U.S. Congress Filibuster Fight

[FriendlyFire]

 

[Scuffer]

This whole thread suggests to me that the entire system of selecting judges is flawed.
Why does the incumbant pres alone get to decide exceptionally senior appointments that will last for decades beyond his term? Seems almost puropse designed to cause the maximum amount of fuss.

 

[ravensfire]

This whole thread suggests to me that the entire system of selecting judges is flawed.
Why does the incumbant pres alone get to decide exceptionally senior appointments that will last for decades beyond his term? Seems almost puropse designed to cause the maximum amount of fuss.

Well, you've got to have some system. It does, in fact, work quite well. The recent intrusion of partisan politics by both sides (I firmly believe that the recent actions are payback for the 90's) does not belong in this process.

-- Ravensfire

 

[Scuffer]

For sure, you need something, and I'll take your word for it that it has worked well in the past. If the current situation arises from partisan politics though, the system is presumably susceptible to those influences, and only the parties behaving sensibly can solve it. I can't see either declaring an era of friendly co-operation though, or even reasoned, moderate discussion. As neither side would want to give up the advantage when they get into power, no one is going to introduce a new system anyway.

 

[Renata]

This is hardly recent. Read up on FDR's attempted manipulation of a recalcitrant Supreme Court over the New Deal sometime. (A conservative majority on the Supreme Court was refusing to approve any provisions of the New Deal, against popular opinion and against the majority of legal opinion. FDR wanted to raise the number of justices from 9 to 15 -- with a Democratic congress, he'd have been able to fill the extra seats with his own appointments and ensure a more liberal majority. The Republicans of the time fought him on that and won -- no precedent was set for such severe interfering with the independence of the courts. He did get what he wanted on the New Deal in the end after one of the justices switched sides.

Renata

 

[covok48]

Thanks Wilbill for the new info.

"So all the times that Clinton's judges that never got out of commitee was bad too?"

Yes

"The Republicans didn't have to resort to filibustering Clinton's nominees, they just never moved them out of the Judiciary committee."

Which is what the Democrats have been doing for the past 4 years or so.

 

[wilbill]

Which is what the Democrats have been doing for the past 4 years or so.

Since the Republicans have been the majority on the committee since '94, the Dems can't hold anything up without at least one Republican voting with them. If only one Republican joins them, the nominee would go to the Senate "without recommendation". To stop a nominee in the committee, two Republicans would have to vote with the Democrats. I don't remember this happening, but maybe you know of some examples.

 

[Drewcifer]

The whole point of having so many checks and balances positioned against each other is so that nothing much happens without broad support. It is designed to create moderate policy no matter who wins elections and to curb the exesses of motivated idealistic exremists who have the ear of those in power. I see no problem with so many of Clinton's appointments failing to get through and I also see no problem with the same happening to Bush's. It just means that the ones who do get through are more likely to be acceptable to a larger segment of the country.

The Republicans should be careful about getting rid of the filibuster. Once it is gone it is not comming back. They will not be the majority party in Congress forever.

 

[wit>trope]

The Republicans should be careful about getting rid of the filibuster. Once it is gone it is not comming back. They will not be the majority party in Congress forever.

Actually in the House they once had something like it. A Republican got rid of it. The Democrats were mad about it and when they came to power they put it back in. Then this same Republican used it to his advantage. Then the Democrats got rid of it again which is where it stands today.

 

[Sims2789]

This is part of the consolidation of power by the Right Wing through eroding the rule of law.

 

[covok48]

"This is part of the consolidation of power by the Right Wing through eroding the rule of law."

Got anything intellegent to say?

Anyway, Wilbil gave me some good info regarding this subject. Normally this wouldn't bother me, but considering how judges are increasingly becoming legislators, I believe judges need to be voted on at least, especially when supreme court justices fall into question.

