The Democrats on filibustering judges

[Ramo]

Under Hatch's Clinton era rules, either Senator from the nominee's state could block the nomination (rather than requiring both Senators). After Republicans retook the Senate in '02 (they didn't have the chance before Jeffords defected), Hatch had a mysterious change in heart and re-instated the two-Senator rule.

As to the topic, it's interesting that in '95, some of the Senate liberals tried to end the filibuster. They got only 19 votes. Everyone else (76 voting against), including all of the Republicans, voted to keep the filibuster. That means that while only a minority of Senate Democrats are opportunistic hypocrites on this matter, every single Senate Republican is an opportunistic hypocrite (except, possibly, a couple who weren't in the Senate at the time - but some of these guys, i.e. Frist were involved in Filibusters since '95).

Basically, both sides are being hypocritical. But rhetoric aside with regards to individual nominees, when push came to shove as to whether to end the institution of the filibuster, the Republicans have been far more hypocritical than the Democrats.

[Dinner]

There is already a thread on the filibuster. This thread should be closed and people can post in the original filibuster thread.

[dannubis]

let's filibuster oerdin's proposition

[Ogie Oglethorpe]

Originally posted by GePap
If the republicans want to change the rules, fine, as long as they do so according to the existing rules in the Senate. So, if they can get 2/3 of the Senators to agree to a rules change if a fillibuster is in place (which is the current Senate rule regarding the matter) then let them. To do otherwise is a naked grab at power.

Why?

The Dems on at least 5 separate occasions changed the rules to either modify Senate rules on what breaks filibuster or out and out eliminate filibuster opportunities via various mechanisms via a simple majority vote. Why the distinction for repubs wanting to change senate rules?

Precedent being set I don't see how the Dems have a leg to stand on.

[MichaeltheGreat]

Originally posted by Drake Tungsten
Here's something interesting I just found out. It appears that at one point, James "Father of the Constitution" Madison wanted to require a 2/3rds majority in the Senate to reject the President's judicial appointments.

http://althouse.blogspot.com/2005/05...to-reject.html

Well, actually, ol' James was one delegate, and the real "Fathers of the Constitution" were those state delegations who chose to ratify it. And ol' James' opinion doesn't mean squat.

'Sides that, if you want to use James' opinion as some sort of moral argument, that's fine - this was the same Constitution that had Senators elected by state legislatures, white males over 21 as the only voters, importation of darkies for the slave trade until at least 1808, and darkies as 3/5 of a person for apportionment purposes, but 0/5 of a person for any other purpose.

[DinoDoc]

Originally posted by dannubis
let's filibuster oerdin's proposition

Let's use the modern filibuster.

[Dinner]

Fine, I guess we can keep all three threads open.

Here's a nice link of the top ten lies Republicans tell when it comes to filibusters.

http://mediamatters.org/items/200505180004

The Top 10 filibuster falsehoods

With Senate debate on two of President Bush's most controversial judicial nominees beginning May 18, the heated rhetoric over the so-called "nuclear option" to ban Senate filibusters on judicial nominations has reached its boiling point. The rules of the Senate thus far remain intact, but filibuster opponents have pulled all rhetorical stops, advancing numerous falsehoods and distortions, and, as Media Matters for America documents below, the media have too often perpetuated that misinformation by unskeptically, and sometimes even deliberately, repeating it.

Falsehood #1: Democrats' filibuster of Bush nominees is "unprecedented"

The most prevalent talking point put forth by advocates of the "nuclear option" is that Democratic filibusters of 10 of President Bush's judicial nominees are "unprecedented" in American history.

But Republicans initiated a filibuster against a judicial nominee in 1968, forcing Democratic president Lyndon Johnson to withdraw the nomination of Associate Supreme Court Justice Abe Fortas to be chief justice. Then-Sen. Robert Griffin (R-MI) recognized at the time that denying nominees a vote was already an established practice. "It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote," Griffin said, according to a May 10 New York Times op-ed by former Senate Majority Leader George Mitchell (D-ME).

Cloture votes were also necessary to obtain floor votes on Clinton judicial nominees Richard A. Paez and Marsha L. Berzon in 2000, and Republicans attempted to filibuster the nomination of U.S. District Judge H. Lee Sarokin to the 3rd U.S. Circuit Court of Appeals in 1994. Senate Majority Leader Bill Frist (R-TN), who is leading the Republican opposition to Democratic filibusters, voted against cloture for the Paez nomination.

