the support of both home state senators.

After Bush assumed office, however, Hatch ditched that tradition as Republicans tried to ram through controversial nominees. The Judiciary Committee proceeded with the nominations of Carolyn Kuhl to the Ninth Circuit and Henry Saad, Richard Griffin and David McKeague to the Sixth Circuit although both Michigan senators objected to the nominations. Hatch ultimately failed, when all three nominations were rejected.

Another tradition, one that required the support of at least one member of the minority party before debate on any matter could be terminated , was also jettisoned by Hatch.

Senate Majority Leader Bill Frist of Tennessee has been equally hypocritical. Today, he says: “If filibusters are going to be made part of the judicial nominee process, I think you will see increasing discussion over whether the rules should be changed.”

But he saw no need for the rules to change when he favored a continued filibuster against Clinton’s nomination of Richard Paez to the Ninth Circuit. When that failed, he voted to indefinitely postpone a vote on the Peaz nomination.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, has accused Bush of attempting to “turn the independent federal judiciary into an arm of the Republican Party.”

If the judiciary is not an arm of the GOP, it is moving close to becoming one.

Nan Aron, president of the Alliance for Justice, a group dedicated to promoting an independent judiciary, has noted that 53 percent of the federal judiciary is made up of Republican appointees. They are in the majority in 10 of the 13 federal circuits. By the end of the year, she predicts, Republican appointees will control all but one circuit.

In an analysis of the judicial nominations, Ralph G. Neas, president of the People for the American Way, observes: “Having engaged in raw abuses of power when it comes to judicial nominations, Republicans leaders now have the temerity to claim that the Democrats are not playing by the rules. Part of the Administration’s ‘obstructionism’ charge is that Senate Democrats are using what the Republicans call an illegitimate and unprecedented means - the filibuster - to prevent the most extreme of the President’s judicial nominees from being confirmed. This charge, like the charge of ‘obstructionism’ itself, is also patently untrue.”

That’s the truth.

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Jurist, Symposium (April 15, 2004)  

Judicial Selection During The Bush Administration: Is The System Broken?

Professor Elliot Slotnick

Ohio State University

“[T]he Senate has proven not to be filibuster-proof for the Republicans who, to date, have failed to muster the 60 votes necessary to gain an up or down decision on the Appeals Court nominations of Miguel Estrada (since withdrawn), Priscilla Owen, William Pryor, Charles Pickering (since seated on the 5th Circuit bench via a rare Recess Appointment) and, most recently, Carolyn Kuhl and Janice Rogers Brown. . . .

Considerable rhetoric from the Republican leadership has questioned the very legitimacy of utilizing filibusters for judicial nominations and there has been considerable discussion about changing the traditional Senate filibuster rules. Proposals have ranged from an outright ban on the use of filibusters with respect to judicial nominees to changing the number of votes needed to impose cloture and bring a filibuster to an end. The most elaborate of these schemes proposes a sliding scale for cloture votes, diminishing the number of votes needed to cut off debate with each effort to do so, and culminating in a situation where a simple majority could have its way. Some have likened the movement to override a filibuster with only a majority vote as a “nuclear option.” . . .

First, to state the obvious: The judicial selection process has always been political and was conceived as such by its framers. The process engages the practice of politics at two levels. On one level, politics is played out inter-institutionally, with Senators concerned about the seating of judges in their home states and, consequently, desirous of meaningful consultation with the White House. On another level there is politics involved in the President’s choices regarding whom he wishes to appoint to lifetime judgeships—though his choices are constrained by the Senate’s obligation to provide advice and consent on each nominee.

Both of these forms of politics have long histories. Thus, debate at the Constitutional Convention focused on the relative roles of the executive and the legislature in choosing judges. The ultimate form that the advice and consent provisions of the Constitution took represents an important compromise fashioned at our founding. While patronage more so than policy has played an historic role in nomination politics, that has not always been the case. There is ample evidence of Franklin Roosevelt’s efforts to place New Dealers on the courts. More recently, in the Nixon administration, we find the clearest statement and example of the potential importance of policy concerns in choosing judges. Thus, in a memo endorsed by the President, White House aide Tom Charles Huston wrote, “Through his judicial appointments, a President has the opportunity to influence the course of national affairs for a quarter of a century after he leaves office.” . . .

As an empirical matter, we are far from a crisis. . . . David Savage underscored in the Los Angeles Times of November 5, 2003, “The vacancy rate on the federal bench is at its lowest point in 13 years. . . . The intense partisan battle over a handful of judges aside, Bush has already won approval of more judges than President Reagan achieved in his first term in the White House. . . . Bush has a better record this year than President Clinton achieved in seven of his eight years in office.”

At the time of writing, there are 46 vacancies on the 877-member Article III federal bench, a vacancy rate of approximately 5%. The absolute number of vacancies never fell below 50 during the eight years of the Clinton Administration, and the 5% figure actually represents progress during the first year of the current 108th Congress. Indeed, 60 vacancies (representing a 7% vacancy rate) existed at the end of Bush’s first two years in office, a period co-terminus with the 107th Congress. At the close of the 107th Congress, 25 coveted Courts of Appeals positions were vacant, with that number diminishing to 17 today.

Also instructive are direct comparisons between Bush’s appointment success and that of Clinton before him. Again, assertions that judicial selection processes have escalated through a downward spiral are not borne out by the facts. In his first term in office, Clinton appointed 169 District Court judges, while seating 136 in his second term. In just three years, Bush has appointed 139 District Court judges, with a chance to equal Clinton’s first term while already surpassing his second. More pointedly, Bush’s record of critical Courts of Appeals successes in three years already equals or surpasses that of Clinton before him. Thus, while Clinton seated 29 circuit judges in his first term in office and 32 in his second term, George W. Bush has already appointed 31 Courts of Appeals judges (including the Pickering Recess Appointment). Empirically, in terms of consummating judicial appointments, the assertion that things have gotten much worse in the Bush years simply does not wash. . . .

Looking back at the 24 years prior to the current administration (which includes the presidencies of Clinton, Bush I, Reagan, and Carter) an average of 158 District Court judges have been seated each term and 39 Appeals Court judges. These figures are in line with what President Bush has accomplished in three years. On average, over the 24 years prior to Bush II, Appeals Court appointments accounted for 19.7% of all lower federal court appointments. The figure for George Bush is presently 18.2%. Of the past five Presidents, Bill Clinton’s proportion of Appeals Court appointments (16.7%) has been the lowest. . . .

For the most part, the controversies have swirled around nominations to the Courts of Appeals. They have involved candidacies that, without entering into a discussion of their individual merits, raised, indeed sometimes waved, a red flag before Democratic senators. The decision to filibuster some of these candidates when they reached the Senate floor is not a decision that any senator takes lightly. Filibusters have costs and filibusters have consequences for senators in an institution that is known to act with comity among its colleagues. Yet the filibuster is an appropriate legislative tactic sanctioned by Senate rules and it is difficult to get around that.

Just as the choice to filibuster represents a considered judgment by senators, so too does the president’s choice of a nominee. . . .

Indeed, a preponderance of the evidence suggests that overall the process is working well…”

Elliot Slotnick is a professor of politics in the Department of Political Science and an associate dean of the Graduate School at the Ohio State University.

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Jurist, Symposium (April 15, 2004)

Judicial Confirmation Crisis?

Professor Sheldon Goldman, University of Massachusetts at Amherst

“By preventing floor votes on the nominations of Miguel Estrada (who eventually withdrew from consideration), Priscilla Owen, William Pryor, Carolyn Kuhl, Charles Pickering (who was given a recess appointment on January 16, 2004), Janice R. Brown, and nominees from Michigan to the Sixth Circuit, in particular, Democrats have been painted as obstructionists.

Democrats, on the other hand, respond that their record is infinitely better than the Republicans’ treatment of Clinton nominees when the Republicans controlled the Congress during the last six years of the Clinton presidency. Democrats point out that far fewer Bush nominees have been held up than were Clinton nominees. They also argue that it is unfair for the Republicans to be able to fill vacancies that exist solely because the Republicans prevented Clinton’s nominees from filling those positions. Sixth Circuit vacancies from Michigan are perhaps the most egregious example from the standpoint of Democrats, but there are others. . . .

Since the filibuster is being used very sparingly by the Democrats, it is difficult to make a convincing argument that there is currently a confirmation crisis (with the possible exception of the Sixth Circuit). In the first session of the 108th Congress, 55 district court and 13 appeals court nominees were confirmed. Overall, the vacancy rate on the lower federal courts is the lowest in well over a decade.

But this does not mean that all is well with the confirmation process. There most assuredly was a confirmation crisis during President Clinton’s second term and a confirmation crisis for appeals court nominees during the first two years of President Bush’s administration when the Democrats controlled the Senate. The growing ideological divide between Democrats and Republicans starting with the Reagan Administration, along with the Reagan and then both Bush administrations’ determination to staff the judiciary with philosophically compatible individuals, can be said to be the underlying causes of the crisis. Even though President Clinton sought middle-of-the-road jurists, some of the more extreme conservative Republican senators found a number of Clinton centrists too liberal for their tastes, although after long battles some were confirmed and by large majorities (Richard Paez, Marsha Berzon, and William Fletcher come immediately to mind).

Blame for the confirmation crisis, a crisis that is essentially one of divided government, can be assigned to both political parties but it is hard to deny that Republican Presidents Reagan, Bush I and Bush II have provoked it by nominating some candidates seen by Democrats as being too extreme in their views. . . .

It is legitimate for senators to oppose a nominee because they believe that the nominee lacks the requisite judicial temperament. But it is incumbent upon the opponents of a nominee to present the evidence to fellow senators and to the public. Secretly sabotaging a nomination in committee by preventing a hearing or a vote, as occurred numerous times during the Clinton presidency, is antithetical to the democratic process. The virtue of the filibuster is that it is out in the open and the opponents of a nomination are obligated to defend their position.

What is to be done?

First off, the Bush administration ought to seriously consider the Democrats’ complaint that Republican obstructionism kept open vacancies that the Clinton administration, by right, should have filled. It is not enough to say that the past is past and that we should start with a clean slate. There must be recognition that this has poisoned the atmosphere and the administration should take the initiative to address these grievances. At the very least, the administration should offer to name one of the blocked Clinton nominees from Michigan to the Sixth Circuit in return for support of Bush’s other Michigan nominees. The same should be done for the District of Columbia Circuit and even for some district court judgeships. It is essential to clear the air and to lay old grievances to rest. . .

If a sufficient number of senators choose to filibuster a nomination, repeated failure to obtain cloture should be recognized as a manifestation of advice and consent. Although it can be argued that this would turn confirmation from a simple majority to confirmation by a supermajority—60 votes needed to close off debate—it should be recognized that the Constitution only mentions advise and consent, thus leaving it to the Senate to determine how it gives that advice and consent. There is nothing in the Constitution requiring a simple majority vote for judicial confirmation. Supporters of a nominee who is truly controversial should have to be able to persuade 60 senators that the nominee indeed has the judicial temperament to administer justice fairly. . . .”

Sheldon Goldman is a professor of political science at the University of Massachusetts at Amherst.

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Jurist Online Symposium (April 15, 2004)

Confirmation Dreams

Professor Michael J. Gerhardt, William & Mary School of Law

“By distributing the appointment authority between the President and the Senate, the Appointments Clause of the Constitution invites conflict; presidents and senators are likely to vie for control over judicial and other appointments. . . Hence, it is not surprising to find conflict over judicial appointments to be as old as the Republic. The Senate rejected one of President Washington’s nominees for Chief Justice of the United States because of his stridently expressed views in opposition to the controversial Jay Treaty. The Senate failed to take final action on at least nine Supreme Court nominations in the 19th century, and generally it has rejected, or failed to act upon, almost 20% of Supreme Court nominations. . . .

Republicans charge that filibusters against appellate nominees are unprecedented and unconstitutional. Yet, many of the Republicans who have denounced Democrats’ filibusters have previously supported filibusters against judicial nominations and have tried to distinguish (on rather dubious grounds) filibusters against Supreme Court nominees. Moreover, the constitutional grounds for filibustering judicial nominations appear to be exactly the same as those allowing individual senators, committees, or their chairs to take actions precluding floor votes on judicial nominations. All these practices derive their constitutionality from the Senate’s express authority to design the rules for its respective proceedings. If filibusters are unconstitutional, then various counter-majoritarian measures such as negative committee votes or individual holds on Democratic judicial nominees would have to have been as well. While some Republicans have flirted with adopting this argument, they ultimately dropped it once it became apparent it could not be squared with every instance of a committee’s or its chair’s refusal to take action on a nomination, a treaty, or a piece of legislation. . . .

History is replete with positive lessons as well. First, the Appointments Clause was designed to invite not just conflicts but also accommodation, in which each side makes concessions to the other for the sake of a greater good. Thus, most presidents have filled at least some judgeships with nominees suggested, or supported by, the other party’s leaders. (Some presidents even have gone so far as to nominate to the Supreme Court people who belonged to the opposing party!) Divided government has been an especially propitious time for contending sides to reach accommodations. For instance, President Clinton regularly consulted with Republican leaders on judicial nominations, and even agreed at one point to Senator Hatch’s preferred nominee for a district court judgeship in Utah in order to smooth the way for the rest of his nominations. Similarly, President Bush’s first set of circuit court nominees included two people whom President Clinton had initially nominated to the circuit courts but on whose nominations the Republican Senate had never taken any action.

A second popular dynamic is choosing judicial nominees who can command widespread consensus. President Clinton often achieved consensus by avoiding contentious nominations. He chose his two Supreme Court nominees only after he had cleared them both with the Republican leadership. Ruth Bader Ginsburg and Stephen Breyer thus enjoyed quick, smooth confirmation hearings. President Bush, too, has often achieved quick, widespread consensus, though he has rarely called attention to it. In fact, Democrats have acquiesced to the vast majority of President Bush’s judicial nominees. In spite of President Bush’s protestations of a crisis in judicial selection, he has achieved, with Democratic help, a record pace in getting his nominees through the Senate and a record number of judicial appointments approved for a president at this point in his presidency.

Yet another positive lesson has to do with the implications of the failure to dismantle the filibuster. Throughout most of 2003, Republicans tried in vain to mount a successful assault on the constitutionality of Senate Rule XXII, which requires at least 60 senators to invoke cloture generally and at least two-thirds of the Senate to end a filibuster against a motion to amend Rule XXII. In hearings before the Senate Judiciary and Rules Committees, Republican witnesses proclaimed Rule XXII unconstitutional (primarily on the ground that it was unconstitutionally entrenched; it allowed, in other words, a past Senate to prevent a majority of the current Senate to adopt the rules under which it preferred to operate). In June 2003, the Rules Committee (with all Democrats absent) approved 10-0 the Senate Majority Leader’s proposal to effectively empower a majority within the Senate to end filibusters against judicial nominations.

No one knows for sure why the full Senate has not yet acted on the recommendation, but the consequences of the Senate’s failure to amend Rule XXII are clear. First, the failure to approve the recommendation is consistent with the Senate’s invariable practice of amending its rules in accordance with its rules. Every amendment to Rule XXII was passed in accordance with the Senate’s rules. The most recent proposed change to Rule XXII could only have been achieved if a majority of the Senate were willing to deviate from the unbroken practice of amending Senate rules in accordance with the Senate Rules. The Senate generally defers to its precedents and gives greatest deference to an unbroken tradition or practice. Clearly, the votes were not there to deviate from Senate precedents in the debate over the filibuster.

Second, Rule XXII has served its purpose. It was designed to facilitate stability and order within the Senate by promoting change through bipartisan support and to preclude its extinction in the heat of the moment. It has been further designed to encourage presidents to seek out common ground with the substantial minority within the Senate opposed to the nominations it has chosen to filibuster. Though President Bush came into office promising to be “a uniter and not a divider,” more than a few of his nominations have been extremely divisive. He has chosen, for reasons that will likely become more apparent this fall in his re-election campaign, to endure a contest over his nominees rather than to opt for some who might have been at least as qualified but more appealing to Democrats.

Lastly, the movement to dismantle the filibuster is far from over. The most significant check on filibusters is the political accountability of those supporting and opposing them. It is heartening to know that the Constitution vests final authority over some questions not in federal judges but in politically accountable leaders. The filibuster is one of many such matters, including the questions of whom to nominate and to confirm as federal judges. For those, like me, who lose sleep over the filibusters or the viciousness of recent confirmation contests, they should recall what the sign that sat on President Truman’s desk said—“The buck stops here.”

Michael J. Gerhardt is the Arthur B. Hanson Professor of Law at the William & Mary School of Law.

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A Jurist Online Symposium (April 15, 2004)

The Passionate Intensity Of The Confirmation Process

Professor Jack M. Balkin

Yale Law School

“After the Republicans won control of the Senate in the 2002 mid-term elections, President Bush renominated Pickering. Senate Democrats, now in the minority, successfully filibustered his nomination, which they have done in a handful of Bush nominations. (It is worth noting that the vast majority of the President’s judicial nominations have been confirmed)…

There is nothing particularly wrong with the judicial nomination process.

[T]he contemporary Republican Party—currently dominated by a coalition of economic, religious and social conservatives and by the party’s western and southern wings—has been particularly keen on taking control of the courts to promote its favored constitutional values. Since Ronald Reagan’s presidency, partisan entrenchment has been a key goal for Republican presidents… The basic tendency of Republican Presidents has been to campaign in the center and, once in office, to delegate the judicial appointments process to the most ideological elements of the party. . . .

In judicial appointments, the President made no concessions, nominating scores of highly ideological candidates favored by his party’s conservative wing. . . .

Although Bush’s strategy of unapologetic political confrontation made perfect sense, it also had hidden costs. One party rule in a deeply divided country is a mal-apportionment of political power. It shuts out the voice of half the nation. Such an imbalance will make itself felt eventually, whether in subtle or more overt ways. The fight over judicial appointments is one of them.

In the contemporary political landscape I have just described, virtually the only way that the minority party can offer any effective opposition is through the cloture rules of the Senate, where the Democrats still hold more than 40 votes. Not surprisingly, the Democrats have attempted to use this one remaining lever of power to attempt to force the Bush Administration to compromise and nominate more moderate judicial candidates. However, the President, who heads a disciplined and ideologically coherent party, has steadfastly refused to budge. . . . The result has been that the Republicans have largely gotten their way on judicial appointments. Democrats have picked their battles carefully, employing filibusters in only a handful of cases. . . .

Although filibusters for lower court judges are unprecedented, they are a fairly predictable response to the political circumstances we now find ourselves in. The question was not whether the Democrats would threaten filibusters, but how often they could afford to carry them out. The answer is, not very often, given the political costs of multiple filibusters and the need to keep their own ranks in the Senate together . . .

Although there has been considerable hand-wringing over the use of filibusters in the judicial appointments process, it is a natural consequence of the current mal-apportionment of political power in Washington, and the insistent refusal of the President to offer any hint of compromise on judicial nominations and to offer even slightly more moderate candidates. If the rules of the Senate were changed so that the Democrats could no longer use the filibuster, they would not be able to mount the same degree of opposition, and even the most extreme judicial nominations by the Republicans would sail through easily. But that would not change the more basic problem—one-party rule in a deeply divided country in the wake of a deeply controversial election. It would be somewhat like dulling the pain receptors in a patient and pronouncing him cured because his body was no longer able to register any discomfort. “

Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment, Yale Law School. Full text

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Building a radical judiciary

Sarasota [FL] Herald-Tribune

Waldo Proffitt

April 11, 2004

With all the big headlines about the war in Iraq, the 9/11 investigations, the presidential campaign, the economy, Carlie Brucia, to say nothing of Martha Stewart, the NCAA basketball tournaments, and the start of the baseball season, you may be excused if you have not given much thought or attention to the acrimonious exchanges between the White House and Senate Democrats involving appointments to the federal judiciary.

But, one of the most important things about the 2004 presidential election is that the outcome will determine the ideological flavor of our federal judiciary from district courts to the Supreme Court for the next several decades.

The presidency and the Congress are now in the hands of Republicans and, not, I would argue, of traditional Republicans, comfortable with the conservative policies the party has embraced for at least the last 50 years, but Republican radicals dedicated to pushing changes I think are not welcomed by most Americans, including most Republicans.

If they can get firm control of the judiciary as well, it will be easier for them to pull off their revolution, which includes things such as:

Building a huge national debt, far beyond anything we have yet seen in wartime or in peace and using accounting gobbledygook to keep the citizens from realizing the depth of the waters into which we are plunging.

Being able to appoint enough justices to the Supreme Court to overturn Roe v. Wade and allow states to criminalize abortion at any stage of pregnancy.

Privatizing as many functions of government as possible, including not only Social Security but national security -- putting what most people would consider military functions up for bid, or maybe not putting them up for bid but just handing them to "trustworthy" private firms. (We are just now learning, very painfully, how much of the war in Iraq has been privatized.)

Asserting our right to attack any country which may be a threat to our national security or even to our national interest.

Reversing decades of progress in cleaning up our air and water, reducing chemical emissions, especially from power plants, and protecting national parks and public lands from destructive exploitation.

Some of these items, such as boosting the national debt, do not seem to be grist for the judicial mill, but most of them are, so that one of the most far-reaching decisions to be made in the November election is: Who will appoint the judges? Appointments to the federal courts are for life, and life is longer than it used to be.

When President Bush took office the vacancy rate on the federal bench was 12 percent, thanks largely to vigorous Republican opposition to many Clinton choices. President Bush has nominated 169 federal judges who have been approved by the Senate in his first three years in office and the vacancy rate is down to 5.2 percent.

Republican appointees now make up 57 percent of the federal judiciary and are in the majority of 10 of the 13 circuit courts. Republicans, though not radical Republicans, already control the federal judiciary, and a case could be made (and has been by some Senate Democrats) that the real objective of Republican strategists, starting with Karl Rove, is to use the rhetoric of the judicial appointment fight to energize the purported "base" of the party to get out and vote in November.

The Senate Democratic minority has not been able, and has not tried, to block many Bush appointments. The handful of nominees they have so far stalled is composed of men and women who are at least highly controversial, and at worst totally out of sync with most of America.

When the president sends the name of his choice for a judgeship to the Senate, it goes to the Judiciary Committee, which has 10 Republicans and nine Democrats, where votes are almost always along party lines and where emotions run high, notably since the Democrats caught Republican staff members hacking into their computers and stealing information on their plans and tipping off the White House.

The Judiciary Committee almost invariably sends the nomination to the Senate with a favorable recommendation. Republicans have a thin majority in the Senate, not enough to muster the 60 votes needed to shut off a filibuster without a few Democratic votes.

Democrats have threatened to try to stall all Bush appointments unless he promises not to make any more recess appointments. He has made two in recent months.

The White House contends that recess appointments are constitutional, and they are, and some 300 or so have been made since 1790, but few in recent years, and none, Democrats argue, of nominees who had already failed to win Senate approval.

I have been able barely to scratch the surface of this critical facet of the 2004 election and have used, I think, polite language, not at all typical of what has been flying back and forth in and out of the Senate.

For the benefit of readers who crave more information, I can report that Nan Aron will speak in Sarasota Thursday evening for Forum 2004.

She is president of the Alliance for Justice and founder of its Judicial Selection Project, whose self-described role is to support the confirmation of judges who are fair, independent and respectful of civil rights, environmental protections, reproductive freedom and social justice.

I think that is a fair description. Others may not.



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The Volokh Conspiracy Blog (March 24, 2004)

Bush's Worst Appellate Nominee

Juan Non-Volokh

…Myers’ nomination will likely be approved tomorrow by the Judiciary Committee on a 10-9 party-line vote. After that, he may well join the ranks of Bush's filibustered nominees. While I generally believe that the Senate should provide broad deference to a President's judicial nominations, I will shed no tears if this nomination goes down in flames.

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The American Prospect, COLUMN (Feb. 23, 2004)

Right Turn

U.S. senators are allowing the president to trample their rights and responsibilities in Congress

By Mary Lynn F. Jones

“Bush doesn't have much to complain about. Despite GOP complaints and the Republicans' 39-hour reverse filibuster last fall, the Senate has approved the overwhelming majority of Bush's nominees. And while Republicans may not like the fact that they don't have a 60-seat filibuster-proof majority in the Senate, rules are rules. Democrats have every right to object to nominees they don't see fit to sit on a bench.

Republicans certainly know that: They delayed plenty of judges during Clinton's last year in office so they could push their own nominees through if Bush won the White House.

It's unrealistic, however, to expect GOP senators to remind Bush that Congress is an equal branch of government. In November, Republican Senator Saxby Chambliss of Georgia told The Hill that he hoped the White House would think about recess appointments if there was no movement on the judges soon. . . .

Watching senators allow the president to trample their rights and responsibilities is sad for someone who admires Congress as an institution. While the pendulum of power often swings between the executive and legislative branches, congressional Republicans have been willing participants in letting Bush steamroll them. . . .”

Mary Lynn F. Jones is online editor of The Hill.

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Filibuster Was A Modern-day Temper Tantrum

By Tom Teepen



November 20, 2003

 

The Republican-gimmicked filibuster that stymied the Senate for nearly 40 hours recently was a nonevent created supposedly to expose Democrats as extra-constitutional obstructionists subverting President Bush's right, as his party sees it, to appoint any ol' federal judges he wants to.

 

Instead, to the few stout citizens who may actually have been paying any attention, the exercise looked more like a kid throwing a temper tantrum .Bush's judicial appointees are faring extraordinarily well. The Senate has approved 168. Democrats have blocked only six.

 

One, Miguel Estrada, has given up and withdrawn, three are floating in parliamentary limbo and another two look to be headed there. Democrats consider all six so extreme in their conservative views that they fall well outside the political and legal mainstreams.

 

The call is closer in a couple of cases than in others - Charles Pickering and Estrada - but over all, the six have demonstrated hostility to key civil rights protections and to environmental laws and have pursued an activist animus to lawful abortion. They lean to a federalist constitutional interpretation that, placing state authority above federal, effectively could cancel the last 70 years of social progress.

 

In the service of trying to push the blocked nominees onto federal appellate benches, and perhaps deter Democrats from icing more, Senate Republicans brought in roll-away beds, a makeshift photo-op motel for a talkathon that must have tested the tolerance for tedium even of hardened C-SPAN veterans.

 

The current Republican Party loves to wallow in a phony victimization. The party has the White House, the Senate and House majorities and most Supreme Court justices but acts as if it is being cruelly put upon by some liberal rampage.

 

The White House has especially husbanded its injury in the cases of the disallowed appellate nominees, crying bigotry where none exists and claiming Democrats are anti-female, anti-black, anti-Hispanic and anti-Catholic.

