Senate Filibuster Rule Change...

[Makalakumu]

So, what do you think about this?

Frist has necessary votes to change filibuster rules
By Charles Hurt and Stephen Dinan
THE WASHINGTON TIMES
Published February 14, 2005

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Transcript of Washington Times interview with Sen. Frist

Senate Majority Leader Bill Frist says he has the 51 votes needed to change Senate rules and make it easier for Republicans to overcome Democratic filibusters against President Bush's judicial nominees, but he hopes such a change won't be necessary.

"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," Mr. Frist told The Washington Times on Thursday.

"It's consistent with the Constitution, where we are as a body to give advice and consent, and the only way we can give advice and consent is an up-or-down vote on the floor of the Senate."

Mr. Frist said he has not made a decision on whether he will force the rule change the first time that Democrats filibuster a nominee.

The Tennessee Republican is entering his second term as majority leader after having led his party to a four-seat gain in the Senate in November's election. His first term was marked by a series of Democratic filibusters, varying from judicial nominations to the energy bill.

And although some on the right have criticized him for appearing to move too cautiously, he was willing to take some chances, including breaking with tradition by traveling to South Dakota to campaign against his counterpart, Senate Minority Leader Tom Daschle.

On Election Day, Mr. Daschle was defeated by Republican John Thune, who helped expand Mr. Frist's majority.

Judicial nominations and Social Security reform are the two dominant issues looming over the 109th Congress, said Mr. Frist, sitting in his Capitol office moments after 18 Democrats and one independent joined 53 Republicans to approve the most sweeping tort-reform measure in a decade.

Mr. Frist said that bill, which was stalled in the last Congress by Democratic filibusters, is an example of how this new Congress might be different.

"We started with a bill that has -- as demonstrated by the vote a few minutes ago -- strong bipartisan support yet in a different environment could not be passed," he said. "With the 109th Congress, some new people and a new spirit and a commitment of leadership on both sides of the aisle, we had the first success."

Mr. Frist said despite the filibusters, the past two years were marked by successes -- including earning the title of "the most pro-family and pro-life" Congress in 30 years.

"We started with the partial-birth abortion; we did pregnant women being two victims; we did the ban on human patenting, which we did in the omnibus. We introduced marriage -- or the Senate did -- proactively, before the House did and before many people were talking about it."

He said it remains to be seen whether the next two years earn the same title, but he said the agenda is pro-family.

"You'll notice in the top 10 bills, S.8 was the Child Custody Protection Act. It's a strong, pro-family bill. You'll notice that Joint Resolution No. 1, which sends a signal, is that marriage is a union between a man and a woman," he said. "That's sending certain signals that we demonstrated in the last Congress we'll deliver on, not just signals, not just posturing."

Mr. Frist said that a major challenge this year will be passing a budget at the spending total proposed by Mr. Bush and that his goal is for the Senate to pass its version by March 21. He said the Senate can follow through on Mr. Bush's call for a 1 percent cut in nondefense, non-homeland security discretionary spending.

"It has not been done in the last 12 years -- and even before that, that's how long I've been here," he said. "And therefore, it is a huge challenge, it's going to require leadership by the president and by leaders in our body."

As for immigration reform, another of Mr. Bush's agenda items this year, Mr. Frist said he does not have a set of principles at this point, but the issue likely will be pushed to next year.

"I'll be supportive of at some time addressing it in this Congress. Given the fact that we only have 139 legislative days this year, it would be challenging to do, but again the timing hasn't been set."

He said he was pleased with passage of the Class Action Fairness Act, but was conscious of the more intractable issues facing the Senate and had blunt words for his Democratic colleagues.

Asked about the so-called "nuclear option" of changing Senate rules to bar filibusters against executive nominations, Mr. Frist said that would be a "constitutional option."

"The nuclear option is what they did to me last year when they changed the precedent," he said.

But although he warned in the opening session that he is ready to employ the option, he said last week that he won't necessarily do it at the first filibuster against a judicial nominee.

"The specific decision has not been made," he said. "I've got some pretty clear alternatives to use and, again, I'll just continue to appeal to the other side."

Mr. Frist was unyielding in his criticism of Democrats, who almost without exception have opposed Mr. Bush's Social Security reform proposals by saying the system is not broken and doesn't need to be fixed.

"I think it is absurd for the other side of the aisle to argue that there's not a problem," he said. "I think it is absurd for the other side of the aisle to stick their heads in the sand and hide."

Mr. Frist, who has announced that he will not run for re-election in 2006, would not speculate on his political future and the possibility of a 2008 campaign for president. Whoever is the candidate, Mr. Frist said he can't predict how the campaign should be run, because "trying to predict in four years where the electorate's going to be, I think, is impossible."

• For a complete transcript of the interview with Mr. Frist, click on www.washingtontimes.com.

 

[rutherford]

Frist might have said he had the votes back in Feb, but I wouldn't be sure about that. I know Sen. Lugar said on Sunday that "when push comes to shove . . . I would not take a stand against my party's view . . . " but there's still about a half dozen Republicans on the fence, as far as I know.

I wonder how many Republicans who say they support the rule change are only willing to do so as a negotiating tactic and how many would actually vote that way. I wonder how many Americans recognize the word filibuster.

I think Sen. Leahy had a great speach last friday denouncing Frists recent attempts to improperly characterize the Democrats as "against people of faith" and divide the country along religious lines. http://leahy.senate.gov/press/200504/042205.html

 

[ginshun]

You would think that if he had the votes to do it, then he would. It seems a bit shady that he keeps saying that they could do it if they wanted, but they are not sure if they will or not.

Only thing I can think of is that the Republicans are hesitateing to change the way things work, in case some time in the future the Dems may have the presidency and the Senate majority, and then the Rebubs will be the ones who want to use the filibuster.

