If Owens does end up getting confirmed, can we refer to this whole debacle as “The Priscillabuster”?
That’s all I got.
Do you think that removing filibusters only for judge votes will be stable? Perhaps naively, I can imagine Democrats using any remaining opportunities to filibuster to punish the Republicans. Given the current leadership, I’m guessing they would then just remove the filibuster.
(Of course, if calmer heads prevailed none of this would be happening, but the current Republican majority seems fond of getting their way.)
It must have come as quite a shock to the founding founders when the first filibuster appeared in 1790, barely a year after the Senate first convened. Maybe they should have spoken up.
The constituition is quite clear about what specific cases supermajorities are required for.
Nowhere in the Constitution does it specify that a simple majority is sufficient for the Senate to pass legislation, or even the default mode of operation. The Senate makes its own rules. The Senate could require a supermajority for all of its business, if it pleased.
Nowhere were “filibuster”, “cloture”, or “protecting minorities” listed.
Cloture wasn’t even invented until the 20th century.
It must have come as quite a shock to the founding founders when the first filibuster appeared in 1790, barely a year after the Senate first convened. Maybe they should have spoken up.
The constituition is quite clear about what specific cases supermajorities are required for.
Nowhere in the Constitution does it specify that a simple majority is sufficient for the Senate to pass legislation, or even the default mode of operation. The Senate makes its own rules. The Senate could require a supermajority for all of its business, if it pleased.
Nowhere were “filibuster”, “cloture”, or “protecting minorities” listed.
Cloture wasn’t even invented until the 20th century.[/quote]
I love it when people nitpick the details of my posts in a way that reinforces my original point :D
I fully agree with magnet. Filibuster isn’t part of the core design of the U.S. govt so it doesn’t really matter if it goes or stays.
The merits of the fillibuster are worth debating. If we were going to do away with it in a neutral across the board fashion that did not empower one party to ram its agenda down the throat of the 49% of Americans who adamantly oppose it, then I might be willing to consider it. There are ways of changing the rules that would not be undemocratic: having it take affect after the next election cycle or two, for example. But to change the rules right now in the way the Republicans are suggesting would allow them to take their relative majority and turn it into a near-absolute majority. With lifetime court terms, the judicial nominations that are at issue here would be enforcing the current Republican majority platform not for the next 2 years or 4 years but the next 20 or 40. Especially in the context of the Republicans happily using the fillibuster for the last few decades when they were out of power, its just a pure power grab to change the rules now.
As to Mister Widget’s point, I think he was pointing out that referring to “original intent” in this kind of context is like a gaming purist screaming about “realism” in a game. Player A says “It’s not realistic for a warrior to beat a mage, magic is obviously more powerful. This game SuxXoRs!” Player B says “It’s not realistic for a wimpy little mage to stand up to a brawny warrior - of course might triumphs!”. And Player C says “Did you guys just use the words “mage”, “magic” and “realism” in the same sentence?”
There are certain lines of argument that I’ve just come to consider worthless the minute they pop up: realism in games, original intent in constitutional argument, the “correct” interpretation of Scripture, and so forth. It can mean whatever you want it to means because in all of these cases we are dealing with highly subjective interpretations.
You can read a certain level of original intent in the plain language of the Constitution, and also in the Federalist Papers, but beyond that you are just making shit up. I have heard original intent used to support every single opposing position I can think of. It just doesn’t mean much, to me
Obviously the plain language of the Constitution is VERY important. But the Constitution is silent on this issue of the fillibuster. The Senate has the power to set its own rules. Now personally I tend to be in favor of simple majority rules without a lot of procedural BS. But the Senate has run with the fillibuster for 225 years and its a cheap play to change the rules in midstream.
Actually, I don’t think the situation is quite that dire – or at least not for those reasons. Should the Democrats ever get control back, it would be easy enough to pack the court, and I wouldn’t rule it out. There will be tremendous “bad blood” over this on the Democratic side.
This is just another escalation in a decades-long political war.
I think you are misrepresenting the filibuster debate a bit by implying we’ve had these same filibuster rules around for 225 years. The current version of the filibuster rules dates back to 1975, with the reduction of votes required for cloture to 60 from 75. The senate has changed the rules on filibusters several times. The general trend over time is to keep weaking the filibuster because it allows a sore loser to break the mechanisms of government.
