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Republican Senators May 'Go Nuclear' 323

Posted by michael
from the mutually-assured-destruction dept.
expriest writes "In an attempt to confirm Bush's most conservative nominees to the federal bench, Senate Republican leaders are considering a nuclear option. Under this procedure, the person chairing the Senate rules that filibusters of judicial nominations are unconstitutional. Republicans claim a simple majority (51 senators) would be all that is necessary to uphold this ruling, and therefore give them the power to confirm judges. The problem with this procedure, however, is that the Supreme Court could still overrule the Senate, and the status of the then improperly confirmed judges would be unknown."
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Republican Senators May 'Go Nuclear'

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  • by missing000 (602285) on Friday September 10, 2004 @01:46PM (#10214403)
    can a republican senator even say "nuclear" correctly?
  • of Congress. Now if we could just install slashcode servers for the House and Senate, with automatic e-mailing of poll results to the President, then we could REALLY get some work done!
    • Efficiency is bad (Score:5, Insightful)

      by crow (16139) on Friday September 10, 2004 @02:13PM (#10214703) Homepage Journal
      Government, at least the creation of laws, should be inefficient. It's another check against governmental power. Some of the worst legislation was very efficiently passed--right after some crisis prompted it (the PATRIOT act is the obvious example).
      • Ah, but with a truly efficient government, the repeal of such laws could come as quickly as the original pass. At least with slashcode you could hardcode the vote to not come before at least a certain number of people posted in the debate session, making it more likely that more people actually READ THE BILL before VOTING ON IT. You can't do that with verbal debates that end on a vote.
      • Agreed, but in this case we are not talking about the "creation of laws". We are talking about judicial appointments. The Constitution gives the president the power to appoint judges, and the Senate the power to confirm them. Using a fillibuster to prevent the confirmation seems to be preventing the Senate from doing its Constitutional duty. I think the Republicans actually have a case on this issue (provided it stays focused on appointments of judges only).

        • And I'm saying that with slashcode, you could put a name up for nomination, allow 24 hours for debate, then post a poll on the topic to get the vote, without any fillibuster possible at all (because the server, not a human being, is controling the process, just as the server prevented me from posting this message within 2 minutes of the last one). We've got a great device here that could supercharge our democracy, is what I'm pointing out.
        • by geoffspear (692508)
          That's ridiculous. The Senate does not have a "duty" to confirm the president's appointments. The Senate has a duty to advise the President on appointments, and may consent to them if it sees fit. Nowhere in the Constitution is the Senate told to ignore its own decision-making procedures when deciding whether to give consent. The Senate is set up to make wise decisions by following a procedure that doesn't allow one party with a tiny majority to ignore the general will of the body. To suggest that nami
    • I can see it now. Orrin Hatch yelling out "First Post!!" while Barbara Boxer moderates him "Troll." Ted Kennedy shouting "In Soviet Russia, the Senate confirms You!!" Arlen Specter pouring hot grits down his pants.... Yeah, this is gonna be great for democracy.
  • by avalys (221114) * on Friday September 10, 2004 @01:54PM (#10214483)
    and the status of the then improperly confirmed judges would be unknown

    Why's that? The Supreme Court would say "no, you stupid partisan dolts, it's perfectly constitutional", the judges that were approved improperly would be removed, and new ones would need to be nominated in the usual fashion.
    • No, their status would still be unknown, just like it is with every other judge who has been filibustered by the Democrats. Without the Constitutionally-required advisory vote, the status of those nominees is up in the air - and a filibuster prevents that vote from ever happening.