 

The African-American nominee, Janice Rogers Brown, has suggested that the Bill of Rights may not apply to the states. Do we really want a jurist who might favor state censorship of books and magazines and the declaration of official state religions? Patricia Owen has ruled so forbiddingly in abortion cases that some of her fellow conservative judges on the Texas Supreme Court have denounced her for going overboard. Alabama Attorney General William Pryor, who is Catholic, has ridiculed Supreme Court justices and rulings in language more suggestive of talk radio than of a judicial temperament. But 23 other Catholics appointed by Bush have been approved. What bias?



Filibuster Was A Modern-day Temper Tantrum

By Tom Teepen



November 20, 2003

 

The Republican-gimmicked filibuster that stymied the Senate for nearly 40 hours recently was a nonevent created supposedly to expose Democrats as extra-constitutional obstructionists subverting President Bush's right, as his party sees it, to appoint any ol' federal judges he wants to.

 

Instead, to the few stout citizens who may actually have been paying any attention, the exercise looked more like a kid throwing a temper tantrum .Bush's judicial appointees are faring extraordinarily well. The Senate has approved 168. Democrats have blocked only six.

 

One, Miguel Estrada, has given up and withdrawn, three are floating in parliamentary limbo and another two look to be headed there. Democrats consider all six so extreme in their conservative views that they fall well outside the political and legal mainstreams.

 

The call is closer in a couple of cases than in others - Charles Pickering and Estrada - but over all, the six have demonstrated hostility to key civil rights protections and to environmental laws and have pursued an activist animus to lawful abortion. They lean to a federalist constitutional interpretation that, placing state authority above federal, effectively could cancel the last 70 years of social progress.

 

In the service of trying to push the blocked nominees onto federal appellate benches, and perhaps deter Democrats from icing more, Senate Republicans brought in roll-away beds, a makeshift photo-op motel for a talkathon that must have tested the tolerance for tedium even of hardened C-SPAN veterans.

 

The current Republican Party loves to wallow in a phony victimization. The party has the White House, the Senate and House majorities and most Supreme Court justices but acts as if it is being cruelly put upon by some liberal rampage.

 

The White House has especially husbanded its injury in the cases of the disallowed appellate nominees, crying bigotry where none exists and claiming Democrats are anti-female, anti-black, anti-Hispanic and anti-Catholic.

 

The African-American nominee, Janice Rogers Brown, has suggested that the Bill of Rights may not apply to the states. Do we really want a jurist who might favor state censorship of books and magazines and the declaration of official state religions? Patricia Owen has ruled so forbiddingly in abortion cases that some of her fellow conservative judges on the Texas Supreme Court have denounced her for going overboard. Alabama Attorney General William Pryor, who is Catholic, has ridiculed Supreme Court justices and rulings in language more suggestive of talk radio than of a judicial temperament. But 23 other Catholics appointed by Bush have been approved. What bias?



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________________________________________________________________________

[pic][pic][pic]Filibuster? Good!

by Mike McNair, Buckeye Review [OH], December 1, 2003

[pic]

The price of freedom is eternal vigilance. So just like the Jews are adamant about never returning to a society the allows anti-semitism, so African Americans should be vigilant about policies, and laws and judges, who interpret laws, who are clearly opposed to the rights of African Americans. George Curry, here on this page, outlines the reasons why one of the ultra-conservative judges are being held from confirmation by a Democratic filibuster in the Senate.

But honestly, they should have done it ten years ago when Justice Clarence Thomas was confirmed. A didn’t take long to realize that life appointment was a mistake. The growing belief, although very incorrect, that racial discrimination is over or even worse, that race does not matter, is the sleepy death potion that lulls the three branches of government into a sleepy stupor. While they banter the rhetoric about being color blind, they rather become blind to the truth. Keep up the filibuster and keep those blind judges off the bench.



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________________________________________________________________________

Filibuster Was A Modern-day Temper Tantrum

By Tom Teepen



November 20, 2003

 

The Republican-gimmicked filibuster that stymied the Senate for nearly 40 hours recently was a nonevent created supposedly to expose Democrats as extra-constitutional obstructionists subverting President Bush's right, as his party sees it, to appoint any ol' federal judges he wants to.

 

Instead, to the few stout citizens who may actually have been paying any attention, the exercise looked more like a kid throwing a temper tantrum .Bush's judicial appointees are faring extraordinarily well. The Senate has approved 168. Democrats have blocked only six.

 

One, Miguel Estrada, has given up and withdrawn, three are floating in parliamentary limbo and another two look to be headed there. Democrats consider all six so extreme in their conservative views that they fall well outside the political and legal mainstreams.

 

The call is closer in a couple of cases than in others - Charles Pickering and Estrada - but over all, the six have demonstrated hostility to key civil rights protections and to environmental laws and have pursued an activist animus to lawful abortion. They lean to a federalist constitutional interpretation that, placing state authority above federal, effectively could cancel the last 70 years of social progress.

 

In the service of trying to push the blocked nominees onto federal appellate benches, and perhaps deter Democrats from icing more, Senate Republicans brought in roll-away beds, a makeshift photo-op motel for a talkathon that must have tested the tolerance for tedium even of hardened C-SPAN veterans.

 

The current Republican Party loves to wallow in a phony victimization. The party has the White House, the Senate and House majorities and most Supreme Court justices but acts as if it is being cruelly put upon by some liberal rampage.

 

The White House has especially husbanded its injury in the cases of the disallowed appellate nominees, crying bigotry where none exists and claiming Democrats are anti-female, anti-black, anti-Hispanic and anti-Catholic.

 

The African-American nominee, Janice Rogers Brown, has suggested that the Bill of Rights may not apply to the states. Do we really want a jurist who might favor state censorship of books and magazines and the declaration of official state religions? Patricia Owen has ruled so forbiddingly in abortion cases that some of her fellow conservative judges on the Texas Supreme Court have denounced her for going overboard. Alabama Attorney General William Pryor, who is Catholic, has ridiculed Supreme Court justices and rulings in language more suggestive of talk radio than of a judicial temperament. But 23 other Catholics appointed by Bush have been approved. What bias?



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The American Prospect, COLUMN (Nov. 19, 2003)

All Alone

Will Republicans' unilateral style of running Capitol Hill eventually catch up with them?

Mary Lynn F. Jones

“Last week, Senate Republicans staged an almost 40-hour-long "reverse filibuster" to highlight the fact that Democrats have held up several of George W. Bush's judicial nominees. Never mind that Republicans held up many of Clinton's nominees toward the end of his second term. Never mind that Democrats have allowed the confirmation of 168 judges while only blocking six. Never mind that Congress is already more than a month past its original target adjournment date of Oct. 4. And never mind that many bills still await action. Sen. Orrin Hatch (R-Utah), who heads the Committee on the Judiciary, told The Hill that "hardly anything" on the Senate agenda "is more important" than the president's right to nominate judges.

To get their way, Republicans would dispense with centuries of parliamentary tradition. Sen. John Cornyn (R-Texas) wrote in a National Review Online article last week that the U.S. Constitution requires only a simple majority to approve judges. Well, yes, but at least 60 senators must decide to cut off debate -- and Republicans don't have 60 votes. ..”

Mary Lynn F. Jones is online editor of The Hill.

Full text

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The Capitol hosts a sleep-over

Sarasota [FL] Herald-Tribune

November 17, 2003

Daryl Lease

It's 3 o'clock in the morning, and the GOP's marathon anti-filibuster filibuster is in full swing. Orrin Hatch is on the floor of the U.S. Senate, reading raspily from the Constitution. Meanwhile, in a nearby room, a dozen senators are settling in for the night …

"And when the teenagers got home, they found a bloody hook attached to the passenger door handle!"

(Gasps.) "Oooh, that was a good one!"

"OK, guys, that's enough scary stories. Turn off your flashlights, and let's all try to get some sleep now. We've got a big day ahead of us."

(Grumbling. The sound of squeaking cots fills the room.)

"All right, all right. Verrry funny. Who short-sheeted my bed?"

"That'll teach you to go against me on drilling in the Arctic Refuge."

"Hear hear!"

"Yeah, you're lucky you didn't find a caribou head on your pillow, pal."

(Silence.) "What took us so long on the energy bill anyway?"

"It's been holed up in a secure, undisclosed location with Dick Cheney."

"Shhh! Quiet, please!"

"Uh-oh. Sounds like we've got a librarian in here. Better call Ashcroft. He'll want to subpoena."

(Silence.) "I forgot my toothbrush. Could someone -- " "Forget about it." (Silence.)

"You know, I read the other day that more than 200 communities have passed resolutions against the Patriot Act. Can you believe that?"

"Treasonous." "Who the devil do they think they are?" "Yeah, what a lot of hot air." (Silence.) "Were we supposed to take up a bill about that?" (Silence.)

"Excuse me, but I've got two words for my esteemed colleague from Virginia: Wash your socks."

"That's three words, bub."

"Yeesh. Better keep that guy away from the appropriations bill."

"Eh, with the deficit of $500 billion, who counts anymore?"

(Giggling.)

"That reminds me: Weren't we supposed to take up some spending bills or something?"

"What are you, a Democrat? Always worried about spending. It's spending this, and spending that."

(Cots squeaking.)

"Hey, I think I hear Frist snoring. Wanna stick his hand in a bucket of water?"

(More giggling.) "Maybe later." (Silence.) "I can't sleep."

"Then go out on the floor. Orrin's probably reading from the phone book by now."

"I wish he'd read from 'The Contract With America.' I love the classics."

"Shhh! Listen! Is Orrin singing?" (Groaning.) "Oh, no! Not more show tunes!" "He sounds like a stuck pig." "There are no pigs in Washington." "Yeah, just a lot of pork." (Silence.)

"I wonder what happened on 'The Bachelor' tonight?"

(Silence.)

"So what do you guys think the prospects are of passing a Medicare package before the end of the session?"

"What do you think the prospects are of my smothering you with a pillow? Go to sleep!"

(Grumbling. Cots squeaking.) "Did anybody remember to call Guinness?" "The beer people?"

"No, the Guinness World Book of Records people. We're setting a record here, you know. We're making history."

"I think Santorum called." (Silence.)

"Do you suppose they'll put all of our names in the record book or just say, 'Senate Republicans'?"

"I think they'll put an asterisk by your name for 'smothered during filibuster' if you don't pipe down!"

(Silence.) "Anybody have any dental floss?" (Silence.)

"Do you guys suppose the Democrats are going to get anywhere with the argument that they OK'd 168 of the president's judicial nominations and only opposed four?"

(Grumbling.)

"I mean, we rejected 60 of Clinton's nominations. Some people might think we're, you know, whining. That's all I'm saying."

"Go to sleep!"

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Judicial Fight

Eleanor Clift, Capitol Letter, , November 14, 2003

 

Nov. 14 —  It’s a small thing, but I find it really grating. Republicans refer to their Democrat colleagues, pointedly dropping the suffix that makes it an adjective, and grammatically correct. I’m waiting for the day when Democrats refer to Republic senators. It’s so silly, but it’s a symptom of the deep-seated partisanship that drives so much of politics today.

 

AS I WRITE this, “Republic” senators are charging that Democrats harbor racial and ethnic bias and are antiwoman because they are blocking the nominations of several Bush choices for the federal appeals court who fall into these categories. Minorities and women are the core constituencies of the Democratic Party, and the GOP forfeited any claim it might have on gender sensitivity when George W. Bush signed the late-term abortion ban surrounded by 14 postmenopausal men. Whatever one’s position on legalizing abortion rights, the absence of even a single woman in the photo op was a huge blunder.

 

        An audience picture that ran on the front page of The New York Times featured a smiling Jerry Falwell applauding Bush as he put pen to paper. Though the legislation will almost certainly be overturned when it reaches the Supreme Court, its passage scores points with Bush’s conservative base. And if Bush wins re-election, the betting could change on what the high court will do. It would only take the resignation of one or two aging justices for Bush to reconfigure the court on social issues like abortion.

 

        Conservatives are angry about the wimpish leadership of Senate Majority Leader Bill Frist, an amiable fellow who shies away from confrontation. They think the Democrats have rolled Frist by mounting a 60-vote threshold for Bush’s most controversial nominees. Conservatives want to drop the bomb—legislative parlance for changing Senate rules to remove the right to filibuster over judges. That would violate years of tradition and obliterate what little goodwill remains between the parties.

Frist is relatively new to the Senate; he’s only in his second term, and he’s caught between tradition and a rapacious Republican right wing. This week’s 40-hour talkathon during the Senate’s debate on judicial nominations was a sop to the right, but it may backfire. To spend that many hours venting on the Democrats’ refusal to allow a vote for four judges after having confirmed 168 Bush appointees will spawn stories about how little this Congress has accomplished. Fox anchor Brit Hume once remarked that the national media cover Congress like it’s a bunch of guys throwing rubber chickens at each other.

 

        The Republican theme is “justice for the judges,” while Democrats broadened the debate to “justice for the jobless,” using their half of the allotted time to bash Bush and call for a vote on increasing the minimum wage. Democrat Harry Reid of Nevada staged a prequel to the real event with a seven-hour soliloquy on the native fauna and flora of his state, including its rabbits and cacti. These are not debates designed for mass consumption. This is about each party playing to its base. The stream of oratory emanating from Capitol Hill is not going to play well among the middle, if there is a middle any more. In a 50-50 nation, everybody has chosen sides.

 

        There is no shortage of hypocrisy on Capitol Hill, but the Republicans outdo themselves when they play hurt. The GOP stalled 60 of President Clinton’s judicial nominees, bottling them up in committee and denying them even a hearing. Now it’s payback time, and Republicans are guilty of “selective outrage,” says congressional analyst Charles Cook, publisher of the highly regarded Cook Report.

 

Republicans have always chafed at the way Democrats played to racial and gender identity, but now the Republicans are doing the same, clustering three female nominees together to embarrass Democrats who vote against them as “antiwoman.” Janice Rogers Brown, Carolyn Kuhl and Priscilla Owen are indeed women, but their records suggest that they would support rollbacks in women’s core legal rights—not only the right to choose, but workplace protections and laws penalizing violence against women. These are lifetime appointments, and the Republican right is looking to the courts to change society and the modern culture in a way that the legislative branch cannot.

 

        There are only two ways to resolve the judicial fight, says Tom Mann, a congressional scholar at the Brookings Institution. Either the Republicans resign themselves to getting most of Bush’s picks, and forget about martyring the handful who are blocked, or the Republicans get a filibusterproof Senate. That would require picking up nine seats, and that’s not going to happen in 2004, and probably not 2006. The alternative is the nuclear option—changing the rules on filibusters—but there are enough Republican senators who utilized the filibuster when they were in the minority and would oppose blowing up a tool they again might need in the future.

 

       There is room for compromise. Even New York Sen. Chuck Schumer, who is leading the fight for the Democrats, would accept a deal where some of the Bush judges are paired with Clinton nominees who got stiffed, and they all get through. Or the Republicans could simply accept reality. A president who lost the popular vote, and whose popularity today is an anemic 51 percent, is not going to get every judge he sends up. “But that would be in a sensible world,” says Mann. “The Congress today is much too ugly, divided and brutish, so we live with the dramatics.”



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The Herald News [NJ]

An ill wind blows from Capitol Hill

November 14, 2003

Alfred P. Doblin

Is it just coincidence? On Wednesday evening, Republicans began an anti-filibuster in the U.S. Senate and on Thursday, violent winds spread across the Northeast. The verbal marathon is a staged protest to verbal marathons. Only in Washington, D.C. does this seem logical.

Republicans are ticked off that Democrats - although in the minority - have effectively blocked four of President Bush's judicial nominees for federal courts. Democrats have threatened filibusters to prevent the nominees' names from coming to the Senate floor for a vote. Republicans countered this week with a filibuster excoriating the use of filibusters. I hope Americans are watching C-Span. While violence escalates in Iraq, the Senate is playing games.

Democrats have refused to rubber stamp Bush's nominees. They contend that the four nominations - William Pryor Jr., Charles W. Pickering, Priscilla R. Owen and Miguel Estrada - are conservative ideologues. Estrada eventually withdrew from the process. Democrats wanted more information on the nominees. The Bush administration refused to supply it, and Democrats used the only tool they have to block Republicans from approving the justices: a filibuster.

Fans of "Mr. Smith Goes to Washington" think of filibuster as elegant, impassioned pleas for justice. That's not the case in the Senate today. While the anti-filibuster was conceived by Republicans, Democrats are playing along, too. Both parties are switching back and forth, spouting loads of nothing.

Republicans had cots brought into the Capitol so they could be photographed sleeping on the job. Gee, I wonder what all this evening pillow talk is costing taxpayers? I assume the working stiffs inside the Capitol have to work overtime when the Senate goes into extra innings. What the Senate needs is Don Zimmer to go and knock some sense into these would-be major-league legislators. If anyone knows who belongs on the bench (judicial or otherwise) it's Zimmer.

On Thursday, the president held a press conference of sorts in the Oval Office. He surrounded himself with three female nominees to the federal bench: Owen, Janice Brown and Carolyn Kuhl. Brown's and Kuhl's nomination are expected to be held up in the Senate, as Owen's has. According to Bush, "these three women are being denied a chance to serve on the bench because of ugly politics in the United States Senate."

The fact is the majority of Bush's judicial nominees have been approved by the Senate. The federal appeals courts are the second highest courts in the United States, the last judicial step before the Supreme Court. Justices should not be cavalierly placed on those benches. The Senate has a responsibility to fully vet nominees.

Until recently, Pryor sided with now-former Alabama Chief Justice Roy Moore and his quest to keep the Ten Commandments monument in the lobby of the state Supreme Court building. It wasn't until Moore refused to comply with the state Supreme Court's order to remove the monument that Pryor changed sides. Is this the kind of man who should sit on the bench of federal court?

Yet, serious questions are not being answered. Republicans have named their legislative sleepover "Justice for Judges." It sounds more like "Bedtime for Bonzo." And the Republican star of that flick at least knew how to entertain a crowd.

If Republicans want to get serious about justice for judges, they should supply answers for confirmation. If they just want to play games with each other, try buying a couple boxes of Twister. And do it on their own time and not on the taxpayer's dime.

Meanwhile, the gasbags continue to blow in the Senate and 65 mile-an-hour winds batter New Jersey. Coincidence? I think not.



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Three Cheers For The Democrats' Filibuster

It's Time To Depoliticize The Judicial Appointment Process.

By John W. Dean, Opinion, , November 13, 2003

 

Most news accounts of the U.S. Senate's planned 30-hour talkathon -- or filibuster, or reverse filibuster, or whatever this exercise in through-the-night speechifying should be called -- have evoked references to Frank Capra's "Mr. Smith Goes to Washington." But I keep thinking about Stanley Kubrick's "Dr. Strangelove, Or How I Learned to Stop Worrying and Love the Bomb." No question it's theater -- that's why the Republicans are staging it -- but what's the script?

 

Ostensibly, Senate Republican leaders are forcing this oratorical marathon to highlight the Democrats' success in using the mere threat of a filibuster to block President Bush's ultraconservative judicial nominees. In fact, the Democrats have only used this threat in four instances, with the Senate confirming 168 of Bush's judicial nominees. Still, Republicans are pouting and pissed, even though they played the same kind of serious hardball with President Clinton's judicial nominees.

 

Republicans denied confirmation to more than one-third of Clinton's nominees for the Court of Appeals, and in many instances the Republican-controlled Senate during the Clinton years refused to even hold hearings on judicial nominees. Yet by effectively blocking four appellate court nominees -- Miguel Estrada (who has now withdrawn), Charles Pickering, Priscilla Owen and Bill Pryor -- the Democrats have put the Republicans into a tizzy, so they're determined to provide Americans with a 30-hour C-SPAN tantrum.

 

They claim they plan to talk about the obstructionist Democrats. But I wonder if more could be at stake. For months, rumors have been circulating on Capitol Hill that not only are the Republicans unhappy about the ability of the Democrats to block four of Bush's judicial appointments, but also that they are even more concerned that Democrats may similarly be able to successfully filibuster a Bush nominee for the Supreme Court. Is it possible Republicans are planning to "go nuclear," as they have threatened?

 

Here's what that means: Senate rules place no limit on debate. The only way to stop a debate, if one or more senators who have the floor refuse to do so, is with a "cloture" vote. Under current Senate rules it takes three-fifths of the Senate, or 60 senators, to invoke cloture -- and end a debate. That's how you stop a filibuster. But Republicans today don't have 60 votes.

 

Bill Frist, the Republican majority leader, has suggested changing the rules on cloture voting, with graduated reductions from a "super-majority" of three-fifths down to a simple majority, or 51 senators. But Democrats are not about to buy that, because Republicans have 51 votes. Republicans can't change the Senate rules without Democratic support, because it takes a two-thirds vote, or 67 Senators, to change the Senate rules.

 

Enter Dr. Strangelove, or in this instance Vice President Dick Cheney. He has the power to drop a nuclear device -- in the form of a ruling -- that could change the Senate's rules. Senate Rule XXII, which provides for a cloture vote, could not be invoked for nominations until 1949, for nominations were what was considered "executive business," as opposed to "legislative business." Apparently, it was a ruling of the chair -- the vice president is the president of the Senate, pursuant to the Constitution -- that changed Rule XXII in 1949, making it applicable to both the legislative and executive business of the Senate.

 

Thus, since the 1949 ruling, nominations have been subject to Rule XXII, and cloture. All Cheney need do is say that the ruling was wrong, and that would become the rule -- because, under the controlling parliamentary procedures, it takes a majority of senators to overrule the chair, which Democrats don't have.

 

Such an action by Cheney has been described on Capitol Hill as "going nuclear," for it would be an extreme ploy, certain to be accompanied by a "nuclear winter" in the Senate. The Senate, by long tradition, has been a highly collegial body, operating largely by unanimous consent. This sort of tactic would break all tradition. If it is part of a secret Republican agenda, tonight or beyond, it will forever change the way the Senate operates.

 

In truth, the successful use of the filibuster to block extremist judicial appointees is one of the healthiest developments since our founding fathers required presidents to get the Senate's "advice and consent" to fill judicial seats. Federal judges are given lifetime appointments; thus their influence extends long past the term of the president who selects them. To require a super-majority discourages either party from engaging in politicalization of the judiciary.

 

During the past four decades, selecting judges and getting them confirmed has become far more contentious. According to a report of the Congressional Reference Service, filibusters and clotures have been involved in 35 nominations, most of them since the late 1980s.

 

Notwithstanding the finger-pointing by the Republicans for filibustering four Bush nominees, this practice started in 1968 with Republicans, with the help of Southern Democrats (who now come to the Senate as Republicans), filibustering President Lyndon Johnson's nominee for Chief Justice, Abe Fortas. Republicans blocked Fortas so Nixon could get the chief justice appointment, assuming, correctly, he would be elected. (He nominated William Rehnquist, the man who has shaped the court's conservative direction for nearly four decades.)

 

It was pure politics, and it began the game that is now being played out. Indeed, Frist, the mastermind of this stunt in the Senate tonight, voted against cloture (and for filibuster) during the battle over one of President Clinton's court appointees. But what is a little hypocrisy when wasting the Senate's time pointing fingers?

 

We need to move beyond the game of playing politics with the federal bench, deliberately trying to influence the philosophical bent of justice. The judiciary was to be the nonpolitical branch, yet for the last four decades both presidents and Congress have worked to politicize it. Studies show that the outcome of lawsuits and prosecutions can be increasingly predicted by the political affiliation of the judges.

 

There's a way to depoliticize judicial appointments: Both parties in the Senate should adopt the use of the filibuster, not in exceptional cases but as a standard operating procedure for all judicial nominations. Require a super-majority for all judges. A super-majority represents the will of the people, while a one- or two-vote advantage simply jams the will of a slight majority down the throat of the minority. The Constitution requires super-majorities to approve treaties, to override a presidential veto, and to remove an official who has been impeached by the House of Representatives. The Senate has super-majorities in its rule. By imposing a super-majority requirement -- with the threat of a filibuster -- it will end this practice, never contemplated by the nation's founders, of presidents stacking the judiciary.

 

If Dr. Strangelove shows up at the Senate, however, to pull the trigger on what would be its own form of political terrorism, we will have entered a new era in the Senate, and there is no saying what will happen. But it won't be pretty.



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Mad As Hell

That Was The Filibuster That Was

By Cheri Delbrocco

The Memphis Flyer, November 13, 2003

 

Step right up folks, the Big Top has come to Washington. Our nation's capitol has been turned into an arena of absurdity. If you haven't been watching, you have really missed quite a show. Ring Master Orin Hatch has kicked things off, while one of the best clowns on the floor is our esteemed Senator and Majority Leader Bill Frist. Cotton candy and balloons filled with hot gas should be available for the 30 hour extravaganza between Republicans and Democrats.

I had gotten pumped when hearing that finally, all one hundred Senators were going to get together in one place to discuss and deliberate. That over three million citizens are unemployed, that a majority of seniors can no longer afford their prescription drugs, that workers losing jobs daily to countries overseas, that growing numbers of families cannot survive with two incomes making minimum wage, and that 394 American soldiers have died while 2,298 have been wounded in Iraq surely were some of the subjects the leaders would be talking over.

But had the Senate pulled an all nighter to address any of these critical matters? Nooooo!! It was engaged in a fight over George W. Bush's stalled judicial nominees. The Republican Senate's proposterous attitude and inability to accept defeat precipitated a most ridiculous exercise in food fight governance. Grown men and women became ranting brats at the toy store check-out, " It's not fair! We want our judicial nominees to be confirmed and we want every single one of them to be confirmed - NOW!"

Republicans are enraged because Democrats this year have sustained filibusters against four of Bush's most right wing federal court nominees. The other 168 candidates have been approved resulting in a 98 percent rate of confirmation; however, because Democrats have refused to approve four, Republicans have decided to demonstrate a marathon diatribe hissy fit.

The four nominees who have not been confirmed have controversial records on rulings regarding race, guns, and abortion. After long and rancerous deliberation, Democrats are exercising their right to withhold consent under the Constitution's "advise and consent" clause. They have been advised by Bush but they are not giving consent. Republicans used the same Senatorial power during President Clinton's tenure to block a total of 63 judicial nominees. After capturing the majority in Congress, they suddenly began to stress stridently that the nation was in a crisis and the need for judges was urgent. Perhaps is was, but they refused to explain which party had created the crisis; now that Democrats have refused to confirm only four nominess out of 168, the Republicans are apoplectic. Talk about rank hypocrisy!