Moderator Action: Read the forum rules? Warned. Eyrei.
Please read the forum rules: http://forums.civfanatics.com/showthread.php?t=422889

 

[eyrei]

Another interesting article on the subject:

Watching Washington
By Ron Elving
In Filibuster Fight, Both Parties Switch Stances

“Boil it all down and [liberals are] still stuck defending the filibuster, the means by which the minority impedes the majority and the quintessential anti-democratic weapon in resistance to change. ”



Understanding Filibusters
Taking Issue: Judicial Filibusters
Apr. 5, 2005
Primer: Judicial Nominees and the Senate Filibuster

NPR.org, April 25, 2005 · The debate over the uses and abuses of Senate filibusters is making a lot of senators uncomfortable on both sides of the aisle. And it's making a lot of other people uneasy with their own feelings about filibusters, pro and con.

Not so long ago, conservatives were defending filibusters as essential to the Republic while liberals regarded them as anathema. Today, both shoes on are on the other foot.

Polls show only a minority of Americans are willing to change the rules so that filibusters can be stopped with just 50 votes instead of 60, even on judicial nominations. But when asked whether judicial nominees deserve an up-or-down vote, big majorities say yes. What's a lawmaker to do?

Officeholders generally don't like issues with no place safe to stand, especially when they gain as much visibility as the so-called "nuclear option" has in the Senate. Some are even spooked about calling it the "nuclear option."

The gist here is that Republicans want to be able to confirm President Bush's judges with a simple majority because they occasionally have trouble getting enough Democratic votes to reach 60. Normally it takes even more votes to change any Senate rule (two-thirds, or 67 votes). But the nuke option puts this notable change into effect by exploiting the vice president's constitutional power to preside over the Senate, rule on procedural questions and break ties. In this case, Vice President Dick Cheney says he's ready to do all three.

This is rather radical behavior by Senate standards, especially for political conservatives who have championed the filibuster or who tend to be sticklers for rules and procedure. No wonder some of President Bush's supporters have balked at this gambit, in the Senate and out. What happens, they ask, when the pendulum swings and the Democrats get back in?

The issue is at least as awkward for lots of liberals, whether they are senators or not. Sure, they can call Cheney's intervention an arrogant abuse of power that tramples on the rights of the minority party. But boil it all down and they're still stuck defending the filibuster, the means by which the minority impedes the majority and the quintessential anti-democratic weapon in resistance to change.

Not so long ago, the filibuster was practically synonymous with Southern resistance to desegregation. The last filibuster in the grand style was staged in 1964 by Southern Democrats battling the Civil Rights Act. It ran for 75 days in an effort to block or dilute the measure that the House had passed by better than 2 to1. The filibustering old bulls of that era were regarded as malefactors of the worst order by progressives in both parties and by much of the general public.

In fact, for many Americans, the repugnance of that particular filibuster cost the device its legitimacy. Walter Lippmann, the establishment liberal columnist, had long defended filibusters as a critical protection of minority rights. He did so even when a filibuster blocked an anti-lynching bill in 1938. But in 1964, Lippmann did an about face.

Awaking late in life to the full realities of segregation, the columnist wrote that the filibuster "cannot be justified morally as a device for preventing a majority from attempting to redress grievances which have been outlawed under the Constitution for more than a hundred years."

Today, many could empathize with Lippmann's dilemma, only in reverse. After a lifetime of thinking the filibuster odious, these people find themselves with no other means of opposing appointments and legislation they abhor. Should they renounce this last remaining weapon and surrender? Or should they take up the last cudgel and put their own majoritarian principles aside?

There is no easy answer, but there is this to say about the Senate experience of the 1960s and 1970s: When confronted by the obstacle of the filibuster in that era, those with a cause went about overcoming the filibuster the hard way. They put together the votes over time and across party lines and they did not seek a shortcut.

In the Senate in 1964, President Lyndon Johnson and Majority Whip Hubert Humphrey worked closely with Republican leader Everett Dirksen to build a bipartisan coalition for the civil rights bill -- and for the cloture petition that would end the filibuster. Dirksen would eventually bring all but a handful of his colleagues with him to support both cloture and the bill.

