Moment of Truth: On the judicial filibuster

What's your view? Honestly, I'm stuck between the first two choices.

it is clear in the Constitution that "advice and consent" is not meant to be used as a filibuster option. If we use the filibuster and make it part of the Senate procedures for judicial nominees, it might seriously come back to bite us in the ass.

The rules are played both ways. I'm not so sure it is a prudent thing to do as we move into the future where we gain power again.

There will be nothing to stop the republicans from using the same tactics against a democratic nominee even if we lose. The precedent will have been set.

Plus if we lose this battle, what will we have to fight with on supreme court nominee's?

I don't think some of these people being held up are going to make that big a difference in the long run as a SC nominee will.

I can't get past the fact that the filibuster in this case has that smell of "loophole-ism." It's perfectly legal, and it has been done before, but this can be used against us. The thing that pisses me off about the Republicans is that they're not being truthful with facts. They keep spinning this as an unprecedented, illegal attack on Bush's judges, because of their faith. It's clearly not that, but wouldn't it be easier to make a better argument why these judges are bad?

Maybe the compromise (the Harry Reid one) isn't so bad. Let all, except Owen and Brown through. The filibuster of Miguel Estrada seemed a bit excessive.

we are wasting political capital on these nominees, give these nominees an up or down vote. If we don't like the way our Senators voted, well the door can hit them in the ass as they are voted out. That's how a representative government works. We can sure put a ton of pressure on a bunch of them in the mean while.

Save the big moves for the SC.

that are the last resort on the vast majority of cases? What good does it do to vote the Senators out of office AFTER they've allowed these judges to get lifetime tenure?

The Supreme Court is important, but in some ways the fight over those seats is not as crucial as the fight over appellate judges. I'm less concerned about who will replace Rehnquist - after all, his seat is already filled by a right wing extremist. If he's replaced by another right wing extremist, it won't change things much. On the other hand, the appellate courts have an enormous impact on every aspect of our lives and we cannot ignore who fills these seats. Bush is stacking these courts with extremist activist judges who will continue to do serious damage to our rights and liberties long after the Senators who put them on the bench are booted out of office.

The Dems and the Republicans know this - that's why they're each fighting tooth and nail.

If you do your research, I doubt you'd be calling for the Democrats to roll over on everyone but Owen and Brown.

There's a reason the Democrats are going to the mat keeping them off of the bench.

Why do you think the Estrada filibuster was excessive?

because he wouldn't release private documents. I could be wrong (let me know if I am). I guess you can add Pryor to the list of judges to keep filibustering. Pickering already got through (unfortunately), so he doesn't count.

indicated he is a right wing ideologue. And he refused to release -not private documents - but memos and other material that he wrote in the Solicitor General's office that would help to shed light on his judicial philosophy, the kind of material that previous nominees had released without question.

AND, he refused to answer questions about his views - probably because he knew that if he answered truthfully, he would reveal himself to be a right wing extremist. This is not a minor point. The Senate has every right to probe a nominee's views and nominees can't just thumb their nose and say, "none of your business" (as John Edwards said) to the Senators.

From the Congressional Record:

Mr. EDWARDS. Mr. President, I believe judges have no greater responsibility than to ensure fair treatment and equal justice under the law. I also believe one of our greatest responsibilities as Senators is to advise and consent on the President's nominees to the bench. I, for one, take this responsibility very seriously. It is not our duty as Members of the Senate to just rubber stamp the President's nominees--particularly nominees who we doubt are committed to protecting equal rights for every single American.

Having read the record of this nominee very carefully, I feel compelled to oppose the nomination of Miguel Estrada for two reasons. First, what we know about his record raises serious questions about his commitment to protecting equal rights under the law.

Second, and more importantly, his refusal to answer reasonable questions during the confirmation process makes it impossible to examine his views of the law and determine whether his personal views would overrule law and legal precedent.
. . .
The little that we know of Miguel Estrada's approach to the law is troubling. But Mr. Estrada's record is not the main reason I can't support his nomination at this time. The main reason is that he has not explained his views. Before his hearing, I looked forward to hearing Mr. Estrada discuss his views, but he refused to do so. Instead, he stonewalled serious and valid questions--serious and valid questions that have been answered by many other nominees who have appeared before the committee.
. . .
We tried to discuss Mr. Estrada's views with him during the hearing, but instead of being forthcoming in answering our questions, Mr. Estrada was extraordinarily evasive. Time after time, Mr. Estrada refused to answer our questions because he claimed not to have an opinion since he has not been personally involved, read the briefs, listened to oral arguments, or independently researched the case.

