Nuclear Option a good idea? (senate confirmation of judicial nominees by majority vot

[Pure]

A Likely Script for The 'Nuclear Option'

[setting a precedent of avoiding filibustering of judicial nominees, setting up simple majority rule on nominations by securing favorable rulings on several points]

By Mike Allen and Jeffrey H. Birnbaum
Washington Post Staff Writers

Wednesday, May 18, 2005; Page A01

The "nuclear option" will have a long fuse.If all goes as planned, Senate Majority Leader Bill Frist (R-Tenn.) will rise after several days of debate beginning today over one of President Bush's judicial nominees and call for an end to Democrats' delaying tactics. The presiding officer will then rule in his favor.


Democrats will protest the ruling and ask for a vote to overturn it. The Republican leader will seek to table that appeal. If Frist and the GOP majority prevail, a long tradition of filibustering will be narrowed and a new precedent will be set allowing the Republicans to force a vote on a nomination with a simple majority instead of three-fifths of the Senate.


[...]
Here's what Republican aides and officials say is most likely to happen:

At 9:30 a.m. today, the Senate will begin debating Bush's nomination of Priscilla Richman Owen, an abortion opponent on the Texas Supreme Court who was nominated to the U.S. Court of Appeals for the 5th Circuit, based in New Orleans.

Tomorrow or Friday, Frist and other Republican senators are likely to file a motion seeking cloture, or an end to debate. One session day must pass before a vote to end debate, so a vote would be held and Republicans would expect to get fewer than 60 votes to confirm Owen.

Frist aides say he has not decided exactly what would occur next. But the scenario most widely expected among senators in both parties is that he would seek a ruling from the chair -- Vice President Cheney, if it looked as if the vote was going to be close -- that filibustering judicial nominations is out of order. Assuming the chair agreed, Reid would then object and ask that the ruling of the chair be tabled. Most Republicans would then vote against the Democratic motion, upholding the ruling. Then the Senate would move to a vote on Owen, and a precedent will have been set that it takes 51 votes, not 60, to cut off debate on a judicial nomination.

 

[silverwhisper]

i'm curious: is it necessary to hold up the nominations for the lower (i.e., not supreme) courts? i personally am opposed to any justice that bush would put forward for the supreme court, but the lower courts i'm more or less apathetic.

ed

 

[Liar]

Tought this was gonna be about power plants or bombs.

I must say that I don't really know enough about American politics and justice system, but I find the whole idea that appointing judges is a political action by the Big Kahuna in the Oval Office highly bizarre.

 

[silverwhisper]

liar: as a yank, i'm curious about what method you use where you live?

i should point out that at the state level in the US, the method of selecting a judge varies: in some states, a judge is an elected official whereas in others, he or she is an appointee.

ed

 

[neonlyte]

My feeling is, at best this is a bad idea.

I've expressed by concern about erosion of minority views in the Free Speech Comp and I'm not going to repeat myself here other than to note the following:
- there is a tendency in 'first past the post' election systems for opposing camps to adopt polarised positions (both politicians and voters). The recent British general election suggests strong evidence of this tendency.
- minority views are marginalised in 'fpp' elections.
- filibustering demands an individual of courage to adopt a minority view and perform, it is one possible way for minorities to have a voice.

The problem with the filibuster technique is that it can be abused and as opinion becomes ever more polarised, it is likely to be abused.

What it points to is a system, ostensibly democratic, where the larger minority (Blair government returned to power with 22% electorate vote) has the power to impose their brand of political doctrine.

On balance I'm inclined toward allowing the filibuster approach, if it used sufficiently it might wake politicians up to the recognition that in victory they serve all of the people.

 

[shereads]

I see no point in retaining the last vestiges of a balance of powers. Now that the Fourth Estate has become a branch of the Defense Department (the Pentagon approved that Newsweek story about flushing the Koran down the toilet) why pretend anymore?

Might makes right. Go for it.

 

[Colleen Thomas]

The filibuster has been around a long time, but it has used been fairly sparringly in the past on presidential appointees.

The prevailing thought, among conservatives is that theliberalleft has given up on legislating thier agenda. They are firmly set on a course of adjudicating it and they can't do that if they don't have liberal judges to do so.

The liberal (Also Democratic party for those who don't fel they represent liberals) is that it's neccessary to prevent Bush from appointing people who put their moral, religious, ethical standards above the law.

There is a good deal of evidence in both camps that they are right. There's a good deal of politicing in both camps that would lead you to think it's just bussiness as usual.

The GOP emblem is an elephant. It might do the Dems well to remember the rules changes they instituted when they had the majority. The GOP hasn't forgotten and to some, this is payback, in spades, with interest.

From a practical perspective I don't want any Bush appointee on any court,anywhere. For the person who said he was appathetic to lower court decisions, you must think on this. Nothing goes to the USSC before it's heard in a federal apellate court. While it seems they hear a lot of cases, the supremes actually uphold the apellate court findings a lot more often than they do not. While the supremes may refuse to hear a case, the federal appellate courts may not. So in your individual life, you are far more likely to stand before an apellate court than you are the Supreme court. That, should be scary enough to make you love the filibuster, if you are a woman, gay, like porn, or value freedoms like press, speech, religion and privacy.

On the other hand, the majority of folks in this nation put GW back in power, just as they put a GOP majority in both houses of congress. You are in a real sense, thwarting the will of the majority, in a country where that majority supposedly rules. You are forcing the government to leave court seats vacant for ages, increasing theload on the other judges in that district unreasonably.

When all is said and done, there is a fine line between protecting the minority point of view and simply obstructing the will of the majority because you don't like their politics. There is also a fine line between a rules change and a power grab. The compromise position would be to filibuster only the most odious choices and vote against the less odious ones, hoping they have GOP enemies as well.

