Senate Judicial Fireworks: Final WP Posting here

I promise not to bring any more on this subject into my blog after this. for once I will put the entire dialogue into this blog.


From:
chinshihtang
May-19 9:58 pm
To:
winters0
(88 of 214)

4998.88 in reply to 4998.43
These nominees should've been killed in committee--or passed by a bipartisan vote. Here's a suggestion: change the Senate rules so that nominees for lifetime positions need 60% support in committee (and protect committee assignments by party). Basically, that's the majority party plus one.
This will ensure that judges with lifetime tenure that are sent to the floor are in line with the mainstream. If there is a strict partisan divide on the qualifications of the nominee (such as was the case with Bolton, though I'd treat Cabinet/Executive nominations differently), it shouldn't go forward.
On the floor, there will always be party-line voting, or else public posturing for electoral purposes. That's OK, but it's not very relevant to the qualification/mainstream issue.
If Republicans want to change the standing rules of the Senate (for example, so as not to carry rules from one Congress to the next), they need 67 votes. In other words, either a bipartisan-supported change or a whole heck of a lot bigger majority than what they have. Otherwise, to end debate takes 60 votes. Period. Senate majority may have the votes--with enough arm-twisting--to get their way in the showdown vote, but it will be a Pyrrhic victory.
It is the moderates who are being screwed in this debate by the extremists on both sides. They are slow to rouse, but their wrath is powerful--Bushites beware!

difess76:

*** If Republicans want to change the standing rules of the Senate (for example, so as not to carry rules from one Congress to the next), they need 67 votes. In other words, either a bipartisan-supported change or a whole heck of a lot bigger majority than what they have. Otherwise, to end debate takes 60 votes. ***
That's not in the Constitution and the Constitution allows the Senate to set its own rules. One can argue that each Senate is a new Senate so each new Senate gets to set it's own rules. We know that each Senate is separate because they each get a number, i.e., 108th, 109th, etc.
The Constitution seems to require only a majority vote for each Senate to set it's rules. Why would the 109th Senate be required to follow the rules of the 108th Senate which no longer exists? Both the 108th and 109th Senate have equal authority under the Constitution so one can't bind the other one. At least some Constitutional scholars believe this to be the case.


From:
chinshihtang
May-19 11:39 pm
To:
djfess76
(93 of 214)

4998.93 in reply to 4998.92
I don't know who these alleged Constitutional scholars are (paid mouthpieces of radical right-wing think-tanks, perhaps?), but the argument is spurious. One of the Senate's rules states very clearly that the rules will be carried over from the previous Congress. The reason for that should be obvious: so the Senate doesn't have to invent its rules (and develop a majority to support them) each time. It is intentionally to preserve some continuity in how the Senate works; it should be obvious that this is a "conservative" provision.
If the Senate Rules Committee decided this broad and general provision made no sense, they would review each rule for fairness (and, yes, whether the rule makes sense in today's society) and determine whether it should continue from Congress to Congress, then get a bipartisan majority to support a change in the rules so that only some of them would carry forward. I see no move in that direction; only a move by a narrow majority to vitiate any opposition.
From:
djfess76
May-20 5:12 am
To:
chinshihtang
(100 of 214)

4998.100 in reply to 4998.93
*** I don't know who these alleged Constitutional scholars are (paid mouthpieces of radical right-wing think-tanks, perhaps?), but the argument is spurious. One of the Senate's rules states very clearly that the rules will be carried over from the previous Congress. The reason for that should be obvious: so the Senate doesn't have to invent its rules (and develop a majority to support them) each time. It is intentionally to preserve some continuity in how the Senate works; it should be obvious that this is a "conservative" provision.***
Sorry, I should have taken the time to point the article by the law professor who wrote it. I don't know the politics of the professor, but here is the article: Can the Senate Bind Itself So that Only a Supermajority Can Change Its Rules? The scholar seems to be just one of those typical legal beagles who teaches law for a living.