So after all the stunts and flips are orchestrated for FOX news - after all the bellicose carping and whining - after all the angry name calling and arguing is over, what will happen? Republicans will seek a vote on Friday on a proposed rule change to effectively end fillibusters on nominations. Democrats probably have the votes to block it. The bloodshed in Iraq will go on. Millions of jobs will still be gone. Nothing will change.

So turn on C-Span, get out the peanuts and bring in the clowns. The folly has begun. Trust me, you won't be laughing.



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Theater of the Absurd

By Michael Crowley

The New Republic Online

November 13, 2003

 

It's nearly 1:30 in the morning, and a group of bleary-eyed young boys and girls--who by now should be asleep, dreaming of rocket ships and ponies--have found themselves in the presumably baffling circumstance of being lined up for a press conference in the U.S. Capitol. They file into a rank-smelling meeting room just a few yards from the Senate floor, where a classic exercise in Washington Kabuki theatre is underway. Republicans are staging a marathon 30-hour debate to protest Democratic filibusters of four conservative judicial nominees. The meeting room, normally reserved for private GOP strategy sessions, has been transformed into a bustling propaganda center for the pro-judge forces. Inside, activists wear dark blue "Justice For Judges Marathon" T-shirts. The room stinks horribly of people, coffee, and decaying munchies.

 

At the far end of the room is a large, flat-screen television tuned to the main event. Currently on the floor is South Carolina Senator Lindsey Graham. Graham flaps his arms and points to various charts. But no one pays any attention. In fact, the sound's not even on. Which is telling. The point of all this is not anything that will be said or done on the floor; there are sure to be no surprises. The Democrats are dug in, and there's no hope of actually confirming any judges. So the point is ... well, the point is to make a point. Particularly one that will please conservative activists steamed that Senate Republicans can't simply crush the hated Daschle Democrats.

 

The children, perhaps 20 of them, line up behind a lectern. Above them hangs a TV-friendly sign reading: "Fair Up or Down Vote." Through a door comes Graham, and the room bursts into loud applause. The senators are getting tired--"It's 1:30 and I can't believe anybody's here," Graham says--but the activists here seem to be having the time of their lives. ("I have been in Washington since 1984 and I have never seen so much excitement in one room--ever," one of them declares to me.) Several digital cameras beep and whir.

 

Graham himself seems puzzled that such young kids--many of whom are now rubbing their eyes, yawning, and fidgeting around--are here at this wee hour. "You can tell your grandkids about this," he consoles them, to little evident effect. Then he lambastes the Democratic obstructionists: "There's never a good time to hijack the Constitution for partisan politics," Graham declares sanctimoniously, perhaps forgetting, at this late hour, his own role as a manager of Bill Clinton's impeachment. "But now is the worst time."

 

Then things get sleazy. Graham pulls out a blown-up version of a cartoon that appeared on an obscure black political website (). It depicts one of the stymied nominees, Janice Rogers Brown, as an absurdly stereotyped housemaid with a huge Afro. It's an offensive cartoon, no doubt about it. But no mainstream Democrat had anything to do with it. That hasn't stopped Republicans like Graham from repeatedly implying otherwise. Graham now says the cartoon came from "a liberal paper"--as if it had run in The New York Times--and then smears Democrats with it. "The Senate is sick," he says. "Our Democratic friends have gone too far." It's a truly revolting performance.

 

I keep thinking about the kids. The obvious question is, Don't you have school tomorrow? Then another speaker, an activist whose name I don't catch, clears that one up. He notes in passing that most of the youngsters present are home-schooled. Trying to be open-minded, I do my best to suppress Children of the Corn jokes.

 

* * * * *

 

By now, the "debate" on the floor has slowed to tedious, repetitive speeches--mostly by freshman members of both parties who got stuck with the debate's worst time slots. Earlier in the evening, however, there had been a few delicious moments as Democrats mocked the phoniness of the marathon. At one point Nevada Democrat Harry Reid noted that when Senate Majority Leader Bill Frist conducted a poll about judicial filibusters on his website, the Democratic position won a 60 percent majority--thanks to some well-coordinated mischief, no doubt--before the posted results mysteriously vanished.

 

With evident delight, Reid also quoted from a GOP email that Democrats had somehow acquired that day.

 

It is important to double your efforts to get your boss to S-230 on time. Fox News channel is really excited about the marathon. Britt [sic] Hume at 6 would love to open the door to all our 51 Senators walking on to the floor. The producer wants to know, will we walk in exactly at 6:02 when the show starts so we can get it live to open Britt Hume's show? Or, if not, can we give them an exact time for the walk-in start?

 

Illinois Democrat Richard Durbin then asked Reid, with a funny faux-earnestness, whether "we [will] get updates from time to time how Fox News would like to orchestrate the rest of this?" "Perhaps so," Reid replied with a smile. "If not, maybe we could check with the Federalist Society, which, coincidentally, is starting their convention tomorrow." This was masterful stuff. Later in the night I would overhear one irked Republican staffer mutter to another "How did they get that email?"

 

* * * * * *

 

Down the hall, Democrats have set up their own headquarters. Theirs is dubbed the "Judges Action Room." But as 2 a.m. approaches, there's not a lot of action here--just a few TV reporters and cameraman watching Arkansas Democrat Blanche Lincoln speak on a video monitor. As in the GOP war room, the "the debate" is barely audible. But the room does make the Democrats' point clear. Its centerpiece is a large blue placard with the word JOBS printed on it perhaps 100 times in yellow--what Andy Warhol might have produced if he'd been a media consultant. I run into a Democratic aide and tell her about all the children down the hall. "It's kind of..." I begin, searching for a mature phrase. "Creepy?" she asks with a smile. Yes, creepy. Thank you.

 

Harry Reid shows up for a TV interview, looking wilted. He says that Republicans have privately apologized to him for what's happening. A secret ballot would send everyone home to bed right away, he says. A bit later reporters and cameramen are ushered into the office of Democratic leader Tom Daschle. Dressed in shirtsleeves, Daschle has a cup of Starbucks coffee on his desk and looks his usual chipper self. Daschle has heroically claimed a 2 a.m. speaking slot, and it's time for him to go. More empty theater follows, as a pack of cameramen dutifully record Daschle's half-dozen steps from his office foyer to the Senate floor. In the dark hall their flashes give Daschle's short walk a weird strobe-action quality.

 

It's 2:30 and I'm ready for bed. I make one last swing through the GOP nerve center. There I see an adorable brown-haired girl, maybe 10 years old. Her eyes are swollen and red. She's crying. An older woman crouches down.

 

"What's the matter honey?"

 

"I just wanna go home," the poor girl whimpers.

 

"I know. So do I."



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When Is Political 'Hate Crime' Not A Hate Crime?

O. Ricardo Pimentel, The Arizona Republic, September 14, 2003

 

Four years ago, then-Sen. John Ashcroft led the successful fight on the Senate floor to deny a federal judgeship to an impeccably qualified African-American nominee.

He said his opposition to Missouri Supreme Court Justice Ronnie White was because the jurist was "pro-criminal," but Ashcroft knew he wasn't.

Was this a political hate crime?

About the same time, Senate Republicans stalled so long on acting on Jorge Rangel that the judicial nominee withdrew his name. In fact, according to the Washington Post, Republicans blocked confirmations for six Latino nominees.

These, of course, must have been political hate crimes.

Well, apparently not. It's only a "political hate crime" - term courtesy of House Majority Leader Tom DeLay - when the nomination comes from a Republican president and the successful opposition comes from Senate Democrats.

DeLay, never lacking for bombast, made the comment after Miguel Estrada, Bush's controversial nominee to the U.S. Court of Appeals for the District of Columbia, withdrew his name.

Wow. Just like Rangel.

It's been more than a week since Estrada's withdrawal but many other Republicans and a good number of my readers are still expressing DeLay-like outrage.

Estrada withdrew because he knew that slightly outnumbered Senate Democrats would continue to filibuster his nomination. They wanted the Bush administration to release papers that might have revealed something about Estrada's legal views, purportedly out of the mainstream. The administration, of course, refused to release the documents and Estrada was less than forthcoming during Senate Judiciary Committee hearings.

Oh, but you say that Ronnie White, my first example, at least got a floor vote, which split against him along party lines, thanks to Ashcroft's opposition. You're thinking poor, maligned Estrada didn't get a floor vote because of the filibuster.

OK, but he got a lot further than about 60 of President Clinton's nominees in a Republican-controlled Senate.

These, too, were political hate crimes, right?

Among the folks decrying Estrada's treatment at the hands of Democrats are folks who berate me for not standing up for Estrada.

Why? Apparently, because we're both Latino. Estrada is a Honduran immigrant with an admirable story. I'm the son of Mexican immigrants with the usual story of assimilation.

Here's a clue. I'm Latino but don't agree with, or even like, every Latino out there.

I don't have much use for Fidel Castro, for instance. I think Manuel Noriega is a scoundrel.

I never could bring myself to support Ben Fernandez, who in 1984 became the first Latino to run for president.

Fernandez was a charming guy with a wonderful story of personal success, but after interviewing him, I discovered - hold on to your seats, here - that we disagreed on a whole lot.

But look, if you want to argue that the judicial nomination process is flawed, you've got my attention. Let's figure out a way to fix it.

If you want to argue that the Democrats' treatment of Estrada constituted a "political hate crime," a charge laden with racial overtones, then you are as clueless as DeLay. And hypocritical to boot.

Simply, the Democrats played by the rules. The filibuster is in the rules. You need a two-thirds vote to end a filibuster. Republicans didn't have the two-thirds.

This is politics. And it's hypocritical to argue that a successful blockade to a judicial nomination using a filibuster is a hate crime but a blockade through any other means isn't.

The real question is whether Democrats had good reason to filibuster. Well, one person's righteous filibuster is another's outrage against democracy, something Republicans mulling any change on filibuster rules should remember.

But the Senate's role in judicial nominations is to advise and consent. It's not to advise and rubber stamp. If the administration or the nominee cannot be open about qualifications and - yes, views, too - every senator should object.

This is particularly true if the nominee, like Estrada, is without judicial experience and has been nominated for a spot known to position the person occupying it for a leap to the Supreme Court.

In the case of Estrada's withdrawal, this was just plain democracy. I've written it before. No one gets a free pass. Federal judgeships are too important.

Two truly odious nominees, Priscilla Owen and William Pryor, also face strenuous Democratic opposition. The only crime would be if Democrats didn't do all in their power to stymie them.



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Estrada Right To Quit Nomination Fight

By Marianne Means, Hearst Newspaper Columnist, The Houston Chronicle, September 12, 2003

 

Miguel Estrada did everyone a big favor by pulling out of contention for a seat on the powerful U.S. Court of Appeals for the District of Columbia.

 

He wasn't going to be approved. The Democrats didn't like his ultraconservative legal bent and wouldn't budge in their opposition. The prolonged, unseemly name-calling between Democrats and the GOP over him was wasting crucial legislative time and making the Senate look stupid.

 

In any case, the underlying cause of the uproar was the possibility of Estrada's eventual nomination to a Supreme Court vacancy. The GOP urgency for an intermediate judicial step diminished when no one retired from the high court this summer.

 

Partisan battles over judicial nominees are as old as the court system itself. Both sides play the game. But Estrada's case took on an extraordinarily high profile because the White House insisted on promoting him as a symbol of President Bush's outreach to Hispanic voters.

 

The stalemate over his nomination, which the Republican majority sent to the floor only to be blocked seven times, had appeared to be headed for political Armageddon. Angry Republicans were unable to muster the 60 votes needed to end the Democratic filibusters.

 

Finally, Estrada showed more sense than his GOP sponsors, who resisted his withdrawal as a humiliating public admission of their own political miscalculations. By giving up, Estrada allowed tempers to cool in the Senate and other issues -- like war and peace -- to move forward.

 

The confirmation process, during which the Senate has the authority to approve or reject presidential nominees, is working as it is supposed to work. The Senate has confirmed 124 of Bush's judicial nominees. There are only a handful that Democrats fear are extreme on major social issues, such as abortion and affirmative action. The Democrats are exercising the minority's right to object to those they fear are ideologically outside the cultural mainstream.

 

Republicans who blame the Democrats for being "obstructionists" want us to ignore the fact that when Bill Clinton was president, they blocked 60 of his judicial nominees, including six Hispanics.

 

For the most part the Democrats did not do hypocritical public cartwheels over this problem. Democrats are just as partisan but not as unified nor driven to reshape the judiciary along a hard-edged ideology.

 

The Estrada fight was beginning to look like theater of the absurd. And dangerous theater at that.

 

Some Republicans threatened to file a lawsuit challenging the constitutionality of the filibuster, on the ground that it frustrates the will of the majority. That would have been silly and shameful. The thrust of the Bill of Rights protects the rights of the minority, not just majority views.

 

Some GOP senators also proposed a "nuclear" option to seek a ruling from the Senate's presiding officer, likely to be Vice President Dick Cheney, to weaken the filibuster rule so that a mere simple majority could confirm presidential nominations.

 

You wonder what these guys are smoking.

 

The filibuster is a tradition used by both parties to prevent unwise runaway legislation from being passed in the heat of emotion. It has enabled those whose interests would be hurt to block those who are pressing their own interests willy-nilly. It has kept the nation from spiraling out of political control. If a nomination can't muster 60 votes, the candidate does not have sufficiently broad support to credibly interpret the laws which affect us all.

 

Some Republicans did not take Estrada's withdrawal gracefully -- although others were relieved. Majority Leader Bill Frist, R-Tenn., had been warned by some of his members that he was wasting too much time and needed to get on with the crowded congressional calendar.

 

Estrada's uncooperative behavior before his confirmation hearings reminded Democrats uncomfortably of Supreme Court Justice Clarence Thomas' confirmation fiasco in 1991.

 

Virginia Thomas, the justice's wife, wrote recently on behalf of Estrada in the Wall Street Journal. She still resents her husband's "ordeal" of getting confirmed, although by misleading key senators he won a lifetime appointment to his cushy job.

 

At his hearing, for instance, Thomas said he believed "there is a right to privacy in the 14th amendment." That is the constitutional grounding for a limited right to abortion. But this spring he dissented from the court's ruling overturning the Texas anti-sodomy law, saying he could not find in any part of the Constitution a general right to privacy.

 

In her bitter article, Virginia Thomas wrote that "a familiar stench is coming from the liberals in the Senate . . . ."

 

Gee, I wonder which partisan side she's on.



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THE HERALD NEWS [NJ], OPINION (September 8, 2003)

Advise, consent and filibuster

By ALFRED DOBLIN

I've been fascinated by the U.S. Senate since I was a kid. I blame it on a movie. It wasn't "Mr. Smith Goes to Washington," "Mr. Deeds Goes to Town" or even "Horton Hears a Who." The film was "Advise and Consent," a great Otto Preminger flick from the early '60s. It centers on the confirmation of a secretary of state played by Henry Fonda. There's intrigue, back stabbing and even closeted homosexuality. It's probably not that different in Congress today.

I saw the film on television. I guess I was in junior high school and I became hooked on every Allen Drury novel. All were inferior to his award-winning "Advise and Consent." It didn't matter to me then; I was hooked. There was something about the Senate - both gentlemen and con men coexisted. Nothing was more powerful than the filibuster, the rule that allowed a single senator to hold the floor until he dropped to block a nomination or a bill from further debate or a vote.

In the real world, senators rarely are great orators. But in the real world, the filibuster remains a dramatic political device. On Thursday, Senate Democrats scored a big victory when Miguel A. Estrada withdrew his name for consideration for a seat on the U.S. Court of Appeals in Washington, D.C. Estrada's nomination has been held up for months by Democrats through a filibuster.

Republicans have been so frustrated by Democrats blocking President Bush's judicial nominees that they want to change the rules for filibusters. They shouldn't.

Pendulums swing both ways and majority parties change sides. In "Advise and Consent," there are real issues as to why the nominee should be confirmed. His past political views on communism are questioned.

In the real Senate, Estrada came under fire for not making all his prior legal views known, including memos written while in the Solicitor General's Office.

The Court of Appeals in Washington, D.C., is viewed as the second most powerful court in the country. Democrats claim that Bush is trying to load federal courts across the country with conservatives.

That is Bush's prerogative. But providing information to the Senate is not the president's prerogative, it is duty. There are other nominees held up by filibuster. One is Alabama's Attorney General William H. Pryor Jr. He defended the "Moses" of Alabama, Chief Justice Roy Moore's Ten Commandments colossus, until Moore defied a court to remove it. Some say Pryor was pandering to the Senate to show that he would uphold the law. Conservatives vow to make Pryor pay at the polls. As I see it, Pryor is between a tablet and a hard place.

Estrada, though, is also Hispanic. Republicans wanted to play the race card. That's an unusual twist - trying to show that Democrats are more racist than Republicans. You would think this was the Passaic Board of Education, not the U.S. Senate. Estrada's ethnic background was not the issue; his political beliefs were the issue. And if Republicans haven't noticed, there are many more qualified Hispanics in America.

More information on the nominee would have ended the filibuster. Estrada's name would have been brought to the floor of the Senate for a vote. In the end, the Bush administration stuck to its game plan and struck out.

This may give Democrats an added boost or perhaps force the president to rethink his judicial picks. In "Advise and Consent" the nominee is not confirmed. He does get the job several books later.

For the record, though, I'm still not convinced that Bush picked Estrada because of his conservative views. I think he just felt sorry for him because "ChiPS" was cancelled before television stars had good deals on residuals.

Alfred P. Doblin is the editorial page editor of the Herald News. Reach him at doblin@

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Vermont Commentary: Law Books Are The Only 'Bible' In This Debate

Rutland Herald [VT] Commentary (August 9, 2003)

By Darren Allen

Sen. Patrick Leahy learned on his way out of Mass a couple of Sundays ago that he was an anti-Christian bigot.

Seems several "Christian" advocates - no doubt with the nodding approval of Orrin Hatch, the Utah senator who is chairman of the Judiciary Committee - were on C-SPAN denouncing the lifelong Catholic while he was at church for his refusal to support President Bush's nomination of Alabama Attorney General William Pryor to the federal bench.

Never mind that Leahy's refusal to support Pryor is shared by most moderate Democrats and that it has absolutely nothing to do with Pryor's Catholicism. Indeed, Leahy has clearly articulated his reasons for withholding his support of Pryor, and none of the reasons has anything to do with the man's religion.

The Vermont senator - who is the top Democrat on the committee - doesn't believe Pryor is qualified for a lifetime seat on the federal Court of Appeals. He thinks the Alabaman is too political, too ideological and unfit to sit on the bench. The American Bar Association gave him a "not qualified" rating.

Those opposing Pryor aren't injecting religion into the process.

But Hatch did when he made a point of asking the nominee his religious affiliation.

And so, apparently, did the White House. In advertisements paid for in part by an organization headed by President Bush's father's former White House counsel, Catholics were told they "need not apply" for federal judgeships, implying the Democratic opposition to Pryor was somehow a sign of anti-Christian bigotry.

Well, it's not. It's a sign of what happens when an ideologue is put up by a president pandering to the rightest fringes of his constituency. It's a sign of senators' exercising their constitutional duties. And it's a sign that Republicans - who, after all, control the House, Senate and the White House - are frustrated at Democrats for having the temerity to disagree with them.

It certainly can't be because Leahy and the other Democrats are obstructionists when it comes to judicial nominations. The Senate has confirmed 145 Bush nominees, 100 of them when Leahy and the Democrats were in control. Only three among those who have reached the Judiciary Committee - including Pryor - have been blocked through the use of filibusters to prevent a confirmation vote. The federal judicial vacancy rate is the lowest it's been since 1990.

Let's look back to the days when a Democrat occupied the White House and the Republicans controlled the Senate. These same politicians whining about Democratic judicial obstructionism blocked 60 of President Clinton's nominees, using various maneuvers.

One of them was Michael Schattman, a lifelong Catholic - and Texan - who served 18 years as a state judge. Schattman, a proud Democrat who met Bill Clinton during his Georgetown University days, was nominated for the U.S. District Court. He waited three years - in vain - for a hearing before Hatch's Judiciary Committee.

"I became the poster child for blocked Clinton nominees," he said last week from his law offices. "There seemed to be a concerted effort to block any Clinton nominee."

His crime against the majority party? As far as he can tell, it was adherence to law above all else. His ideas on social justice - and his obligation to the law - are formed by his deeply held notions of Catholic social policy. But that should have nothing to do with selecting and confirming a judge.

"This clearly is a smokescreen where they are attempting to achieve a cheap political advantage," he said. "There is nothing about Pat Leahy that I have ever seen that would lead me to believe that he is even anti-Republican."

But Leahy is clearly against this latest tactic of the far right and has proposed a rule forbidding senators from questioning nominees about their religion.

Keep it up, senator.

Darren Allen writes weekly about Vermont issues, people and events.

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Dispatches: Lamenting the lost art of compromise

By: Hank Kalet, Managing Editor 08/07/2003

South Brunswick Post and The Cranbury Press [NJ]

   Someone once told me that politics is the art of compromise.

   It is the legacy we were handed down by the Founding Fathers in the form of the U.S.

Constitution, which came about only after significant compromise on the part of bitterly divided partisans.

   These compromises resulted in a strong chief executive whose powers were tempered by an equally strong legislature and judiciary with each branch owning a check on the powers of the others and a two-house legislature, one apportioned based on population, the other giving each state an equal say.

  As such, compromise is supposed to be at the center of our republican form of government. The idea is that extreme factions will not be able to hold sway over the government because they will lack the broad public support — in the form of votes — necessary to push their agendas. Hence, the need for coalitions and compromise.

   But compromise is in short supply these days, confirming that what Ambrose Bierce said about politics nearly a century ago remains as true today as when he said it. "Politics," the journalist and story writer said in his "Devil's Dictionary," is "A strife of interests masquerading as a contest of principles. The conduct of public affairs for private advantage."

   This "private advantage" seems to be what is driving the opposition to a plan in Monroe to build a new high school on a 35-acre chunk of Thompson Park. The Township Council and the school board, in an effort to craft a plan that could win approval in the township's senior communities, has offered this compromise: The board would take over the park tract in exchange for about 75 acres of preserved land elsewhere in the township. The land swap would allow the board to build a new high school across School House Lane from the existing high school at a significantly reduced price and make use of the sports and performing arts facilities already there.

   The plan was designed to address complaints made by seniors when they defeated a $113 million plan in September. At the time, seniors said the plan was too expensive, the proposed high school was too far from the center of town and that it duplicated facilities already provided at the current high school, which would have been converted into a middle school.

   But a group of residents — led by a Republican Township Council candidate and neighbors of the park — are attempting to kill the swap. Billing themselves as "Park Savers," they say they are concerned with the integrity of the park and want the township and school board to move in another direction.

   On Monday, council candidate Audrey Cornish offered a list of properties the group believes are better alternatives than the park. This, she says, will force the state to nix the trade and send the entire process back to the drawing board.

   But are they truly useful alternatives? Not if the township and school board are concerned with the senior vote. Six of the sites are in the neighborhood of the Applegarth Middle School, which seniors already have said posed too many traffic and transportation problems. And there are the issues of land cost and the use of existing facilities, which would be impossible if any of the eight Park Savers sites were chosen. That would mean a more expensive referendum and a good chance that the seniors — who make up about half of the voting population and often more during school votes — will again vote en masse against it.

   So much for the fine art of compromise in Monroe.

   And how else to describe the machinations surrounding the battle over President George W. Bush's nomination of William Pryor to the 11th Circuit Court of Appeals but as a "strife of interests"? Mr. Pryor's nomination has been blocked by the use of the filibuster rule by the Senate Democrats — a tool used by the Republicans during previous Democratic administrations to control the nominations process.

   The U.S. Constitution assigns the Senate a very distinct and rather powerful role in choosing members of the judiciary. In Article II, Section 2, the president is given the power to appoint judges to the Supreme and lower courts — but only with "advice and consent" of the Senate. The idea was to limit the president's power and to ensure moderation in a candidate's selection. (Make no mistake, the Founding Fathers were very suspicious of "factions" and the "overbearing majority," as the "Federalist Papers" make plain.)

   In this regard, the filibuster, while seeming an archaic and potentially anti-democratic tool, should force compromise and moderation, while giving minority parties some say in the workings of the Senate. Without it, the Democrats would have no real way of affecting policy and a president who was elected despite losing the popular vote would be able to push an agenda the public has never endorsed.

   In this case, the Democrats have banded together to prevent a full floor vote on the Pryor nomination. The reasons? Mr. Pryor, the Alabama attorney general, "has urged Congress to repeal a critical part of the Voting Rights Act. He was the only state attorney general to ask the Supreme Court to strike down the Violence Against Women Act. And he supported installation of a Ten Commandments monument in Alabama's main judicial building, a move two federal courts have held violates the First Amendment," as The New York Times said in a Monday editorial.

   But supporters of Mr. Pryor, who The New York Times has described as an "archconservative nominee," are accusing Democratic senators of anti-Catholic bias, a charge the Times has called baseless and divisive.

   A better approach, of course, would be to find more moderate candidates — but that's not something in which the Bush administration seems interested.

   Instead, the Bush administration continues to push an agenda that includes extremely conservative judges and criticizes the Democrats for doing what minority parties have done throughout American history.

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Seattle Post-Intelligencer

Aug. 7, 2003

Dems' judicial objections valid

Richard J. Condon

With so much political dishonesty in the news these days, I would have thought the Seattle Post-Intelligencer would have been a little suspicious of repeating the same tired right-wing line regarding President Bush's judicial appointments. In their July 30 opinion piece, Stephen J. Safranek and Joseph L. Falvey would have us believe that the judicial nominations have just recently been politicized by the Democrats.

The truth is that the Republicans in the Senate during the '90s thoroughly politicized the process, undermining the longstanding practice of giving judicial nominations the benefit of the doubt. It is true that the filibuster was not one of the Republicans' preferred tactics; however, when the Republicans controlled the Senate they hardly needed to use the power that Senate rules give to the minority.

Republican senators routinely used the "blue slip" to hold up President Clinton's appointments and conservatives have themselves used the filibuster to hold up nominations they objected to. When President Johnson nominated Justice Abe Fortas as chief justice of the U.S. Supreme Court, Senate conservatives used a filibuster to obstruct his confirmation until he withdrew. In the '90s, when they controlled the Senate, the Republicans virtually stopped the confirmation process of Clinton appointees. In fact, at the close of the 106th Congress 41 federal bench nominations were pending and 37 of those had received no action at all by the Senate Judiciary Committee.