I'm not in favor of rules changes that favor the majority. But I can see where the Dems are forcing the GOP's hand. Some appointees are truly bad choices, with a history of putting their values ahead of the law. A lot of them though, are simply politically motivated, Like Pickering and have little to do with the person's adjudicating record.

If you poke the wombat enough times, you will get a reaction. In this case, I think the Dems have taken something that is meant for their protection, now that they are the minority, and have abused it. You can't hold up all of his appointtees you don't like for the full 8 years he is serving. No matter how much you dislike him, the process of government can't be brought to a stand still until you get a president you like.

Judicious use of the filibuster could have protected us all from the worst appointees, but by trying to protect us from any conservative appointees, and a lot of simple partisan politics, the odds seem to favor there being no protection from even the most odious GW can find. Knowing GW, I fear that is odious in the extreme.

 

[rgraham666]

Colleen? Have you considered sending your above post to the people who run the Democrats?

They could use a person with good sense on their side.

 

[minsue]

If you poke the wombat enough times, you will get a reaction. In this case, I think the Dems have taken something that is meant for their protection, now that they are the minority, and have abused it. You can't hold up all of his appointtees you don't like for the full 8 years he is serving. No matter how much you dislike him, the process of government can't be brought to a stand still until you get a president you like.

Judicious use of the filibuster could have protected us all from the worst appointees, but by trying to protect us from any conservative appointees, and a lot of simple partisan politics, the odds seem to favor there being no protection from even the most odious GW can find. Knowing GW, I fear that is odious in the extreme.

That's not quite accurate, though. Only a small number of appointees has been held up through the use of filibuster. The vast majority were rubber stamped.

Edit to add: This is after an admittedly brief search, but it appears that the GOP senate held 16 nominees during Clinton's final term. Dems have only held up 10 of Bush's in the past 5 years.

 

[BlackShanglan]

Actually I think Minsue and Colleen are both right. That is, the fillibuster is an important tool that could do much good if used judiciously, but I think that its over-use is threatening its existence. That said, the Republicans can hardly acts shocked at this tactic; they made ample use of it when in the minority themselves.

Let's send Colly and Min around to kick all of their recalcitrant rear ends.

 

[minsue]

Actually I think Minsue and Colleen are both right. That is, the fillibuster is an important tool that could do much good if used judiciously, but I think that its over-use is threatening its existence. That said, the Republicans can hardly acts shocked at this tactic; they made ample use of it when in the minority themselves.

Let's send Colly and Min around to kick all of their recalcitrant rear ends.

The redhead and the goose go to Washington?

 

[Pure]

it's happening now

this issue is being debated as we post here, today.

big changes coming?

anyone know about Patricia Owens[correction: Priscilla Owen], the Black woman judge, beloved of GWB?

 

[Lauren Hynde]

liar: as a yank, i'm curious about what method you use where you live?

i should point out that at the state level in the US, the method of selecting a judge varies: in some states, a judge is an elected official whereas in others, he or she is an appointee.

ed

I'm not absolutely sure how it is in Sweden - Liar may confirm this or not - but I believe it's much the same as over here in Portugal. Judges (of whatever level) aren't either political nominations or elected officials. They're chosen among jurists through curricular merit open contests - where the elements that are evaluated are, predominantly, academic merit and achievements and years of experience.

Here are two excerpts I found on our Supreme Court of Justice's site that might interest you:

# Judges: access and staff of the Supreme Court of Justice

The access to the position of judge at the Supreme Court of Justice is made through a merit curricular contest to tender to juízes-desembargadores (judges of appeal), who are the judges of the Tribunais da Relação (Courts of Appeal), to magistrates belonging to the Public Prosecutor's Office, and to other jurists of merit, on the following proportion for each five vacancies: three for the first ones, one the second ones, and one for the latter. The judges of the Courts of Appeal who are in the first fourth of the seniority list, and do not officially waive the contest to tender, are necessary contesters; the remainder are deemed voluntary contesters.

The judges of the Supreme Court of Justice have the title of Conselheiro (Justices). (...) The staff of judges of the Supreme Court of Justice is currently constituted by 60 Justices. However, should any of the latter cease to render his services in order to take up certain positions (President of the Republic, Government member, Vice-President of the Higher Judicial Council or others, on a common or possible duty assignment), the staff is automatically added the respective number of places, which will be eventually suppressed when such judges return to their earlier position.

There may be also Justices further to the usual staff of judges, whenever the amount of work justifies it - namely, due to the number or complexity of cases. However, such additional places become extinct when two years over the date of their opening have elapsed.


# The President [of the Supreme Court of Justice]: election and attributions

The judges constituting the staff of the Supreme Court of Justice elect their President from among themselves, by secret ballot, for a three-year term of office. The re-election for a third consecutive term of office is not admissible.

The President of the Supreme Court of Justice has precedence over all the judges, and it is his duty:
- to preside the Plenary Court, the Plenary Specialised Chambers, and any closed session he attends;
- to ratify the schedules of the common sessions and to summon the extraordinary sessions;
- to count the votes in closed sessions;
- to vote every time the law establishes it, and signing in such cases the judicial decision;
- to give office to the Court's Vice-Presidents, judges, Secretary, and to the Presidents of the Courts of Appeal;
- to supervise the services of the Judicial Registry;
- to enforce disciplinary actions over court officials regarding penalties which seriousness does not reach the application of a fine;
- to perform any further duties provided by law.

Finally, the President of the Supreme Court of Justice is also, inherently, the President of the Higher Judicial Council, which is the management disciplinary body of the judicature. The Council is composed by two councillors appointed by the President of the Republic, seven councillors elected by Parliament, and seven judges elected by their peers.