  • Excuse me? (Score:3, Insightful)

    by andreMA (643885) on Friday September 10, 2004 @01:55PM (#10214492)
    person chairing the Senate rules that filibusters of judicial nominations are unconstitutional.
    Ruling that something is or is not Contitutional sounds an awful lot like a function for the Judiciary. Seperation of powers and all that...
    • You might go back and study a little bit of political history. Each officer of the federal government takes an oath to uphold the constitution. The president, vice-president, every member of Congress all take this oath. They all have their own responsibility to decide whether what they do, vote for, or sign is in accordance with their own understanding of the Constitution. The Supreme Court winds up getting the final say on issues, but that doesn't relieve the responsibility on the other participants in the
  • Simple solution (Score:5, Interesting)

    by jackjumper (307961) on Friday September 10, 2004 @01:57PM (#10214511)
    Have *all* judicial nominees require a 2/3 vote to confirm. Then no idealogues on either side would be affirmed.
    • No, then nobody would ever be confirmed.
      • Re:Simple solution (Score:2, Interesting)

        by LordNimon (85072)
        I don't believe it. Politicians will do what they're forced to do. If the law requires them to find a judge whom both sides approve, then they WILL find someone like that. Right now, they know they don't need to find someone like that, so they intentionally find people that will conform to their adgenda, but not be so offensive that they can't convince a few of the other side to play along.
        • If that were true, the appointments of both Bill Clinton and George W. Bush would have been much different. Both have faced lengthy delays of their judicial appointments and have lost difficult nomination battles over political appointments.
    • Re:Simple solution (Score:4, Insightful)

      by martinde (137088) on Friday September 10, 2004 @03:13PM (#10215345) Homepage
      > Then no idealogues on either side would be affirmed.

      I have no issue with idealogues being on the supreme court on either side of the aisle. On the other hand, I don't want a court full of them who only represent one viewpoint...

      Having a bunch of moderate judges doesn't seem like a good idea to me - you might as well have a "supreme judge" instead of a "supreme court" in that case, if they're all of the same mindset anyways.

      (I wish I could insert a solution here, but alas, I don't have one.)
      • I agree with you where the Supreme Court is concerned because there is only one of them.

        The problem is with idealogues at the Appeals level. Organizations that have a problem with a federal law just shop around for an Appeals judge that agrees with them and get the law striken/suspended. They just need to find a case within the district the appealate judge oversees and push it to the appeals level. This so-called "venue shopping" makes the judicial system a farce.
  • Good! (Score:2, Insightful)

    by Otter (3800)
    Right or left, Republican or Democrat -- those filibusters are an outrage and they damn well should be gotten rid of. If you don't have the votes for a block, show your constituents some damn respect and accept it.
    • Re:Good! (Score:2, Insightful)

      by Anonymous Coward
      We should just have one branch of government, and one party; to increase efficency mine heir!

      Filibuster is a check against the critical failure of the system. Getting rid of it is a step towards tyranny.
    • by fmaxwell (249001) on Friday September 10, 2004 @02:34PM (#10214945) Homepage Journal
      Right or left, Republican or Democrat -- those filibusters are an outrage and they damn well should be gotten rid of.

      Yes, to hell with the Constitution and the founding fathers. To hell with over two centuries of legislative procedure. Make it so that a simple majority can appoint far-right or far-left leaning judges. Make it so that the Republicans can now stuff the courts with anti-choice, anti-environment, pro-big-business, anti-gay, bible thumpers.

      If you don't have the votes for a block, show your constituents some damn respect and accept it.

      If your constituents are liberal and the judge being proposed is a born-again-Christian who's an outspoken opponent against everything they believe in, then showing your constituents respect is using every legal means to prevent the confirmation of the judge.

      If you don't understand the importance of the Constitution and why filibusters are such an integral aspect of the checks and balances, please don't post in this section.
      • If you don't understand the importance of the Constitution and why filibusters are such an integral aspect of the checks and balances, please don't post in this section.

        Another example of the open-mindedness of so-called progressive political thought? Agree with us or shut-up! The other side is just a bunch of racist, fascist, homophobic, sexist, bible thumping, war mongers. No freedom of speech for them.

        • "Help! Help! I'm being oppressed!"