The three judges obstructed by Senate Democrats, as noted by Safranek and Falvey, are all held up for good and sound constitutional reasons.

Miguel Estrada refused to answer pertinent questions about his judicial philosophy and the Bush administration refused to provide significant background on Estrada's judicial work; Estrada has never served as an appellate judge. Democrats rightly view that the Senate cannot "advise and consent" to a nomination without substantive information to support the nominees' qualifications for the bench. Although Bush seems willing to wait until after Estrada is confirmed to a lifetime appointment to the federal appellate bench to measure his qualifications, I agree with Senate Democrats that it is prudent to get that issue resolved beforehand.

Bush's own White House counsel, Alberto Gonzales, charged Texas Supreme Court Justice Priscilla Owen with "unconscionable judicial activism." More significant, Owen has had a consistent and disturbing lack of sensitivity to ordinary judicial ethics. She raised large amounts of campaign contributions from corporations and law firms and then declined to recuse herself when cases involving those contributors came before her. I agree with Senate Democrats that we do not need such "ethics impaired" judges on the bench.

Judge J. Leon Holmes holds views that are so extreme that if they were given a complete hearing in the Senate Judiciary Committee they would certainly result in even more vocal opposition, even from moderate Republicans. He has compared abortion to slavery and has made it clear that he does not support the equality of women under the law. Senate Democrats have correctly noted that such extreme views do not lend themselves to a conclusion that Holmes is capable of rendering fair legal judgments when his personal views conflict with the fair administration of justice.

Like Owen and Holmes, some Bush nominees are unqualified for judicial appointments. There should be some consideration for the ability of a justice to set aside their personal biases in order to render fair, legally based decisions in the cases before them. Likewise, there should be a serious consideration of the ethical sensibilities of someone who is charged with the kind of heady responsibilities of a federal appellate judge. Such is the historical expectation of all citizens under the law and the Constitution. Neither Holmes nor Owen should have been nominated.

When the Republicans held the Senate during Clinton's presidency, they exercised an aggressive strategy of obstruction toward his largely moderate nominations. Bush has offered judicial nominees who can hardly be described as moderates. Most are very conservative, some can only be described as extremists and yet the Democrats have made issue only with those who have demonstrated the lack of judicial temperament or suitable ethical sensitivity.

There's certainly nothing unfair about this and, to suggest otherwise or to suggest the Democrats have no valid reason to object to these nominations, is dishonest. Haven't we had enough of that lately?



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The Valley Advocate [MA], Between the Lines COLUMN (July 10, 2003)

Filibuster: Who Needs It?

by James Heflin

“Behind its whimsical-sounding name, the filibuster offers a chance for a last stand from disgruntled senators willing to risk the political damage of obstructing a Senate majority. The Senate was conceived of as a moderating force to balance the usually younger, more radical House members; Senate rules therefore offer more weight to the minority.

The madness of a filibuster, when speakers go on about anything -- fishing, favorite recipes, you name it -- has an important purpose. These lengthy speeches to delay voting force a slender majority to take the views of the minority into account, preventing the railroading of radical legislation or nominations. For 100-plus years, breaking a filibuster required a unanimous vote. In 1917, a rule change allowed a two-thirds majority to beat a filibuster. That was revised to 60 percent in 1975.

The current crop of Senate Republicans is trying to remove the filibuster's teeth, or -- why the hell not? -- the filibuster itself. Since that could later backfire on a Republican minority, GOP Rasputin Karl Rove presumably has no plans to allow a Republican minority during our lifetimes.

In the mid-'90s, Senate Republicans fell back on obstructive techniques to ensure that many of Bill Clinton's nominees never made it to a vote. . . .

Now that Democrats are replaying the strategy of the Republicans in the '90s, the Republicans are reacting like angry children. Sure, their language is moderate -- to hear them tell it, the awful Democrats are obstructing democracy. Of course, the Republicans, if united, cannot lose a vote, and want the power to install anyone they choose, no matter how radical.

The usefulness of constitutionally mandated minority power ought to be clear to the GOP . . .

On June 24, a Senate panel led by Lott put forward legislation by majority leader Bill Frist (R-Tenn.) to change the way filibusters are broken. In the proposed rule change, an initial vote to close debate would require the usual 60 votes. If that vote failed, a second motion to close debate would drop the number of votes required to 57. A third motion would drop down to 54, and a fourth would only require the magical 51. So long, filibuster.

And if the Republicans can't kill the filibuster with their proposed rule change, they've got something called the "nuclear option."

Frist told the Associated Press that current use of filibusters by Democrats sets an "inexcusable precedent." Perhaps Frist does not recall the Republican filibuster that kept Abe Fortas from moving up to the Supreme Court in 1968.

Despite his own past obstructionism, Lott told the Washington Post that the Democrats, by filibustering, are "rewriting the Constitution to engraft a supermajority rule into the confirmation process."

Why bring up the Constitution, a document that says nothing about filibuster? Lott's invocation trades on a misplaced notion that, by employing a procedure that's been available since the founding of the Senate, Democrats are somehow changing the Constitution. (Democrats have, in the past, raised this same argument about Republicans.) The framers of the Constitution placed no limits on senatorial debate. Had that not been a purposeful omission, they had ample opportunity to note the fact; in their lifetimes, ending debate required a unanimous vote.

Lott is deftly telegraphing a change in the terms of the controversy; it is, in fact, his party that is considering a Constitution-based attack on the filibuster. If, as is likely, the two-thirds vote needed to make a rule change doesn't happen, there's a backup plan. Enter the "nuclear option," a plan that Frist and other Republicans first began hinting at this spring. In a brazen, bitterly divisive move, Vice President Dick Cheney, as president of the Senate, could simply declare filibusters unconstitutional. . . .

Bush and the GOP seem determined to render the slightest opposition powerless, a profoundly undemocratic plan. Removing the filibuster is a move they will regret when they become the minority, an inevitability they do not seem to consider. . . .

The Republicans prevented votes on 65 Clinton nominees. Bush's successful judicial nominations number 126. The cause of all this dismantling of time-honored procedure and weakening of checks and balances is the blocking of a stunning number of Bush's most radical nominees: two.”

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Bring In The Cots

By Lawrence Hunter, Commentary, The Washington Times, June 22, 2003

 

Senate Democrats have taken advantage of every parliamentary maneuver available, including the filibuster, to obstruct President Bush's judicial nominations. Senate Republicans have become so frustrated there is talk of attempting to change the Senate rules to make it easier to break a filibuster in the case of judicial nominations. However, it is particularly disconcerting that some Republicans are allowing their frustration to cloud their reading of the Constitution.

 

Republicans love the idea of requiring a supermajority vote in Congress to raise taxes, which would be prudent public policy. In 1993, Senate Republicans used the filibuster to defeat the ill-conceived Clinton "stimulus package," which contained the infamous BTU tax. Isn't it ironic, though, that some Republicans are going so far as to suggest that the filibuster is "unconstitutional" when it is used to thwart a vote on a judicial nominee?

 

Sen. John Cornyn, Texas Republican, argues that while the filibuster is constitutional in general, it is unconstitutional in the specific instances when it is used against a presidential nomination because it "threatens presidential power." Mr. Cornyn believes that judicial nominee filibusters are "far more legally dubious than filibusters of legislation, an area of pre-eminent congressional power." But a plain reading of the Constitution indicates that the area of legislation is far from "an area of pre-eminent congressional power," when the president may veto legislation that can only be overridden by a two-thirds vote of both Houses.

 

Sen. Kay Bailey Hutchison, Texas Republican, questions the filibuster on other grounds: "[The Founding Fathers] specified in the Constitution when a larger [than simple majority] vote was necessary. ... So to say that a judge should require a supermajority is to amend the Constitution without going through the process."

 

The subtle, but fatal, fallacy common to both senators' arguments is the false presupposition that the Constitution's unwritten default setting on voting rules is a simple majority seeming to emanate from penumbras of other sections of the Constitution. Mr. Cornyn finds simple majority rule lurking in the shadows of "presidential power," while Mrs. Hutchinson finds an unstated general constitutional directive of simple majority rule as a reflective mirror image of all the other sections of the Constitution in which a supermajority is the specified voting rule.

 

The Appointments Clause of Article II, section 2 of the Constitution is clear: The president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court, and all other officers of the Unites States."

 

Nowhere does it say the Senate must give its advice and consent by a simple majority vote. Section 5, Clause 2 of Article II is equally clear: "Each House may determine the rules of its proceedings."

 

A strict interpretation of the Constitution then indicates that it is within the discretion of each body of Congress to determine the voting rule in all of its proceedings other than those for which a particular rule is explicitly specified in the Constitution.

 

Had the Founding Fathers intended any specific rule to apply to the Senate's judicial advice-and-consent proceedings, they most certainly would have said so, explicitly, as they did in the case of treaties, the negotiation of which is as much an exercise of "presidential power" as nominating judges. And the exception that proves the rule that majority rule is not the Constitution's default voting rule is the fact that the Founding Fathers felt compelled to specify explicitly that "a majority of each [House] shall constitute a quorum to do business."

 

The filibuster rules of the Senate do not need to be changed, they simply need to be honored in practice rather than merely in the abstract. Under Majority Leader Mike Mansfield, a "tracking" system devised by then Majority Whip Robert Byrd was put into place. Tracking allows the majority leader — with unanimous consent or the agreement by the minority leader — to have more than one bill pending on the floor as unfinished business.

 

Before the introduction of tracking, a filibuster would stop the Senate from moving on to any other legislative activity. With a two-track system, the Senate simply puts aside the filibustered measure and moves on to other legislation. The result of this tracking system has been an explosion in the threat and use of filibusters. During the 19th century there were only 23 filibusters. Between 1970 and 1994 there have been 191 filibusters.

 

As Sen. Robert Byrd, West Virginia Democrat, acknowledges, today it's the threat of a filibuster that matters. Mr. Byrd calls it a "casual, gentlemanly, good-guy filibuster. ... Everybody goes home and gets a good night's sleep, and everybody protects everybody else." Mr. Byrd may have more accurately portrayed this pseudo-filibuster as obstructionism on the cheap.

 

If Democrats were forced to stage a real filibuster, they would have to follow the fairly stringent rules for carrying on a filibuster and Republicans would be required to maintain a quorum to force the filibuster to continue indefinitely, lest the Democrats end debate and go home for a good night's rest. During the civil-rights debate, senators were seen in the Senate Chamber in bathrobes, and cots were set up in the cloakrooms. And, if the majority needed to maintain a quorum, they could summon the sergeant at arms to arrest senators who weren't present in the chamber.

 

Following a few days of a real forced filibuster, most Democrats would peel away from their irresponsible obstructionism one-by-one, and the public would see on the nightly news exactly who is really obstructing the business of the people.

 

Therefore, Senate Republicans should forget procedural shenanigans, break out the cots and arrest a few senators, if necessary. There's no better way to show support for the president's nominees than to actually fight for them rather than staging an ersatz fight and letting them languish for years in political purgatory.



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The New York Times, OP-ED (June 11, 2003)

Supermajority Rule

By Judith Resnik, Arthur Liman Professor of Law, Yale Law School

“The appointment of judges with life tenure is a unique event in the American democratic system. Members of Congress and the president stay in power only if they convince voters to re-elect them -- and even popular presidents have to quit after two terms. But life-tenured federal judges serve for decades.

Partly for this reason -- and because of the federal judiciary's ever-growing importance in American life -- the Senate should strive for more agreement, not less, in approving judicial appointments. How many senators should it take to approve a judicial nominee? The Senate majority leader, Bill Frist, is urging the Senate to revisit its filibuster rules to make it easier for a bare majority to install a judge for life. Instead, the Senate should leave those rules in place and add a requirement that 60 votes are needed for life-tenured appointments to the federal courts.

We have become accustomed to protracted debates about who should serve on the Supreme Court. Appointments to the lower federal courts deserve comparable attention. For most people in the United States, federal judges in the lower courts are the only federal judicial officials they will see. More than 340,000 cases were filed last year in federal trial courts, and almost 60,000 appeals brought. In contrast, the Supreme Court issued 76 signed opinions in its most recent term. . . . .

The growth of judgeships reflects the growth of federal jurisdiction. In the last century, Congress has created securities law, environmental law, civil rights law, consumer law. We all now have federal rights that affect our lives in many ways -- from taxes and pensions to the water we drink and our personal security. . . .

At the top of this hierarchy sit life-tenured judges. Careful deliberation over nominees to these judgeships is crucial. Especially when the Senate is almost evenly divided, a supermajority requirement is one good way for the Senate to fulfill its constitutional duty to give advice and consent on judicial appointments.

This approach is not likely to be popular with the party in power, since supermajority requirements empower minorities. But given the large number of federal judgeships, the minority party will be reluctant to expend political energy or capital too often. When it does -- when 41 senators say a particular person is ill suited for an appointment to the bench -- it is time to pause.

By constitutional design, Congress is periodically reauthorized through elections. It ought to take a supermajority of the Senate to confer power on judges who will exercise it for their rest of their lives.”

Judith Resnik is a professor at Yale Law School.

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The Wall Street Journal, COLUMN (June 5, 2003)

Politics & People:

Corrupting the Character of the Senate

By Albert R. Hunt

 

“Dan Quayle and Walter Mondale have more in common than the vice presidency. Both used to be senators, and in giving the Senate Leader's Lecture Series, worried about the institution ignoring the minority. The more the Senate rushes to do everything by a simple majority "as the easy way out of sticky situations," Mr. Quayle warned in September 2000, "the more the Senate becomes just another cog in a legislative machine." Two years later Mr. Mondale, in the same series, said he gradually learned the value of extended debate: "Only the Senate can stop the nation in its tracks."

 

The former Democratic vice president, in an interview this week, emphasized this applies to nominations as well as legislation: "By its very terms, a nomination is not a complete act . . . the Senate is as empowered as the president." Dan Quayle, when the Democrats were in control of the White House, pointedly noted that "advise and consent" does not mean "control and manipulate."

 

But Senate prerogatives would be brushed aside by GOP leader Bill Frist, prodded by his right-wing caucus including predecessor Trent Lott, to, largely by a party-line fiat, end the right to filibuster judicial nominations. Democrats are blocking two judges. It's a legitimate debate as to whether filibustering judicial nominations is good policy; it wasn't permissible until 1949.

 

But the efforts to dress this up in constitutional clothing is a fraud; there were no such concerns expressed when the Senate was thwarting Bill Clinton initiatives. The Frist-Lott proposal -- which will be aired before the Senate Rules Committee today -- is a raw power grab.

 

This ends-justifies-the-means approach disturbs even a few Republicans. New Mexico's Pete Domenici lambasts Democrats for blocking a couple judicial nominations but says "it will be very difficult for me to change the filibuster rule. I always thought the filibuster rule protected the minority." John McCain agrees.

 

And listen to a bona fide conservative, Mississippi's other senator, Republican Thad Cochran, an ardent supporter of all the Bush judicial nominations. "It's very important that one faction or one party not be able to ride roughshod over the minority and impose its will. The Senate is not the House." He says he flatly opposes changing the filibuster rule.

 

Bill Frist is pandering to those who have contempt for the Senate and its deliberative (sometimes maddeningly so) role. When some Democrats tried to short-circuit the filibuster rules in 1975 and 1995, they faced opposition from party leaders Mike Mansfield and Tom Daschle. By contrast, Bill Frist is putting politics ahead of principle. His charge the Democrats are engaging in an unprecedented tactic is untrue.

 

Before the current session, there were 17 other filibusters against judicial nominations, including five Clinton judicial nominations. More than 60 Clinton judicial nominations never were even taken to the Senate floor, often because of objections from a single senator. GOP Judiciary Committee Chairman Orrin Hatch's formula on blocking judges is simple; it's perfectly permissible for one Republican senator to stymie a Democratic nominee but outrageous and unconstitutional for 41 Democrats to block a Republican nominee.

 

There are several other facts that Sen. Frist and his pals won't tell you: The vacancy rate in the federal judiciary is the lowest since the first Bush administration, 126 judges tapped by George W. Bush have been confirmed, and this president has put more judges on the key circuit courts than Bill Clinton, his father or Ronald Reagan did in a comparable period.

 

George W. Bush, by all accounts, doesn't care much about the federal judiciary; he has farmed out appointments to the right-wing Federalist Society types. What the current battle is about, both sides acknowledge, is a prelude to any possible Supreme Court nomination.

 

But the institutional importance is evident in a look at the 1975 fight, when the number of senators required to cut off debate was lowered to 60 from two-thirds. Then-Vice President Nelson Rockefeller initially ruled the issue could be considered by majority vote, not subject to a filibuster, a precedent often cited by the Frist-Lott contingent.

 

But that ruling, infuriating Senate traditionalists, was overturned. Instead, with Sens. Mansfield and Mondale working with Republicans and Southern Democrats, a careful compromise was fashioned, meeting Thad Cochran's test that any change in fundamental Senate rules requires a "genuine consensus."

 

By a lopsided margin, debate was cut off and the rules change then was adopted. A majority of Republicans, as well as Southern Democrats, voted for the change, crafted chiefly by Louisiana Sen. Russell Long.

 

If Sen. Frist can develop a comparable consensus now, it would be widely accepted. But if a Republican majority, with one or two Democrats, tries to ram through a politically expedient dramatic change in the way the Senate does business -- they can claim it's limited to judicial nominations now but a precedent would be set -- it will destroy whatever comity is left in the institution.

 

Lawmakers should carefully read a letter sent to the Senate this week by Robert Caro, the acclaimed biographer of Lyndon Johnson. "The nation's Founders depended on the Senate's members to stand up to a popular and powerful President," this scholar writes. "In the case of judicial appointments, the Founders specifically mandated the Senate to play an active role." The proposed filibuster changes, he notes, have profound consequences: "Senators should realize that they are dealing not with the particular dispute of the moment, but with the fundamental character of the Senate of the United States, and with the deeper issue of the balance between majority and minority rights."

 

Ultimately the law of unintended consequences would kick in. One day Democrats will control both the White House and the Senate; these passion-of-the-moment right wingers then would rue the day they brushed aside the Senate's ability to debate, deliberate and delay.”

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The Nation COLUMN (June 2, 2003)

The Judiciary Wars

By Jack Newfield

Senate Democrats, who were so divided on the war and tax cuts, are holding together impressively to stop the Worst of the Worst of President Bush's judicial nominees. Filibusters against Miguel Estrada and Priscilla Owen have prevailed, and every Democrat on the Judiciary Committee recently voted against Carolyn Kuhl, setting up another likely filibuster if this antichoice nominee's candidacy reaches the floor.

A recognition has dawned on almost all the Senate Democrats that Bush is trying to remake America through his lifetime appointments to the federal bench. He is attempting to pack the courts with zealots and activists who are not impartial and who will legislate from the bench.

…

Daschle has pointed out that the Democrats have failed to confirm only two of Bush's 126 judicial nominees so far (several others are still under consideration). Republicans blocked sixty-five of Bill Clinton's nominees--including fifty who were never even given the courtesy of a hearing. The Democrats have been shrewdly selective, choosing to oppose only the most fanatical ideologues like Kuhl, Charles Pickering, James Leon Holmes, Owen and Estrada.

…

The Republicans are also crying "politics of personal destruction." But they forget that the modern judicial wars began when Republicans successfully filibustered against LBJ's nomination of Abe Fortas for Chief Justice in 1968, and when Representative Gerald Ford launched an effort to impeach Justice William O. Douglas in 1970, making the baseless charge of organized crime ties. Robert Bork was defeated in 1987, but that fight was strictly over his ideas, not any alleged personal vices.

Several Democrats think a speech by biographer Robert Caro at a Senate retreat last year helped give Daschle a renewed sense of the Senate's role in history as an instrument of social justice. "Caro's speech and his book on LBJ definitely influenced Daschle," Schumer says. "But so did losing control of the Senate. That made the filibuster relevant as a tactic." The first two chapters of Caro's Master of the Senate invoke the power and mystique of this coequal branch of government and show how a few "eloquent, courageous senators, men of principles and ideals," like Paul Douglas, Herbert Lehman and Hubert Humphrey, became "icons in the fight for social justice."

Republican frustration is now mounting. Recently Frist launched an assault on the filibuster itself, calling it unconstitutional. But the filibuster dates back to 1806, and its mandate is in the Senate's own Rule 22. In 1917 the Senate adopted the cloture rule, requiring a two-thirds vote to end debate, later reduced to sixty votes. It would require sixty-seven votes to modify Rule 22, and fifty-five is the most the GOP has mustered to shut down the Estrada filibuster. Some GOP senators are threatening a court case to challenge the filibuster's constitutionality. But Article I, Section 5 of the Constitution clearly gives each house of Congress the power to "determine the rules of its proceedings." The GOP chair of the Judiciary Committee, Orrin Hatch, is even considering sending Kuhl's nomination to the floor. This would violate the Senate's long tradition of courtesy that says if both home-state senators oppose a nominee, that nomination is dead. Both Barbara Boxer and Dianne Feinstein oppose Kuhl, a California resident and judge.

These judgeship wars are about things that matter profoundly--abortion, affirmative action, civil liberties, equal rights, court-packing, extremism and the Constitution's granting the Senate the power of "advice and consent" on judicial appointments. With Republicans controlling the presidency and both houses of Congress, the courts are the last flood wall against repression and the erosion of rights.

During America's first century, the Senate blocked one out of every four presidential nominees for the Supreme Court. The Constitution made the Senate a coequal branch of government and gave senators longer terms in office than the President. Senators are just doing their job by weeding out unfit judges, selected for their ideology and party loyalty. Perhaps Robert Caro will one day write a new chapter, recalling a season when some modern senators had principles they fought for to the end. Full text

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In The Kingdom of Forgetting

Mark Engler



May 28, 2003

 

Memory can be an embarrassing thing. In politics, it's often more convenient to forget. The classic illustration of this idea was Orwell's dystopian Ministry of Truth, where functionaries fed any inconvenient bit of information down the memory hole -- "whereupon it would be whirled away on a current of warm air."

 

Not to be outdone by fiction, Republican Washington has constructed its own prodigious Kingdom of Forgetting. From judicial nominations to tax cuts to Mid-East policy, the arguments wielded on Capitol Hill have apparently been crafted for GOP true believers or people with very short memories.

 

In early May, Republicans professed outrage at the Democrats' successful filibuster of two Bush appeals court nominees, Miguel Estrada and Priscilla Owen. They claimed the tactic displayed unprecedented one-sidedness. The judges, said White House spokesperson Ari Fleisher, "were being blocked and obstructed by a liberal, partisan, obstructionist minority." Sen. Orrin Hatch, chair of the Judiciary Committee, added that the "partisanship has gotten out of control."

 

It's a laughable position, or would be if the real partisans weren't so good at getting their way against the weak-willed opposition. Under the previous administration, Republicans were masters of obstruction, stalling so many of Clinton's nominees in 1997 and 1998 that the Administrative Office of the Courts declared a "judicial emergency." While vacancies hampered district and appeals courts, nominees languished, owing to Hatch's delay tactics. It took nearly four years to confirm one Clinton nominee, Richard Paez. Sen. Bill Frist, who's now pushing to change Senate filibuster rules, was one of 14 senators who supported using a filibuster to block Paez even longer.

 

In contrast to that crisis, vacancy rates today are low, and Senate has approved 124 out of Bush's 126 judicial nominations.

 

In a second impressive example of memory loss, Republicans have forgotten that they once stood squarely against budget deficits. You don't need to be a history professor to recall that a balanced budget was one of the eight commandments enumerated in the Republicans' "Contract With America" back in 1994. Their "Fiscal Responsibility Act" sought to require "Congress to live under the same budget constraints as families and businesses." The Bush team hewed to this position until 2001, that is, until keeping the principle would logically have ruled out tax cuts. Then the past quickly vanished.

 

Paul Krugman at The New York Times noted that Glenn Hubbard, before resigning from Bush's Council of Economic Advisors in February, "denied that deficits raise interest rates and depress private investment. Yet Hubbard is also the author of an economics textbook... the 2002 edition of [which] explains how, yes, deficits raise interest rates and depress private investment."

 

While many economists, especially progressives, think deficit spending isn't necessarily harmful, we can still marvel at the hypocrisy of the current administration and its ability to squander vast sums. By shoving tax cuts through the Senate on a party-line vote, the White House added to a budget deficit already totaling more than $300 billion for the year.

 

The long-term outlook is even worse. Predictions in 2001 suggested a $5.6 trillion surplus over the next decade. Those estimates are long gone. Now, with deficits adding up for the foreseeable future, we face being over $6 trillion worse off than we expected just two years ago. While around half of that of that amount has been lost to the recession, the Bush administration bears responsibility for the rest. A massive $1.6 trillion went to the first round of tax cuts alone -- a number that could grow if ever-slippery sunset clauses are removed and cuts are made permanent.

 

Still more egregious than these assaults on history is U.S. policy in the Middle East, which seems to require total amnesia. Is Saddam the face of evil? The Bushies didn't always think so. The advocacy group Peace Action is currently running newspaper and transit ads that feature the 1983 photograph of Secretary Rumsfeld shaking hands with Mr. Hussein, whom the Reagan administration then contended was "vital to U.S. efforts to contain the spread of Islamic fundamentalism."

 

Despite our past backing of the dictator, there was little reason to believe that he represented any threat to his neighbors in recent years, when his military ambitions had been effectively contained. As one noted analyst commented in 2000 in Foreign Affairs magazine, "If they do acquire WMD, their weapons will be unusable because any attempts to use them will bring national obliteration" in a region where Israel is the only nuclear power. The analyst? Condoleezza Rice.

 

"Unusable in 2000," asks Tariq Ali, the London-based writer who unearthed the quote, "but three years later Saddam had to be removed by the dispatch of a massive Anglo-American expeditionary force... before he got them?"

 

The warped logic of this reversal leads one to question the military experience of the leaders who plotted the invasion -- a questioning some prominent officials have undertaken in the past. "I am angry," a well-regarded general named Colin Powell wrote in his autobiography, "that so many of the sons of the powerful and well-placed... managed to wrangle slots in Reserve and National Guard units. Of the many tragedies of Vietnam, this raw class discrimination strikes me as the most damaging to the ideal that all Americans are created equal and owe equal allegiance to their country."

 

How sad that Powell, afforded a degree of respect by many liberals that is withheld from the rest of the president's clique, had to toss that heartfelt sentiment down the memory hole when he accepted a position in Bush's Cabinet. But like anything else in today's Washington that conflicts with short-term political gain, real conviction is sometimes simply too damning to remember.



