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| 11/23 |
| 2005/5/18-19 [Politics/Domestic/SocialSecurity, Politics/Domestic/California] UID:37748 Activity:high |
5/19 Some hopefully neutral background on the filibuster:
According to Wikipedia, the filibuster has existed as an option to
stall any issue in the Senate since 1806. Since 1917 the requirement
to terminate a filibuster has varied from two-thirds of the entire
Senate (67 votes) to the three-fifths (60 votes) we have today.
In 1974, we did change the rules such that budget bills could not be
filibustered if they reduced the budget deficit (the exception to the
rule is Social Security, though -- you can still filibuster bills which
would change SS).
We are now debating whether we can change the rules such that you
cannot filibuster nominations to federal judgeships.
Theoretically we can change the rules to eliminate the filibuster as an
option for any particular class of issues if you can get 51 votes or 50
votes + VP tiebreak.
[re-posted in response to thread below]
\_ What if they filibuster a bill to relax the rules to eliminate
filibusters?
\_ Can't filibuster that. It's not a law, it's just part of the
senate rules.
\_ Question: This is what I thought was the case, but reading the
senate rules suggests 2/3 for a rules change. Everyone's saying
it's only 50% + 1 for a rules change but I can't figure out why
that's the case. Do you have a cite for that?
\_ This is the "nuclear option". Basically, breaking the rules for
changing rules so they can... change the rules.
\_ Never have I read/heard it described as 'breaking the rules'.
Do you have a ref for that?
\_ Well, according to Wikipedia, [Reid said] "the
parliamentarian of the United States Senate has said it
(the nuclear option) is illegal."
http://en.wikipedia.org/wiki/Nuclear_option_%28filibuster%29
Also, from a likely non-neutral source:
http://www.pfaw.org/pfaw/general/default.aspx?oId=18761
Reading this stuff, it makes me think that the nuclear
option is far less of a "you can certainly do it but people
just don't want to piss other people off that much" type of
issue than I thought. If the nuclear option was arguably
illegal, then I could certainly see "successful" employment
of it causing all sorts of problems in the Senate.
\_ If it were so illegal, why would R's even have it as an
option? Why have no pundits said anything about it?
\_ Even if it were legal (and we won't have a word on
that unless it happens, but some say it will be a
constitutional crisis), it flies in the face of 200
years of tradition in a body that thrives on
tradition. At this point, I would be surprised if
Frist actually had the votes to get it done. In any
event, it'll be interesting to hear the
constitutional scholars and SC weigh in.
\_ SCOTUS doesn't have a say.
Also, a senior Republican aide said, "[the
Senate parliamentarian] has nothing to do with
this. He's a staffer, and we don't have to ask his
opinion." |
| 11/23 |
|
| en.wikipedia.org/wiki/Nuclear_option_%28filibuster%29 html), but it is probable that a Senator would appeal to the presiding officer to rule that filibusters of judicial nominees are unconstitutional and/ or otherwise improper. Only a simple majority would be necessary to appr ove such a ruling. He is expected to leave the Supreme Court during B ush's presidency. If the nuclear option is enacted, Democrats fear Bush will nominate a partisan judge who will get confirmed by a simple majori ty of 51 Republican Senators. Republicans counter that it will merely en able judges who have simple majority support to be confirmed. Grassroots movements on both side of the issue began heated campaigns to contact their Senators and urge action, and multimillion dollar adve rtising campaigns were planned to inform and persuade Senators and the p ublic. Compromise offers began to circulate on both sides of the aisle, with Democrats offering to allow a floor vote on some of the nominees in exchange for a guarantee not to trigger the nuclear option in the futur e, and Republicans offering not to enact the nuclear option if Democrats refrain from filibustering nominees to appeals courts and the Supreme C ourt. US Constitution does not specify a three-fifths majority re quirement for confirming the President's judicial or executive branch nominations (or general legislation traditionally subject to filibuster), implying a simple majority would do. Therefore the nuclear option would restore the Senate's constitutional role of advising and consenting to the President's nominations with a simple majority. "President Bush's nominees to the circuit courts have the lowest confirmation rate since the Roosevelt administration at 69%. The DC Circuit is the most important, and for that court, only 33% of President Bush's nominees have been confirmed." p=2983) * Clinton's nominees who did not get an up/down vote were held up in co mmittee, held up via blue slip, or held up via other procedural means, all of which can be overruled by majority vote with a call for cloturein other words, , Democrats are blocking Bush's judges while they are in the minority, whereas Republicans blocked nominees from a majority position. There are three nominees whom some Republicans discussed filibustering, but Republicans argue that this was merely a threatened filibuster, as these nominees did eventually get a vote. Democrats counter that Republicans are attempting to redefine "filibuster" to mean "successful filibuster" and point out that Republicans did filibuster but that Democrats secured enough votes to end it. html) to be elevated from Associate Justice of the Supreme Court to Chief Justice of the United States, Justice Fortas was the subject of a breaking ethics scandal and Republicans insist that he did not have the support of a majority of Senators -- and in fact, the ethics charges swirling about him led