And these are merely instances when Republicans filibustered Democratic presidents' judicial nominees. The Republican-controlled Senate blocked approximately 60 Clinton nominees through other means. This included strict enforcement under Clinton of the "blue slip" policy, which at the time allowed a senator from a nominee's home state to block a nominee simply by failing to turn in the blue-colored approval papers required for the nomination process. While Judiciary Chairman Orrin Hatch (R-UT) strictly adhered to the "blue slip" policy to allow Republicans to block Clinton nominees, he relaxed the policy nearly to the point of elimination in his efforts to push through Bush's nominees.

For example, Hatch held committee votes on the nominations of 9th U.S. Circuit Court of Appeals nominee Carolyn B. Kuhl over the objections of Sen. Barbara Boxer (D-CA), as well as four 6th Circuit nominees over their home state senators' objections.

Because of these numerous responses to Falsehood #1, proponents have honed their message in order to continue arguing that the present Democratic effort is "unprecedented." The argument has now been reduced to: It is unprecedented for a nominee to be blocked who 1) has clear majority support in the Senate; 2) has actually reached the Senate floor for an up-or-down vote; and 3) did not ultimately get confirmed after being filibustered.

The "clear majority" qualifier is designed to discount Fortas, even though "[i]t is impossible to gauge the exact support for Fortas because 12 senators were absent for the 'cloture' or 'closure' vote, which failed to halt the filibuster," as the Washington Post noted on March 18. The qualifier that a nominee reach the Senate floor disregards the approximately 60 Clinton nominees whom the Republican-led Senate blocked in committee. The qualifier that the filibuster be ultimately successful gets around Republican efforts to filibuster Paez and Berzon, who eventually won Senate confirmation.

Falsehood #2: Bush's filibustered nominees have all been rated well-qualified by the ABA; blocking such highly rated nominees is unprecedented

To make Democratic filibusters appear unwarranted, many "nuclear option" supporters have falsely claimed that some -- or all -- of Bush's judicial nominees have received the American Bar Association's (ABA) highest qualification rating. Others have argued that Texas Supreme Court justice Priscilla Owen is the first judicial nominee to be filibustered who received a unanimous well-qualified (WQ) rating from the ABA.

But of the 10 Bush nominees filibustered by Senate Democrats, only three -- Owen, Miguel Estrada, and David McKeague -- received a unanimous "Well Qualified" rating from the ABA. Conservatives have frequently touted Janice Rogers Brown as highly qualified (see Rush Limbaugh and Rev. Jerry Falwell), but she twice received an "Unqualified" rating from the California judicial evaluation committee and currently has the ABA's lowest "passing" rating of Qm/NQmin (meaning a majority consider her "Qualified" and a minority consider her "Not Qualified").

Contrary to some claims, blocking WQ-rated judicial nominees is not a new practice. Republicans blocked 10 of President Clinton's appeals court nominees with unanimous WQs from receiving a Senate Judiciary Committee hearing, and another WQ nominee received a committee hearing but was granted neither a committee vote nor full Senate consideration.

Falsehood #3: Democratic obstructionism has led to far more judicial vacancies during Republican administrations than Democratic administrations

"Nuclear option" proponents have also used the "empty courtroom" argument to advance their agenda, claiming an unusual number of judicial vacancies during Republican administrations as a result of Democratic obstructionism. But what "nuclear option" advocates don't mention is that the discrepancy in judicial vacancies over the last three administrations is primarily due to the recent creation of new judgeships and the president's relatively slow rate of nominating candidates to fill open spots.

One such claim, that more judicial vacancies existed at the end of the George H.W. Bush administration than following the Clinton administration, is largely explained by the 85 new judgeships created by Congress in 1990. And the argument completely collapses when one examines appellate nominees alone: There were more circuit court vacancies when Clinton left office then when President George H.W. Bush did.

Comparisons of the number of current judicial vacancies to the number under Clinton are also misleading, if not outright false. Most of the current vacant federal judgeships are vacant because Bush has nominated candidates to fill only about one-third of the vacancies. There were never fewer district and appellate court vacancies during the Clinton administration than the 45 vacancies that presently exist, according to Congressional Research Service data obtained from the Administrative Office of the U.S. Courts. In other words, there were actually more judicial vacancies when Republicans blocked Clinton's nominees than there are right now.

Falsehood #4: "Nuclear Option" is a Democratic term

Following the Republicans' lead, many major media outlets have attributed the term "nuclear option" as a creation of Senate Democrats. In fact, Sen. Trent Lott (R-MS), one of the proposed measures' leading advocates, actually coined the term.

Falsehood #5: Democrats oppose Bush nominees because of their faith, race, ethnicity, gender, stance on abortion, stance on parental notification ...