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The New York Times, COLUMN (May 27, 2003)

For Partisan Gain, Republicans Decide Rules Were Meant to Be Broken

by Adam Cohen

“Republicans, who now control all three branches of the federal government, are not just pushing through their political agenda. They are increasingly ignoring the rules of government to do it. . . .. And Republicans in the Senate — notably those involved in the highly charged issue of judicial confirmations — have been just as quick to throw out the rulebook.

These partisan attacks on the rules of government may be more harmful, and more destabilizing, than bad policies, like the $320 billion tax cut. Modern states, the German sociologist Max Weber wrote, derive their legitimacy from "rational authority," a system in which rules apply in equal and predictable ways, and even those who lead are reined in by limits on their power. When the rules of government are stripped away, people can begin to regard their government as illegitimate. . . .

In the judicial battles in the Senate, Republican leaders, frustrated that Democrats have rejected a handful of Bush nominees, have declared war on longstanding Senate rules. Orrin Hatch, chairman of the Judiciary Committee, has dispensed with procedures that allow senators to exercise their constitutional "advice and consent" function, in one case holding a single hearing for three controversial nominees, and he has stifled legitimate inquiry. When Senator Charles Schumer tried to ask one nominee about his legal beliefs, Senator Hatch snapped that he was asking "stupid questions."

The Senate majority leader, Bill Frist, has declared that filibusters, which allow senators to block action with just 41 votes, should not be used to reject judicial nominations, despite a history of using them to do just that. Abe Fortas was prevented from becoming chief justice in 1968 by a Republican-backed filibuster. While Senator Frist pushes "filibuster reform," Senate Republicans are also talking about a "nuclear option," in which Vice President Dick Cheney would preside over the Senate and hand down a ruling that Rule 22, which permits filibusters, does not apply to judicial nominations.

The Republicans' attack on the rules come at a time when they could easily afford to take a higher road. They have, by virtue of their control of the White House and Congress, extraordinary power to enact laws and shape the national agenda. And this administration is already getting far more of its judges confirmed, and more quickly, than the Clinton administration did.

Weber, in writing about rules, was concerned about what factors kept governments in power. That is not a concern in the United States — there is no uprising in the offing. But when Americans see their government flouting the rules, as they did during Watergate, they respond with cynicism.”

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Stop the Madness: In the judicial nominations war, do unto others as you would have

them do unto you

Stuart Taylor Jr.

Legal Times and National Journal

May 27, 2003

Republicans and Democrats are nearing the brink of nuclear warfare over President George W. Bush's judicial nominations. Unless both sides compromise, the damage to the government and the nation could be profound.

Hostilities have raged on and off since the 1987 Battle of Bork, resulting in a downward spiral of partisan bitterness and recriminations. The latest and biggest escalation has been Senate Democrats' all-but-unprecedented filibusters of professionally well-qualified Bush nominees who are simply too conservative for the Democrats' taste. And now, as both sides prepare for a climactic battle in the event of any Supreme Court retirements, Republicans are threatening the so-called nuclear option.

Here's how it would work: Republican leaders would ask Vice President Dick Cheney, as the Senate's presiding officer, to rule that the Constitution requires the Senate to hold up-or-down majority votes on all presidential nominees. Such a ruling would trump any contrary advice from the Senate's parliamentarian. And unless vetoed by a Senate majority, such a Cheney ruling would override both the Senate rule requiring 60 votes to break a filibuster and the one requiring 67 votes to amend the rules themselves. It would also weaken the counter-majoritarian role that the Senate has proudly played since the founding of the nation.

The Republicans could then ram all of Bush's nominations through with 51 votes. But such a ruling, Senate Democrats have made clear, would mean Armageddon. They would and could use parliamentary devices to bring the chamber to a grinding halt for weeks or months, bottling up Bush's entire legislative program and slowing down all other business. The fallout would bring partisan bitterness to a nadir unseen in recent history.

 

Time to be Statesmen

It's time for a statesmanlike compromise to take us back from the brink, like the one that President John Kennedy and Soviet leader Nikita Khrushchev crafted to step back from the brink of nuclear war during the Cuban missile crisis of 1962.

The key would be for Republicans and Democrats alike to recognize that only a blinkered partisan or an artificial-intelligence supercomputer could calculate with real confidence which party deserves more blame for bringing the judicial appointment process to an ever-sorrier state over the past 16 years.

President Ronald Reagan arguably overreached when he nominated archconservative Robert Bork in 1987 to fill the seat of moderate centrist Justice Lewis Powell Jr. This effectively asked a Democratic-controlled Senate to help move the Supreme Court -- as closely divided then as now -- sharply to the right; just for starters, Bork's confirmation would probably have doomed Roe v. Wade. Democrats understandably balked. But rather than confining themselves to challenging Bork's conservative views, they demonized the distinguished former solicitor general as a monster bent on destroying our constitutional rights.

Then, during the first Bush administration, came the equally bitter battle of 1991 over another archconservative, Clarence Thomas, which would have been a partisan extravaganza even if Anita Hill had never shown up. Senate Democrats could not stop Thomas. But below the radar, they used stalling tactics to bottle up some well-qualified lower-court nominees.

Senate Republicans greatly escalated such stalling tactics during President Bill Clinton's second term. Despite Clinton's conciliatory efforts to consult with them, and his avoidance of provocative nominations -- most of his picks were closer to being moderates than crusading liberal activists -- Republicans used "secret holds" and other gimmicks to deny votes to many Clinton nominees and demagogic attacks to defeat one [Ronnie White] on the floor.

One result was to save for the current President Bush lots of lower-court vacancies that would, but for Republican obstructionism, have previously been filled by Clinton nominees. Although Bush made a brief conciliatory gesture by renominating one of those Clinton choices, he has otherwise treated his narrow election victory as a mandate to mount the most determined push of any president in recent history to change the ideological balance of the lower federal courts.

Senate Democrats understandably felt justified in resorting to stalling tactics of their own to bottle up some of Bush's more conservative choices. And after a bare 51-seat Republican majority took control in January, the Democrats had to choose between seeing Bush's nominees confirmed en masse and resorting to the filibuster. Never before has this parliamentary weapon been used to kill nominations solely because of ideological disagreements. But now, Democrats are filibustering two professionally well-qualified Bush nominees to federal appeals courts, Miguel Estrada and Priscilla Owen. They plan to filibuster others, and are threatening to filibuster any Supreme Court nominee they consider too conservative.

 

Unhealthy Precedent

If this tactic succeeds, it will set an unhealthy precedent. While the Senate has confirmed 124 of Bush's judicial nominees, any 41 senators could henceforth kill any judicial [or executive branch] nomination, no matter how admirable the nominee's character and qualifications. The result would be to unduly sap the power of Bush and future presidents to shape the judiciary -- and to doom almost any nominee who has ever dared express a controversial thought.

So it's not hard to understand the Republicans' temptation to go nuclear. Their argument that the Constitution requires the Senate to confirm any presidential nominee who has majority support is plausible, although far from compelling. And Bush might profit politically by the GOP's going nuclear, especially if the Democrats seek to filibuster a Supreme Court nominee who comes across at his or her confirmation hearing as likable, unthreatening, and telegenic.

But resorting to the nuclear option would drive the last nail in the coffin of Bush's pledge to be a uniter, not a divider. It would also be bad for the country, which needs less partisan warfare, not more.

The president should invite Senate Democrats to pull back from the brink. The best way to do that might be an informal compromise along these lines: Bush would promise to consult seriously with Democratic senators before making any judicial nomination, as the Constitution's "advice and consent" clause contemplates. In addition, in light of the Senate's slim Republican majority, he would pledge not to try to swing the Court's ideological balance by naming a strong conservative to replace any of the four liberal or two centrist justices who may retire during this Congress.

These Bush pledges would be conditioned on a commitment by Democratic leaders to end their current filibusters and not to filibuster any other judicial nominees on ideological grounds as long as Bush keeps his part of the bargain. Bush could make the deal more palatable by giving a bit of ground to the Democrats who seek access to Miguel Estrada's internal memos from when he worked in the solicitor general's office.

The logic of such a compromise would be a mutual recognition that filibustering a Supreme Court nominee would be a far more defensible tactic than filibustering a lower-court nominee. The reason is that -- especially when the justices are as closely divided as now -- one or two Supreme Court appointments could engineer dramatic changes in the law on big national issues including abortion, affirmative action, religion, campaign finance, and civil liberties. Arguably, the president should not be able to engineer such a change with a mere 51 votes in the Senate. The 800-odd judges on the lower federal courts, on the other hand, have far less latitude and are far more constrained by Supreme Court precedents.

 

No more Provocations

Any such compromise would quickly unravel unless Bush and Senate Democrats avoided unnecessary provocations. If conservative Chief Justice William Rehnquist retires, for example, it would not do for Bush to try to promote Justice Antonin Scalia, a slightly more conservative, ferociously brilliant polemicist who is a red flag to liberals. Such a nomination would not tip the Court's balance [Scalia would still have only one vote]. But it would send liberal groups into a frenzy that would make it hard for Senate Democrats to resist liberal demands for a filibuster.

Perhaps the most formidable obstacle to any compromise is that Republicans and Democrats alike seem to believe passionately that their adversaries' tactics have been uniquely outrageous. There may be less trust between them than there was between Kennedy and Khrushchev in 1962. Before it's too late, they should all ask themselves this question:

If the shoe were on the other foot -- if a President Al Gore were trying to ram a slate of liberal judicial nominees past a 48-seat Republican minority -- wouldn't we be doing about the same things that our adversaries are doing now?



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Filibuster Blocks Judicial Votes

Bipartisan Commission Should Select Nominees

Maya Valverde

The Olympian

May 27, 2003

 

In the last two years, President George W. Bush has nominated judicial candidates for the federal courts whose beliefs are consistent with the president's socially conservative ideology. Last year, while the Senate Judiciary Committee was under Democrat control, most of the president's nominees received consideration on the Senate floor. Currently, 124 of Bush's nominees have been confirmed, while 50 others, many nominated within the last few weeks, await consideration.

 

This year, with a Republican majority, the president has re-nominated two candidates that had been rejected last year: Miguel Estrada for the District of Columbia Circuit Court and Priscilla Owens for the 5th Circuit Court, based out of New Orleans. A filibuster -- defined as an unending debate -- has become the only weapon left to a Democratic minority to prevent ultra-conservative appointments to the federal courts.

 

Both Senate Republicans and President Bush have called the Democrats obstructionists and are proposing changes to end the 200-year-old practice of the filibuster, a time-honored tool used by the minority party to block nominations. Republicans used the filibuster to stop Lyndon Johnson's nomination of Abe Fortas as chief justice and Bill Clinton's nomination of Henry Foster as surgeon general. They eagerly deterred Clinton's judicial nominees from appointment -- 50 never received a committee hearing, and 10 others did not get a vote in the Judiciary Committee.

 

Today, Republicans are threatening to weaken filibuster effectiveness. Majority leader Bill Frist, R-Tenn., has proposed to gradually decrease the 60 votes required to end a filibuster to a simple majority. Rule changes in the Senate require 67 votes, which means that only 34 Democrat votes are needed to defeat the proposal. Since Democrats have won six cloture votes to prevent the filibuster from ending, Frist's proposal likely will be defeated.

 

President Bush is proposing a system that would require justices to announce their retirement one year in advance. The president would send nominations to the Judiciary Committee within 180 days, with a hearing and a vote by the full Senate within 180 days after the nomination. The president's proposal sidelines the Senate's role in the judicial nomination process.

 

It is widely believed that these fights on the Senate floor are a prelude to possible Supreme Court nominations that could start as early as this summer. Chief Justice William Rehnquist and Associate Justice Sandra Day O'Connor are making noises that they may be retiring as early as next month. Three seats may open up if Rehnquist is replaced by a sitting justice.

 

Whoever is nominated, we likely are in for more partisan fights in the Senate consent process. Perhaps the president and the Senate should consider a proposal by Sen. Charles Schumer, D-N.Y., to allow for the creation of a bipartisan nominating commission, now used in many states to appoint judges.

 

Republican support for simple majority is hypocritical considering they only invoke it when it is to their advantage. As Schumer said, "If majority rule were the golden rule, they'd be supporting Al Gore for president and be for abolishing the electoral college."



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FINDLAW, COLUMN (May 23, 2003)

The Ongoing Controversy Over Judicial Nominees What Will It Mean if the GOP "Goes Nuclear" On The Filibuster Rules?

By JOHN W. DEAN, Findlaw columnist and former counsel to the president

“When Clinton was President, Senate Republicans blocked votes on his nominations of ideological judicial nominees - by simply refusing to process nominations.

Now their Democratic colleagues are doing the same to President Bush's nominees, this time via the filibuster - a little-understood, unique procedure that has an enormous impact on the legislative process.

The Republicans, however, don't seem to think that turnabout is fair play…

Democrats are currently filibustering two of President Bush's hard right conservative judicial nominees, Miguel Estrada and Priscilla Owen, and they are threatening to block additional nominees. In response, Republicans, well known for their political tantrums when they don't get their way, are shaking their fists, stomping their feet, and making ugly threats.

Because of the stakes, the future of the filibuster itself may be at issue. Looming on the horizon are several potential vacancies on the U.S. Supreme Court. Republicans are flush with the prospect of Bush's sending the Senate nominees to tilt the high Court further to the hard right. But if the Democrats can succeed with their current filibuster of lower court judges, they will also be able to block President Bush from packing the High Court.

For this reason, for weeks there has been a buzz on Capitol Hill suggesting that Republican Senate leaders may be ready to "go nuclear." The word on the Hill is, in other words, that they may employ an extremely powerful and seldom-used tactical procedural device to end the filibusters. The procedure is deemed "nuclear" because it is so explosive it is all but certain to result in a nuclear winter between Republicans and Democrats if used...

The Modern Filibuster and Its Predecessor

In its present form, the filibuster is, in essence, a minority veto. To overcome it requires a supermajority - a supermajority the Republicans do not currently command. Senate Republicans find that frustrating - and that is why the "nuclear" option is being considered.

Republican Threats To Change The Rules By "Going Nuclear"

Here is the situation that induced the Republicans to begin thinking "nuclear:" Majority Leader Bill Frist and Senate Judiciary Committee Chair Orrin Hatch want to change the rules of the Senates regarding the cloture vote, so that a simple majority can approve (or disapprove) a president's judicial nominees…

Needless to say, such a procedural ruling would be contrary to long practice. But this doesn't mean that Cheney would not give the GOP members exactly what they want. And if he did, there would be little left for the Democrats to do about the new interpretation: It would take a simple majority to override Cheney, and they don't have one. . . .

Why the "Nuclear" Tactic Could Lead to "Nuclear Winter"

As The Hill reported, however, this nuclear tactic could result in a disaster: "If the Republicans were able to force a change by jamming through a procedural ruling, 'It would be a nuclear winter in the Senate,' said [an aide to the Senate Democratic leadership]. 'This place would fall apart. It would be dire consequences if that happened, in my opinion.'"

What the aide was implying was that the unanimous consent so necessary for the operation of the Senate would end, should the Republicans employ a phony procedural device to change the rules.

Will the Republicans employ this tactic to change the rules, so that they can confirm whomever Bush nominates to the Supreme Court? It's impossible to say, but it certainly cannot be ruled out.

Washington has never been more partisan than it is today. Never have Republicans played more political hardball than they are currently. If ever there were a serious prospect of it happening, it is now.

So if Vice President Cheney is soon spotted in the presiding officer's seat of the Senate, be ready for a nuclear detonation - and for the very different U.S. Senate that will follow. You might also call this a Republican death wish - for Democrats are not without their own nuclear arsenal, should pre-emption become the favorite tactic of Senate Republicans.”

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States. For those interested in additional reading on the filibuster, Dean recommends an excellent January 1997 Stanford Law Review article, "The Filibuster," written by law professors Catherine Fisk (of Loyola Law School) and Erwin Chemerinsky (of University of Southern California). Dean drew on that article in writing this column.

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The Chicago Tribune, COLUMN

Making A Radical Break With Tradition

By Steve Chapman (May 22, 2003)

…You can see why liberals would regard the filibuster as an obstacle to their dreams of an ever-expanding federal government, ready for swift action whenever a need arises. They're generally not the ones who get nervous anytime the legislature is in session. They typically don't want to make it hard for the government to act; they want to make it easy. For that reason, they've always chafed at many features of our system that delay, inhibit and even prevent lawmakers from translating current popular sentiment into concrete measures.

 

But conservatives are supposed to have great respect for tradition. If the filibuster has nothing else on its side, it can boast nearly 200 years of tradition. Not only that, but the Constitution doesn't afford much room for argument about whether the Senate is entitled to preserve the filibuster. Article I says, "Each house may determine the rules of its own proceedings." You will ransack the document in vain for any limit on that authority.

 

Republicans are taking a fresh look at the matter because two of President Bush's judicial nominees have been denied a vote by Democrats using the filibuster. The president himself said that was a "disgrace," even though the Senate has approved 125 of his choices. Senate Republican leader Bill Frist of Tennessee has offered a new rule. Each time the Senate votes on ending debate, the number of votes needed for approval would decline by one, until it reaches 51.

 

Frist's proposal has no chance, though, because a rules change demands a two-thirds vote by senators. Critics of the filibuster say that violates the Constitution by creating a supermajority requirement. "The Constitution was originally written to empower Congress to make most decisions by majority rule," writes Northwestern University law professor Steven Calabresi. The only permissible exceptions are those it spells out, like the two-thirds needed to override a presidential veto.

 

Conservatives are usually extremely skeptical when someone discovers a constitutional violation that had somehow been overlooked since the founding of the republic. Opponents of the filibuster also have to find a way around that blindingly clear language giving the Senate the sole power over its own operations.

 

In addition, there are lots of congressional practices that defy majority rule. Under President Clinton, when Republicans controlled the Senate, they didn't have to use the filibuster to bottle up judicial nominations. The Judiciary Committee simply refused to send them to the floor for a vote.

 

Congressional committees are nowhere authorized in the Constitution. So if the filibuster is an illegitimate obstacle to majority rule, then committees must be too. And what about the tradition, observed by senators and presidents of both parties, that a single senator has the right to veto any judicial nominee from the senator's home state? In that case, even if 99 senators would like to vote for the nominee, they would never get the chance.

 

Neither the House nor the Senate has ever operated by strict majority rule, and they probably couldn't if they tried. But if the filibuster were to be junked as an affront to democracy and the Constitution, lots of other customs would be in jeopardy.

 

To overcome a transient political inconvenience, Republicans propose to jettison a Senate practice that has grown up and evolved over the last 214 years, replacing it with a simple policy that the majority must always have its way. There are lots of terms you could use to describe that effort. But conservative isn't one of them.”

 

Steve Chapman is a columnist and editorial writer for the Chicago Tribune.

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Northwestern University School of Law full text

 

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Excerpts from “Character Witness”

Peter Beinart

The New Republic

May 22, 2003

 

To conservatives, the Bush administration is everything its predecessor was not: decent, ethical, honest. It doesn't abuse government power or the public trust. As Wall Street Journal columnist and presidential hagiographer Peggy Noonan has put it, "Bush brings character to the table."

 

That's the claim. Here's the record over the last eight months:

 

* * *

 

FILIBUSTER

 

Throughout the Senate's history, its members have been able to block legislation through endless debate, or filibuster. Under Bill Clinton, Republicans filibustered the 1993 economic stimulus plan, campaign finance reform, and higher cigarette taxes. Now the Bush administration is upset that Democrats are filibustering two of its judicial nominees. So Senate Majority Leader Bill Frist has called for eliminating the filibuster as we know it. Breaking a filibuster requires 60 votes, but Frist proposes changing that so 60 are required only on the initial filibuster vote; subsequent votes would require 57, then 54, then 51. The filibuster, in other words, could be broken with a simple majority--rendering the device virtually useless. Frist has also threatened to employ a rare parliamentary maneuver to ban filibusters on judicial nominees altogether. Had the Clinton administration tried that during the GOP's (far more frequent) filibustering in the 1990s, I suspect conservatives might have said something about abuse of executive power. Today, they seem unconcerned.



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Roll Call (May 21, 2003)

Reform Is Needed, but Tread Carefully

By Norman J. Ornstein

I wrote about the filibuster in the New York Times last week. Someone asked me if I had gotten much comment on the piece, and I said, "People can't stop talking about it." In that spirit, let me weigh in with the detail and nuance that are owed to the Roll Call readership. I want to start with a few bullet points:

The situation is this: Republicans in the Senate, frustrated over their failure to break the resolve of 45 Democrats filibustering two appeals court confirmations, are talking seriously about a bold move on the Senate floor, known to everybody who talks about it as the "nuclear option."

In effect, it would play out this way: At the time of yet another cloture vote on nominees Priscilla Owen or Miguel Estrada (or a future, unspecified third case) a Senator would raise a constitutional point of order, suggesting that a filibuster (extended debate requiring a supermajority vote to break it) against a nominee is unconstitutional. The chairman, probably the vice president, would agree. The issue would be brought to a vote. The Minority Leader would note that a constitutional issue is itself debatable in the Senate (and thus itself can be filibustered). The Parliamentarian, relying on precedent, would agree. The chairman would recognize a nondebatable motion to table, thereby overruling the Parliamentarian. If that scenario is gobbledygook to you, the basic point is that Republicans, without changing the rules, would bull through a motion over the objections of the Parliamentarian and the Democrats to force votes on judicial nominees. All hell would break loose, probably affecting all issues for the remainder of the Congress.

No issue has had more hypocrisy attached to it in Congress than the filibuster. Go back through the decades and read Democrats and Republicans, liberals and conservatives blithely reverse positions as they move from majority to minority or vice versa, or from holding the White House to not. Call it "situational constitutionalism." As such, take any pronouncements from the mount declaring filibusters unconstitutional on their face with great skepticism.

The backbone of the Republicans' case that would undergird their nuclear option, as promoted avidly by the ubiquitous law professor Stephen Calabresi, a co-founder of the Anti-Federalist Society (his bio says Federalist Society, but that must be a typo), is that strict constructionists can infer from the fact that the Constitution specifies areas where supermajorities are required, that all other areas perforce must require only majorities.

Of course, as a stricter constructionist, I believe in the words themselves, not inferences from them. Therefore, all of this president's nominations for the courts have been unconstitutional because he has not sought the advice of the Senate, only its consent (not to mention virtually all nominations of all previous presidents).

But if we want to traffic in inferences, I can play that game as well. The Framers knew all about filibusters and about the traditions of unlimited debate in parliaments and previous legislatures. They wrote a provision in Article II giving each house of Congress the sole power to set its own rules. They did not specify that those rules barred provisions to allow unlimited debate, or to have a higher number than a majority to shut off debate, either on a bill, a confirmation, or a rule itself. Therefore, it is clear that the Framers were willing to allow them in either house.

Remember that Rule XXII, the cloture rule that provides for an end to debate and a specified time for votes, does not raise the bar on passage of a bill or nomination from 50 to 60, or on a rules change from 50 to 67 or two-thirds of those present and voting. It lowers the bar from 100. There is no rule in the Senate--and there has not been one for nearly 200 years - that forces the previous question and an end to debate. Before Rule XXII was instituted in 1917, there was no way, if a single determined Senator took the floor and kept it, to force action on a bill or a nomination. The Senate operated under unlimited debate. It did so through the lifetimes of all the Framers. Not one objected to the way the Senate operated during this time as a violation of their constitutional intent.

Indeed, as George Will noted in an eloquent piece on the filibuster 10 years ago, "There was something very like a filibuster in the First Congress." If a presiding office declared Rule XXII unconstitutional because it did not allow a majority of the Senate to come to a vote on nominations (or anything else), there would still be no provision in Senate rules to force an end to debate and a vote. Here is the relevant provision in Rule XIX on Senate debate: "No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate."

There is a way to push a minority of filibusterers to end their exercise. It is the way filibusters were dealt with from 1917 until the early 1960s: Bring the Senate to a halt, bring in the cots, and go around the clock until the filibusterers lose their stamina or until there is a sharp public reaction that forces them to back off. When that ordeal was required for a filibuster to be applied and sustained, there were very few attempted; even fewer succeeded.

When Majority Leader Mike Mansfield (D-Mont.) created a new system in 1961, putting issues under filibuster onto a separate track and allowing other legislative business to proceed, it changed the nature of the filibuster. For the first time, there was no price to pay, in physical stamina or from political obloquy, for blocking the nation's business; all an individual Senator had to do was flag a measure as one he or she would filibuster and the bar automatically was raised. The "hold" as it is currently practiced (and abused) is in essence a threat to filibuster a bill or nomination. Incidentally, holds against nominations, including judicial nominations, have been as rife among Republicans as Democrats. (See "situational constitutionalism," above.) Not surprisingly, Republicans and Democrats have not hesitated in the past from filibustering judicial or executive branch nominations if it suited them.

Lost in the process of the past decades is this reality check: There is no rule against an old-fashioned filibuster. If Majority Leader Bill Frist (R-Tenn.) and his colleagues are outraged against the Democrats' filibuster against two appeals court nominees, their first tough recourse is to bring the Senate to a halt and bring in the cots. This kind of filibuster would get immense media attention, the president would weigh in and it would change the nature of the debate. Senate Republicans have not even attempted the traditional approach. Why not? Either they do not want to discomfit themselves, they have higher legislative priorities that they do not want delayed or they fear that the public reaction will be, "Who cares?" But to even talk about the so-called "nuclear option" without using the weapons available to you is not appropriate.

Reform of the filibuster is desirable. A decade ago, in the Renewing Congress Report I did with Tom Mann of the Brookings Institution, and as first published in Roll Call on April 12, 1993, I suggested a new two-track system: For issues in which a substantial number of Senators felt intensely, the old-fashioned "Mr. Smith-style" filibuster would be employed; for issues in which only one or a handful of Senators could not sustain extended debate or gather enough support to do so, there would a series of votes over a time certain, with the bar going from 60 down to 55 and eventually to 51. Sen. Tom Harkin

(D-Iowa) picked up on the gist of the idea that year, and Frist has introduced it as a way to deal with all judicial nominations. As a rule for all seasons, or for all nominations, it won't work. But as a way to avoid most extraneous and unnecessary holds and delays on nominations and issues, it can.

The Senate is not the House and should not be. The Senate was designed by the Framers to be the cooling body, guarding against the tyranny of the majority and against the passions of the moment. It has operated for nearly all its existence by unanimous consent. To abolish the cloture rule and force action on nominations, under the theory that majorities should rule, means ultimately altering the fundamental character of the Senate.