him to resign from the Supreme Court after his nomination to be Chief Justice died. Moreover, Despite these possible exceptions, the systematic filibuster of nominees with confirmed support from a majority of Senators sets a new standard. Democrats did not even filibuster President George HW Bush's controversial nomination of Clarence Thomas in 1991, even though Republicans almost certainly would not have been able to muster the votes to overcome such a filibuster. id=110006610) * In 1995, when Democrats held the White House and a majority of the Se nate, the New York Times editorialized, "The US Senate likes to call itself the world's greatest deliberative body. In the last session of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes." edit Opposition Rather than require the President to nominate Judges who get broad suppor t from both parties in the Senate (60 out of 100 Senators), the nuclear option would allow the President to nominate partisan Judges supported o nly by 50 Republican Senators plus the Vice President. Conveniently, Rep ublicans currently hold 55 of 100 seats in the Senate, and the nuclear o ption is an attempt by Senate Republicans to hand confirmation power to themselves. edit Blocking Extremist Judges As of May 2005, Democrats are blocking the confirmation of 6 nominees, al l of whom Democrats claim are too extreme for a lifetime appointment. Pr esident Bush's most controversial nominees are Janice Rogers Brown and P riscilla Owen. oid=7806) Owen is part of a court that some have criticized for accepting campaign contributions from parties appearing before itwhile its justices do not recuse themselves from those cases. pdf)(PDF file) The New York Times said Owen is "considered by legal analysts in Texas to be among the most conservative members of the Texas Supreme Court, which, in turn, is considered one of the nation's most conservative supreme courts." Leadership Conference on Civil Rights (representing 180 national organizations) calls Owen a "judicial activist with a disturbing willingness to effectively rewrite or disregard the law." Bill Clinton cal led Republican efforts to paint Democrats as obstructionist "a hoax" sta ting "The Republicans wouldn't even give a vote to 40 of my Court of App eals judges... never mind all the others that they wouldn't have voted." George W Bush has a better record of having his judicial nominees appr oved than any President in the past 25 years. html) One of Democrats' biggest complaint s has been that more than 60 of President Clinton's nominees were bottle d up in committee, leaving positions available for Bush to fill. Reid stated that Democrats "will only block unacceptable nominees" (such as Brown and Ow en), but would confirm Griffith, saying "Let's take a step away from the precipice. Republica n spokesman, Bob Stevenson, rejected the offer saying "Why stop at one? We should take them all up", signaling Republican's intent to use the nu clear option as an "all or nothing" weapon. edit Nuclear Option as a tool for the Religious Right Democrats contend that the nuclear option was not neccesary to confirm 20 4 of Bush's 214 nominees because the nominees had broad support in the S enate, and that Republican extremists simply want to use the nuclear opt ion to confirm activist judges who can only get partisan support. Christian Coalition of Americ a and several other prominent Christian conservatives have endorsed the nuclear option as a necessary means of getting conservative judges onto the bench. edit Nuclear Option Considered Illegal As for the legality of the nuclear option, the Senate parlimentarian, the appointed keeper of the Senate's rules, opposes the nuclear option. In a Christian Broadcasting Network interview, Senator Reid stated that "th e parliamentarian of the United States Senate has said it (the nuclear o ption) is illegal." html)McCain and Senator Ben Nelson (D-NE) have reached out to a number of colleagues on both sides to compromise by winning confirmation of some of the disputed nominees while preserving the judicial filibuster. Arlen Specter (R-PA) stated "I'm going to exercise every last ounce of my energy to solve this problem without the nuclear option. If we have a nuclear option, the Senate will be in turmoil, and the Judiciary Committee will be hell." edit Democratic and Public Opposition Some also believe that the nuclear option is part of a plan to reduce the independence of the courts and make them more subservient to Congress. It is expected that the entire Democratic caucus will oppose the nuclear option. Many prominent Democrats have come out against the nuclear optio n, and none have come out in support of it. The Democratic pollster, Westhill Partners, found that only 30 percent of Americans approve changing "the rules to require only 51 votes to end a filibuster thereby eliminating the current system of checks and balan ces on the majority party." Democrats cited this offer as a goodwill ge sture to show that they are willing cooperate with Republicans and ... |