Democrats who have filibustered Bush's judicial picks maintain that their opposition stems from the nominees' alleged inability or unwillingness to put aside personal ideological views and follow the law. But that hasn't stopped "nuclear option" proponents from misrepresenting the rationale for Democratic opposition.

One prominent falsehood is that Democrats have opposed the nominees because of their opposition to abortion rights. But opponents of nominees Priscilla Owen, Janice Rogers Brown and William H. Pryor have cited specific actions and statements related to abortion that run counter to precedent and statutory law. Further, the Senate has confirmed 208 of Bush's judicial nominees -- most with substantial Democratic support -- and few, if any, of these confirmed judges have voiced support for abortion rights. Many Bush appointees approved by the full Senate -- such as Michael W. McConnell, John G. Roberts, and James Leon Holmes -- have voiced opposition to abortion rights.

Conservatives have also accused Democrats of opposing Owen because of her support for Texas' parental notification law for minors seeking abortions. In fact, Democrats claim Owen tried to rewrite the law by imposing obstacles to receiving a judicial bypass that the letter of the law did not require, an accusation first made in an opinion written by her then-colleague on the court, Attorney General Alberto R. Gonzales, in which Gonzales accused the dissenters, including Owen, of trying "to create hurdles that simply are not to be found in the words of the statute" and of advocating "an unconscionable act of judicial activism."

The most frequent distortion has been that Democrats have opposed the 10 filibustered judicial nominees because of their "faith" or their "religion." Additionally, "Nuclear option" advocates have baselessly accused Democrats of blocking Bush's nominees because of their ethnicity, race, or gender.

Falsehood #6: Public opinion polling shows clear opposition to judicial filibusters, support for "nuclear option"

Many media reports have aided "nuclear option" advocates by selectively citing or mischaracterizing polling results to claim that the public is strongly opposed to judicial filibusters.

A partisan Republican poll, which proponents claim suggests broad public support for the "nuclear option," has received significant media coverage. The poll asked respondents whether they agreed with the following statement: "If a nominee for any federal judgeship is well-qualified, he or she deserves an up or down vote on the floor of the Senate [underline in original]." But it is misleading because it offers only the option of supporting or opposing "up or down" votes for judicial nominees without any context or accompanying argument offered in opposition. In addition, the poll posits that the judges in question are "well qualified." Some coverage of the poll mischaracterized its results by unquestioningly reporting Republican National Committee chairman Ken Mehlman's false suggestion that the poll showed that the vast majority of Americans believe all judicial nominees should receive an up-or-down vote in the Senate.

In fact, another question from Republican polling more directly addresses the debate over judicial nominees and suggests that the public opposes eliminating senators' ability to block a nomination using the filibuster. Private Republican polling indicated that only 37 percent of respondents supported the GOP plan to prevent Democrats from filibustering judicial nominees, while 51 percent opposed.

"Nuclear option" advocates have also attempted to dismiss an ABC News/Washington Post poll showing even stronger opposition to the rule change by claiming the poll is biased because it didn't specifically mention the terms "filibuster" or "unprecedented." But other polls that specifically mention the filibuster similarly indicate majority opposition to the "nuclear option," and the Democrats' use of the filibuster is not unprecedented, as noted above. The most recent poll to specifically mention the term "filibuster," conducted May 10-12 by Time magazine, found that 59 percent of respondents opposed Republican efforts to "eliminate the filibuster" for judicial nominees, compared to 28 percent in favor.

Falsehood #7: Filibustering judicial nominees is unconstitutional

Another argument made by those supporting the "nuclear option" is that filibustering judicial nominees is unconstitutional. In fact, the Constitution makes no mention of filibusters, but it explicitly empowers the Senate to determine its own rules. Senate rules allow for unlimited debate on any subject, including judicial nominees. Rule XXII of the Standing Rules of the Senate, which governs debate and filibusters, explicitly states that the rules apply to "any measure, motion, [or] other matter pending before the Senate," including judicial nominations. In response to a May 12 question from Sen. Robert Byrd (D-WV) on the Senate floor, Frist acknowledged that the Constitution does not require an up-or-down vote for all judicial nominees: "To the question, does the Constitution say that every nominee of the President deserves an up-or-down vote, the answer is, no, the language is not there."

Falsehood #8: Clinton's appellate confirmation rate was far better than Bush's rate

"Nuclear option" advocates have also claimed that the confirmation rate for Clinton's appellate nominees was much higher than for Bush's nominees. But the confirmation rate in Clinton's second term and Bush's first term are nearly identical -- 35 of Clinton's 51 nominees were confirmed, compared to 35 of Bush's 52 nominees.