 

[Liar]

I'm not absolutely sure how it is in Sweden - Liar may confirm this or not - but I believe it's much the same as over here in Portugal. Judges (of whatever level) aren't either political nominations or elected officials. They're chosen among jurists through curricular merit open contests - where the elements that are evaluated are, predominantly, academic merit and achievements and years of experience.

Ah yes. Sorry I didn't reply to that, slipped my mind. But it's the same over here, and in most of the EU countries.

Another thing too, there are no jurys of peers in Sweden. The verdics are decided by a panel of legal experts, often lawyers, appointed also by academic and experience merit.

 

[Lauren Hynde]

Ah yes. Sorry I didn't reply to that, slipped my mind. But it's the same over here, and in most of the EU countries.

Another thing too, there are no jurys of peers in Sweden. The verdics are decided by a panel of legal experts, often lawyers, appointed also by academic and experience merit.

Over here, verdicts and sentences are decided by a panel of judges (which are necessarily also lawyers), although both the Public Prosecutor and the defender have the (very rarely used) right to a jury trial, if they want. But unlike the American system, our juries are mixed, formed by three judges and four "peers".

 

[amicus]

There is sufficient cause on both sides to express concern for a change in Senate rules, I would think.

However, a generational long swing to the left by the Federal Court, at all levels, due to political appointees reflecting the intent of those who appointed, needs to be corrected.

A 'revolution' of sorts, in Judicial appointments and in Federal Agency hires and appointees, was begun in the Reagan area, neutralized by Bush One, resisted by Clinton and is now at the forefront with Bush Two.

There is a vast array of socially manipulative programs from OSHA to the EPA, that over the years have become the 'darlings' of the left wing, as they restrict and control business and industry and the market place.

It is not just the Judiciary, but mid level management in these agencies that were put in place by 'activist' politicians, that still control the functions of many agencies.

Many of us on the right have long thought it was impossible to dislodge these appointees and new hires as the political leanings of these Federal and State workers was and is from 70 to 80 percent democrat, as is Labor, Education and the Environmentalists.

Without regard to political tendencies, it would be a good thing for the nation for the pendulum to swing away from the left. At this point, about the best gains the Republicans can make is to slow the onslaught of the leftist agenda in government at all levels.

It would take another 8 years of a Republican White House and a majority in both the Senate and the House of Representatives to have a substantial effect on the economic and moral direction of the nation.

Being a pro individual rights person and an anti big government advocate, I have already begun working for a 'Cheney/McCain ticket in 2008.

It would also be advantageous to gain an even larger majority in the Senate in the 2006 elections and we are working on that also.

amicus...

 

[ishtat]

There is sufficient cause on both sides to express concern for a change in Senate rules, I would think.

However, a generational long swing to the left by the Federal Court, at all levels, due to political appointees reflecting the intent of those who appointed, needs to be corrected.

A 'revolution' of sorts, in Judicial appointments and in Federal Agency hires and appointees, was begun in the Reagan area, neutralized by Bush One, resisted by Clinton and is now at the forefront with Bush Two.

There is a vast array of socially manipulative programs from OSHA to the EPA, that over the years have become the 'darlings' of the left wing, as they restrict and control business and industry and the market place.

It is not just the Judiciary, but mid level management in these agencies that were put in place by 'activist' politicians, that still control the functions of many agencies.

Many of us on the right have long thought it was impossible to dislodge these appointees and new hires as the political leanings of these Federal and State workers was and is from 70 to 80 percent democrat, as is Labor, Education and the Environmentalists.

Without regard to political tendencies, it would be a good thing for the nation for the pendulum to swing away from the left. At this point, about the best gains the Republicans can make is to slow the onslaught of the leftist agenda in government at all levels.

It would take another 8 years of a Republican White House and a majority in both the Senate and the House of Representatives to have a substantial effect on the economic and moral direction of the nation.

Being a pro individual rights person and an anti big government advocate, I have already begun working for a 'Cheney/McCain ticket in 2008.

It would also be advantageous to gain an even larger majority in the Senate in the 2006 elections and we are working on that also.

amicus...

Conspiracy theory without evidence to support your position ?

Surely the point about the so called nuclear option is that the de facto result is a permanent transfer of Senate power to the President That should concern senators of both parties .

 

[Pure]

Ami said: Being a pro individual rights person and an anti big government advocate, I have already begun working for a 'Cheney/McCain ticket in 2008.

Yes, Cheney, individual rights/anti-big-government....go together like a horse and carriage...

ami always did keep his sense of humor!

incidentally ami, how much has the US fed. gov reduced in size or authority in the past four years? give us some numbers

 

[JamesSD]

Just repeating what I've heard and agreed with

The Republicans are foolishly acting like they'll be in the majority forever. The Democrats are foolishly acting like they'll be in the minority forever.

The filibuster takes power away from extremists and gives it to the moderates, who tend to be more popular to the general populace, but less so within their own party.
Historically some of the most famous filibusters have been by Republicans (Strom Thurmond, etc.)

My hope is the Republicans won't try to go nuclear, and if they do the more moderate elements will foil their attempts. Protecting the minority is a non-partisan issue.

 

[amicus]

For some unknown reason, I am not getting email notification to threads I have participated in. Any one else noticing that or am I so ignored that the system responds accordingly? If so I should get an award.


Pure I would like to be able to give you documentation concerning the reduction of the size of government under this administration, but know most likely know that it has not diminished, if any thing, grown.

Even with the increased attention and funding directed at post 9/11 economic recovery, funding for Homeland security, the Airline security and bankruptcies; even with the cost of the war in Afghanistan and Iraq, even with the Shuttle disaster and the makeover of NASA.

