I hold an unpopular position, I think filibusters are unconstitutional

[tritsofme]

Not the filibuster in regards to legislation, but in regards to executive appointments.

Now I have thought this through very hard, and this is my opinion, I respect everyone's opinion here, and I would wish for the same courtesy.

In the year 2006, and especially in Democratic circles, this is a dangerous view to have.

I think the filibuster of all executive nominees put forward by the president is unconstitutional.

I think the cheap games the Republican majority played with President Clinton's nominees in the Judiciary Committee, such as denying them hearings was wrong and unconstitutional as well.

The Constitution says that the President alone has the power to make appointments, with the advice and consent of the Senate.

The filibuster exists to lengthen debate, endless debate. When there is a failure to invoke cloture on a nominee, no advice or consent is given on that nominee, he is just simply in limbo.

By filibustering, the Senate shirks its constitutional duty to give advice and consent to executive nominees.

This passage from Federalist No. 66 says a lot to me:

It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

Ratify or reject, those are the choices, and a filibuster is not rejection, it is the continuance of debate.

I understand the dire straits of our leadership and rank and file, and the disillusionment that comes along with years of living in the minority with no effective manner to stop the destructive nominees of George W. Bush. However I feel these are the consequences of elections, and we are living through the worst of them right now.

However this does not mean I would support Frist in unleashing the "nuclear option."

Two wrongs don't make a right, and breaking the rules to fix them is wrong as well.

I think that the rules should be formally changed by the Senate to reflect the idea that every executive nominee should get a fair hearing in committee and that he deserves a vote on the floor.

And while this opinion may be very unpopular among Democrats in 2006, I think a number of you would be mighty upset if come 2009 the 111th Congress has 55 Democrats, and a Democratic president, and it becomes nearly impossible to replace a retiring Supreme Court justice because of minority Republicans filibustering.

I think changing this rule would be the best thing for the country in the long run, and that it is much more consistant with the intent of the Framer's than our current system.

[rpannier]

1. You may think it is...

But, you'd probably be wrong, since it has happened to judicial appointments before. If it were unconstitutional it'd have been an issue decided before now. Precedent dictates it's not.

[tritsofme]

3. Does the failure to invoke cloture constitute advice and consent?

Does it serve the principles of Federalist No. 66 in "ratifying or rejecting" a nominee?

I certainly don't think it does.

There is no long history of judicial filibusters, and even if there was, that does not make them right.

[Walt Starr]

6. Yes, it does

They are still under consideration, and can take as long as they like to debate the issue. They can table the nomination, too. There is no constitutional requirement for a time limit. IUn fact, denying the filibuster would impose an unconstitutional time limit on their advise and consent. If the president feels the Senate is taking too long, he has the recess appointment to wield.

[onenote]

49. walt has it right, as usual

There is no requirement in the Constitution that a vote be held on a nomination within a particular time frame. Filibustering is simply a decision to continue the debate on a nominee. It is merely a decision not to have a vote at that particular moment. If the president withdraws the nomination, that's the president's decision. He still has not only the recess appointment option, but also the option of trying to convince enough senators to vote for cloture to end the debate.

In other words, its perfectly constitutional.

onenote

[rpannier]

8. But there is a history of judicial filibusters

If it was unconstitutional the issue would have come up.
As to whether it is right or not...that's another issue. I guess it depends on what side you're sitting on.

[tritsofme]

13. The only real history I am aware of is Abe Fortas

And in his case the circumstance was slightly different.

He did not have majority support in the Senate.

If there was no filibuster, Fortas would have been rejected outright.

I would be interesting in learning about other cases as well, but from my reading they seem few and far between.

[rpannier]

22. According to over 100 Law Professors who signed

a petition against using the Nuclear Option last spring, the number of Federal Judicial Filibusters (not SCOTUS) is over 60.

[tritsofme]

30. Does that figure include Bush nominees?

Even if it does not, 60 filibusters over the past 200 years to all federal judicials seats seems exceedingly small.

This does also not tell us whether those nominees had majority support in the Senate, the absence of which would basically make a filibuster moot.

[rpannier]

35. no. No scrub appointees were not used in the numbers

[Walt Starr]

2. I think your opinion is crap

and I have a right to that opinion, too.

[tritsofme]

4. Of course you have the right to that opinion.

Would you like to add more to your argument other than calling my opinion "crap"?

[Walt Starr]

7. What you suggest is actually unconstitutional

You seek to impose an ujnconstitutional time limit on the process of advise and consent. There is no time limit required by the constitution. If the president feels the Senate is taking too long, he has the power of recess appointment.

[tritsofme]

12. Where does the Constitution demand an extended time limit for anything?

With a sustained filibuster there is no opportunity to give advice and consent.

The Senate cannot ratify or reject a nominee.

[bowens43]

25. The filibuster is part of

the advise and consent process.