From:
chinshihtang
May-20 5:26 pm
To:
djfess76
(199 of 214)

4998.199 in reply to 4998.100
OK, I read the piece you referred to above. There is an interesting theoretical argument that makes sense on the surface--that legislatures are not limited in what they can do by what has been legislated in the past. He gives an extreme example--if the Senate rules required a unanimous vote to pass legislation.
The problem with such a theory is that the rules in place are not so extreme. The rules have been designed with wisdom, to protect the minority. The greatest example of how the Senate rules protect the minority and still remain practical is the unanimous consent aspect--the Senate can do all kinds of things by unanimous consent. When there is not consensus, though, the body has to proceed carefully, by the rules. The breaking of the rules to change the rules violates the Senate's traditions and norms.
But is it unconstitutional? Strangely enough, the author makes the argument that the rules to amend the Constitution itself are subject to the same argument. The will of the people being supreme, he argues, why not change the constitution by simple majority vote, instead of the arduous and usually unsuccessful process specified in the Constitution itself?
Why, indeed? We see what a slippery slope we'd be on. Funny, he doesn't even mention the alternative provided in the Constitution itself which directly addresses his suggestion, of a new Constitutional convention which could make its own rules.
I think the piece is useful to prod some thinking, but way off-base in terms of understanding where the door may be in this impasse. I will give some credit though: the piece was written 24 months or so ago, and it anticipates much of the current argument.
One other point, in fairness: the author is a professor of law who was a former clerk to Justice Blackmun. So, probably not a far-right ideologue by trade--actually, that makes sense because his arguments are anything but conservative.
Edited 5/20/2005 5:31 pm ET by chinshihtang

From:
djfess76
May-20 6:30 pm
To:
chinshihtang
(202 of 214)

4998.202 in reply to 4998.199
*** One other point, in fairness: the author is a professor of law who was a former clerk to Justice Blackmun. So, probably not a far-right ideologue by trade--actually, that makes sense because his arguments are anything but conservative. ***
You noticed that I only pointed out the article and not the fact that the author did not seem to fit into a conservative mold at first glance. I have not researched his background, but suspect that you are correct.
The thing about the law is that it seems that when you follow a theme of thought you can arrive at a strange destination that seems to kill all the effort you spent getting to the end point. But it is logical to me that every numbered Senate should set its own rules and do it soon after they are sworn in. In my opinion, the setting of the rules should be part of the training given to all freshman Senators. They could even have a Rules Committee to help to speed things along.
I have concluded that most of the nominees put up by either side are qualified to be approved. Therefore, I believe that any nominee that gets to the Senate floor should be voted on by the full Senate.
I also think that the idea of one Senator from the state where the vacancy exists should not have the power to kill a nomination.
That leaves us with the Judiciary Committee and I have some doubts that it should have the power to kill a nomination. The Committee probably should hold whatever hearings that are needed and then just pass the nomination along and let the Senate vote. If there is a bad nominee based on the hearings then the Senators should go on record and not approve the nomination.
Then, there would be no need for the filibuster or filibuster rules with respect to judicial nominees.

From:
chinshihtang
3:04 am
To:
djfess76 unread
(214 of 214)

4998.214 in reply to 4998.202
Your tone is most smoothing, but I have to disagree with nearly every point you make after the opening pleasantries.
I would say the most general objection I have is the notion that the Senate needs to roll over more smoothly, like the House does (if you have the majority, or can twist arms sufficiently forcefully, as with the Medicare prescription legislation).
There is something to be said for deliberation; a little less alacrity in the resolutions supporting the invasion into Iraq would have been wise. What was the big hurry for, anyway, besides the re-election timetable? Don't tell me it was the local calendar: we managed to catch the mother of all sandstorms, after all, and we failed to get Turkish cooperation before the invasion. Of course, the bullying of the Executive, the scorched earth attack on anyone who questioned the military adventurism...would that the War Powers Act were a bit stronger or the requirement to declare war (it only takes a nanosecond, once there's resolve or a casus belli) a bit clearer. Who was it who leaked Valerie Flame's cover, anyway? I'm so glad the Executive is personally taking care of this one.
I think that if the Senate had to set its own rules, one of two things would result: 1) a party line vote with rules dictated by the Majority Leader (and thus, written by the M.L.'s staff); or2) chaos.
I think that the committee's hands should be strengthened to prevent placing onto the floor for advise and consent into lifetime positions those who cannot draw bipartisan support as to their qualifications, integrity, and temperament. Then it is a political question on the floor whether, given those attestations from the committee, the nominee should be given the post for life.
Although the circumstances in the Senate are not quite as clear as those I propose--both committee votes and floor votes are political, and both are around qualifications--these candidates did not get that kind of ringing endorsement, so protracted delay is justified (you know "protracted", he's Tom's cousin). I think both sides have fired their shots across the bow. The escalation can be ended if the Republicans give up their insistence on rolling up Senate debate at will. Then we can go on standby until the Administration has to come across with Supreme Court nominations. Then, if they're foolish once again, the Bushites will get "ventilated", so to speak.
And a good day to you, as well!