Another talking point is that "100 percent" of Clinton's appellate nominees were approved once they reached the Senate floor. But that statistic is highly misleading because the Republican-led Judiciary Committee blocked the 16 second-term Clinton appellate nominees by keeping them off the floor and, in all but one case, denying them even committee hearings.

Falsehood #9: Sen. Byrd's alterations to filibuster rules set precedent for "nuclear option"

Yet another faulty claim put forth by opponents of judicial filibusters is that past actions by Sen. Robert Byrd (D-WV) have constituted a precedent for the so-called "nuclear option."

For example, columnist and CNN host Robert Novak claimed that a 1977 parliamentary maneuver by Byrd to break a post-cloture filibuster set such a precedent. A standard filibuster occurs when senators exercise their full rights under Senate Standing Rule XXII, which requires a three-fifths majority (60 votes) to invoke cloture, or cut off debate, on any matter pending before the Senate. But then-Senate Majority Leader Byrd's action in 1977 was a successful attempt to break a post-cloture filibuster; 60 senators had already voted for cloture, but two senators continued to extend debate by offering a series of amendments meant to manipulate a loophole in then-standing Senate rules. In order to end the post-cloture filibuster, Byrd invoked a provision of Rule XXII forbidding dilatory amendments. The precedent Byrd set was novel only because he interpreted Rule XXII to allow the chair of the Senate to rule the dilatory amendments out of order without first requiring a point of order from a senator on the floor.

By contrast, Republican senators are currently considering the "nuclear option" precisely because they lack the 60 votes to invoke cloture on the initial filibuster of the 10 judicial nominees.

Novak's claim is just one instance of opponents of judicial filibusters claiming that actions by Byrd set a precedent for the "nuclear option." The various claims originated in a fall 2004 article by lawyers Martin B. Gold and Dimple Gupta published in the conservative Harvard Journal of Law and Public Policy. Gold is a former floor adviser to Senate Majority Leader Bill Frist (R-TN), and Gupta is a former employee of the Bush Justice Department. The progressive advocacy group People for the American Way rebutted the other arguments for a "nuclear precedent" put forth in Gold and Gupta's article in a February 22 report.

Falsehood #10: Democrats have opposed "all" or "most" of Bush's judicial nominees

"Nuclear option" proponents have drastically exaggerated Democratic efforts to block Bush's judicial nominees, suggesting that they have opposed all of his nominees or all of his conservative nominees.

In fact, the Senate has to date approved 208 judicial nominees, with Senate Democrats filibustering 10. The vast majority of Bush's nominees have received strong bipartisan support. For example, in April district court nominee Paul Crotty was confirmed by a vote of 95-0. Even among Bush's first-term appellate nominees, the Senate confirmed more than 70 percent.

— A.S

[Ogie Oglethorpe]

Regarding falsehood #9 having read the People for American Way rebuttal of Gupta and Gold their case (PFAW's) is weak at best.

Give both a read they are dry but informative an IMO much better written in the case of Gupta and Gold as they clearly indicate areas of problematic precedent being set while the clearly one sided approach of PFAW offers little new to the discussion save an attempt at Dem talking points.

[Dinner]

Except it didn't change the number of votes needed now did it? The Republican's arrogant grab for absolute power does drastically change the number of votes needed and it is done so purely out of greed. One day the Republicans will suffer for the arrogance they now wear on their shoulder.

[Ned]

Originally posted by Bosh
Hmmmmm, most comprehensive list that I thought existed I'll give you that. I knew that a lot of Dems used to oppose the filibuster but I didn't know it was so much of the past and current leadership.

HOWEVER, the Republicans aren't any better (see my thread on Frist actively engaging in a filibuster) and perhaps marginally worse since the Democrats seem to be mostly just hot air (as usual) while the Republicans ACTUALLY filibustered judges in the past and ACTUALLY are try to do something about getting rid of the filibuster now. In any case, anyone who swollows the BS justifications that EITHER side of the current fight are taking a stand out of principle is an idiot...

Could you provide a link to your thread? According to all the politicians, there have never been filibusters of judges before, with the possible exception of Abe Fortas. I have never heard one Demoncrat cite even one example of a prior filibuster of a judicial nominee by either party.

[Ned]

Originally posted by Ramo
Under Hatch's Clinton era rules, either Senator from the nominee's state could block the nomination (rather than requiring both Senators). After Republicans retook the Senate in '02 (they didn't have the chance before Jeffords defected), Hatch had a mysterious change in heart and re-instated the two-Senator rule.