| www.pfaw.org/pfaw/general/default.aspx?oId=18761 How the Nuclear Option Breaks Senate Rules and Precedents People For the American Way Foundation The nuclear option refers to a parliamentary maneuver that would take the unprecedented step of ending the right to filibuster on judicial nomina tions in the Senate with as few as 50 Senators plus Vice President Chene y to break a tie. Some commentators have neglected one of the central th reats posed by the nuclear option: it amends the Senates Rules by break ing the Senates Rules and precedents. And once the rules are broken in this fashion, as former Senator Charles Mac Mathias has noted,^1 50 Se nators could end the right to filibuster on every other issue that comes before the Senate. Under his proposed scenario, Senator First will begin the process of goi ng nuclear by proceeding to a judicial nomination on the executive cale ndar either Priscilla Owen or Janice Rogers Brown who has been previ ously filibustered in the Senate. Some reports suggest there may be a t est vote on the nomination, possibly on cloture or a motion to table. A t some later point, Senator Frist will seek a ruling from the Presiding Officer regarding the appropriate length of time for debate on such nom inees^2 the parliamentary maneuver that will actually trigger the nuc lear option. While the specifics of his maneuver are uncertain, the foll owing procedural elements are likely: 1 An erroneous and unprecedented point of order raised by a Senator, pr esumably Senator Frist, that the current 60-vote threshold to invoke cloture (end a filibuster) on a nomination is illegitimate (or unconstitutional), or that further debate on a nomination at some arbitrary point is dilatory, even though cloture has not been invoked as provided in the Senate Rules. If the Senate is split 50-50 on the motion, Vice President Cheney will vote to break the tie and sustain his own ruling. Senate Rules and Precedents That Would be Broken Through Exercise of the Nuclear Option Violation # 1 Rule V: The Senate must follow its Rules to amend its Rule s Paragraph 2 of Rule V states expressly that Rules of the Senate shall co ntinue from one Congress to the next Congress unless they are changed as provided in these Rules. The proposed nuclear option is a deliberate end-run around the Senates regular process (discussed below) for amending its own Rules because Senator Frist does not have th e strong bipartisan support he needs in the current Senate to follow the regular order. Violation # 2 Rule V: Suspending the Rules without amending them. The Senate Rules provide expressly for the sole mechanism to suspend the Rules without amending them. Under Rule V, paragraph 1, the Senate may o nly suspend its Rules either by unanimous consent or by adopting a motio n to suspend the Rules. Violation # 3 Rule XXII: Violating the process for changing the Senates Rules. Paragraph 2 of Rule XXII establishes the requirements for ending debate o n a proposed change to the Senates Rules. Under Rule XXII, a cloture pe tition signed by sixteen Senators must first be submitted to the Senate. The vote to invoke cloture (end debate) on amendment to the Rules canno t be held until 2 days after the cloture petition is filed, and the rule provides that 2/3 of Senators present and voting must consent to end de bate. Failing to submit a constitutional Point of order to the Se nate. Because it is not clear that Senator Frist ha s 51 votes for the nuclear option much less 60 it is likely that Vic e President Cheney will rule directly on Frists constitutional point of order, violating Senate precedent. The text of Paragraph 2 of Rule XXII expressly requires 60 Senators (3/5s of Senators duly chosen and sworn) to vote to end debate on any measur e, motion, other matter pending before the Senate, including a judicial nomination. If the nuclear option is successful, and for the first time in our history Senators right to debate is ended by simple majority vo te, this will constitute an express violation of Rule XXIIs 60 vote req uirement. In essence, Rule XXII would be changed, but not in a manner pr ovided by the Rules of the Senate. Violation # 6 Overriding the Senates Parliamentarian The Senate Parliamentarian is the officer charged with keeping the preced ents of the Senate and advising the presiding officer of the Rules and p recedents of the Senate if a point of order is raised from the floor. Th e current Parliamentarian, Alan Frumin, has worked for that office as ei ther Parliamentarian or assistant Parliamentarian since 1977 under both Democratic and Republican majorities. It has been widely reported that t he Senate Parliamentarian will advise the chair that any point of order to force a simple majority vote to end debate on a nominee would violate the Rules and precedents of the Senate. Therefore, for the nuclear opti on to succeed, the presiding officer, most likely Vice President Cheney in his role as President of the Senate, would have to ignore the advice of the Parliamentarian in ruling on a point of order. Frist must ensure that opponents appeal becau se the appeal itself is debatable, while a motion to table (kill) the ap peal is not debatable. If Republican leaders try to overturn an adverse ruling by the chair through their own appeal (which would occur if the c hair follows the parliamentarian), opponents could simple filibuster the appeal and a motion to table the appeal would set the opposite preceden t than Frist wishes to achieve. Conclusion: Filibusters of judicial nominations are clearly authorized by long-establ ished Rules and precedents of the Senate. Should Senators wish to change the Rules and eliminate the filibuster, they should do so under the est ablished process for amending the Rules. Instead, in an abuse of power unprecedented in Senate history, they plan to break the Rules in an attempt to change them for momentary partisan advantage. As many Senate veterans of both p arties have warned, such a precedent starts the Senate down the road of eliminating all filibusters through future nuclear options, completing the institutional destruction begun by the current nuclear option. Endnotes 1 Charles McC Mathias, A Bad Option to Take, The Washington Post, May 1 2, 2005, A21. For 200 years, the Senate has not required an up or do wn vote on each of the Presidents nominees; to the contrary, the Senat e has long had Committees to which nominations are referred for review, and these committees have frequently killed nominations without an up or down vote by the Senate. Other nominations, including to the Supreme Court, have been brought to the Senate floor, debated and postponed with out an up or down vote, denying confirmation. |