The filibuster is basically a conservative instrument; it delays government action in order to overcome intense minority opposition and to build broader popular support. Do conservatives really think they will always be in charge, that impediments to government action will be to their detriment instead of to their advantage? Do constitutionalists really want to stretch the document beyond recognition for a short-term political gain, getting a few of their allies or buddies onto the bench? Listen to George Will (whose views have not changed to fit the times): "Democracy is trivialized when reduced to simple majoritarianism--government by adding machine. A mature, nuanced democracy makes provision for respecting not mere numbers but also intensity of feeling. And ask yourself: Is there anything the nation has ever wanted, broadly and deeply, that a filibuster prevented the government from giving?"

Norman J. Ornstein is a resident scholar at AEI.

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The Chattanooga Times Free Press (May 20, 2003)

Filibusters, But No Crisis

By Harry Austin

 

“It is true that President Bush has had trouble getting a couple of his most controversial judicial nominees approved by the Senate for federal judgeships due to Democratic-led filibusters blocking their confirmation. But there's no truth to the president's claim that the Democrats' action amounts to a "crisis" for the federal judiciary. Nor is there any need for Senate Majority Leader Bill Frist's upstart notion to revise the Senate's long-standing filibuster rules to skirt Democrats' objections to President Bush's reactionary nominees. The way out of this minor flap is the nomination of more mainstream candidates for the bench, not a remolding of the rules to suit Republican ideologues.

 

Republicans' claims that a judicial crisis is at hand, or that Democrats are undermining the judiciary in unique and awful ways, is mere hyperbole. It also is notably whiny and hypocritical. One need only recall, for example, that Republicans far more aggressively blocked far more of President Clinton's judicial nominations -- roughly 70 in all -- with the express purpose of keeping judgeships vacant until a Republican president could fill them.

 

If Democrats were seeking vengeance, they would have blocked many more of President Bush's nominees. But they haven't. They have blocked just two, The number of vacancies in the federal judiciary is at the lowest level in 13 years. There's clearly no judicial crisis at hand, nor anything remotely as bad as that engineered for so long by Republicans against Mr. Clinton's nominees.

 

Indeed, the Senate -- with the support of the Democrats -- has approved more than 98 percent of Mr. Bush's nominees for the federal bench, including more than 100 district court judges, and 22 appeals court nominees.

 

As for the filibuster used by Democrats against Mr. Bush's more extreme or evasive nominees, there's nothing new under the sun there. Republicans in the majority during Mr. Clinton's tenure were able to stop his nominees by bottling them up in committees to keep them from getting to a floor vote. Democrats, as the minority party, can't stop Mr. Bush's reactionary nominees in committee, so they're using a filibuster to prevent a floor vote. Different tactics; same purpose.

 

There is supreme irony in Mr. Frist consideration of new rules to stop a Senate filibuster for judicial nominees only. The filibuster, like the pocket veto, is just one of the traditional Senate mechanisms that has long enforced the concept of bipartisan rule in the nation's affairs, preventing either party from forcing an ideological agenda on an unwilling nation. Mr. Frist, as Senate majority leader, should have more respect for such a valuable tradition. He never was a student of government before coming to Washington, however. By his own admission, he only began voting a few years before he ran for the Senate. It's hardly surprising, though unfitting, that he lacks appreciation for one of the most historically effective tools in the Senate to ensure checks and balances in the application of Washington's massive power.

 

Ditto for the proposal by two other freshmen Republican senators, Lindsey Graham of South Carolina and Saxby Chambliss of Georgia. They are searching for grounds for a lawsuit to restrain Democrats' filibusters, a move they might well regret the next time Republicans are in the minority.

 

Mr. Bush easily could avoid delays by nominating judicial candidates vetted by the American Bar Association and whose records demonstrate adequate regard for the rule of law for all Americans. Then he wouldn't have to conjure up a crisis, or ask unseasoned senators to subvert the Senate's useful check on executive power.”

Harry Austin is the Times Editorial Editor.

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The Chicago Tribune (May 20, 2003)

Crying `Crisis' When There Isn't One: Rhetoric Decrying The Judicial Filibuster Ignores History

By Robert W. Bennett, a law professor at Northwestern University School of Law, is the author of "Talking It Through: Puzzles of American Democracy."

Shame on the whiners--particularly the conservative professoriate--out in force opposing Senate Democrats' filibustering to prevent confirmation of two of President Bush's judicial nominees. These commentators argue that the filibuster denies majorities their democratic--and constitutional--right to rule. They speak of a "coup d'etat" and a "constitutional crisis."

I'm no particular fan of the filibuster--in any of its uses--but the overheated rhetoric decrying the filibuster to oppose two out of well over 100 judicial nominees ignores history and misconstrues all at once law, politics and the American system of government. The histrionics also exaggerate the importance to the nation of a small number of judicial nominees.

First a bit of history. The filibuster goes back a long way--to the early 1800s--and in recent times has been used by Republicans and Democrats alike to block presidential nominees. This includes (but has not been limited to) judicial nominees. Republicans-- and Democrats--used a filibuster to oppose President Lyndon B. Johnson's nomination of Abe Fortas to be chief justice of the U.S. Supreme Court. Fortas was "ethically unqualified to be confirmed," argues a scholar who adamantly opposes the Democrats' filibustering today. But that is a point about qualifications and not about the filibuster.

As for the American system of government, "majority rule" hardly captures its essence. George Bush was elected president with fewer popular votes around the country than his principal opponent received, and his selection was facilitated by the United States Supreme Court, which isn't elected at all. Indeed the Senate itself is anything but a majoritarian institution. California's huge population is represented there by the same two votes as is Wyoming's tiny population.

The legal status of the filibuster is a more complicated question. Conservative scholars argue that legitimate constitutional interpretation must hark to "original understanding." That is the same approach to constitutional interpretation that President Bush suggests he favors when he says that Justices Antonin Scalia and Clarence Thomas are his kind of judges. But the filibuster example is actually a poster child for just how useless "original understanding" can be for solving contemporary problems.

American politics at the time of the constitutional convention was very different from what we know today. There were no political parties, and the constitutional framers tried to assure that there never would be. Members of the Senate were not elected but rather appointed by state legislatures. And it was assumed that the electoral college would engage in genuine debate about who would be president, not simply record the results of the popular vote in each state. Given these momentous differences between then and now, it is not even clear how one could get any traction in deciding if original understanding validates the contemporary filibuster.

These commentators would have a somewhat firmer starting point if they looked to the understanding in 1913, when the 17th Amendment was passed providing for popular election of senators. By that time, of course, political parties were a well-established part of the way things work. But then so was the filibuster.

Instead the commentators strain for distinctions--between filibusters over substantive legislation as opposed to judicial nominees, or over lower court nominees as opposed to Supreme Court justices, or between limited as opposed to indefinite filibusters. Any claim that such distinctions might be traced to original understanding is simply bizarre.

That gets us to the most important point of all. Voting and other procedural rules provide a way of making definitive decisions, but they do much more than that. Most important, in the present context they can often induce a healthy degree of negotiation and compromise.

Think of five friends who get together every Sunday for recreation. If they vote on what to do each Sunday, and three of them like to play poker, while the other two enjoy going to a movie, would they likely vote each Sunday to play poker, 3-2? Probably not, at least if their friendship is to endure. They would likely play poker three Sundays out of five and go to the movies the other two times. And that result might well be fostered by a rule that allowed any individual (or any two individuals) to exercise a "veto" over that week's choice.

Now the United States is unlikely to break up anytime soon, but that does not make accommodation of legitimate minority sentiment any the less important to the healthy functioning of the enterprise as a whole. I have no way of knowing what has been happening behind the scenes, but Senate Democrats say that they have been entirely shut out of the process of selecting nominees for judicial offices. That would not be appropriate even if the Republicans had more than a two vote edge in the Senate and even if George Bush had been elected with a majority of the popular vote and a substantial edge in the Electoral College. But they don't, and he wasn't. The Republicans barely control the Senate, and Bush did not, to say the least, gain office with some mandate to shape the federal judiciary for years to come.

If in fact the Senate Democrats have been shut out entirely from the judicial selection process, in using the filibuster to block a couple of those nominees they might well not be subverting but rather furthering the healthy functioning of American democracy. Full text

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Mustang Daily [California Poly State U.] (May 20, 2003)

Senate right to filibuster Bush appointees

By Susanna Farber

SAN LUIS OBISPO, Calif. -- President Bush seems to have forgotten the Senate's constitutional role in the advice and confirmation process of judicial appointments. Although Senate Democrats have only filibustered two of President Bush's nominees, the Bush administration repeatedly criticizes the Senate for moving too slowly on confirming his judicial appointments. Even though the president would like the Senate to turn into a rubber-stamp, approving each judicial nominee he sends their way, the Senate can not, in good conscience, shy away from its advisory and consent roles.

As stated in Article II of the U.S. Constitution, the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States ..." In carrying out this advisory and consent role, the Senate, as Hamilton stated in Federalist 76, will "be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment ... In addition to this, it would be an efficacious source of stability in the administration."

The filibuster the Senate used about a couple of weeks ago to block the nomination of Priscilla Owen was not out of spite for the president, but out of concern for the growing number of extreme judges Bush has sent to the Senate for confirmation. As an April 29 editorial in the Austin-American pointed out, "Democrats are not blindly opposing all of the president's judicial nominees," rather they are attempting to block judges who do not fall within the mainstream of American politics. Both parties are guilty of attempting to pack the courts at one time or another, and that is why the role of the Senate is so crucial. It provides a safeguard against extremists becoming lifelong judges.

Justice Owen has proven to be far right of the fairly conservative Texas Supreme Court. In fact, as an April 17 editorial in the New York Times pointed out, it is "abundantly clear that she is far to the right of most Americans and that her ideology drives her decisions. On the Texas Supreme Court, she argued in one case that a minor seeking an abortion could be required to prove that she was aware of the religious objections to abortion." That case involved a Texas statute requiring parental notification of a minor intending to have an abortion. The Texas statute allows for a court order in place of parental notification if the court finds that:

* The minor is mature and sufficiently well-informed to make a decision to have an abortion performed without notifying either of her parents; or

* Botifications would not be in the best interest of the minor;

* Or notification may lead to the physical, sexual, or emotional abuse of the minor.

Justice Owen, in her dissenting opinion, would have re-written the law, according to Senator Diane Feinstein, D-Calif, "to place hurdles in front of minors, hurdles that were not present in the Texas law." Her colleague on the Texas Supreme Court and now White House Counsel, Alberto Gonzales, called this "an unconscionable act of judicial activism."

Her record also shows she consistently rules against workers and victims of discrimination. Her pro-business stance led one Texas consumer attorney to state to Senator Feinstein "there is not a single consumer-rights attorney in the State of Texas that feels that they would get a fair shake in her courtroom."

Although the filibuster should not be used lightly, it was properly used in this case. Justice Owen had already been denied a hearing last year by the Senate Judiciary Committee, and was only renominated when Republicans took control in January. In addition, according to the New York Times editorial, "former President George Bush held a fund-raiser for a group that will run ads attacking senators who do not fall into lock step behind the administration's nominees."

If anyone is politicizing the nomination of judicial appointments, clearly it is the Bush administration.

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Newsweek (May 19, 2003)

The Waiting Game

By Eleanor Clift

It has been two years since President George W. Bush nominated Miguel Estrada and Priscilla Owen for federal judgeships. Senate Democrats have filibustered their nominations, and are set to draw out that of a third candidate, Carolyn Kuhl. But Republicans are trying to intimidate Democrats into confirming Bush's appointees. Senate leader Bill Frist has threatened to unleash his "nuclear option," a tricky legislative maneuver that would rewrite Senate rules to get rid of the filibuster for executive nominations. Two freshman Republicans, South Carolina's Lindsey Graham and Georgia's Saxby Chambliss, have vowed to challenge the constitutionality of the delay tactic, saying it goes beyond the Senate's role of "advise and consent." Democrats have even offered to amend the process. New York Sen. Chuck Schumer, the ranking Democrat on the Judiciary Committee, has proposed depoliticizing nominations by having a nonpartisan consultative board advance names so that judges aren't ideological soul mates of presidents.

These ideas aren't going anywhere, however: the filibuster is here to stay. "Republicans... know someday the tables are going to turn, and when they're in the minority, they don't want to be without any weapons," says a Senate Democrat. And though Bush is losing a few nominations, overall he's making the courts conservative. The Senate has confirmed 124 Bush appointees, nearly all presumed pro-lifers. Republicans thought Democrats wouldn't dare filibuster the Hispanic Estrada, and two women. But the Dems' core interest groups are putting pressure on the leadership to take a stand against nominees they believe aren't in the mainstream on a woman's right to choose, affirmative action and civil rights. Democrats are particularly outraged that James Leon Holmes, the former president of Arkansas Right to Life, is up for a district-court judgeship. He thinks women should be "subordinate" to their husbands, and that "concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami." By skirmishing over lower-level federal judges, Democrats are telling Bush they have the political muscle to do battle over the next Supreme Court vacancy.

Battles over court nominees have intensified since 1996, when the Republicans unveiled a deliberate strategy to slow President Bill Clinton's appointees. The GOP put secret holds on nearly 60 nominees. When Clinton left office, the vacancies on the federal bench were at a record high; today, they are the lowest in 13 years. But Republicans say the system is broken, and Bush accuses Democrats of damaging judicial independence. That's a hard case to make: of the 13 circuit courts in the country, Republican appointees control eight, Democratic appointees control three, and two are divided between the parties.

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Despite Bush's Protests, Court Vacancies Are Down

By Jon Delano, The Pittsburgh Business Times, Opinion (May 16, 2003)

 

"Confirm my judicial appointments." It's a familiar refrain. In recent years, presidents have called on the Senate to expedite confirmation so that their choices for the federal bench don't face endless delays.

 

Former President Clinton railed against the obstructionist tactics of the Republican-controlled Senate, accusing that body of partisan behavior. During Mr. Clinton's last six years in office not a single judge was confirmed for the U.S. District Court in Western Pennsylvania.

 

Why?

 

The simple answer is politics. U.S. Sen. Rick Santorum, a Republican, "blue slipped" or put on hold the consideration of Mr. Clinton's appointments in this region, arguing that he should be able to name at least one of every three appointees. When Mr. Clinton rejected that claim, there was deadlock.

 

Last week in the Rose Garden, President Bush sounded a lot like Mr. Clinton, denouncing "obstructionist tactics" by Senate Democrats. At a press conference last Friday, U.S. Sen. Arlen Specter, a member of the Senate Judiciary Committee, got it exactly right. "When we Republicans controlled the Senate and President Clinton was in office, some things were done which shouldn't have been done," the state's senior senator opined. "And when President Bush took office and the Democrats were in control, there were some things that shouldn't have been done."

 

The old saying that what goes around comes around seems apt. Mr. Bush is reaping the ill will that was sown earlier. But a careful comparison of the state's federal judiciary today, particularly in Pennsylvania, suggests that this Senate, whether run by Democrats or Republicans, has treated Mr. Bush's nominees better than Mr. Clinton's. In 28 months in office, Mr. Bush has already had 100 district judges confirmed by the Senate along with 23 appellate judges. Of the 665 judges on the federal district courts across America, there are only 26 vacancies, and the vacancy rate among the 179 judges on the courts of appeals is down to 21.

 

Take the Western District of Pennsylvania, for example. During the years of the Santorum filibuster, that court of 10 judges had as many as five vacancies. Today, the Senate has confirmed four Bush appointees -- Judges Joy Conti, David Cercone, Terry McVerry, and Art Schwab -- and the fifth nomination, attorney Tom Hardiman, has just been sent to the Senate.

 

With the elevation and confirmation of Judge Brooks Smith to the U.S. Court of Appeals, the president still needs to name one more judge to the local court, but once completed, Mr. Bush, with less than three years in office, will have named -- and the Senate will have confirmed -- six of the 10 judges on the local federal court. That hardly sounds like obstructionism.

 

The U.S. Court of Appeals for the Third Circuit (Pennsylvania, Delaware, New Jersey, and the Virgin Islands), the court just under the Supreme Court, has 11 of its 14 judges in place, one appointed by President Carter, two by President Reagan, two by President Bush I, and five appointed by President Clinton.

 

Mr. Bush's first appointment to that appellate court, Brooks Smith, was confirmed last year, and the president only two weeks ago sent two more Republican names to the Senate: Attorney General Mike Fisher and former Richard Thornburgh aide Jay Waldman. Nobody expects much controversy over these nominees.

 

So what is Mr. Bush complaining about?

 

It turns out that what really angers him is a procedural move adopted by Democrats to deny a final vote on a few controversial nominees. Unable to put a "hold" on nominees as Mr. Santorum did when the Republicans controlled the Senate, the Democrats, the minority party, are using the filibuster to block an up-or-down vote on a few nominees. Under Senate rules, it takes 60 votes to stop a filibuster. With just 51 Republican senators, the GOP cannot force a vote unless some Democrats go along. So far, at least on the nominations of two controversial appellate court judges, Miguel Estrada and Priscilla Owens, the Democrats have stuck together.

 

The Democrats insist that they are not blocking all of Mr. Bush's nominees, only those with which have major problems.

 

But both sides are playing politics. Mr. Bush is nominating very conservative candidates to appease a wing of his party. And Democrats are denying an up-or-down vote on them to appease a wing of their party. The good news is that vacancies are down. That's progress!

MR. DELANO teaches public policy at CMU's Heinz School and is the money and politics editor for KDKA-TV and the political analyst for WQED-TV's "On Q Magazine." Contact him at jdelano@andrew.cmu.edu.

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Deseret Morning News [UT], COLUMN (May 14, 2003)

OPINION: Senators headed straight for judicial N-war

By Lee Davidson, Deseret News Washington correspondent

“It was said that nuclear war would have no winners, just losers. Senators may have forgotten that as they now wage the political equivalent of nuclear war over judicial nominations.

      Of course, one of the chief generals is Senate Judiciary Committee Chairman Orrin Hatch, R-Utah. . . .

      The escalating battle may be about to blow up the way the Senate has done business for 200 years, or exacerbate vacancies in the judiciary. . . .

      The current warfare has roots to 1987 when Democrats blocked Robert Bork to the Supreme Court because of conservative views. . . .

      Since then when different parties controlled the Senate, each blocked many nominees by the other because of their beliefs — often refusing even hearings on them.

      This year, Democrats chose to fire essentially the first nuclear missiles in the escalating battles. They chose to filibuster — or refuse to cut off debate to allow a vote — against two Circuit Court of Appeals nominees: Miguel Estrada and Priscilla Owen.

      A successful filibuster had never before been mounted against a circuit court nominee. It had only been used once to stop a Supreme Court nominee (who was accused by people in both parties of scandal). . . .

      Senate Republican Leader Bill Frist and Hatch offer a way out. They propose changing Senate rules so that on judicial nominations, only the first "cloture" vote to stop a filibuster would require 60 votes. The next would require 57, the next 54, and the next just 51 — ensuring most nominees would get a vote eventually.

      But such a rules change itself requires two-thirds approval, or 67 votes. So why do Republicans imagine they could get that? Because of what they call the "nuclear option" that may come instead.

      In it, Republicans could have the Senate's presiding officer — maybe Vice President Dick Cheney — hand down a parliamentary ruling that the Senate's filibuster rules do not apply to nominations, only to legislation, because the Constitution requires only a simple majority vote for confirmations.

      Democrats could appeal that — and would need only a majority vote to reverse the chair's ruling. But since the GOP holds the majority, the appeal would probably fail. It would do away with filibusters entirely on nominations, and possibly greatly limit debate.

      Republicans hope that "nuclear threat" will force Democrats to back off on their use of the filibuster or allow softening of rules. If not and the political nukes fly, both sides will be taking revenge wherever they can. It won't be pretty. Everyone is on the brink now. Either they take a breath and step back, or mushroom clouds are coming.”

Deseret News Washington correspondent Lee Davidson can be reached by e-mail at lee@

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The Boston Globe (May 14, 2003)

Confirmation Crisis?

By Ellen Goodman

Would somebody please tell George W. Bush that he is not Commander in Chief of the Judiciary? No matter how "hot" he looked in his flight suit, black robes require a cooler demeanor.

The administration seems to think that the president has the right to appoint judges the way he can appoint overseers to Iraq. It has forgotten that the Senate is supposed to advise and consent -- and sometimes dissent.

At the White House last week, Bush declared a crisis in the judiciary. "Highly qualified judicial nominees are waiting years to get an up-or-down vote from the United States Senate." He blamed it on "obstructionist tactics."

Well, first of all, declaring a crisis doesn't make a crisis. We aren't looking at empty seats all over the federal courthouses of America. The number of vacancies is the lowest in 13 years. As for obstructionists, the Senate has already approved 98.4 percent of his nominations -- 22 circuit court nominees and 101 district court judges.

Bush's confirmation success rate is way higher than Clinton's. The difference is that the Clintonites languished in committees, while the wrangling over these wannabes has gone public.

Up to now, the Democrats have been judicial pacifists. Now, a handful of nominees have proved so contentious that they've rallied a filibuster against two of them. And this is what Bush decries as a threat to "judicial independence?" This is what's led the administration's doctor, Sen. Bill Frist, to dial 911 in search of some anti-filibuster emergency?

To find out just who's playing politics, let's go to the videotape. The two nominees who are the subjects of a filibuster are:

1. Miguel Estrada. He's dubbed "the stealth candidate" because he took the "judicial Fifth" during his Senate hearings. As Tom Daschle said, "he's refused to fill out his job application."

2. Priscilla Owen. She's BAAAACK. The Texas justice, who once required a minor to prove she was aware of the religious objections to abortion, failed to be confirmed last year. Now, with a Republican majority, they're try-try-trying again.

These aren't even at the top of my dance card of Bush nominees worthy of dissent. Consider California's Carolyn Kuhl, a judge who dismissed a claim that a woman's privacy was violated when her doc invited a drug company rep to witness her breast exam without consent. Or James Leon Holmes, the former president of Arkansas Right to Life who wrote "the wife is to subordinate herself to her husband." Or William Pryor, the current Alabama attorney general who believes that "God has chosen through his son Jesus Christ, this time and this place for all Christians... to save our country and save our courts." Are these mainstream jurists who should be waved onto the higher bench with nary an unkind word?

Yes, it's getting nasty out there. The wrangling we've seen over the Supreme Court is filtering down to the appellate courts. Because the importance of the lower courts is percolating up to the politicians.

Last year the appeals courts made more than 28,000 decisions affecting everything from civil rights to the environment. The Supreme Court, which decided 151 cases in 1982, now hears about half that number.

If appellate courts are setting the law for the land, there's also a growing sense that judges are policy makers and breakers. "For generations," says Sheldon Goldman, a University of Massachusetts political scientist and author of "Picking Federal Judges," "there was a judicial mythology that was widely believed by the American public that judges find the law that objectively exists out there."

We don't think judges make law out of whole cloth, but there's enough ambiguity in statutes, precedents and mindsets for some very personal weaving. So, politics have become polarized and judges have become personalized. And the two make a volatile mix.

"The process itself has gotten ugly," says Sarah Binder of George Washington University, who's writing a book on judicial appointments, "but the underlying dispute about how they will rule when they are on the bench is a reasonable question to be fought over."

As for busting the filibuster? The Constitution tells the Senate to advise and consent. It is says nothing about consenting by a simple majority or a super majority.

There are about 200 appellate judges making laws that govern 291 million Americans. The bench of the Republican Party is, literally, the bench. For some people the wake-up was Bush vs. Gore. For others the warning bell is Roe vs. Wade.

These lower court squabbles may well be a warm-up for the main event, the next Supreme Court seat. All in all, there's something worse than fighting over judicial nominees. It's letting them into a lifetime job without a fight.

Come to think of it, combat gear may be just the right costume.

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Seattle Post-Intelligencer (May 14, 2003)

In the Northwest: Bush working to tilt federal bench toward the right

By Joel Connelly

A few years ago Azucena Sanchez-Scott, a resident of Los Angeles, underwent chemotherapy A faded button carrying the two-word slogan "FREE WILLY" sits in my dusty collection of campaign memorabilia. It has nothing to do with the movie killer whale of the same name.

The "Willy" here mentioned is William Fletcher, a University of California law professor whose nomination to the 9th U.S. Circuit Court of Appeals by President Clinton was kept in limbo for 2 1/2 years by Senate Republicans.

The example of Fletcher, and two long-delayed 9th Circuit nominees out of Seattle, came to mind last week as cable-TV news channels gave President Bush time to fulminate over Senate Democrats' decision to block two of his most controversial appellate court nominees.

Delays in confirming nominees Priscilla Owen and Miguel Estrada were a "disgrace," Bush intoned. He decried "obstructionist tactics" that "threaten judicial independence."

What is this man so angry about? After all, the Senate has confirmed more than 120 of his judicial nominees. The vacancy rate in the federal court system stands at just 5.7 percent, the lowest in 11 years.

By contrast, just a few years back, as many as 10 of the 28 judgeships on the 9th Circuit went vacant as the GOP-controlled Senate held up a Democratic president's nominations.

The court, with jurisdiction over nine Western states, had a backlog of more than 600 cases.

Could be that Bush is beholden to his political guru. White House political strategist Karl Rove was paid more than $250,000 in 1994 to oversee Owen's campaign for a seat on the Texas Supreme Court.

Or the president could be displaying stage anger.

Talking up conservative judges is a tried-and-true tactic to get blood and saliva flowing in the right wing of the Republican Party: These elephants never forget and still feel mightily wronged by the Supreme Court confirmation battles of Robert Bork and Clarence Thomas.

The real reason, though, could be a characteristic piece of (to use Rove's joke nickname) Bush "strategery." The more this president demands, the more insistent he is, the more he gets.

The ordinary citizen ought to tune in to this battle. Basic rights are at stake, from an injured consumer's ability to haul corporations into court, to a citizen's right to due process, to obtaining information from an intensely secretive administration in our capital.

On rare occasions when it is covered by our supine and superficial national media, the fight over judicial nominations is depicted as part of the Washington, D.C., "power game" and an example of "hardball."

So it was a half-dozen years back: GOP Sen. Slade Gorton wanted a voice in filling vacancies to the local federal bench. He played it rough with the Clinton administration, and eventually won a judicial screening committee, its members named equally by Gorton and Democratic Sen. Patty Murray.

The held-up Clinton appointees were anything but ideologues. Margaret McKeown and Ron Gould were partners in the state's largest law firm. Gould was a former president of the Washington State Bar Association. McKeown was an intellectual-property specialist who spent much of her time arguing cases for Nintendo and The Boeing Co.