The strategy was to build the coalition slowly, allowing the filibuster itself to drag on for months and attract enormous national and even worldwide attention. In the end, there were 71 votes for cloture, representing big majorities of both parties, and the bill's passage was assured.

It can be argued that the acceptance of the 1964 Civil Rights Act by the nation at large was directly related to the size and the bipartisan composition of that historic cloture vote. The same could be said for the Voting Rights Act that followed in 1965. It was crucial that the supporters of civil rights took the time to organize across partisan lines, build their strength and, just as importantly, wait for the opposition to show its weakness.

The patience of the anti-filibuster forces would yield additional dividends a decade later, when the Senate in 1975 mustered the two-thirds vote needed to change the rules on cloture and lower the requirement from 67 votes to 60 -- where it has remained since.

Coalitions built in this gradual and bipartisan fashion make the best foundations for changes that will be accepted by all concerned over the long haul. The best proof is that we now look back at both the Civil Rights Act of 1964 and the filibuster rule change of 1975 and wonder that they once seemed so impossible.

This part is particularly interesting:

"There is no easy answer, but there is this to say about the Senate experience of the 1960s and 1970s: When confronted by the obstacle of the filibuster in that era, those with a cause went about overcoming the filibuster the hard way. They put together the votes over time and across party lines and they did not seek a shortcut. "

Now, I'm wondering why this isn't taking place this time around. There are more than 3 years left in Bush's term to get judges the Republicans like, so why the rush? Why change the rules? Are these judges so repulsive to democrats that the republicans realize none of them will be swayed? If that is the case, might that not mean these judges are ridiculous choices for judicial nominees?

 

[wit>trope]

will I think your statistics are manipulated unfairly because the pro-constituional option folks are mostly concerned about the Democrats' blocking of federal appellate court nominees and it is unprecedented for the Senate to block those nominees in this way.

covok, I think what should happen is a constitutional amendment explicitly giving the US Congress and President the power to ignore decrees of the US Supreme Court so that no one branch of government can be a dictator over the other two.

 

[amadeus]

This is part of the consolidation of power by the Right Wing through eroding the rule of law.

By what, acting within the boundaries of the United States Constitution, as opposed to certain left-wing Bay Area mayors?

 

[wilbill]

might that not mean these judges are ridiculous choices for judicial nominees?

Well, they're certainly not choices that are likely to attract a bipartisan consensus in the Senate. For example...

Priscilla Owen: As a lawyer in private practice, Owen did virtually nothing but represent big oil companies and seems to think she still works for them as a judge. Bush's new Attorney General Alberto Gonzales was a justice alongside Owen in Texas. He wrote that her dissent on an abortion-related case constituted "an unconscionable act of judicial activism."

Charles Pickering: Wrote an article as a law student that described how states could improve laws that ban interracial marriage. He also drew scrutiny when he pressured federal prosecutors to show leniency to a convicted cross-burner.

Jeffrey Sutton: Sutton has strongly supported restricting the ability of Congress to address discrimination against minorities and the disabled. He has also written in favor of declaring the Violence Against Women Act unconstitutional.

Carolyn Kuhl: Kuhl supported tax breaks for Bob Jones University despite its ban on interracial dating, a position opposed in a letter signed by 200 of her colleagues.

William Pryor: Pryor has argued against the Violence Against Women Act and the Americans with Disabilities Act. Pryor also opposed a Supreme Court ruling that said tying prisoners to hitching posts was cruel and unusual.

James Leon Holmes: He wrote in a newspaper article that, "the wife is to subordinate herself to her husband" and that "the woman is to place herself under the authority of the man." Holmes has shown no concern for rape victims, writing, "concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami."

Despite their ranting about "judicial activism", it appears that the Republicans don't mind it at all - as long as it's their own judges practicing the activism.

 

[eyrei]

covok, I think what should happen is a constitutional amendment explicitly giving the US Congress and President the power to ignore decrees of the US Supreme Court so that no one branch of government can be a dictator over the other two.