Such a large percentage of government outlays and employment deals with 'entitlements'; those funds, like Social Security and agricultural subsidies and hundreds of programs costing billions that are politically 'secure' from cuts.

It is not an easy problem. Were there to be a Revolution, tomorrow, and were I to be named President, with an entirely new Congress that would support every plan I put forth, it would be a task to reduce the size of government without an uprising occuring.

I would first abolish the ATF, Acohol, Tobacco and Firearms agency.

I would next halt the war on drugs and release any and all charged with 'drug' crimes only.

I would next abolish every department of motor vehicles agency, rescind mandatory licensing, rescind mandatory insurance and return to the people, the constitutionally guaranteed right to travel with out restriction, license or taxation.

I would turn over administration of the Social Security program to the private sector with government acting only as a 'watchdog agency'

I would immediately stop all federal and state financial contributions to public, private and parochial education.

I would immediately abrogate all 'union contracts' related to government projects and go to the market place for competitive bidding.

I would offer every square inch, every acre of land held by the federal and state governments to the public at large at a price that would immediately repay the national debt and I would demand a balanced budget in both Federal and State affairs.

I would immediately open bidding for the Nuclear Power industry to begin replacing fossil fuel generation of electricity, eliminate building codes and get the government out of regulating industry, especially the automobile industry, but all industry. You want a seat belt and airbags? You pay for them, they would not be 'mandatory', but a matter of individual choice...its called 'freedom' if the concept startles you.

As a matter of fact, all of the issues I briefly touched upon, deal with returning to the individual the right to choose how one lives and manages ones own life, also, freedom...seemingly a lost concept.

Eventually, I would reduce the size and scope and funding of current government at all levels by about 90 percent, keeping of course, the Military, the Courts, and the Law enforcement agencies that actually protect the lives and property of the people.

After all, a strict interpretation of the Constitution of the United States of America, grants very little more that what I outlined in the above paragraph.

If you have noted the huge battle underway, even to 'allow' people to put some of 'their' money in interest bearing accounts and take it away from the Social Security scam, you will realize how entrenched those who desire 'big government' really are.

I fear it will take a revolution.

Yeah, I know...so what...


amicus...

 

[Pure]

Well, supposedly the showdown is this week. Republican 'majority rule' (51 votes may well be in effect), minorities be damned. Presumably any debate or speech can be cut off by majority rule. Indeed, for any bill the President wants, debate could be limited to an hour in total, before taking the vote, with its obvious outcome. (Actually this somewhat resembles a pariliamentary system, where the ruling party can do what it likes.)

amicus, as to your capitalist individualism, minimal state, I could conceive it in some bygone era a few hundred years ago.

now that there are pretty big 'actors' on stage, with budgets greater than Spain, etc. (Walmart, General Motors, Sony, etc.), I think the US gov has to be at least as big to exercize a *tiny* bit of control.

if you are concerned with 'freedom', I fail to see how the 'privatization' route gets you any. To give a local example. The Prime Mall, here is privately owned and policed. Hence they may expel anyone they don't like. IOW, the people's freedom to enteris limited. Picture every mall and square of your city under private management. You no longer have any ‘right’ to be there. There are 'gated communities' with a similar set up. As to roads, there are privately owned sections of the coast highway in California, and those not living there are barred. Also private toll roads can (under your system) would charge what they like.

So other than your saving money of entitlements (you resent helping old age pensioners, in the way that you in turn will be helped.), would you please state how your freedom increases under your 'minimal state.' (You have not even proven you'd have that much more money in your pocket: instead of public school taxes, you'd pay private school fees; instead of postal stamps, you have to pay private couriers for everything at 5$ per letter.)

I've dealt with freedom of movement, here's another. Look at how the network's control expression of any dissent. Dissent scares away buyers (e.g, the boycott of Disney over gay issues), and advertisers. Same for newspapers; all major ones controlled by giant corporations. So the freedom to get a pov out to the public is limited and would likely be greater under your plan (no enforcement of 'fairness'. (Just because I can run off Xerox copies in my basement, or say 'fuck you' on the general board does not give me any power to reach others with my speech.)

Ironically, most major corporations would oppose your move, e.g., all the defense industry. They favor the government covering certain of their expenses.

 

[impressive]

http://moveonpac.org/algore/rally.html

"An American Heresy"
Remarks by Al Gore as prepared
April 27, 2005​

Four years and four months ago, the Supreme Court of the United States, in a bitterly divided 5 to 4 decision, issued an unsigned opinion that the majority cautioned should never be used as a precedent for any subsequent case anywhere in the federal court system.

Their ruling conferred the presidency on a candidate who had lost the popular vote, and it inflamed partisan passions that had already been aroused by the long and hard-fought election campaign.

I couldn't have possibly disagreed more strongly with the opinion that I read shortly before midnight that evening, December 12, 2000. But I knew what course of action best served our republic.

Even though many of my supporters said they were unwilling to accept a ruling which they suspected was brazenly partisan in its motivation and simply not entitled to their respect, less than 24 hours later, I went before the American people to reaffirm the bedrock principle that we are a nation of laws, not men. "There is a higher duty than the one we owe to a political party," I said. "This is America and we put country before party."

The demonstrators and counter-demonstrators left the streets and the nation moved on—as it should have—to accept the inauguration of George W. Bush as our 43rd president.

Having gone through that experience, I can tell you—without any doubt whatsoever—that if the justices who formed the majority in Bush v. Gore had not only all been nominated to the Court by a Republican president, but had also been confirmed by only Republican Senators in party-line votes, America would not have accepted that court's decision.