So maybe the plan is to change the rule if they really have to, but not otherwise.

 

[arnisador]

Mixed feelings. The filibuster provides protections for the minority party (and those whom they represent), but seeing judges not getting confirmed over politics is frustrating. Senate approval means there should be a balance in the appointees...but they still must get appointed.

 

[rutherford]

Over 200 judges did get confirmed, only 10 did not.

Should the Senate rubber stamp every judge appointed?

 

[ginshun]

Over 200 judges did get confirmed, only 10 did not.

Should the Senate rubber stamp every judge appointed?

Were on does that stat come from? According to research I have seen, W has nominated 66 people for Circuit Courts of Appeal judges, of which 34 have been confirmed. That is 51.5%, the lowest percentage in history.

Here is the source.

Data is for Ciruit court of appeals judges only. I am not sure what data the "10 of 200" stat comes from, but regardless, they both can't be true.

 

[arnisador]

Over 200 judges did get confirmed, only 10 did not.

In what time period?

 

[michaeledward]

As the Federal Circuit Judges make most of the federal decisions, and provide the pool from which Supreme Court Justices are selected, the Senate's role to 'Advise and Consent' is extremely important, and should not be callously disregarded.

Apparently, there are enough sitting senators in the Majority, who remember being in the minority, who are loath to eliminate the filabuster. The good Senator from Tennesse is apparently suffering from Presidential Candidate Blindness. To push for this vote (whether it passes or not) would be a bad thing for the American Experiment. Senator Frist may not be aware of this due to his short time in service of the country.

 

[michaeledward]

And this from 'The Nation' magazine & web site:

Posted March 3, 2005
Filibustering the Truth
by Judd Legum & Christy Harvey

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.

 

[rutherford]

Were on does that stat come from? According to research I have seen, W has nominated 66 people for Circuit Courts of Appeal judges, of which 34 have been confirmed.

Your summary is incorrect, because you're talking about people and that site is talking about nominations. If a person doesn't get confirmed quickly, the position goes back to the President for him to make a new nomination. So, if it take a while for a judge to get his chair he could be counted by that site 2, 3 or more times.

Renominating the same group of people repeatedly is actually a bit odd, historically.

Here's a link to Google News with the search terms: 205 215 confirmed. I think that's a pretty good number of sources.

There are only 10 judges that the Democrats threatened to filibustered, and 7 of them have come back again for another nomination.

 

[ginshun]

Your summary is incorrect, because you're talking about people and that site is talking about nominations. If a person doesn't get confirmed quickly, the position goes back to the President for him to make a new nomination. So, if it take a while for a judge to get his chair he could be counted by that site 2, 3 or more times.

Renominating the same group of people repeatedly is actually a bit odd, historically.

Here's a link to Google News with the search terms: 205 215 confirmed. I think that's a pretty good number of sources.

There are only 10 judges that the Democrats threatened to filibustered, and 7 of them have come back again for another nomination.

I still don't get it. One side or they other isn't telling the truth. Even it the first site is nominations, and not individual people. 34 of 66 nominations confirmed, doesn't equal 205 out of 215 people confirmed.

I don't know, and honestly I don't care enough either way to worry about which side is skewing its numbers.

 

[TonyM.]

Good to know Gore Sr. and Thompson weren't the only mentally challenged senators from Tennessee

 

[rutherford]

I still don't get it. One side or they other isn't telling the truth. Even it the first site is nominations, and not individual people. 34 of 66 nominations confirmed, doesn't equal 205 out of 215 people confirmed.

No. Both sides are telling the truth.

When you consider that 66 nominations (for the appellate courts only) is really 45 people. Now, 35 of those people have been confirmed, leaving 10.

The other 170 judges are all federal trial judges.

170+35 = 205 (all federal judges confirmed)

205 + 10 = 215 (all federal judges confirmed + the ten threatened with filibuster)

Now, 3 of the 10 have withdrawn: Carolyn B. Kuhl, Claude Allen, and Miguel Estrada.

These two ladies are the ones advanced to the full Senate for confirmation last Thursday, which is why we're getting a lot of this in the news now:

Justice Priscilla R. Owen of the Texas Supreme Court was filibustered four times. At the center of the debate were her strong anti-abortion legal views, notably in her largely unsuccessful efforts to make it difficult for teenagers to obtain abortions without parental consent. Alberto R. Gonzales (Bush's Attorney General) has written previously characterized Owen's reading of the law "an unconscionable act of judicial activism."

Justice Janice Rogers Brown of the California Supreme Court was opposed for her stark opinion upholding the state’s referendum against affirmative action and her vivid speeches criticizing the growth of government.

This guy is expected to be advanced soon, and was given a recess appointment to the bench without Senate confirmation:

William Pryor, former attorney general of Alabama who said that Roe v. Wade "the worst abomination in the history of constitutional law" and provided a critical vote upholding Florida’s law against adoption by gay couples. He has urged that federal laws on behalf of the disabled, the aged, women, minorities, and the environment all be limited. He has argued that the federal courts should cut back on the protections of important and well-supported federal laws including the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Civil Rights Act of 1964, the Clean Water Act, the Violence Against Women Act, and the Family and Medical Leave Act.

This guy was already put before the full senate this term, but Republicans want a showdown over one of the ladies, and haven't tried for a vote here recently:

William G. Myers III, nominated for the Ninth Circuit, was opposed because his critics said he could not be fair on environmental cases, citing his long career as a lobbyist for the ranching and mining industries.

Rounding it all out, the other 3 filibustered and renominated:

Richard Griffin, David McKeague, Henry Saad

 

[ginshun]

Right on. I got it.


Sheesh, what a bunch of BS though.