[Walt Starr]

56. Where does the constitution impose a time limit on advise and

consent?

The answer is, it DOES NOT!

You seek to subvert the constitution by imposing an unconstitutional time limit on debate!

[punpirate]

5. Fine.. you can wish to prevent any rule...

... which might avoid the ascent of fascists to power.

Any explanation you make supports the fascists. Let's back up for a moment and consider--it is the fascists now in power who want to destroy the filibuster because they are now in power, and you'd support them in that.

Maybe, you'd better explain--a lot more clearly than you have--why you support fascists in this.

The fascists are the ones who want to break the rules--by invoking the so-called "nuclear option."

Why do you support the fascists in this?

[tritsofme]

9. If you read my post

Then you would know that I do not support Frist and the Senate Republicans breaking the rules to achieve these aims through the "nuclear option"

However when I look at this issue I remove it from politics and think of what the Constitution requires.

[punpirate]

16. They will...

... no matter what you say--you cannot separate the process from politics.

Now, plainly, the filibuster has been a part of the process for more than 150 years, but, now, you say it should be abandoned because it's not fair--it's not constitutional. Who's saying that? You and the Republicans.

No one else. No one.

You can capitulate if you like. Maybe you should review the opinions on the tyranny of the majority. Hmmm?

Because that's what's happening now. Period.

Republicans and Democrats have availed themselves of the filibuster for many, many decades, but now, you think the Democrats should abandon it in the spirit of "fair play." Okay, why is it that the Republicans wish, because the Democrats might assert filibuster power, to kill the filibuster rule through the "nuclear option." Why is that? And why do you agree with them, at a time when they might not get what they want because of a rule they have availed themselves of over the years?

Why do you think the filibuster rule should now be abandoned, when it has been in place--for both parties-for more than a hundred years? Why now?

[tritsofme]

18. I am not saying get rid of the filibuster entirely.

I am saying get rid of it in regards to executive appointments, where there is no long and vaunted history of it in our country.

I believe in this case the Senate rules contradict that body's constitutional duty to give advice and consent to executive nominees.

Should life-time appointments require a supermajority? Possibly, but to do that we would need a constitutional amendment.

[punpirate]

33. I know what you said...

... I know exactly what you said. You just can't back it up with law or precedent, and you're making this assertion at a time when the Republicans want to do just what you say, because it's to their advantage.

C'mon. Give me a legal reason. Give me a common-sensical reason to abandon more than 150 years of settled rules in the Senate. Why do you choose to make this assertion at precisely a time when the Republicans are trying to force yet another fascist into the swing-vote position of the Supreme Court, and to do what you suggest would play exactly into their hands?

[Walt Starr]

57. What you are doing is adding something the constitution does not have!

You are adding a time limit on debate for advise and consent!

THAT IS UNCONSTITUTIONAL!

[bluestateguy]

11. I think you are being hard on the OP

He wrote a lucid and intelligent post, though I disagree with the core of what he said.

[bluestateguy]

10. Typically the Supreme Court does not get involved in House/Senate rules

Also, I think when a nominee gets a hearing, and a committee vote, and is the subject of a floor debate, that the advice is given.

I do think, however, that filibusters of judges and executive department heads should be rare. Those DUers demanding filibusters for every Bush-appointed deputy undersecretary are not being realistic.

[rpannier]

14. See...Now on that you are so correct

It does seem that every scrub appointee from SCOTUS appointments to the assistant-to-the-assisstant of the custodial center everyone scream should be filibustered. I support filibustering this nomination, because I think he has written some dubious dissents.
If you filibuster everyone who comes along then it looks like partisan whining.
Good call on your part.

[fasttense]

15. First I MUST disagree with your statement.

"However I feel these are the consequences of elections, and we are living through the worst of them right now."

No they are the consequence of the dancing Supremes getting in the middle of a presidential election in 2000. Do you realize the Dancing Supremes decided to Stop counting our Votes, and to appoint our president for us because they were repukes? That was Not legal or ethical or moral or constitutional. They caused this problem. So the second time around brush gets better at rigging the election. This is no longer a democracy it is government by an elite group, similar to the Politburo of Communist Russia.

So if the repukes are going to throw out democracy, why should the opposing party play nice and make sure all their political moves are in accordance with precedent? If a group of legislators had stood up to Hitler, perhaps he wouldn't have taken over Germany.

[mmonk]

17. If you want to go by the Constitution,

how about unanimous consent for judicial approval?

[tritsofme]

20. I don't think I understand your question.

When a nominee is approved by unanimous consent, no senator objects, and the Senate has fufilled its duty to give advice and consent.

[mmonk]

31. Should it be required? We've kept reducing

the threshhold to where now, we have the up or down vote simple majority myth the republicans have sold to the public. When faced with this position, and the constitution does not prohibit unlimited discussion (filibustering), shouldn't Senators be able to go into unlimited debate until or if cloture is achieved?