Moreover, if the confirmation of those justices in the majority had been forced through by running roughshod over 200 years of Senate precedents and engineered by a crass partisan decision on a narrow party line vote to break the Senate's rules of procedure—then no speech imaginable could have calmed the passions aroused in our country.

As Aristotle once said of virtue, respect for the rule of law is "one thing."

It is indivisible.

And so long as it remains indivisible, so will our country.

But if either major political party is ever so beguiled by a lust for power that it abandons this unifying principle, then the fabric of our democracy will be torn.

The survival of freedom depends upon the rule of law.

The rule of law depends, in turn, upon the respect each generation of Americans has for the integrity with which our laws are written, interpreted and enforced.

That necessary respect depends not only on the representative nature of our legislative branch, but also on the deliberative character of its proceedings. As James Madison envisioned, ours is a "deliberative democracy." Indeed, its deliberative nature is fundamental to the integrity of our social compact. Because the essential alchemy of democracy - whereby just power is derived from the consent of the governed - can only occur in a process that is genuinely deliberative.

Moreover, it is the unique role of the Senate, much more than the House, to provide a forum for deliberation, to give adequate and full consideration to the strongly held views of a minority. In this case, the minority is made up of 44 Democratic Senators and 1 Independent.

And it is no accident that our founders gave the Senate the power to pass judgment on the fitness of nominees to the Judicial branch. Because they knew that respect for the law also depends upon the perceived independence and integrity of our judges. And they wanted those qualities to be reviewed by the more reflective body of Congress.

Our founders gave no role to the House of Representatives in confirming federal judges. If they had believed that a simple majority was all that was needed to safeguard the nation against unwise choices by a partisan president, they might well have given the House as well as the Senate the power to vote on judges.

But they gave the power instead to the Senate, a body of equals, each of whom was given a term of office—3 times longer than that of a representative—in order to encourage a reflective frame of mind, a distance from the passions of the voters and a capacity for deliberation. They knew that the judges would serve for life and that, therefore, their confirmation should follow a period of advice and consent in which the Senate was an equal partner with the executive.

Alexander Hamilton, in Federalist # 78, wrote that the "independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill-humors which the arts of designing men? have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."

When James Madison introduced the Bill of Rights, he explained that "independent tribunals of justice will consider themselves? the guardians of [these] rights, ? an impenetrable bulwark against every assumption of power in the legislature or executive."

So, it is not as a Democrat but as an American, that I appeal today to the leadership of the majority in the Senate to halt their efforts to break the Senate's rules and instead protect a meaningful role in the confirmation of judges and justices for Senators of both parties. Remember that you will not always be in the majority, but much more importantly, remember what is best for our country regardless of which party is temporarily in power.

Many of us know what it feels like to be disappointed with decisions made by the courts. But instead of attacking the judges with whose opinions we disagree, we live by the rule of law and maintain respect for the courts.

I am genuinely dismayed and deeply concerned by the recent actions of some Republican leaders to undermine the rule of law by demanding the Senate be stripped of its right to unlimited debate where the confirmation of judges is concerned, and even to engage in outright threats and intimidation against federal judges with whom they philosophically disagree.

Even after a judge was murdered in Atlanta while presiding in his courtroom, even after the husband and mother of a federal judge were murdered in Chicago in retaliation by a disgruntled party to a failed lawsuit—even then—the Republican leader of the House of Representatives responded to rulings in the Terri Schiavo case, by saying ominously: "The time will come for the men responsible for this to pay for their behavior."

When the outrage following this comment worsened Rep. DeLay's problems during the House Ethics scandal, he claimed that his words had been chosen badly, but in the next breath, he issued new threats against the same courts: "We set up the courts. We can unset the courts. We have the power of the purse."

In previous remarks on the subject, DeLay has said, "Judges need to be intimidated," adding that if they don't behave, "we're going to go after them in a big way."

Moreover, a whole host of prominent Republicans have been making similar threats on a regular basis.

A Republican Congressman from Iowa added: "When their budget starts to dry up, we'll get their attention. If we're going to preserve the Constitution, we must get them in line."

A Republican Senator from Texas directly connected the "spate of courthouse violence lately" to his view that unpopular decisions might be the explanation. "I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions, yet are unaccountable to the public, that it builds and builds to the point where some people engage in violence."

One of the best-known conservative political commentators has openly recommended that "liberals should be physically intimidated."

The spokesman for the Republican chairman of the House Judiciary Committee said: "There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary." Misunderstanding?

The Chief of Staff for another Republican senator called for "mass impeachment" by using the bizarre right-wing theory that the president can declare that any judge is no longer exhibiting "good behavior," adding that, "then the judge's term has simply come to an end. The President gives them a call and says: ?Clean out your desk. The Capitol police will be in to help you find your way home.'"

The elected and appointed Republican officials who made these dangerous statements are reflecting an even more broadly-held belief system of grassroots extremist organizations that have made the destruction of judicial independence the centerpiece of their political agenda.

Tony Perkins, leader of the Family Research Council, who hosted a speech by the Senate Majority Leader last Sunday has said, "There's more than one way to skin a cat, and there's more than one way to take a black robe off the bench." Explaining that during his meeting with Republican leaders, the leaders discussed stripping funding from certain courts, Perkins said, "What they're thinking of is not only the fact of just making these courts go away and recreating them the next day, but also de-funding them." Congress could use its appropriations authority to just "take away the bench, all of its staff, and he's just sitting out there with nothing to do."

Another influential leader of one of these groups, James Dobson who heads Focus on the Family focused his anger on the 9th circuit court of appeals: "Very few people know this, that the Congress can simply disenfranchise a court. They don't have to fire anybody or impeach them or go through that battle. All they have to do is say the 9th circuit doesn't exist anymore, and it's gone."