Fletcher, too, was eventually confirmed to the 9th Circuit, after Republicans insisted that his mother first retire from her seat on the court.

The Bush administration, by contrast, seems out to recast the federal judiciary in an ideological mold with judges picked for their records in upholding state power and overruling corporate accountability. It is nominating younger judges -- the 73-year-old Slade Gorton can't get himself named to the 9th Circuit -- so the imprint will be lasting.

We've yet to see it here. Washington has an outstanding federal bench. Elsewhere, however, conservative judicial activism is very much in vogue.

One of Bush's earliest appointments to the federal bench in Washington, D.C., went to a one-time aide to Whitewater prosecutor Kenneth Starr: The intense Starr subordinate once wanted to hit the White House with sweeping subpoenas to search for Hillary Clinton's old law-firm records.

With his side in power, the new judge ruled that Vice President Dick Cheney was under no obligation to disclose lists of lobbyists and executives who met at the White House with Cheney's energy task force.

The conservative media celebrate Miguel Estrada as a Honduran emigre who rose by his bootstraps. Perhaps so, but he has declined to answer senators' questions on his legal views.

The Bush administration refuses to provide documents on Estrada's legal work, which reportedly show views as far to the right as those of Supreme Court Justice Antonin Scalia.

On a Republican-run Texas Supreme Court, Owen not infrequently dissented against fellow justices, including Alberto Gonzales, now Bush's White House counsel. She delivered a series of opinions advocating restriction of abortion.

It is once life begins, however, that Owen's rulings deserve closest scrutiny.

She took 16 months to write an opinion that reversed a $30 million damage award to the family of a quadriplegic teenager. The family had argued that negligent seat-belt construction caused his head to be severed from his spine.

In this case, Ford Motor Co. v. Miles, Owen based her decision to order a new trial on a finding of improper venue. The issue of where the case was brought was neither raised nor argued by either side on appeal.

The boy, Willie Searcy, died while awaiting his new trial.

In the legal world of Priscilla Owen, the right to life may begin at conception. It seems, however, to end at birth. Full text

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The New York Times OP-ED (May 14, 2003)

The Debate to End All Debate

By Norman Ornstein

…Senate leaders have called for reform of the filibuster rule. Now it is Bill Frist's turn - but he should think twice before acting. Any rule changes could have unhappy consequences.

…[T]he damage to the Senate would be enormous…

The Senate is a unique and fragile legislative body. Its members have to get along for the simple reason that most basic Senate business - from scheduling action on a bill to calling a committee meeting - requires unanimous consent. Consensus and bipartisanship are absolutely necessary.

If Republicans unilaterally void a rule they themselves have employed in the past, they will break the back of comity in the Senate. Democrats could block Republican legislative efforts at every turn. For a short-term victory now, Republicans would reap the whirlwind.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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____________________________________________________________________

(May 9, 2003)

Why Kuhl is uncool

By Joe Conason

Frustrated by strong Democratic opposition to the president's judicial nominees, the Senate majority leader is reportedly considering changes in the rules to smooth their way. Sen. Frist and Senate Judiciary Chairman Hatch, not to mention Bush himself, are so infuriated by the Democrats' persistent filibustering that there is loose talk on Capitol Hill of "going nuclear."

Glancing over the record of Carolyn Kuhl, the California appellate court nominee who slipped past the Judiciary Committee on a party-line vote yesterday, I'm wondering when the public will become angry about the quality of Bush's nominees.

Kuhl is a standard-issue Federalist Society wing-nut, with predictably reactionary views about Roe vs. Wade, corporate ruin of the environment and so on. Her commitment to racial equality is questionable, too. During a sojourn in the Reagan Justice Department, she supported tax-exempt status for Bob Jones University. Kuhl now describes that position as a mistake –- which makes me wonder why we need a judge on the federal bench who would perpetrate such a grave error.

Red-blooded, red-state Americans who believe the Bush administration is defending "family values" should know about an amazing decision Kuhl made while sitting as a judge in Los Angeles Superior Court. In a ruling overturned on appeal, she dismissed a lawsuit brought by a woman whose breast examination was observed –- without the patient's informed consent -– by a drug company salesman. The humiliatied patient sued both the doctor and the salesman's company, Alza Pharmaceuticals, for invading her privacy. To understand why the White House likes Kuhl so much, it helps to know that the lawyers representing Alza came from the huge GOP law firm of Arter & Hadden. (Among the firm's best-known partners is former Texas Rep. Tom Loeffler, who raised more than $250,000 for Bush-Cheney 2000.) …

What amazes me is that so many such men don't realize the GOP hierarchy is emphatically not on the side of their families and won't defend their rights. No doubt Bill Frist would say that Kuhl exemplifies mainstream conservatism, and he's right. He and his Senate conservatives are strictly on the side of corporate interests and business lobbyists. That's why they want to pack the courts with hacks like Carolyn Kuhl.

The Democrats can commence their filibuster with readings from the original complaint and the above decision. And the first readers might just as well be the two senators from Kuhl's home state who oppose her nomination, Barbara Boxer and Dianne Feinstein. Full text

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Washington Post (May 9, 2003)

Order and the Courts

By E.J. Dionne Jr.

Today is the second anniversary of President Bush's nomination of Miguel Estrada to the U.S. Court of Appeals.

Republicans claim it's outrageous that Senate Democrats are filibustering Estrada's nomination and won't just fall in line behind all of President Bush's judicial nominees. But if the Democrats simply let everyone through, they would have no claim to being a legitimate opposition.

Here are some facts on judicial nominations. The number of Bush circuit court nominees the Senate has confirmed: 22. The number of Bush nominees confirmed to the district courts: 101. The number of Bush judicial nominees currently being filibustered: 2. The claim that Democrats are being obstructionist: priceless. And laughable.

The Republican assault on Senate Democrats for using filibusters to block those two circuit court nominees -- Estrada and Texas State Supreme Court Judge Priscilla Owen -- is inconsistent with the GOP's own past behavior on presidential nominations.

Under Senate rules, it takes 60 votes in the 100-member body to shut down a filibuster. That means that those who engage in the practice are insisting that an issue is so important it should take a supermajority to reach a result.

Republicans have been happy to make this claim on nominations when Democrats were in the White House. They famously used a filibuster to kill Lyndon Johnson's nomination of Abe Fortas as chief justice in 1968. They had no qualms about using the filibuster to kill President Clinton's nomination of Henry Foster as surgeon general in 1995. Sam Brown, a leader of the movement against the Vietnam War, saw his ambassador-level nomination to head the American delegation to the Conference on Security and Cooperation in Europe blocked by a filibuster in 1994.

And filibusters aside, Republicans certainly didn't defer to all of Clinton's judicial nominations. Fifty-five Clinton judicial nominees never got a hearing and 10 more never got a vote in the Judiciary Committee.

So Republicans, including many now still serving in the Senate, once thought it perfectly appropriate to filibuster nominations by Democratic presidents. Now they are declaring their earlier view inoperative where Bush's judges are concerned.

Maybe that's why Republicans left it to two freshmen, Sens. Lindsey Graham of South Carolina and Saxby Chambliss of Georgia, to put out word that they were considering filing a preposterous lawsuit to block filibusters of Bush's judicial nominees.

Republicans claim to be strict constructionists who oppose reading into the Constitution words that aren't there. That has not stopped Chambliss from arguing that because the Constitution requires a two-thirds majority to approve treaties but does not mention this for judicial nominees, the "implication" is that only a simple majority should be required for judges. "Where it is silent means it only requires a majority vote," Chambliss told the newspaper Roll Call.

So much for strict construction. Chambliss's view of the Constitution is about as accurate as the content of the wretched advertisements he ran against former senator Max Cleland, the disabled Vietnam hero he defeated last year.

This sudden Republican respect for simple majorities is remarkable in other respects. "If majority rule were the golden rule," says Sen. Charles E. Schumer, a New York Democrat, referring to Republicans, "then they'd be supporting Al Gore for president and be for abolishing the electoral college."

Schumer has suggested a way to end gridlock and partisanship over judicial nominations. He notes that Article II, Section 2 of the Constitution says that appointments should be made "with the advice and consent of the Senate." Today's problems are rooted partly in the fact that there is no formal mechanism through which a president can hear the Senate's advice.

Schumer proposes the creation of bipartisan nominating commissions, similar to those used for judgeships in many states, to put forward nominees for district and circuit courts. Such nominees, he says, would be easily confirmed, and would likely be less ideological than either liberals or conservatives might prefer.

"I believe that judges should be moderate," Schumer says. "I remember when I was young arguing that judges shouldn't make law -- even in the days when they were making law I liked."

Whether Schumer's idea could work in practice, he's identified the problem correctly. There is a desperate need now for moderate judges and for less partisanship in the nominating process. If Bush were willing to reach out and consult with his opponents, the judicial wars would end. Until that happens, the filibuster is the only way to prevent the president from creating a federal judiciary dominated by ideologues of his own persuasion, appointed to satisfy his political base.

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Newsweek (May 9, 2003)

Off Message Again

By Eleanor Clift

Watching on television as two House members debated the merits of President Bush's made-for-TV landing on an aircraft carrier, a Democratic strategist felt physically ill. "I was in a cold sweat," he says. "They must have shown the landing 27 times."

BASHING BUSH FOR playing fighter pilot gives Democrats a momentary sugar high, but it's a downer for the party. "We look petty, and we're way off message," says the strategist. "We should be roasting them on their tax plan. Instead we're talking about how much less it would have cost to fly him in a helicopter."

Bush's Republican defender on TV asserted the cost savings would have been a mere $7. Whether that's true or not, it got said on national television, and a lot of people will take it as gospel.

In the Senate, the Democrats' elder statesmen, 85-year-old Robert Byrd, lambasted Bush for dishonoring the memories of the more than 100 servicemen and women who died in Iraq by turning the military into props for his reelection campaign. Byrd isn't doing his party any favors by speaking his mind, even though many, if not most, Democrats share his revulsion at Bush's behavior. One joke making the rounds is that the Republicans are going to make a movie about Bush's war record. It's called "Thirty Seconds Over Austin," a play on the 1944 movie starring Spencer Tracy, "Thirty Seconds Over Tokyo."

Any embarrassment Bush might suffer over his spotty military record in real life (between May 1972 and October 1974 he was absent from duty with the Air National Guard) would be deeply satisfying to Democrats. But that's not enough. Democrats need to stand for something that matters to voters and then fight "until the last dog dies," as Bill Clinton used to say. Such a battle is underway in the Senate as Democrats prepare to wage simultaneous filibusters against three Bush nominees for federal appeals-court openings.

It's up to the Democrats to make the case that this is important. Most people's eyes glaze over when the subject turns to judges. They're not celebrities like Judge Judy, but they serve a lifetime, and they influence every aspect of society from women's rights and the environment to labor law and campaign-finance reform. Beginning with the Reagan presidency in 1980, Republicans have made a concerted effort to populate the courts with judges sympathetic to a conservative agenda. Reagan-Bush-Bush appointees dominate eight of the country's 13 circuit courts; three have a Democratic majority, and two are equally divided between the parties.

Bush's appointees are openly ideological, and many have deep roots in the Republican Party. Several have run for office as Republicans. Many are members of the Federalist Society, an avowedly conservative group. One was a state director of the Rutherford Institute, which represented Paula Jones in her sexual-harassment suit against Clinton. A recent Senate hearing on the nomination of James Leon Holmes of Arkansas is illustrative. As Democrat Charles Schumer read aloud from articles written by Holmes and his wife for religious magazines, the Republicans on the Judiciary Committee--all white men with gray hair, an aide notes--sat silently with their eyes cast downward. "It's almost as though they were ashamed," says the aide. The source of their dismay was a 1997 article for Arkansas Catholic magazine in which Holmes advanced the position that "the wife is to subordinate herself to her husband," and "the woman is to place herself under the authority of the man." It's not the kind of rhetoric that appeals to soccer moms.

In another article, Holmes dismissed concerns that a constitutional ban on abortion would make it hard for rape victims to get the procedure. "Concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami," Holmes asserted. According to the American Journal of Obstetrics and Gynecology, each year more than 30,000 women in American become pregnant because of rape or incest. Miami experiences snow about once every hundred years. Holmes has since retracted his statement, explaining that he read it somewhere and assumed it was true.

It's been two years since Bush first named Miguel Estrada as a candidate for the D.C. District Court. A Honduran-born Harvard grad, Estrada has a first-rate mind and a stellar resume. But Democrats are blocking his appointment because he refuses to make his views known on controversial social issues, and the suspicion is that he's a hard-right ideologue. Democrats are also mounting filibusters against two other Bush appointees, Texas judge Priscilla Owen and California judge Carolyn Kuhl.

Owen's opposition to reproductive rights and her rigid interpretation of the Texas parental-notification law form the basis for the Democrats' dissent. Opposition to Kuhl centers on her role as a young lawyer in Reagan's Justice Department wanting to push the Supreme Court to overturn Roe v. Wade, and more recently, her position in a case having to do with the privacy of a breast-cancer patient in the presence of a drug-company salesman. Kuhl ruled that no right to privacy existed since the patient, who was embarrassed and confused, didn't ask questions and object when her doctor brought in the salesman and examined her in his presence. These nominees are "ideologically insane almost" says a Democratic aide.

Democrats are almost as angry at their leaders for not standing up to Bush as they are at Bush for his exploitation of the war, and his manipulation of the domestic agenda. Democrats can't stop Bush's tax cuts; they don't have the votes. But they can slow his takeover of the courts.

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Republicans are critical of Democrats' use of the filibuster to prevent Bush judicial appointments. Apparently, they have short memories.

By Hank Kalet , Managing Editor, South Brunswick Post [NJ], May 9, 2003

 

Republicans are in a bit of a snit these days over Senate Democrats' unwillingness to release two Bush judgeships to the full Senate for a vote.

 

The Republicans are claiming the Democrats are violating the Constitution by using Senate filibuster rules to keep the nominations from getting to the full floor, where they are likely to be approved by a straight party-line vote.

 

While it is an interesting argument, it is one steeped in hypocrisy. As E.J. Dionne Jr. explains in his column in The Washington Post, the GOP's "assault on Senate Democrats for using filibusters to block those two circuit court nominees — Estrada and Texas State Supreme Court Judge Priscilla Owen — is inconsistent with the GOP's own past behavior on presidential nominations."

 

So there it is again, hypocrisy in action, brought to you by your friendly, national Republican Party.



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Federal Courts Misused To Establish Extreme Agenda

Tom Teepen, Cox News Service, in The Spokesman-Review (Spokane), May 5, 2003

 

Senate Democrats have thrown a filibuster roadblock up against still another of George Bush's appellate court nominees, sabotaging the president's customary privilege and constitutional right to appoint federal judges.

 

Good for the Democrats.

 

It would be one thing if Bush were putting forward more or less garden variety conservative candidates. Indeed, it IS another thing when he does that. Nominees who fall in the broad judicial mainstream are being routinely approved.

 

But it is now clear from his nominees, especially for the appellate courts where most litigation stops, that the president has two goals for his court-packing agenda. One is to fit the federal bench with jurists willing, and usually eager, to reverse the Roe v. Wade decision that made abortion a lawful personal option.

 

Bush's other goal is to install advocates for the so-called ‘‘new federalism,” a highly organized movement that means to enhance state authority at the cost of federal authority, essentially nullifying the federal judiciary as a last-resort protector of civil liberties and civil rights, and to exalt property rights over such public interests as environmental protection.

 

This high-stakes political game has been going on for years. Republicans routinely blocked moderates nominated by President Bill Clinton, claiming they were liberal extremists when their records plainly showed they were not. The idea was to keep as many federal benches vacant as possible for an eventual GOP opportunity, and never mind that even Chief Justice William Rehnquist -- conservative Reagan appointee -- complained that the federal courts were bogging down as a result.

 

For their part, Democrats have reserved their serious opposition for nominees who either are unresponsive to legitimate inquiry or who fall well outside the legal understandings shared by most Americans. Or both.

 

Democrats first sent Miguel Estrada, another new federalism attorney, into filibuster limbo; he was vague and unresponsive in his Judiciary Committee hearing and has refused to release legal position papers he authored in the Justice Department. Democrats are sensibly declining to buy a pig in a poke.

 

Now a filibuster has been raised against Texas Supreme Court Justice Priscilla Owen, whose often eccentric rulings have been so extreme that they have incited objections even from some conservative observers, particularly stretching points to find ways to undermine lawful abortion.

 

The message for the president is clear and apt: the federal courts should not be misused to establish an extreme agenda. Unfortunately, the president is continuing to do just that. He has recently nominated William Pryor, the Alabama attorney general who has repeatedly bulldozed church-state separation and who speaks more in the intemperate language of talk radio than in the measured tones of careful jurisprudence.

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Insight Magazine (April 15, 2003)

Symposium - 2 lawyers answer reader's question, pro and con

By Herman Schwartz

NO: Senate Democrats simply are exercising their constitutional responsibility to advise and consent.

…Although infrequent, filibusters are not illegitimate. As President George H.W. Bush's White House counsel Boyden Grey told John McLaughlin, "If [Democrats] want to filibuster ... an appellate judge, I think that's appropriate." And when former senator Bob Smith (R-N.H.) threatened to filibuster the Paez nomination, citing numerous past instances of judicial filibusters, current Senate Majority Leader Bill Frist (R-Tenn.) voted to support Smith.

President Bush has every right to propose whomever he wishes. But he can only propose. The Senate disposes. It is especially important that the system the Framers so painstakingly designed function properly with respect to lifetime appointments to the third independent branch of government. The Democrats are not only acting fairly, they are acting in the way they must if they are to fulfill their constitutional duty. Full text

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The New Republic (April 2, 2003)

Private Opinion

By Michael Crowley

…So Republicans appear stuck with a bitter stalemate and "nuclear" options that could blanket them and their nominee in radioactive fallout…

 

Michael Crowley is an associate editor at TNR. Full text

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The American Prospect, COLUMN (March 17, 2003)

Rule Breaker

When it comes to Helen Thomas, Miguel Estrada and acts of war, George W. Bush isn't big on convention.

By Mary Lynn F. Jones

“When most people don't like the rules of a particular game, they either complain that the rules are unfair or they quit the game altogether. Not President Bush. He just changes the rules. . . .

Bush doesn't like the fact that Democratic senators are filibustering Estrada's nomination. So he suggested changing the rules to "ensure timely up-or-down votes on judicial nominations both now and in the future, no matter who is the president or what party controls the Senate." According to the Senate's Web site, filibusters have been around since the early days of Congress and have been popular since the 1850s. It's hard to remember the last time a president suggested that the Senate change one of its oldest traditions. There have been plenty of presidents who haven't liked congressional rules, but that doesn't mean they've suggested changing them just to accomplish one goal. . . .

Bush has little respect for either the press or for Congress. He sees both as obstacles that can get in the way of his agenda, and he doesn't like the checks-and-balances role that each plays (in terms of popular opinion or government). Fortunately . . .it's not as if the Senate is likely to change its procedures anytime soon, no matter how much Bush doesn't like them. Congress is too proud an institution to cave so quickly to a president, even when he's of the same party as the majority of its members. . ..”

Mary Lynn F. Jones is a Prospect senior editor.

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Herald-Tribune [FL] (March 16, 2003)

MIGUEL ESTRADA DEBATE

Power, not ethnicity, at issue

By Waldo Proffitt

I was disappointed when Florida's Bill Nelson voted to shut down debate in the Senate on the appointment of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia.

Fortunately, Nelson was one of only four Democrats who joined with all 51 Republicans to vote to end the filibuster on the Estrada nomination and allow it to go to the floor, where it would be approved, probably by a one-vote margin. But, under Senate rules it takes 60 votes to break a filibuster and the attempt fell short.

I realize Nelson was and is under a lot of pressure from President Bush and the Republican propaganda apparatus, which is pushing hard for Estrada and painting opponents as being biased against Hispanics. Estrada was born in Honduras. The Republican strategy is to win his approval by charging that opponents are motivated by prejudice. This is a powerful weapon in states with heavy Mexican or Cuban populations.

It is also a totally despicable tactic, designed to avoid discussion of the reason most Democrats oppose Estrada. This reason has nothing to do with Estrada's ethnicity or legal ability, but rather the drive by Bush and like-minded Republicans to pack the federal courts from top to bottom with radical rightists. Not, mind you, conservatives interested in preserving our institutions and values but radical activists who want to uproot many of the laws and court decisions of the last 50 years.

Estrada would be such a judge. At least that is a fair assumption based on the record of the Senate committee hearing on his confirmation. He wasn't willing to offer his views on many of the most pertinent and controversial constitutional questions of concern to courts, Congress and the public.

He declined to make available memoranda he wrote for the office of solicitor general when he worked there. The solicitor general has provided such documents in other confirmation hearings, including those of Rehnquist, Bork and Esterbrook.

Estrada is a Phi Beta Kappa graduate of Columbia, graduated magna cum laude from Harvard Law School and is a partner in a Washington law firm, where he specializes in constitutional law. There is no question about his ability as a lawyer. All the unanswered questions have to do with his views on the Constitution and how it applies to issues on governance in the 21st century. This is no coincidence. He is a stealth candidate of the radical right, one of several advanced by the Bush administration.

It is by no means clear that a majority of Hispanics support Estrada. Many Hispanic organizations are against him, including the Congressional Hispanic Caucus, Mexican American Legal Defense and Education Fund and Puerto Rican Legal Defense and Education Fund.

It is difficult to make an anti-Hispanic label stick on these groups. And Senate Democrats should make it equally difficult to paste it on them. They should not let the Bush administration push them around as if they were members of the United Nations.

Republicans have already succeeded far beyond what is healthy for the republic in packing the federal bench. Not only do they control a Supreme Court which found that the Constitution allows them to pick a president, but Republican appointees are a majority on seven of the 13 circuit courts of appeal, and with Bush's announced appointees would control 10, and maybe all 13.

Most of us pay all too little attention to federal courts below the Supreme Court, but men and women who crave power don't make that mistake.

The Supreme Court accepts and decides about 100 cases a year, but the 13 federal courts of appeal in 2001 received 57,000 appeals and at the end of the year had a backlog of 40,000 cases. Federal appeals courts are the most influential element of our judicial system.

Bush's favorite Supreme Court justices are Antonin Scalia and Clarence Thomas, and he would like to pack the courts with clones who would restrict civil rights, overturn Roe v. Wade, thwart congressional efforts to limit the role of money in election campaigns, enhance "states' rights," expand presidential power at the expense of Congress, breach the church-state barrier, and undermine Social Security and federal health care programs.

Senators who try to keep that from happening deserve the thanks of the American people, not the calumny heaped on them by a president who last week showed his lack of understanding of the roles of the separate branches of government by pressuring the Senate to change its rules for debate and allow a one-vote majority to ramrod presidential appointments through the Senate.

It is hypocrisy of the highest order for the president and Republican senators to castigate Democrats for delaying judicial appointments. I don't know which party invented the techniques used to fight the Estrada appointment, but Republicans perfected the strategy during the Clinton years. They blocked appointments in wholesale numbers and let judicial vacancies pile up to the point where the courts were dangerously understaffed.

And, Clinton was appointing mostly middle-of-the-roaders.

Democrats instead of caving, should take the offensive and show the Bush power play for what it is -- an effort to set the tone of the federal judiciary for the next half-century.

And, I hope Nelson can be persuaded to become part of that effort. In this time of national crisis, some senators may feel we should let politics stop at the water's edge. But, friends, on this issue we are not anywhere near the water.

Waldo Proffitt is the former editor of the Herald-Tribune. Full text

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Houston Chronicle (March 7, 2003)

Yakety, Yak -- Keep Talking, Senators

By CRAGG HINES

…The supermajority required by Senate rules to end debate and move to a vote is admittedly an anachronism. But no more so than the Senate itself, where the single vote of Michael Enzi of Wyoming, who represents only 494,432 people (2001 U.S. Census Bureau estimate) counts the same as that of Californian Dianne Feinstein, who represents some 34.5 million people.

 

…[I]t's no more anachronistic than the constitutionally mandated Electoral College system by which the nation now four times in its history has chosen a president who did not receive the most popular votes, including the incumbent who is so outraged by the Senate's refusal to rubber stamp his enigmatic nominee…

 

Until 1917, there was no way to cut off debate in the Senate… In 1949 an amendment to the rules extended the prospect of cloture to nominations…

In the wake of cloture failing, Bush called the vote "a disgrace." No, it's the Senate working with the rules as they exist. If the Senate doesn't like its virtually unlimited debate it can change the rule -- if it can get 60 votes.

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The Atlanta Journal-Constitution (March 6, 2003)

Don't Let Mum Be The Word For Estrada

By Tisha R. Tallman & Charles T. Lester Jr.

 

…Under the Constitution, the Senate has a very important role in confirming a president's nominees for lifetime jobs as federal judges. It is an essential part of our constitutional system of checks and balances. When you have a White House that refuses to cooperate with senators of both parties and resists any effort to reach agreement on a compromise plan for appointing more mainstream moderate judicial nominees, senators must take a stand.

 

Critics are complaining about senators' use of the filibuster. But their only other option would be to reward the stonewalling by Estrada and the Bush administration. That is what is at stake. And that's why we support senators who use every legitimate means to oppose this nominee.

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FINDLAW, COLUMN (Mar. 6, 2003)

George Will, Miguel Estrada, and the Cloture Vote:

How Will's Flip-Flop of Positions Illustrates the Increasing Collapse of the Politics/Law Distinction

By EDWARD LAZARUS

“The flurry over Miguel Estrada's controversial nomination to the U.S. Court of Appeals for the District of Columbia continues on. So does the Senate Democrats' filibuster to stop Estrada from being confirmed.

Meanwhile, a rarely-invoked Senate Rule on the cloture vote has once again become a hot political football. Senate Rule XXII requires 60 votes of the Senate's 100 to stop debate, and break a filibuster.

Rule XXII's constitutionality is debated. Some believe that votes must be by a simple majority of 51, not a supermajority of 60, except in the limited cases in which the Constitution imposes a different rule. . . .

It's an interesting argument. Even more interesting is that the high priest of conservative columnists, George F. Will, has, over time, taken both sides of it - first attacking it, and now recently embracing it.

What spurred Will's change of mind? Sadly, it seems to be purely politics. That would be fine if it were an issue of policy, and politics. But it's not: It's an issue of constitutional law, which is supposed to have an answer deriving from history and precedent - an answer that transcends politics.