The reason Supreme court judges are in there for life is to provide a possible counterweight in the event that one of the parties manages to get control of the other two branches. If you allow those branches to ignore the supreme court when they want to, you are just asking for a government based on extremist views that happen to be popular at any given time.

 

[eyrei]

Well, they're certainly not choices that are likely to attract a bipartisan consensus in the Senate. For example...

Priscilla Owen: As a lawyer in private practice, Owen did virtually nothing but represent big oil companies and seems to think she still works for them as a judge. Bush's new Attorney General Alberto Gonzales was a justice alongside Owen in Texas. He wrote that her dissent on an abortion-related case constituted "an unconscionable act of judicial activism."

Charles Pickering: Wrote an article as a law student that described how states could improve laws that ban interracial marriage. He also drew scrutiny when he pressured federal prosecutors to show leniency to a convicted cross-burner.

Jeffrey Sutton: Sutton has strongly supported restricting the ability of Congress to address discrimination against minorities and the disabled. He has also written in favor of declaring the Violence Against Women Act unconstitutional.

Carolyn Kuhl: Kuhl supported tax breaks for Bob Jones University despite its ban on interracial dating, a position opposed in a letter signed by 200 of her colleagues.

William Pryor: Pryor has argued against the Violence Against Women Act and the Americans with Disabilities Act. Pryor also opposed a Supreme Court ruling that said tying prisoners to hitching posts was cruel and unusual.

James Leon Holmes: He wrote in a newspaper article that, "the wife is to subordinate herself to her husband" and that "the woman is to place herself under the authority of the man." Holmes has shown no concern for rape victims, writing, "concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami."

Despite their ranting about "judicial activism", it appears that the Republicans don't mind it at all - as long as it's their own judges practicing the activism.

I'm assuming these people have some redeeming qualities as well (at least for the more conservative-minded), and that some of those things are either taken out of context or written in such a way as to disturb people. However, I can see why the democrats are so opposed.

 

[BasketCase]

But therein lies the problem: the government isn't supposed to represent only it's supporters. It's there to represent the entire country. One must always avoid the tyranny of the majority.

That seems to be diametrically opposed to the basic idea behind elections. But then, hey, politics is a dirty biz.

 

[hbdragon88]

covok, I think what should happen is a constitutional amendment explicitly giving the US Congress and President the power to ignore decrees of the US Supreme Court so that no one branch of government can be a dictator over the other two.

Congress can already impeach justices if they so desire, although it hasn't been done since Jefferson tried to throw out a Federalist judge.

 

[wit>trope]

The reason Supreme court judges are in there for life is to provide a possible counterweight in the event that one of the parties manages to get control of the other two branches. If you allow those branches to ignore the supreme court when they want to, you are just asking for a government based on extremist views that happen to be popular at any given time.

To counteract the views that are popular at a moment in time, the founders made the US Senate where the Senators serve 6 year terms instead of the 2 year terms in the House. That was the explicit purpose of the Senate. Also the way the Senate is set up where every state has the same number of votes ensures that minority rights or the rights of small states are protected.

The views of the House, Senate and President can't be termed extremist since they are elected by a majority of the people and the majority view can't be extremist. If you want to say that the majority view is sometimes bad, I agree with you but in a democracy the majority view, really a kind of supermajority given how the Senate is constituted, is what rules. If you give judges the power to overturn the majority view then you are not living in a democracy or republic but rather in a society ruled by philosopher-kings. The judges in the US are only supposed to interpret the law, that is apply faithfully the meaning of the law as intended by the people who passed them. When judges go beyond their authority, they should simply be ignored just as if a President ordered something behind his authority, he should be ignored. It's amazing that some people think that judges have or should have absolute authority, almost like a philosopher-king or committee of philosopher-kings. Now may be being ruled by philosopher-kings is not a bad idea ... but it's not how the founders set up the US to be.