Edwin Vieira (at the "Confronting the Judicial War on Faith" conference) said his "bottom line" for dealing with the Supreme Court comes from Stalin: "He had a slogan, and it worked very well for him whenever he ran into difficulty: ?no man, no problem.'"

Through their words and threats, these Republicans are creating an atmosphere in which judges may well hesitate to exercise their independence for fear of Congressional retribution, or worse.


It is no accident that this assault on the integrity of our constitutional design has been fueled by a small group claiming special knowledge of God's will in American politics. They even claim that those of us who disagree with their point of view are waging war against "people of faith."

How dare they?

Long before our founders met in Philadelphia, their forbears first came to these shores to escape oppression at the hands of despots in the old world who mixed religion with politics and claimed dominion over both their pocketbooks and their souls.

This aggressive new strain of right-wing religious zealotry is actually a throw-back to the intolerance that led to the creation of America in the first place.

James Madison warned us in Federalist #10 that sometimes, "A religious sect may degenerate into a political faction."

Unfortunately the virulent faction now committed to changing the basic nature of democracy now wields enough political power within the Republican party to have a major influence over who secures the Republican nomination for president in the 2008 election. It appears painfully obvious that some of those who have their eyes on that nomination are falling all over themselves to curry favor with this faction.

They are the ones demanding the destructive constitutional confrontation now pending in the Senate. They are the ones willfully forcing the Senate leadership to drive democracy to the precipice that now lies before us.

I remember a time not too long ago when Senate leaders in both parties saw it as part of their responsibility to protect the Senate against the destructive designs of demagogues who would subordinate the workings of our democracy to their narrow factional agendas.

Our founders understood that the way you protect and defend people of faith is by preventing any one sect from dominating. Most people of faith I know in both parties have been getting a belly-full of this extremist push to cloak their political agenda in religiosity and mix up their version of religion with their version of right-wing politics and force it on everyone else.

They should learn that religious faith is a precious freedom and not a tool to divide and conquer.

I think it is truly important to expose the fundamental flaw in the arguments of these zealots. The unifying theme now being pushed by this coalition is actually an American heresy—a highly developed political philosophy that is fundamentally at odds with the founding principles of the United States of America.

We began as a nation with a clear formulation of the basic relationship between God, our rights as individuals, the government we created to secure those rights, and the prerequisites for any power exercised by our government.

"We hold these truths to be self-evident," our founders declared. "That all men are created equal, that they are endowed by their creator with certain inalienable rights..."

But while our rights come from God, as our founders added, "governments are instituted among Men, deriving their just power from the consent of the governed."

So, unlike our inalienable rights, our laws are human creations that derive their moral authority from our consent to their enactment—informed consent given freely within our deliberative processes of self-government.

Any who seek to wield the powers of government without the consent of the people, act unjustly.

Over sixty years ago, in the middle of the Second World War, Justice Jackson wrote:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

His words are no less true today.

The historic vulnerability of religious zealots to subordinate the importance of the rule of law to their ideological fervor was captured best in words given by the author of "A Man For All Seasons" to Sir Thomas More.

When More's zealous son-in-law proposed that he would cut down any law in England that served as an obstacle to his hot pursuit of the devil, More replied: "And when the last law was cut down and the devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast—man's laws, not God's—and if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then?"

The Senate leaders remind me of More's son-in-law. They are now proposing to cut down a rule that has stood for more than two centuries as a protection for unlimited debate. It has been used for devilish purposes on occasion in American history, but far more frequently, it has been used to protect the right of a minority to make its case.

Indeed it has often been cited as a model for other nations struggling to reconcile the majoritarian features of democracy with a respectful constitutional role for minority rights. Ironically, a Republican freshman Senator who supports the party-line opposition to the filibuster here at home, recently returned from Iraq with an inspiring story about the formation of multi-ethnic democracy there. Reporting that he asked a Kurdish leader there if he worried that the majority Shiites would "overrun" the minority Kurds, this Senator said the Kurdish leader responded "oh no, we have a secret weapon?. [the] filibuster."

The Senate's tradition of unlimited debate has been a secret weapon in our nation's arsenal of democracy as well. It has frequently serves to push the Senate—and the nation as a whole—toward a compromise between conflicting points of view, to breathe life into the ancient advice of the prophet Isaiah: "Come let us reason together"; to illuminate arguments for which the crowded, busy House of Representatives has no time or patience, to afford any Senator an opportunity to stand in the finest American tradition in support of a principle that he or she believes to be important enough to bring to the attention of the nation.

In order to cut down this occasional refuge of a scoundrel, the leadership would cut down the dignity of the Senate itself, diminish the independence of the legislative branch, reduce its power, and accelerate the decline in its stature that is already far advanced.

Two-thirds of the American people reject their argument. The nation is overwhelmingly opposed to this dangerous breaking of the Senate's rules. And, so the leadership and the White House have decided to call it a crisis.

In the last few years, the American people have been told on several occasions that we were facing a dire crisis that required the immediate adoption of an unusual and controversial policy.

In each case, the remedy for the alleged crisis was an initiative that would have been politically implausible at best -- except for the crisis that required the unnatural act they urged upon us.

First, we were told that the nation of Iraq, armed to the teeth as it was said to be with weapons of mass destruction, represented a grave crisis that necessitated a unilateral invasion.

Then, we were told that Social Security was facing an imminent crisis that required its immediate privatization.

Now we are told that the federal judiciary is facing a dire crisis that requires us to break the rules of the Senate and discard the most important guarantee of the deliberative nature of Senate proceedings.

