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May 15, 2005
Misuse of information
I don't normally use this space to comment on purely political activities, but as a former Senate staffer I am very concerned with where the Senate might be going with the fight to weaken the filibuster. Like it or not, the right of any Senator to unlimited debate (commonly called a filibuster) is what makes the Senate the ultimate protector of the rights of the minority. It should be kept in mind that this right is not absolute. Under Senate rules, debate can be closed off with a supermajority of 60 votes (down from the original rule of two/thirds).
During my time on Senate staff, I was on the Democratic majority and saw how the Republican minority used the filibuster (not just a filibuster but the threat of a filibuster and other filibuster-based techniques) to modify or even kill legislation that did not have a bipartisan majority. I didn't like it. But I came to understand that the filibuster is an important part of our checks and balances system which makes our Constitution so powerful.
The argument in this instance is not with legislation, but with judicial nominations. Senate GOP leaders are quick to point out that the so-called "nuclear option" of changing Senate rules through a ruling by the Vice President sitting as the President of the Senate (which takes only a majority vote to ratify) will not apply to the legislation. We are told that the President should be given deference in his appointments. I think this is backwards. If anything, judicial appointments should be subject to the two-thirds rule, similar to treaties. The founding fathers realized that treaties could not be undone with out severe consequences (normally war) and they therefore set up the two-thirds requirement. Judicial appointments are also difficult to undo. Judges are appointed for life and can only be removed through the difficult process of impeachment. Thus, the Congress should be extra careful with Court appointments.
What bothers me most, however, it the misuse of information and history during the discussion. An example of this is Charles Krauthammer's "Nuclear? No, Restoration," in Friday's Washington Post:
This technique is defended by Democrats as traditional and rooted in history. What a fraud. The only example that comes close is Lyndon Johnson's nomination in 1968 of (sitting) Supreme Court Justice Abe Fortas to be chief justice. But this case is muddied by the fact that (a) Fortas was subject to allegations involving conflicts of interest and financial impropriety, (b) he did not appear to have the votes anyway, and (c) the case involved elevation on the court, not appointment to the court.
Krauthammer goes on to assert:
One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees.
Contrast this to Senator George Mitchell's "The Not-So-Secret History of Filibusters" in the New York Times of May 10, 2005.
Since 1789, the Senate has rejected nearly 20 percent of all nominees to the Supreme Court, many without an up-or-down vote.
In 1968 Republican senators used a filibuster to block voting on President Lyndon B. Johnson's nominee for chief justice of the Supreme Court. During the debate, a Republican senator, Robert Griffin, said: "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."
Between 1968 and 2001, both parties used filibusters to oppose judicial nominees. In 2000, the last year of Bill Clinton's presidency, Republican senators filibustered two of his nominees to be circuit judges. They also prevented Senate votes on more than 60 of Mr. Clinton's judicial nominees by other means.
So much for the assertion that filibustering to prevent votes on judicial nominees is a new tactic invented by Senate Democrats.
I leave you to be the judge of who to believe. My money is on Senators Mitchell and Griffin.
Posted by Ken Jarboe at May 15, 2005 12:48 PM
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Comments
to Ken Jarboe: Good blow for the cause, Ken. Glad to see your keen eye still focuses on important issues. Bob
Posted by: Robert L. Stern at May 16, 2005 8:44 AM
Ken Jarboe: "We are told that the President should be given deference in his appointments. I think this is backwards. If anything, judicial appointments should be subject to the two-thirds rule, similar to treaties. The founding fathers realized that treaties could not be undone with out severe consequences (normally war) and they therefore set up the two-thirds requirement."
Ann Althouse: "Did you know that the Constitution's Framers considered requiring a supermajority vote in the Senate to reject the President's judicial nominees?" Maybe you should cite some other authorities if you want to argue that judicial nominees should be rejected if they don't get 60+ votes.
Posted by: MDP at May 20, 2005 8:10 PM
Yes, on July 18, James Madison made the motion "that the Judges shd. be nominated by the Executive & such nominations become appointments unless disagreed to by 2/3 of the 2d. branch of the Legislature." [From Farrend's Record] This was during the preliminary discussion on whether the Senate or the Executive should appoint judges - the draft at this time has the Senate appointing. During the debate, as I understanding Oliver Ellsworth (from CT, who ended up not signing the Constitution) made a suggestion that the President be allow to block a Senate appointment of a judge, but that the Senate could override that "negation" with a 2/3 vote (sounds similar to the veto and veto override process). Madison later modified his original motion so as to allow for the Senate (the 2d branch) to reject a nomination by majority.
On July 21, Madison's motion "that the executive should nominate, & such nominations should become appointments unless disagreed to by the Senate" was defeated (3-6) and the "question for agreeing to the clause as it stands by which the Judges are to be appointed by 2d. branch" was agreed to (6-3).
Later on, of course, this was changed so that the President would nominate judges.
Thus, I don't believe that our Founding Fathers ever seriously considered the idea of requiring a supermajority to overturn a judicial nomination (it seems that Madison backed off that position very quickly) and never even really directly considered whether to require a supermajority vote for the confirmation of judges (although they argued very much over the supermajority requirement for treaties). In the end, they simply stated, in Article I, Section 5: "Each House [of Congress] may determine the rules of its proceedings."
Posted by: Ken Jarboe at May 22, 2005 6:38 PM