          I don't think he was saying agree or shut up. I think he was saying "don't be a dumbass or shut up." Better to argue that you're not a dumbass than to argue that he's a meanie.
          • I don't believe I'm a dumbass, but I did post hastily. To clarify:

            First, of course I'm not proposing to ignore the Constitution. The argument being made is that these filibusters are not constitutional -- if the Supreme Court upholds their constitutionality, that's a completely different matter.

            Second, I understand the place of filibusters. Using them as a last ditch effort is one thing -- using them as a matter of course to halt the process of judicial appointments until the next presidential election (or

          • "Help! Help! I'm being oppressed!"...Better to argue that you're not a dumbass than to argue that he's a meanie.

            Also, please note that I am the great-great-grandparent poster being ordered to take my views elsewhere. The guy you're responding to is not me (as you seem to think).

            Not that I'm calling you, you know, a dumbass... ;-)

        • good lord - if you cant find 9/49 democratic senators to agree with you, then maybe the judge isnt worthwhile.

          this country is not built on tyranny of the majority - there are specific checks and balances built into the system to give the minority power.

          what youre proposing is akin to 3 wolves and one sheep sitting down and deciding who gets ate for dinner.
          • It's not that the Republicans couldn't get 9 of the 49 Democratic Senators to vote for most of these nominees given an up or down vote, it's that the Democrats are preventing such a vote entirely. It's one thing for a Senator to cross party lines to vote for a bill or a nomination, it's entirely different when they cross party lines on what to most people is an obscure procedural motion to limit debate. No Senator with any substantial number of Hispanic voters in his state would dare go on record to vote ag
  • by Justen (517232) on Friday September 10, 2004 @02:02PM (#10214564) Homepage Journal
    Well, if there's a hole any politician can slither through, you can bet they'll find it sooner or later.

    The particular way they apparently plan to do this, though, is dubious. The Supreme Court tends to look, not only at the letter of the law (in this case ths Constitution), but also its spirit. Clearly, Senator Frist is trying to subvert the super majority requirement written into the Constitution.

    I have some doubt the Republicans would go with this. It'll only further energize the Democrats. But if they do, I have a strong feeling the Supreme Court will pretty strongly rebuke them. (Funny that the third branch of the government has to step in and make the second branch follow its own damn rules.)

    We may well see an Eliminate the Fillibuster constitutional amendment to go along with the Defense of Marriage one. Maybe Senator Frist really is just itchin' to revamp the whole document, and add his name to the bottom.

    justen
    • What supermajority requirement in the Constitution? Here's what Article II, Section 2, Clause 2 of the U.S. Constitution says:

      Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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, whose Appointments

      • I pointed out the "spirit" of the law, rather than the letter of it. You've defined a great example of it here with a clause considered to be illustrative, not exhaustive. In fact, the constitutional basis of cloture is contained in the clause you've mentioned, along with an allowance for the evolution of congressional rules in article I, section 5. Senate Rule 22 provides the clearer procedures and policies for the filibuster.

        And "clearly" is not a word to be used when discussing the Constitution. It
        • Interesting, that's not at all what you said in your original post:

          Clearly, Senator Frist is trying to subvert the super majority requirement written into the Constitution.

          Guess I'm not the only one to use the word "clear". But in my case I'm supported by the text of the Constitution, not vague appeals to its "spirit".

          And if your argument is that Art.II,Sec.2,Clause 2 allows Congress to impose a supermajority requirement for appointments of all judges below the Supreme Court, that could conceivably be a

  • by oldosadmin (759103)
    I'm suprised the Hispanic community hasn't been outraged by some of this. One of the judges that have been unconsitutionally denied their chance would have been the highest hispanic judge in the land.

    So much for Democrats being for minorities (which is an untruth anyway).
    • by Anonymous Coward
      But that Hispanic judge was spectacularly conservative, and thus not especially representative of the Hispanic community.