As with the previous "crises" that turned out to be falsely described, this one too cannot survive scrutiny. The truth is that the Senate has confirmed 205 or over 95% of President Bush's nominees. Democrats have held up only ten nominees, less than 5 percent. Compare that with the 60 Clinton nominees who were blocked by Republican obstruction between 1995 and 2000.

In fact, under the procedures used by Republicans during the Clinton/ Gore Administration, far fewer than the 41 Senators necessary to sustain a filibuster were able to routinely block the Senate from voting on judges nominated by the president. They allowed Republican Senators to wage shadow filibusters to prevent some nominees from even getting a hearing before the Judiciary Committee. Other nominees were victims of shadow filibusters after receiving a hearing and were not allowed a committee vote. Still others were reported out of committee, and not allowed a vote on the Senate floor.

To put the matter in perspective, when President Clinton left office, there were more than 100 vacant judgeships largely due to Republican obstructionist tactics. Ironically, near the end of the Clinton/ Gore administration, the Republican chairman of the Senate Judiciary Committee said: "There is no vacancy crisis and a little perspective clearly belies the assertion that 103 vacancies represent a systematic crisis."

Comically, soon after President Bush took office, when the number of vacancies had already been reduced the same Republican committee chairman sounded a shrill alarm. Because of the outstanding vacancies, he said, "We're reaching a crisis in our federal courts."

Now, the number of vacancies is lower than it has been in many years: 47 vacancies out of 877 judgeships - and for the majority of those vacancies, the President has not even sent a nominee to the Senate. Yet still, the Republican drive for one-party control leads them to cry over and over again: "Crisis! Crisis in the courts!" It is hypocritical, and it is simply false.

Republicans have also claimed quite disingenuously that the filibustering of judicial nominees is unprecedented. History, however, belies their claim.

I served in the Senate for eight of my 16 years in Congress—and then another 8 years as President of the Senate in my capacity as Vice President. Moreover, my impressions of the Senate date back to earlier decades - because my father was a Senator when I was growing up.

From that perspective, I have listened with curiosity to some of the statements made during the current debate. For example, I have heard the Senate Majority Leader, who is from my home state and should know better, say that no Court nominee has ever been filibustered before the current president's term. But I vividly remember not only the dozens of nominees sent to the Senate by President Clinton who were denied a vote and filibustered by various means, I also remember in 1968 when my father was the principal sponsor of another Tennessean—Abe Fortas—who was nominated to be Chief Justice by President Lyndon Johnson. Fortas was filibustered and denied an up or down vote. The cloture vote was taken on October 1st, 1968. When it failed by a vote of 45-43, President Johnson was forced by the filibuster to withdraw the nomination.

My father's Senate colleague and friend from Tennessee, Howard Baker, said during that filibuster, "On any issue, the majority at any given moment is not always right." And no Democrat would take issue with that statement, then or now. It is part of the essence of the U.S. Senate.

This fight is not about responding to a crisis. It is about the desire of the administration and the Senate leadership to stifle debate in order to get WHAT they want WHEN they want it. What is involved here is a power grab—pure and simple.

And what makes it so dangerous for our country is their willingness to do serious damage to our American democracy in order to satisfy their lust for total one-party domination of all three branches of government.

They seek nothing less than absolute power. Their grand design is an all-powerful executive using a weakened legislature to fashion a compliant judiciary in its own image. They envision a total breakdown of the separation of powers. And in its place they want to establish a system in which power is unified in the service of a narrow ideology serving a narrow set of interests.

Their coalition of supporters includes both right-wing religious extremists and exceptionally greedy economic special interests. Both groups are seeking more and more power for their own separate purposes.

If they were to achieve their ambition—and exercise the power they seek—America would face the twin dangers of an economic blueprint that eliminated most all of the safeguards and protections established for middle class families throughout the 20th century and a complete revision of the historic insulation of the rule of law from sectarian dogma. One of the first casualties would be the civil liberties that Americans have come to take for granted.

Indeed, the first nominee they've sent to the on-deck circle has argued throughout her legal career that America's self-government is the root of all social evil. Her radical view of the Social Security system, which she believes to be unconstitutional, is that it has created a situation where, in her words: "Today's senior citizens blithely cannibalize their grandchildren."

This family of 7 judicial fanatics is now being stopped at democracy's gates by 44 Democratic Senators, led by Sen. Harry Reid, and a small but growing number of Republican Senators who have more independence than fear of their party disciplinarians. If the rules of the Senate are broken and if these nominees should ever be confirmed, they would, as a group, intervene in your family's medical decisions and put a narrow version of religious doctrine above, not within, the Constitution. They have shown by their prior records and statements that they would weaken the right to privacy and consistently favor special interests at the expense of middle class America by threatening the minimum wage, worker & consumer protections, the 40-hour workweek, your right to sue your HMO, and your right to clean air and water.

Because of the unique lifetime tenure of federal judges, their legitimacy requires that they be representative of a broad consensus of the American people. Extremist judges so unacceptable to a large minority of the Senate clearly fall outside this consensus.

Yet today's Republicans seem hell-bent on squelching the ability of the minority in this country to express dissent. This is in keeping with other Republican actions to undercut the legislative process.

And in the filibuster fight they are doing it with utter disregard for the rule of law so central to our democracy. There is, of course, a way to change the rules if they so choose - and that is to follow the rules.

When they decide instead to break the rules and push our democracy into uncharted, uncertain terrain, the results are often not to the liking of the American people.

That's what happened when they broke precedents to pass special legislation in the Terri Schiavo case—by playing politics with the Schiavo family tragedy. And, the overwhelming majority of Americans in both political parties told the President and the Congress that they strongly disagreed with that extremist approach.