Anybody who has attended law school, including myself, knows that law students and lawyers express opinions about Supreme Court cases every day because of their ramifications for current cases with similar issues.

Nine times during his testimony Mr. Estrada refused to name any Supreme Court case with which he disagreed. And time after time after time, Mr. Estrada just flat out refused to offer us any explanation of or insight into his view of his judicial philosophy.

As a judge on the D.C. Circuit, Miguel Estrada would have an enormous impact on the lives of millions of Americans. The American people deserve to know about this man who will have such an effect on their lives. They deserve to know whether he will respect and protect their civil rights. They deserve to know this before he dons the cloak of silence he will get once he is on the bench. The American people deserve more from Miguel Estrada than "none of your business."
. . .
February 11, 2003

I think I remember that now.

it is clear in the Constitution that "advice and consent" is not meant to be used as a filibuster option

Why not? The Senate can use any process (or internal stalling of it) to arrive at providing "advice and consent" that it likes. 51 votes is just a convention handed down that is quite a bit more arbitrary than it appears. Practical considerations keep it from being 80, or 99, or 25, but there isn't any magic number above which 'consent' exists and below which 'nonconsent' exists. 51 is a convention that starts with the reasoning 'well...if you can't even convince a majority....'

The filibuster rules(s) exist to extend the rights of the minority if it is only a minority by a small margin. Believe it or not, the House used to have some minority rights-extending rules of the sort too.

There will be nothing to stop the republicans from using the same tactics against a democratic nominee even if we lose.

The usual way of ending a filibuster is to run public support of it down to where it splits the party's support too much. In our present situation, Democrats have 40% to 50% support that refuses to be persuaded. For the necessarily level of support to sustain a filibuster indefinitely you either need a pretty good and solid national majority (Republicans in the Eighties and early Nineties) or a very large national minority with a very good argument in your favor (Democrats since 2002).

At present the distinction between the extreme Republican nominees and the moderate to liberal sorts of federal judges is that the former selectively, for ideological reasons, deny litigants their 14th Amendment rights. There's always some outrageous demonstration of this in their past. Hardline Republicans need them to have a proven record of it, on the one hand, and hardline Democrats oppose them precisely because of it, on the other.

We win the argument about federal judges in the public arena easily since the Bush v Gore 'verdict'- which was crass demonstration of how Republican partisans pervert the 14th Amendment to increase privilege and falsely prioritize state law over federal law. Republican nominee- deceptive and selective Constitution violator. Democratic nominee- Constitution abider.

The Democrats are not trying to make the filibuster a "part of the Senate procedures for judicial nominees". It already is. Its the Republicans that are trying to take it away.

Another thing you have wrong. You stated "There will be nothing to stop the republicans from using the same tactics against a democratic nominee even if we lose". Ummmm, they basically already did that when Clinton was President.

Why do you have this all framed in reverse?

Honestly, I'm stuck facing that fact it is clear in the Constitution that "advice and consent" is not meant to be used as a filibuster option.

How so? All the Constitution says is:

Article 2, Section 2, Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Even Bill Frist admitted on the Senate floor when asked by Robert Byrd, that the Constitution does not say that nominees shall receive an up or down vote. It simply says "by and with the Advice and Consent of the Senate" - and there is certainly nothing, clear or implied, admonishing against a filibuster option.

because the filibuster is one of the few, if not the only weapons that a LARGE minority can hold in the Senate.

It is not sane to let a slim majority act as if they were an staggering majority.

Filibusters can be defeated, they need not be eliminated. Cloture rules already state that 3/5ths of the Senate can agree to limit debate, or the Senate majority leader can simply not introduce new business, forcing the filibuster to go on forever. That's how LBJ kicked Strom Thurmond's ass when the later tried to filibuster the Civil Rights Act of 1957. Thurmond went on and on for 20 some hours, but Johnson lasted longer, forcing the Senate into round-the-clock session to defeat the filibuster threat.

The "Theo-Corporatists" are just pissed that they don't have a big enough majority. Fucking babies.

For an interesting read on the filibuster, check this blog:

http://frogsdong.blogspot.com/2005/04/for-im-wiry-fiery-fili-filibuster.html