      It's sort of like Republicans and Clarence Thomas-- the Democrats can't fight his appointment without losing face, because he's black, even though underneath the skin he's about as conservative as your average white CEO.

      Sneaky thing, that. And if you don't think the Republicans wanted that Hispanic judge so they could push the issue in the first place, you're pretty naive.
      • Really, please supply links or the such that show that a significant majority of hispanics were against the nomination of this judge.
  • Never Happen (Score:5, Insightful)

    by GOD_ALMIGHTY (17678) <curt@johnson.gmail@com> on Friday September 10, 2004 @02:03PM (#10214581) Homepage
    John McCain would never support this. They also won't get both Senators from ME. It won't happen because the GOP can't get 51 votes. This manuever is likely to be divisive like the Gay Marriage Ban, and while most Americans may not be concerned with these little intricacies of the Senate, Senators tend to take it seriously.

    Santorum would turn this country into a Judeo-Christian version of Iran if given the chance. Frist is more timid and behind the scenes, but Santorum is a freaking pit-bull for the religious right. My fellow Florida citizens have managed to embaress me about a lot of things, but electing a theocratic loon to the Senate like Santorum takes the cake. I'd have a hard time admitting I was from Penn. every time that guy made the news.

    Interesting thought experiment though.
    • You are right on.

      The U.S. today is about 75% complete in becoming a cross between Rome at the collapse of the republic and Iran in 1979.

      Check out the puritan period in England, between the Jameses, for a preview of what's to come.

    • most Americans may not be concerned with these little intricacies of the Senate, Senators tend to take it seriously.

      Another excellent argument for term limits.

  • the republicans have been whining and crying about judicial nomination filibusters and threatening to change the Senate rules to allow simple majority votes (the nuclear option) for the last two years.
    what are they suggesting now that they didn't suggest then?

    i'd like to see the filibusters like we saw Jimmy Stewart do in "Mr. Deeds Goes to Washington." Instead, someone just says, "i'm filibustering" and everybody stops. Going back to the old rules should have no problem with the Supremes declaring THAT i
  • The problem with this procedure, however, is that the Supreme Court could still overrule the Senate, and the status of the then improperly confirmed judges would be unknown.

    And the other problem of course is that unless they succeed in making it illegal for Democrats to hold the presidency or a majority in the senate, a few years down the road they'll be hoist by their own petard.

  • Because the Demos damn sure will as soon as they have the minority.
  • by SewersOfRivendell (646620) on Friday September 10, 2004 @02:18PM (#10214765)
    ... the senate and house forever. The more dirty tricks they attempt now, the worse off they'll be in a majority Democratic congress. The Democrats are not going to forget this treatment (the energized base of pissed-off, open-minded progressive consitituents will not let them).

    Further, if the Democrats are smart, maybe they'll start looking at ways to get rid of the extremist 'Christian' Coalition cancer, perhaps by adding laws that in some way encourage the expansion of minority viewpoints within the major parties.

    The spoiled brats in the Republican party just need to accept that they aren't going to get their way all the time. Otherwise, it will return to haunt them.

    • by Jeremiah Cornelius (137) on Friday September 10, 2004 @02:27PM (#10214877) Homepage Journal
      These folks believe the "rapture" is coming before that time...
    • It gives more power to the executive branch, which already has vastly more political power than the Constitution ever intended.

      No, I want the legislative branch to keep every check it can get on the executive branch.

      Forget Demm and Rep for a moment -- we're going to have to live with this in the future.
    • Actually, they might.

      One of the things done over the past 4 years was quite a bit of Gerrymandering to cement their Congressional districts and marginalize Democrats, where they held State majorities that would allow them to do so. Texas was the one we heard most about. Someone else commented about how the Senate is already Gerrymandered by state boundaries, and will proceed toward a 60/40 Republican majority over the next years.