George Will's Flip-Flop on the Cloture Vote

Will, a historian of sorts, frequently opines on legal and constitutional issues. He generally holds himself out, as most commentators do, as an honest broker of ideas, albeit a broker with a distinct perspective. In that role, Will has twice addressed the issue of Rule XXII.

The first time was in 1993. At the time, Democratic stalwarts, such as Cutler, were challenging Rule XXII. They feared that, despite Democratic majorities in both the House and Senate, Republicans would use the filibuster to frustrate the agenda of the new Democratic president, Bill Clinton.

At the time, Will took Cutler to task for his doubts about the constitutionality of Rule XXII. He complained that taking issue with the Rule was "institutional tinkering" that "would facilitate the essence of the liberal agenda - more uninhibited government." And he took direct aim at Cutler's argument about the Rule.

Specifically, Will argued that the five instances of supermajority votes listed in the Constitution were the only time supermajority votes could be used for externally-oriented legislation - "the disposition by each house of business that has consequences beyond each house, such as passing legislation or confirming executive or judicial nominees." However, "procedural rules internal to each house," according to Will, "are another matter." And in that sphere, a supermajority cloture vote was fine.

Indeed, Will pointed out, history supports this view: "[T]he generation that wrote and ratified the Constitution - the generation whose actions are considered particularly illuminating concerning the meaning and spirit of the Constitution - set the Senate's permissive tradition regarding extended debate. There was something very like a filibuster in the First Congress."

Fair enough. Until one reads the column Will published last week in The Washington Post regarding the Estrada nomination. Here's what Will has to say now (with emphases added):

The president, preoccupied with regime change elsewhere, will occupy a substantially diminished presidency unless he defeats the current attempt to alter the constitutional regime here. If at least 41 Senate Democrats succeed in blocking a vote on the confirmation of Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit, the Constitution effectively will be amended.

If Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's full text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a 60-vote supermajority for confirmations. By thus nullifying the president's power to shape the judiciary, the Democratic Party will wield a presidential power without having won a presidential election.

Wait a second. So Will now agrees with Cutler? And not only that, he reads both the Constitution's full text and "two centuries of practice" relating to filibusters entirely differently than he once did? What's prompted his change of mind? And doesn't he owe Cutler an apology? . . .

[T]his kind of change of mind - without explanation or apology - is quite troubling.

Also troubling is the fact that Will's close analysis of the Constitution and the First Congress's proceedings, so important to him in 1993, is entirely missing here. And his venom - once directed at Cutler - now draws on Cutler (without attribution) instead. Only one conclusion seems possible: This is an exquisitely brazen example of intellectual flip-floppery that has nothing to do with law or the Constitution, or American history, and everything to do with conservative politics.

What the Flip-Flop Means For Will, And For All of Us

The flip-flop is an embarrassment to Will and his reputation. Sadly, it may also be more than that as well. I fear that Will's adventure in hypocrisy is emblematic of what may well be the worst truth in American political discourse: nothing is shameful anymore. And no sense of integrity - an integrity that transcends politics - remains. . . .

Courts wield great power to shape the social order and control the destiny of individuals. Their integrity rests ultimately on the belief that their decisions are not merely just that - exercises of power - but are, in addition, principled attempts to discern the proper meaning of the law. And the idea that there is a "proper meaning" in the first place, in turn presumes a universe that recognizes a genuine ability to choose better arguments over weaker ones, regardless of what one thinks of the results the arguments lead us to. . . .”

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FINDLAW, COLUMN (Feb. 27, 2003)

Defense of the Estrada Filibuster:

A Judicial Nominee That the Senate Cannot Judge

By KEVIN R. JOHNSON

“The Senate has a duty and obligation to collect the necessary information to determine whether a nominee should be confirmed. Estrada, and the Executive Branch, have made sure they can't collect it.

In the face of this stonewalling, a filibuster is entirely appropriate. Indeed, it's fitting. Using a procedural tool against a nominee who thwarts minimal confirmation procedures, is only right. If Estrada wants the Democrats to stop talking, he should offer to start. As a nominee, that's what's required of him.”

Kevin R. Johnson is Associate Dean for Academic Affairs and Professor of Law and Chicana/o Studies at the University of California.

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Los Angeles Times, OP-ED (Feb. 27, 2003)

Judicial Extremism: a German Antidote

By Bruce Ackerman, Sterling Professor of Law and Political Science,

Yale Law School

“More modern constitutions have invented better ways to handle the problem of judicial appointments.

After World War II, the Germans embraced the American example and created their Constitutional Court to exercise judicial review. In contrast to our practice, however, their laws require a two-thirds majority in the Legislature for appointments to this highest court. This means that the minority party can veto extremists, pushing nominations into the center.

The mere existence of the supermajority rule serves as an effective deterrent. Fire-breathers don't get on the nominating short list because they will never make it through the supermajority obstacle course. . . .

These . . . rules have helped preserve the legitimacy of the German judiciary. Like the U.S. Supreme Court, it has handed down many important and controversial decisions. Nevertheless, the leading parties haven't politicized the process of appointment. They are confident that the court will remain anchored in the center of the evolving constitutional consensus. It simply doesn't make sense for politicians to slip highly partisan nominees onto the court in an effort to jolt the law into radically new directions.

Unilateralism is something new in U.S. foreign policy, but it is par for the course in American constitutional law. For the first 150 years of our history, the Supreme Court was almost unique in exercising judicial review -- the power to strike down legislation in the name of the higher law, the Constitution. . . .

However, since World War II, many nations have followed the American example of judicial review, and half a century of comparative experience should begin to serve as a precious resource for our constitutional self-understanding.

As everybody recognizes, the founding fathers did not anticipate the powers of the modern Supreme Court. . . . It is a fair question whether the framers would have left appointments to the simple majority of the Senate if they had glimpsed the future influence of the Supreme Court.

In any event, we stand on the shoulders of giants and see some problems more clearly. I do not believe that the court will survive as a legitimate part of our system unless we can somehow break our escalating cycle of partisan manipulation.

Frankly, there is little hope of enacting a constitutional amendment that changes the formal rules for judicial selection to match the successes of the German model. Yet there are other ways of adapting our system to avoid our ongoing political clashes.

The Senate filibuster, for instance, could become a regular part of the process. Filibusters require 60 votes to terminate and, like the German insistence on a two-thirds majority, would serve as a check on extremism in high court appointments.

Presidents also should stop nominating young people to the Supreme Court in the hope of projecting their passing political power 40 years into the future. Nominees should be rejected unless they are 60 or so.

This framework permits a more nuanced approach to the Estrada nomination. Estrada is 42, with sufficient credentials to warrant confirmation to the court of appeals. But the Democrats should make it clear that they will filibuster any nominee to the U.S. Supreme Court of similar youth and inexperience. They should insist on justices with the maturity and record of moderation needed to keep the court within the mainstream of American constitutional values.”

Bruce Ackerman, professor of law and political science at Yale, is author of the multivolume We the People (Harvard University Press, 1991, 1998).

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Dolores C. Huerta: Estrada Would Destroy Hard-Fought Victories

Oregonian Opinion (February 24, 2003)

By Dolores Huerta

As a co-founder of the United Farm Workers with Cesar Chavez, I know what progress looks like. Injustice and the fight against it take many forms-from boycotts and marches to contract negotiations and legislation. Over the years, we had to fight against brutal opponents, but the courts were often there to back us up. Where we moved forward, America's courts helped to establish important legal protections for all farm workers, all women, all Americans. Now, though, a dangerous shift in the courts could destroy the worker's rights, women's rights, and civil rights that our collective actions secured.

It is especially bitter for me that one of the most visible agents of the strategy to erase our legal victories is being called a great role model for Latinos. It is true that for Latinos to realize America's promise of equality and justice for all, we need to be represented in every sector of business and every branch of government. But it is also true that judges who would wipe out our hard-fought legal victories -- no matter where they were born or what color their skin -- are not role models for our children. And they are not the kind of judges we want on the federal courts.

Miguel Estrada is a successful lawyer, and he has powerful friends who are trying to get him a lifetime job as a federal judge. Many of them talk about him being a future Supreme Court justice. Shouldn't we be proud of him?

I for one am not too proud of a man who is unconcerned about the discrimination that many Latinos live with every day. I am not especially proud of a man whose political friends -- the ones fighting hardest to put him on the court -- are also fighting to abolish affirmative action and to make it harder if not impossible for federal courts to protect the rights and safety of workers and women and anyone with little power and only the hope of the courts to protect their legal rights.

Just as we resist the injustice of racial profiling and the assumption that we are lesser individuals because of where we were born or the color of our skin, so too must we resist the urge to endorse a man on the basis of his ethnic background. Members of the Congressional Hispanic Caucus met with Miguel Estrada and came away convinced that he would harm our community as a federal judge. The Mexican American Legal Defense and Educational Fund and the Puerto Rican Defense and Education Fund reviewed his record and came to the same conclusion.

Are these groups fighting Miguel Estrada because they are somehow anti-Hispanic? Are they saying that only people with certain political views are "true" Latinos? Of course not. They are saying that as a judge this man would do damage to the rights we have fought so hard to obtain, and that we cannot ignore that fact just because he is Latino. I think Cesar Chavez would be turning over in his grave if he knew that a candidate like this would be celebrated for supposedly representing the Hispanic community. He would also be dismayed that any civil rights organization would stay silent or back such a candidate.

To my friends who think this is all about politicians fighting among themselves, I ask you to think what would have happened over the last 40 years if the federal courts were fighting against workers' rights and women's rights and civil rights. And then think about how quickly that could become the world we are living in.

As MALDEF wrote in a detailed analysis, Estraderm's record suggests that "he would not recognize the due process rights of Latinos," that he "would not fairly review Latino allegations of racial profiling by law enforcement," that he "would most likely always find that government affirmative action programs fail to meet" legal standards, and that he "could very well compromise the rights of Latino voters under the Voting Rights Act."

Miguel Estrada is only one of the people nominated by President Bush who could destroy much of what we have built if they become judges. The far right is fighting for them just as it is fighting for Estrada. We must fight back against Estrada and against all of them. If the only way to stop this is a filibuster in the Senate, I say, Que viva la filibuster!

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Atlanta Journal-Constitution (Feb. 24, 2003)

Estrada Fight's True Victor? Democracy

By Jay Bookman, Deputy Editor

…What's going on in Washington is a wonderful thing, absolutely necessary and absolutely healthy. We are seeing the U.S. Constitution at work, producing a struggle between two branches of government -- Congress and the president -- that in the end should have a moderating influence on the third major branch…

 

If we are to remain what Marshall called a nation of laws, not of men, we need moderate, judicious, politically balanced minds to handle the task of applying the Constitution. The good news is, the Constitution provides just the mechanism needed to produce such judges, if only we are willing to use it. It gives the president the power to nominate, and as a check on that power it gives the Senate the power to confirm.

 

If the executive branch subjects potential nominees to ideological tests -- and nobody honestly disputes that it does -- then the Senate can and indeed must consider ideology in deciding whether to confirm that person.

 

…Senate Democrats fear that Estrada may be more conservative than either Clarence Thomas or Antonin Scalia, two Supreme Court judges already at the fringe of mainstream judicial thought in this country. If that is true, those senators have the right -- indeed the obligation -- to continue to block his nomination.

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They Started It

E. J. Dionne Jr.

Washington Post

February 21, 2003

 

So why are Senate Democrats filibustering President Bush's nomination of Miguel Estrada to one of the nation's most important courts? Certainly Estrada has lived an admirable life. He came to the United States from Honduras at age 17, graduated from Harvard Law School and clerked for Supreme Court Justice Anthony Kennedy. He was an assistant U.S. attorney, served as an assistant solicitor general under President Clinton and went on to a distinguished law firm.

 

To say the guy is no slouch is an understatement. But the fight over Estrada's nomination to the U.S. Court of Appeals for the District of Columbia Circuit is not simply about him. It is about a concerted effort to pack our courts with representatives of a single point of view. If Democrats just rolled over on Bush's judicial nominations, they would be guilty of oppositional malpractice.

 

To understand this battle, you could go back to Richard Nixon's campaign against liberal judges. But let's just look at what happened to Bill Clinton's effort to get two highly qualified nominees onto the D.C. Circuit.

 

Elena Kagan, who served in the Clinton White House, graduated at the top of her class at Estrada's law school and now teaches there, saw her nomination languish in the Republican Senate for 18 months. Allen Snyder clerked for that well-known left-winger, U.S. Chief Justice William Rehnquist, and was also at the top at Harvard Law School. His nomination languished for 15 months.

If Republicans believe in voting for quality -- their argument for Estrada -- why didn't they confirm Kagan and Snyder? The answer is obvious: We have before us, sadly, a fierce political struggle for control of the courts.

 

It's not good enough to say that the way out of this politicized process is for Democrats to ignore the past and cave in to the Republicans. To do that would be to reward a determined conservative effort to control the courts for a generation. Stage One involved obstructing Clinton's nominees. Stage Two involves using any means necessary -- including outrageous charges of ethnic bias -- to ram conservative choices through.

 

The stakes go beyond any single nominee. Do we want courts entirely dominated by one side, or do we want a fair and balanced judiciary? Consider these statistics, gathered by the Democratic staff of the Senate Judiciary Committee. There are 13 circuits: 11 regional plus the D.C. Circuit and the federal court that handles specialized cases. If all of Clinton's nominees had been approved, the circuits would have been evenly balanced in partisan terms by the time he left office. Six would have had majorities appointed by Democratic presidents, six by Republicans, and one would have been evenly split.

 

But if Bush succeeds in filling every open seat, some of them vacant because Clinton nominees were blocked, 11 of the 13 circuits will have Republican-appointed majorities. In eight of the 13, Republican nominees would have majorities of 2 to 1 or more. Is that a formula for careful, balanced decision-making?

 

To push attention away from this fundamental question, Republicans who say they don't want a politicized nominating process -- and who regularly accuse Democrats of "playing the race card" -- are doing all they can to turn the Estrada fight into an ethnic imbroglio. "If we deny Mr. Estrada the position on the D.C. Circuit, it would be to shut the door on the American dream of Hispanic Americans everywhere," Sen. Chuck Grassley (R-Iowa) said in January. Last year, Republican Sen. Trent Lott of Mississippi said of the Democrats: "They don't want Miguel Estrada because he's Hispanic."

 

Never mind that eight of the 10 Hispanic appellate judges were appointed by Clinton. And never mind that Republicans had no problem blocking such Hispanic Clinton nominees as Enrique Moreno, Jorge Rangel and Christine Arguello. But the Democrats will not win this argument if they just focus their opposition on individual nominees. The point of filibusters should be to seek a solution involving consultation across party lines. The goal would be moderate judges that both sides could agree on or, failing that, balanced slates of judges who could guard the country against a judiciary utterly dominated by one party.

 

Orrin Hatch, the Republican chairman of the Senate Judiciary Committee, is frustrated by what the Democrats are doing. "The system's going to be irreparably damaged if we allow this to go on," he said recently. A fair point, except that the system was damaged long ago, and the solution isn't to ram through Republican nominees. It's to seek compromise, balance and moderation. Then someone like Miguel Estrada might get though without any fighting at all.



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Capital Times (February 10, 2003)

Dems Must Stop Judge Picks

By Judy Ettenhofer

It's down and dirty time on Capitol Hill, as President Bush tries to pack the nation's appellate courts with right-wing ideologues, and Democrats, with the backing of numerous activist groups, try to stop him. The minority Democrats in the Senate have but one big weapon - enough votes to mount a filibuster to block a full Senate vote on a judicial nominee. The question is, will they use it?

Currently caught in the firefight is lawyer Miguel Estrada, nominee for the U.S. Court of Appeals for the District of Columbia Circuit. This is the second time Bush has put forward his name; no Senate vote was taken in the last term.

It's unclear what qualifications Estrada has to sit on what many call the nation's second most important court because of its jurisdiction over federal regulatory matters. He's never been a judge, so there are no case histories to study. He refused to answer senators' questions about his views on hot-button legal issues like abortion, labor rights, gay rights and environmental issues…

Parliamentary strategies such as the filibuster and cloture votes may be frequently considered in the Senate in the coming weeks as Democrats and Republicans parry over dozens more Bush judicial nominees. Already, the GOP has used a tactic of scheduling multiple hearings on nominees at the same time, thereby ensuring the Democrats can't closely question each candidate.

Despite all the public wrangling, Democrats have voted down only two of the candidates Bush sent to the Senate in the last two years, while confirming 100 new judges. That's why Wisconsin's senators, who both sit on the Senate Judiciary Committee, should join their colleagues in standing their ground against Bush. Sen. Russ Feingold has indicated he would support a filibuster against U.S. District Judge Charles Pickering and Texas Supreme Court Judge Priscilla Owen, the two nominees blocked last year whose names are being resubmitted by Bush. Sen. Herb Kohl has not said whether he supports use of the filibuster although he has voted against some of Bush's nominees in the past.

* This is no time for Democratic senators to wimp out. The future of fair and impartial justice in America is on their shoulders. Full text

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Findlaw, Column (Nov. 25, 2002)

In Defense Of The Filibuster

By JOANNE MARINER

“From now on, with the incoming Republican majority in the Senate, it will take a Democratic filibuster to prevent the confirmation of President Bush's most extreme judicial nominees. But it must be emphasized that in such dire cases, a filibuster--by which a minority of forty-one senators can block an appointment to the bench--is justified, reasonable and necessary.

History of the Filibuster

[T]he filibuster has proved to be a versatile tool, used in a many different circumstances. Most notably, for present purposes, it has been employed by Republicans and Democrats alike in efforts to block the confirmation of judicial and executive branch appointees.

Although no judicial nominee for a lower court appointment has ever been rejected due to a filibuster, the mere threat of filibustering may have moderated the appointments process by encouraging the nomination of less extreme candidates.

At the Supreme Court level, a few prominent filibusters have failed, but one was successful. Abe Fortas, nominated by President Lyndon Johnson to head the Supreme Court, was defeated by a Republican filibuster in 1968 because of his activist stand on civil rights issues. After his supporters failed to win a cloture vote, Fortas's nomination was withdrawn.

The Necessary and Legitimate Filibuster

The use of the filibuster is undemocratic, and unquestionably so, to the extent that democracy is equated with simple majority rule. But if democracy is seen as a more complex process in which minorities, too, deserve a voice--and which even recognizes that public officials who belong to a political minority may nonetheless represent majority views on certain issues--then filibusters may have a legitimate role to play.

Because of its potent nature, the filibuster is a means not simply of counting heads, but of assessing the intensity of views on a given subject. Simply put, the use of the filibuster raises the stakes in a debate, signaling to the public that an issue, or a nominee, is worth getting exercised over. . . .

But an extremist judge, even more so than an extremist attorney general, merits a defensive filibuster. Unlike members of the executive branch, who leave office with the President who nominated them, if not before, members of the federal judiciary are there for life. Indeed, through the jurisprudential doctrine of stare decisis, a judge or justice's repugnant views may far outlast his or her own tenure in the judiciary.

If the ugly legacy of the most objectionable rulings of the 1940s Supreme Court is not enough to remind Democratic Senators of the need to act as a moderating force against far right judicial nominees, they should consider the many fundamental issues with which the courts are currently grappling: racial discrimination, abortion, the line between security and privacy in the fight against terrorism, the death penalty, and environmental regulation, among others.

No More Scalias

The Senate may not be able to block every far right extremist that President Bush tries to appoint to the judiciary. But if another Rehnquist is to join his brethren on the Supreme Court--or another Scalia, or another Thomas--the Senate's moderate members should at least put up a good fight.”

Joanne Mariner is a FindLaw columnist and human rights attorney. Full text

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Los Angeles Times, Op-Ed (Nov. 11, 2002)

No to a Far-Right Court: Use Filibusters

by Erwin Chemerinsky and Catherine Fisk

“With Republicans in control of the Senate, President Bush will try to fill the federal courts with judges from the far right. He has long made it clear that he wants to appoint conservative judges in the mold of Supreme Court Justices Antonin Scalia and Clarence Thomas. . . .

Now that the Republicans have captured the Senate, the Democrats no longer control the committee. They have only one way to check the president's ability to pack the federal courts and they must use it: the filibuster.

There is ample precedent for filibusters of presidential nominations to executive and judicial positions. In fact, Republicans frequently used them during Democratic administrations. . . .

In 1968, South Carolina's Sen. Strom Thurmond filibustered to stop the confirmation of Justice Abe Fortas to replace Chief Justice Earl Warren and Judge Homer Thornberry to succeed Fortas.

Democratic senators must use the filibuster now to block the most conservative of President Bush's judicial nominees for the lower federal courts. Also, it is likely that a justice or two may resign from the Supreme Court during the remainder of the Bush presidency.

Democrats must use the filibuster, and the threat of the filibuster, to ensure that a new justice is not a conservative from the same school as Scalia and Thomas.

An enormous amount is at stake in the judicial confirmation process. . . .

Because the Supreme Court decides only about 75 cases a year, and hears fewer than 2% of the cases in which review is requested, who sits on the federal Court of Appeals is crucial. . . .

Courageous Democrats in the Senate must announce their intent to use the filibuster to prevent a conservative takeover of the federal courts that could last long beyond our lifetimes.”

Erwin Chemerinsky and Catherine Fisk are visiting professors at Duke Law School.

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The Arizona Daily Star (February 27, 2003)

Estrada squabble a healthy one

By Ernesto Portillo Jr.

CORRECTION RAN MARCH 1, 2003 A2

A column Thursday on B1 concerning the nomination of Miguel Estrada incorrectly stated that he is the first Latino nominated to a high-level federal bench. He is the first Latino to be nominated to the Washington, D.C., Circuit Court of Appeals. Other Latinos have been nominated to other federal circuit courts of appeals.

…………………………………………………………………………………………………..

There's a fight in the family.

This family is big and boisterous. So when it squabbles, the disagreements get loud and messy.

The feud is is over the nomination of Miguel Estrada, the first Latino to be nominated to a high-level federal bench.

On one side, the League of United Latin American Citizens, among others, supports the appointment of Honduran-born Estrada to the Washington, D.C., Circuit Court of Appeals, sometimes a steppingstone to the U.S. Supreme Court. LULAC said Estrada is well- qualified and the time is overdue for a Latino jurist at this level.

On the other side, the Mexican-American Legal Defense and Education Fund, and other political players, oppose President Bush's nomination of Estrada. Estrada may be Latino but he would vote to roll back rights of minorities, low-income families and immigrants, contend his critics.

This family fight is good.

It shows maturity and diversity within the country's largest ethnic minority. Latinos possess a wide range of political positions and philosophies.

"The non-Hispanic sees us as monolithic and speaking with one voice. But we're not, and we don't," said Michael J. Duran, executive director of the Pima Community College Foundation Inc.

But this fight does separate Latino groups that are often in agreement on major issues.

Estrada is a good ol' fashioned immigrant success story. His family came to the United States and worked hard, and Estrada graduated from Harvard Law School with honors.

He entered private practice and served as assistant solicitor general in the Justice Department during the Clinton administration.

That's enough for his supporters.

But Estrada's critics argue that he has revealed little about his judicial philosophy and that he lacks experience on the bench.

Senate Democrats are filibustering Estrada's nomination. But some Democrats are moving toward the Republican side to end the filibuster and force a vote.

The Democrats' stalling on Bush's judicial appointments is nothing new. Republicans blocked Clinton nominees to the federal bench, too.

The contest has fallen along typical political lines. Democrats and their allies say Estrada is a right-wing ideologue. And Republicans and friends counter that Estrada's political views are irrelevant.

There's no need to worry.

"I think it's healthy. It's part of the democratic process," said Richard Fimbres, a regional vice president for LULAC.

"We agree to disagree," said Fimbres, director of the state Office of Highway Safety.

The Estrada gap among Latinos reveals a political panorama among Latinos, some as conservative as Rush Limbaugh and some as liberal as Roger Moore.

Frank Alvarez, chief executive officer of Tucson Medical Center, isn't bothered by the Estrada division. It shows that not all Latinos walk in lock step.

The debate is an opportunity for Latinos to consider the merits of both sides, analyze the arguments and arrive at their own conclusions, Alvarez said.

"We're no different from anyone else," he said.

The debate has also caused splinters within groups themselves. The California contingent of LULAC dissented from the national group's position over Estrada.

But when the bickering is over, the majority of the quarreling family members will agree on more critical issues - such as education and civil rights.

Caterwauling is a family thing.

Contact Ernesto Portillo Jr. at 573-4242 or e-mail netopjr@. He appears on "Arizona Illustrated," KUAT-TV Channel 6, at 6:30 p.m. and midnight Fridays.

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The Progressive Commentary (July 11, 2003)

Nuking the Filibuster

Editor Matthew Rothschild comments on the news of the day.

After doing everything in their power to block President Clinton's judicial appointments, Republicans are now screaming bloody murder that Democrats are using filibusters to block some of President Bush's appointments.

So apoplectic are these Republicans that they are proposing to trash the Senate's traditional rules for weighing nominations.

In late June, Senate Republicans in the Rules Committee ushered through a bill that would, after three previous votes, allow a simple majority of 51 Senators to end debate over nominations, instead of the traditional 60 required for cloture.

This bill is unlikely to pass, since it takes 67 votes to change the Senate rules.

But that might not stop the Republicans.

They are considering what they call "the nuclear option"--having Dick Cheney make a ruling from his perch as President of the Senate that filibusters are out of order for judicial nominations. If he made that ruling and 51 Senators approved, then, boom, the Republicans would have changed the whole way the Senate has traditionally operated.

"It is clearly an option," says Senate Majority Leader Bill Frist, who introduced the rule change over cloture. "I would hope that it does not come to that."

This nuclear option clearly would subvert the Senate's own long-established procedure for approving rule changes.

And it would show the lengths to which partisan Republicans are willing to go to twist our political system to serve their interests.

Some of the most rightwing forces in the country are egging the Senate Republicans on, including the Family Research Council, Focus on the Family, Concerned Women for America, and the Center for Reclaiming America. Archconservative Phil Sheldon said the time has come "for drastic action to blow apart this unholy, unjust, and yes, un-American blockade for the sake of our nation." Paul Weyrich of the Free Congress Foundation is all for it. He recognizes that there would be "screams of anguish from the minority, echoed by the national media. But who cares?" He says Republicans should "stop the whining about how powerless they are and at last use their power for the good of the country." (These quotes were taken from the People for the American Way website at , under Right Wing Watch, "Nuclear Summer?"-June 11, 2003.)

This nuclear option would be an assault not on the Democrats but on our democratic system, but I wouldn't put it past the Republicans.

They are a desperate crowd.

-- Matthew Rothschild Full text

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