[tritsofme]

37. But by engaging in unlimited debate

you denying advice and consent.

That's the point I can't get over.

[mmonk]

38. Denying rights by simple majority rule

is not representative democratic government as the minority has no real power or voice. There is NO CHECK on power.

[tritsofme]

41. Then we have to look at the question as to whether

the Consitution inteded such a check.

We are given several instances in the Constitution where a supermajority is required, and executive nominees are not one of them.

I think the idea of a constitutional amendment requiring a supermajority for life-time appointments does have quite a bit of merit to it.

[mmonk]

46. We started out with unanimous consent requirement.

If that isn't evidence enough that previous US governments operated under forced compromise, I don't how to convince you.

[onenote]

50. by cutting off debate, you're denying advice and consent

Advice and consent = debate on nomination.

onenote

[bowens43]

19. First of all the Federalist papers do not carry the weight of law.

what they say is completely irrelevant, nothing more then opinions.


secondly , this makes it Constitutional:

US Constitution

Article 1, Section 5

"Each House may determine the Rules of its Proceedings,"

[tritsofme]

24. No, but they give us great insight.

And is obvious to me because of Article I Section 5 that each house may determine its own rules, but I don't believe those rules cannot violate the Constitution.

[bowens43]

29. They don't violate the Constitution.

[tritsofme]

34. That's an opinion you can take.

But I believe the Senate rules that allow for filibuster of judicial nominees conflicts with the Senate's duty to give advice and consent.

[Caution]

45. Yes but you make a specific assertion

"The filibuster of nominees is unConstitutional"

It is up to you to prove the assertion. If you backpedal and say "well you can take that stance A but I believe stance B" and end your argument you have proved nothing. In effect you are saying, "well I can't deny your argument so I'll simply ignore it."

Why is that stance incorrect? Why is your stance more correct?

[bowens43]

55. the filibuster process is part of the 'advise' process.

advise and consent does not mean 'up or down vote'.

[Caution]

44. Ther is no ambiguity in the statement about determining rules

This is why the so-called "nuclear" option is the only option out there to put an end to the filibuster. The rules currently clearly allow a filibuster to occur. If the Republicans want to change the rules they can do so. Why havent they? Because they know that their time as the party in power is coming to an end and that they'll need the option of the filibuster themselves.

The Constitution is to be taken as a whole. when a nomination occurs the Senate gives advice and consent. This is done via the rules that Congress imposes upon itself. If these rules cause difficulty then the majority party can try to change the rules. No other item within the Constitution that I can find is applicable. BUt certainly Congressional rules are. And please explain to me how the current rules are unConstitutional. The power of advice and consent is a Congressional power put in place specifically as a check on the power of the Presidency. How Congress chooses to follow that process is and MUST be based upon the rules Congress sets for itself. Nowehere is it stated that a plain majorit is required for consent is it? If the framers had intended a plain majority only for this check why didn't they include it? I see no limit to the power of Congress to impose rules upon itself. And I see no way that the filibuster itself violates the Constitutional check on Presidential power.

[tritsofme]

48. So does this mean that theoretically Senate rules could lower

the threshold for confirmation as well?

By invoking its unambiguous authority to write its own rules, could the Senate say that it only takes 15 votes to confirm an executive nominee?

As I said in my earlier post, the Constitution is clear in the instances it requires a supermajority vote in Congress, executive nominees are not one of these instances.

[onenote]

51. no, but they could say it only takes 15 votes to allow a vote

The rules of the House and Senate are procedural, not substantive. The substantive standard regarding confirmation cannot be changed. The procedural standard as to when a vote may occur is procedural and is constitutionally delegated to the House and Senate to establish.

onenote

[seabeyond]

21. just to let you know. there is at least one person who agrees

with you. lol. but then it has to be both sides following. and repugs dont. we already see how repugs dont follow the constitution. they talk about it a lot as they ignore it. still, the repugs do a lot of things, i as a dem dont want to follow suit.

[tritsofme]

36. Thanks,

I appreciate that most people are able to participate in a rational discussion of complex issues.

That I believe is the difference between Democrats and Republicans.

[A Simple Game]

47. I don't totally disagree either.

I don't think it matters in the long term, but it does in the short term.

I would hate to be one of the people affected in the short term.

Personally I feel each President should have one appointment per four year term, and in the case of death maybe more. The oldest Judge by seniority retires when the appointment is made.

That still gives a Judge a possible 36 year span, if it is less, then they get something most people wish for, an early retirement.

[Warren Stupidity]

23. The federalist papers are not the constitution.

Making a legalistic argument based on the words in a document with no legal bearing is dubious at best. You might as well cite the declaration of independence.

By the way Hamilton, Madison and Jay were highly partisan FEDERALISTS.