As to the topic, it's interesting that in '95, some of the Senate liberals tried to end the filibuster. They got only 19 votes. Everyone else (76 voting against), including all of the Republicans, voted to keep the filibuster. That means that while only a minority of Senate Democrats are opportunistic hypocrites on this matter, every single Senate Republican is an opportunistic hypocrite (except, possibly, a couple who weren't in the Senate at the time - but some of these guys, i.e. Frist were involved in Filibusters since '95).

Basically, both sides are being hypocritical. But rhetoric aside with regards to individual nominees, when push came to shove as to whether to end the institution of the filibuster, the Republicans have been far more hypocritical than the Democrats.

Since there had never been a prior filibuster of a judicial nominee, the vote on filibuster was in reference to its traditional use: legislation.

[Lefty Scaevola]

Originally posted by Ned
I have never heard one Demoncrat cite even one example of a prior filibuster of a judicial nominee by either party.

Abe Fortas, suspected of corruption; and one during the Clinton admin, IIRC because of some sort of vauge connection to the banking scandals.
Also a clinton nominee to a banking oversight board, a crony of clintons who would then have some sort of regulatory oversight over the Whitwater S & L cleanup.

In all such prior cases, however, the object as I recall was not to block the vote permenantly, but to delay the process and get more time to dig up some posible dirt that had recently come to light. In each case the vote was later taken or the nommiee was withdrawn because enough mud turned up. None was philibustered indefinitly, the tactic was used to estend debate.

[Dinner]

Originally posted by Ned


Could you provide a link to your thread? According to all the politicians, there have never been filibusters of judges before, with the possible exception of Abe Fortas. I have never heard one Demoncrat cite even one example of a prior filibuster of a judicial nominee by either party.

But Republicans initiated a filibuster against a judicial nominee in 1968, forcing Democratic president Lyndon Johnson to withdraw the nomination of Associate Supreme Court Justice Abe Fortas to be chief justice. Then-Sen. Robert Griffin (R-MI) recognized at the time that denying nominees a vote was already an established practice. "It is important to realize that it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote," Griffin said, according to a May 10 New York Times op-ed by former Senate Majority Leader George Mitchell (D-ME).

Cloture votes were also necessary to obtain floor votes on Clinton judicial nominees Richard A. Paez and Marsha L. Berzon in 2000, and Republicans attempted to filibuster the nomination of U.S. District Judge H. Lee Sarokin to the 3rd U.S. Circuit Court of Appeals in 1994. Senate Majority Leader Bill Frist (R-TN), who is leading the Republican opposition to Democratic filibusters, voted against cloture for the Paez nomination.

And these are merely instances when Republicans filibustered Democratic presidents' judicial nominees. The Republican-controlled Senate blocked approximately 60 Clinton nominees through other means. This included strict enforcement under Clinton of the "blue slip" policy, which at the time allowed a senator from a nominee's home state to block a nominee simply by failing to turn in the blue-colored approval papers required for the nomination process. While Judiciary Chairman Orrin Hatch (R-UT) strictly adhered to the "blue slip" policy to allow Republicans to block Clinton nominees, he relaxed the policy nearly to the point of elimination in his efforts to push through Bush's nominees.

For example, Hatch held committee votes on the nominations of 9th U.S. Circuit Court of Appeals nominee Carolyn B. Kuhl over the objections of Sen. Barbara Boxer (D-CA), as well as four 6th Circuit nominees over their home state senators' objections.

Link provide just above your post.

[Ogie Oglethorpe]

Originally posted by Oerdin
Except it didn't change the number of votes needed now did it? The Republican's arrogant grab for absolute power does drastically change the number of votes needed and it is done so purely out of greed. One day the Republicans will suffer for the arrogance they now wear on their shoulder.

Ummm yes it did. In 1975 the requirement of 2/3 voting senators to force cloture was reduced to 3/5 in a series of 3 procedural votes. Never once did the voting block ever achieve 2/3rds or for that matter 3/5ths votes. The last being a passage with 56 votes (the highest yey votes of all three).

Seriously read the Gold Gupta report its far better reading than the piece of trash put out by PFAW and does a rather fair job of evaluating the strengths and weaknesses of the precedential claims.

[Whoha]

Originally posted by MichaeltheGreat


Well, actually, ol' James was one delegate, and the real "Fathers of the Constitution" were those state delegations who chose to ratify it. And ol' James' opinion doesn't mean squat.

'Sides that, if you want to use James' opinion as some sort of moral argument, that's fine - this was the same Constitution that had Senators elected by state legislatures, white males over 21 as the only voters, importation of darkies for the slave trade until at least 1808, and darkies as 3/5 of a person for apportionment purposes, but 0/5 of a person for any other purpose.

wasnt that also 3/5ths for taxation?