And now, all of the new public opinion polls show an overwhelming majority of the American people are opposed to this current effort to cripple the United States Senate's position in our constitutional framework by destroying the principle of unlimited debate. But, the congressional Republican leadership and the White House are so beholden to the extremists that they feel like they have to do what they say.

One reason that the American people are upset about what the Republican party is doing, is that while they are wasting time on their extremist agenda, they are neglecting issues like the crisis in the cost and availability of health care, the difficulty middle class families are having in making ends meet, etc.

Our founders understood that there is in all human beings a natural instinct for power. The Revolution they led was precisely to defeat the all-encompassing power of a tyrant thousands of miles away.

They knew then what Lord Acton summarized so eloquently a hundred years later: "Power tends to corrupt and absolute power corrupts absolutely."

They knew that when the role of deliberative democracy is diminished, passions are less contained, less channeled within the carefully balanced and separated powers of our Constitution, less checked by the safeguards inherent in our founders' design—and the vacuum left is immediately filled by new forms of power more arbitrary in their exercise and derived less from the consent of the governed than from the unbridled passions of ideology, ultra-nationalist sentiments, racist, tribal and sectarian fervor—and most of all, by those who claim a unique authority granted directly to them by the Almighty.

That is precisely why they established a system of checks and balances to prevent the accretion of power in any one set of hands - either in one individual or a group because they were wary of what Madison famously called "factions."

Yet today that is precisely what a small group of radical Republicans is trying to do. And they threaten a fundamental break with a system that has served us well for 230 years and has served as a model for the rest of the world.

In the words of columnist George Will, "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."

Senator McCain echoed Will's sentiments, reminding his conservative colleagues, "We won't always be in the majority? and do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?"

The rules and traditions of the Senate all derive from this desire to ensure that the voice of the minority could be heard. The filibuster has been at the heart of this tradition for nearly the entire 230 years of the Senate's existence. Yet never before has anyone has felt compelled to try to eliminate it.

The proposal from the Senate majority leader to abolish the right of unlimited debate is a poison pill for America's democracy. It is the stalking horse for a dangerous American heresy that would substitute persuasion on the merits with bullying and an effort at partisan domination.

 

[rgraham666]

Somebody tries to 'physically intimidate' me because I'm 'liberal' and they'll find that the ability to use violence isn't limited to 'conservatives'.

Scumbags. Bullies, I hate 'em.

 

[impressive]

http://apnews.excite.com/article/20050524/D8A97LBG0.html

Senators Avert Showdown Over Filibusters
May 23, 8:51 PM (ET)
By DAVID ESPO


WASHINGTON (AP) - In a dramatic reach across party lines, Senate centrists agreed Monday night on a compromise that clears the way for confirmation of many of President Bush's stalled judicial nominees, leaves others in limbo and preserves venerable filibuster rules.

"In a Senate that is increasingly polarized, the bipartisan center held," said Sen. Joseph Lieberman, D-Conn., one of 14 senators _seven from each party - to sign the agreement that pledged lawmakers to "mutual trust and confidence."

"The Senate is back in business," echoed Sen. Lindsey Graham, R-S.C..

Under the terms, Democrats agreed to allow final confirmation votes for Priscilla Owen, Janice Rogers Brown and William Pryor, named to appeals court seats. There is "no commitment to vote for or against" the filibuster against two other conservatives named to the appeals court, Henry Saad and William Myers.

The agreement said future nominees to the appeals court and Supreme Court should "only be filibustered under extraordinary circumstances," with each Democrat senator holding the discretion to decide when those conditions had been met.

"In light of the spirit and continuing commitments made in this agreement," Republicans said they would oppose any attempt to make changes in the application of filibuster rules.

Majority Leader Bill Frist, R-Tenn., swiftly noted he had not been a party to the deal, which fell short of his stated goal of winning yes-or-no votes on each of Bush's nominees. "It has some good news and it has some disappointing news and it will require careful monitoring," he said,

Democratic leader Harry Reid of Nevada seemed more receptive - although he hastened to say he remains opposed to some of the nominees who will now likely take seats on federal appeals courts.

"We have sent President George Bush, Vice President Dick Cheney and the radical right of the Republican party an undeniable message ... the abuse of power will not be tolerated."

The White House said the agreement was a positive development.

"Many of these nominees have waited for quite some time to have an up-or-down vote and now they are going to get one. That's progress," said press secretary Scott McClellan said. "We will continue working to push for up or down votes for all the nominees."

The deal was struck around the table in Sen. John McCain's office, across the street from the Capitol where senators had expected an all-night session of speech-making, prelude to an anticipated showdown on Tuesday.

Nominally, the issue at hand was Bush's selection of Owen, a member of the Texas Supreme Court, to a seat on the 5th Circuit Court of Appeals in New Orleans.

In fact, as the rhetoric suggested, the stakes were far broader, with Republicans maneuvering to strip Democrats of their right to filibuster and thus block current and future nominees to the appeals court and Supreme Court.

There currently is no vacancy on the high court, although one or more is widely expected in Bush's term. Chief Justice William Rehnquist's coincidental presence in the Capitol during the day was a reminder of that. At age 80 and battling thyroid cancer, he entered the building in a wheelchair on his way to a medical office.

 

[Pure]

GWB has this clever thing of appointing Black and Hispanic untraconservatives, then watching Dems squirm.

[Added: Merely white and ultraconservative is]
Priscilla Owen, apparently labelled quite freewheeling and activist (ie., imposing her views above the law) by no less than Gonzales, GWBs current legal mouthpiece. Her credits are 1) black [correction; in pictures she does not appear so; so I assume 'white']; 2) female, 3) rabidly opposed to abortion and other related liberal issues. Someone should post some info.

See posting below for details.