[tritsofme]

39. IMHO there is nothing that gives us more insight into the intent

of the Framer's than the Federalist Papers.

[Warren Stupidity]

43. You might try the anti-federalists for some balance.

That isn't the point though. Your post made a legalist argument using the words from a set of documents with great value but with no legal standing. Your legal argument has to be based on the words in the constitution not the words in a political diatribe intended to sell the constitution to the public.

[alarimer]

53. The favorite source of extreme right-wing bullshit

that's all the Federalist Papers are.

[sweetheart]

26. This entire fucking government is unconstitutional

From the getgo of the coup, where overvotes that
were writin-gore and punched gore were not counted
when gore won florida by over 30,000 votes... a coup against
the constitution, and since then, every month a new rat chews a
chunk out of the constitution until our "king" executive can sit
on a throne and watch us from his god-cloud.

If my president gore calls for an armed overthrow of the traitors
on his MLK monday speech coming up, i'm with my president.

You are fucking lost in another galaxy dude. The constition
is not being enforced to the point that its very existance is
in question.

[onenote]

52. if you think gore is going to call for armed overthrow

its you who are in another galaxy.

onenote

[sweetheart]

60. Yep, i live on planet impeachment

Its in another galaxy, but i might have seen Mr. Gore there.

We'll know come monday. I'm hopin that the spirit of Martin Luther King
moves Al Gore to make his most powerful speech EVER. One that begins his
presidential campaign by already filling the power vacuum left by the
gross criminal incompetents.

* Al Gore for president in 2008 *

[rpannier]

27. Another thought on your point about Unconstitutional

Article I, Section 5 of the Constitution
authorizes the Senate to determine its own rules of procedure.
Since they picked the rule of 60, in accordance with Article I Section 5. They get to say they can Filibuster.

[tritsofme]

32. Using that line of thought however, one could rationalize

the nuclear option as just another way the Senate is determining its own rules.

I don't believe Senate rules should be able to contradict the Constitution.

[rpannier]

40. But they don't contradict the Constitution

They are in line with the Constitution.

Quotes from the letter signed by the over 100 Law School Professors:
The Constitution does not say that a simple majority vote
is required for Senate confirmation of a nominee, and it does not guarantee
a vote on any nominee. Rather, Article I, Section 5 of the Constitution
authorizes the Senate to determine its own rules of procedure, and Senate
Rule XXII requires 60 votes to end debate on legislation or nominations.
This tradition of requiring a super-majority to end debate reaches back to
our nation?s earliest days.
Further, if filibustering judicial nominees is unconstitutional, so are
other common Senate practices used to protect the rights of individual
Senators, such as the blue slip process and senatorial "holds."
The Senate is the only body in the federal government where these minority rights are fully
and specifically protected. It was designed for that purpose by America's Founders, who saw it, in Jefferson's words, "...as a saucer into which the nation's passions may be poured to cool."

My father was a Federal Judge and a Nixon appointee to the Federal Bench. He would probably disagree with your assertions. The facts and history don't seem to side with your position.
Good luck though. Your position was well articulated. As I say to all people I disagree with, "It's your position and you're welcome to it. Because I have mine."

[onenote]

54. the problem with the nuclear option is that it violates the Senate rules

The Senate's rules require that to change the senate's rules, there must be a 2/3 vote. If 2/3 of the Senate voted that only 50 (or 15 or 3) votes were needed to cut off debate on a judicial nomination, that would be perfectly acceptable. The nuclear option is an end-run around the rule governing the changing of the Senate's rules.

onenote

[OPERATIONMINDCRIME]

28. I agree with you but the problem is advise and consent has become obsolete

The majority now just rubber stamps without any due diligence which in my opinion undermines the constitution far more. I do agree that we probably would lose the constitutional filibuster argument, but I condone its use in the environment that exists where even the worst can be appointed without any checks and balances due to a majority in congress that refuses to hold anyone accountable and are willing to walk in lockstop and rubber stamp the most vital of nominees requiring advise and consent.

[sendero]

42. Playing any game...

.. by the "rules" when your opponent has NO RESPECT for the "rules" is for chumps and losers.

Whether or not the filibuster in this context is "constitutional" is about as moot a point as I can think of. Show me where the constitution expresses the idea that a fetus has the rights of a citizen. You can't, but that is the assumption they are making.

[H2O Man]

58. Nope.

I don't think that your opinion shows an understanding of "consent," and much less of "unconstitutional." While you are certainly entitled to your opinion, it should be noted that even the right-wing republicans (including those with a grasp of the Constitution) do not consider filibusters "unconstitutional."

[Orsino]

59. If the President wants a rubber stamp, he should nominate moderates.

A continuance of debate is a good thing, dragging more and more information before the public and its representatives, and embarrassing weak (or just plain evil) nominees.