      The Democrats are going to HAVE to forget this treatment, if we are to be One
      • What, like it's the evil political parties who are responsible for the divisions within this country? If they behaved this would all suddenly be a magic utopia where everybody agrees and loves each other?

        There is still much more which unites us than divides us as a country. But there are real differences which wind up being reflected in the elections system. Abortion which you mention is one of those. There are deeply held believes on this issue by vast groups of citizens on both sides of the political ai

  • The other problem with this is that they could have it used against them, next. For instance, should Kerry win and appoint judges not meeting the approval of a slightly Democratic Senate, the Republicans wouldn't be able to filibuster those choices themselves. As they did during the Clinton Administration, if memory serves.

    Unless they're truly cynical, and expire such a rule on Jan 19, just before inauguration. But I think that would be really very surprising.
  • Filibusters should be illegal with the only penalty is the lost position of any one found guilty of it. Our government could be better run if delaying tatics like this were removed.
    • by Anonymous Coward
      Isn't it cute how some people cling to the belief that having the government get things done is actually a preferable outcome?

      I prefer my government deadlocked. Safer that way.

  • When asked to comment on this story, President Bush was quoted say "nucular" yet again.
  • I mean, if they're filibustering, can't someone throw a chair at him or Duct tape his mouth or something? C'mon, there has to be a better way!
  • I just refreshed my memory on Article II, Section 2 (which gives the President nominating power), and the way I read it is that the Senate can approve any nominee with a simple majority. The Constitution doesn't spell out HOW the Senate must do it, so changing the procedural rules should, as I understand it, be perfectly legal and Constitutionally sound.
  • His second term, Supreme Court tossed a bunch of New Deal laws, he tries some kind of novel and slimy trick to get rid of all of them? Don't have the history book here at work to check it out. I only remember that it backfired badly, with moderate demos jumping ship and condeming him.
    • Since he couldn't remove the justices he didn't like, he tried to ram through legislation which would have increased the size of the court beyond 9, and would have thus effectively stripped the opposing judges of their power to block him. When he had vacancies to fill, he did what all presidents try to do, fill them with judges he hopes will do the things he wants.
  • 1) Since Filibuster and Cloture are Senate Rules, on what basis are they being deemed unconstitutional?

    2) Since when does the Congress rule of Consitutionality? I thought the point of Marbury vs. Madison was to affirm the power of Judicial review of the Courts.

    FYI, the Senate Rules Committee is headed by Trent Lott. The committee's web site is at http://rules.senate.gov/ [senate.gov].
    • Marbury v. Madison (Score:3, Informative)

      by PatHMV (701344)
      Marbury v. Madison held that the courts had the power to rule on the constitutionality of actions of the other branches of government when those actions properly came before the court for their enforcement (actually, Chief Justice Marshall was remarkably clever because what he found unconstitutional was a law granting particular powers to the court itself, so he grabbed greater power for the court by refusing to accept lesser power).

      The case did not say that the Supreme Court was the only one of the three
  • Why does this seem so irrelevant? Oh, right, it's a global network.

    Really, it's just so provincial to blather on about one's local comings and goings, isn't it.

    Besides, politics is marketing and is inappropriate given the of engineering nature of /.

    IMHO, only users believe in politicians.
  • by coaxial (28297) on Friday September 10, 2004 @04:25PM (#10216185) Homepage
    Nothing like a blatently unconstitutional powergrab.
    Emboldened by their success in using the federal supreme court to overstep the federal bounds and rule on state law; they up the ante and openly consider a blatently unconstitutional power grab.

    Anyone in the Senate that would support this tactic, especially the senator that would overstep the check-and-balances and rule that a political tactic that written into the Constitution is unconstitutional would have to be impeached and removed from office. Why? They would have violated their oath of office to support the consitution as perscribed by Article VI, Clause 3.

    No wonder why half the country looks at the current Republican party as them as a gang of protofacists.

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