And there are proper ways to change the rules of the Senate – a 2/3rds vote.
That’s what shows how radical this move really is. The Republicans want to use a procedural technique that no one has thought was applicable before and claim that they aren’t changing the rules.
Thanks for the link. I found Prof. Amar’s article interesting. I have one question - what was the majority that established the 2/3 majority requirement for a Senate rule change? Because in my opinion if that rule was set by a 2/3 majority I am perfectly fine with requiring a 2/3 majority to overturn it.
Prof. Amar spends a lot of brainpower wondering “can a past Senate bind a future Senate?” but to me the question should be “can a past supermajority be overturned by a present (transient) majority?”. Because the thing that Amar is skipping over in his analysis (which is quite abstract) is the practical effect. The whole cloture/fillibuster idea is damn abstract but the issue here is simple: do we allow a majority of Republican Senators to appoint a bunch of Federal Appellate Judges to lifetime terms that will shift the federal legal system a significant degree to the right?
Because behind all the academic rhetoric and political gamesmanship, that is the issue. The Republicans have a majority in the Congress which may last a few election cycles but is unlikely to last a generation. Personally I am hopeful that we will see the beginnings of change in 06 and more strongly in 08. However if the Republicans succeed with forcing these appellate judges onto the bench, they will have an impact for an entire generation, or two.
That is really the issue. Can a temporary majority in Congress force its agenda onto the whole country for 20 or 30 or 40 years?
And of course beyond that issue is the old adage, be careful what you wish for :). Because politics is a tricky business and in 06 and 08 millions of voters will be asking “what have you done for me lately?”
Is there a seed of a doubt in anyone’s mind about the fact that someone repubs have reason to believe they control the outcome of the vote?
I just found a report from the Congressional Research Service which provides invaluable historical background on this issue. For the majority of the Senate’s history, a single senator determined to avoid a vote could extend debate indefinitely. The majority party has tried to invoke various forms of “the nuclear option” several times to weaken the power of the filibuster–but the Senate has always reached a compromise that preserved the power of precedent in determining the rules. The most recent such compromise was the one in 1975 that reduced the requirement for cloture from 2/3 to 3/5, except on rules changes, where 2/3 would still be required.
In each of these cases, the “non-nuclear” option was able to garner the majority of votes in the Senate. A situation where the majority is dead set on a “nuclear-option” hasn’t happened yet.
Todays Wall Strreet Journal had an article on the filibuster debate. If no compromise is reached and Frist acts, looks to me like the democrats will then attempt to tie up all of Bush’s other initiatives.
I think it is unfortunate that Bush is so dedicated to appointing polarizing judges, because the reality is that this will lead to all out cultural war. But maybe it has to come to that.
Coming soon: Bush’s War on Culture.
What’s so complicated about this issue? You have extreme right senators hypocritically changing the rules solely to further their power. How can this be a good thing? Those promoting it now would certainly change their tune if the Democrats held the Senate Majority.
Is it really so extreme to say that a judge should need more than a simple majority to be appointed? Aren’t judges supposed to be impartial, and agreeable to all? The judges that are being filibustered are terrible, and go quite beyond just ruling based on the law.
Making decisions stick with only a simple majority pretty much puts an end to discussion, as one side or the other can force it’s agenda. It also nearly ensures that judges will be political appointees (these ones definitely are!), thus making a mockery of seperation between the 3 branches of government.
The thing is that this isn’t about stopping all of the nominations. It’s about the ability to hold back the most extreme.
Bush has had a tremendous success rate, but it isn’t enough for these extremists. In the end, if something causes their downfall it will be exactly that.
I disagree, it is simply about requiring more than a slim majority to appoint judges. The current system only stops extreme nominations if neither party has enough seats to override a fillibuster. If the rules change (or more seats went republican), the number of egregiously political appointees would likely be much higher than 5%.
You seem to be operating from the assumption that egregiously political appointees are a severe problem of some sort. Isn’t that just our system working as it should? The majority elects a president who reflects their views/priorities, who appoints judges that reflect his/her views/priorities, who gets approved by elected representatives that reflect the views/priorities of their constituents. What’s the problem here?
Screw seperation of powers and our elected representatives. All hail the supreme leader!!!