POL - a tidbit about the Fillibuster stuff

[Flasch186]

Cuomo warns of 'tyranny of the majority'
Republicans threaten to end judicial filibustering

Saturday, April 30, 2005 Posted: 1:28 PM EDT (1728 GMT)



NEW YORK (AP) -- If Republicans rewrite Senate rules to more easily end filibusters, the country will experience "exactly the kind of `tyranny of the majority' that James Madison had in mind," former New York Gov. Mario Cuomo said Saturday.

Cuomo, in the Democratic Party's weekly radio address, said Senate Republicans "are threatening to claim ownership of the Supreme Court and other federal courts, hoping to achieve political results on subjects like abortion, stem cells, the environment and civil rights that they cannot get from the proper political bodies."

"How will they do this? By destroying the so-called filibuster, a vital part of the 200-year-old system of checks and balances in the Senate," Cuomo said.

"The Republicans say it would assure dominance by the majority in the Senate," he said. "That sounds democratic until you remember that the Bill of Rights was adopted, as James Madison pointed out, to protect all of Americans from what he called the `tyranny of the majority."'

"It sounds nearly absurd when you learn that the minority Democrats in the Senate actually represent more Americans than the majority Republicans do," Cuomo said.

Democrats blocked 10 of President Bush's appellate court choices during his last term by filibustering. Bush re-nominated seven of them this term, and Democrats are threatening to block them again. They contend those seven are two sharply conservative to fill the lifetime appointments.

Under Senate rules, 60 votes are needed in the 100-member body to end a filibuster. Republicans are threatening to use their majority to change the rules and require only a simple majority vote to end a filibuster.

"The Republican senators should instead start working with the Democrats to address all the serious problems of this country in the proper forums -- in the Congress and in the presidency -- leaving the judges to be judges instead of a third political branch controlled by the whim of the politicians in power," Cuomo said.

Cuomo, who was leading in Democratic polls in late 1991 when he pulled the plug on a possible presidential bid, lost the New York governorship in 1994 as he sought a fourth term against Republican Gov. George Pataki. He later turned down a chance to be considered by President Clinton for a Supreme Court seat.

[Glengoyne]

I like Cuomo, but I really don't believe the Judges are near as bad as the Dems are portraying. Everything I've read about the judges has been produced by partisan sources. The Republicans give details on some of the cases the Dems seem to be referring to, but wholly ignore other rulings/reasons. The Dems throw around hyperbole, without backing it with any substance. Neither side seems to wholly address the other's arguments.

I really believe that the whole confirmation process has become too partisan. I truly believe that any judge nominated and deemed to be qualified, or whatever the Bar association rating is, should be approved by the Senate. Regardless of their rulings. Note: I think this should also apply to the nominees of a Democrat President. Otherwise we end up with a watered down milque-toast judiciary. Strong ideals and opinions are a good thing.

[finkenst]

how much of the senate is needed to affirm a judge?

[-Mojo Jojo-]

Originally Posted by Glengoyne

I really believe that the whole confirmation process has become too partisan. I truly believe that any judge nominated and deemed to be qualified, or whatever the Bar association rating is, should be approved by the Senate. Regardless of their rulings. Note: I think this should also apply to the nominees of a Democrat President. Otherwise we end up with a watered down milque-toast judiciary. Strong ideals and opinions are a good thing.

Didn't the Republicans decide early in the Bush tenure to no longer consult with the Bar Association or heed their recommendations (which is something they were never required to do, but had established a long tradition of doing). I agree that a neutral third party with legal expertise could and should serve as a good gatekeeper.

Mostly I wanted to disagree with your assertion that blocking judges with a strong ideological bent would result in a milquetoast judiciary. There are many judges with very strong opinions, who are not ideological fire-brands. Richard Posner and Jack Weinstein come to mind. Even Antonin Scalia, though strongly opinionated and conservative (and who, incidentally, was confirmed by a 98-0 vote), is a principled justice who mostly makes decisions from legal principles rather than political ones (with a few key exceptions). There are plenty of talented and worthy candidates who both parties could agree to confirm. It's not like we need to have these 10 nominees in order to prevent the federal judiciary from being boring.

[Airhog]

Sounds to me like they will simply fillibuster the bill to change the fillibuster procedures

[MrBigglesworth]

Ironically, the judges being blocked by the Senate are only the most 'activist' judges, who are perceived to rule more on their ideology than the rule of law (all except the Michigan judges, who are being blocked as retaliation for Republican douchebaggery during Clinton's term). During Clinton's term, 60 judges were blocked by the Senate.

Originally Posted by Airhog

Sounds to me like they will simply fillibuster the bill to change the fillibuster procedures

The change won't come in the form of a bill, it will come as a complete ignoring of parliamentary rules and the rules of the Senate, an almost naked power grab. That is why Republicans came up with the term 'nuclear option' to describe it. The Dems will fight back by making all business in the Senate grind to a halt. That's why I don't see it happening. Those 10 judges are hardly worth anything to the GOP, against all the corporate bills they could be passing. Frist is over his head, the Dems called his bluff, and he is going to have to back down. Same mistake Newt made back in the day, except Newt carried out the government shutdown. I think Frist will have more sense.

[Glengoyne]

Originally Posted by -Mojo Jojo-

Didn't the Republicans decide early in the Bush tenure to no longer consult with the Bar Association or heed their recommendations...

This is correct. The Bar still does make its reccomendation though.

Originally Posted by -Mojo Jojo-

Mostly I wanted to disagree with your assertion that blocking judges with a strong ideological bent would result in a milquetoast judiciary. There are many judges with very strong opinions, who are not ideological fire-brands. Richard Posner and Jack Weinstein come to mind. Even Antonin Scalia, though strongly opinionated and conservative (and who, incidentally, was confirmed by a 98-0 vote), is a principled justice who mostly makes decisions from legal principles rather than political ones (with a few key exceptions). There are plenty of talented and worthy candidates who both parties could agree to confirm. It's not like we need to have these 10 nominees in order to prevent the federal judiciary from being boring.

I would even further assert that Antonin Scalia is a good example of a Judge that the Dems would block. He is perfectly capable of holding the post of Chief Justice, but I doubt the Dems would allow it. They would definately paint him as "Outside of the Mainstream". I don't think for a second that Scalia would pass the Democrat's current litmus test.

[st.cronin]

What's odd is that the judges on the Supreme Court the Republicans hate the most (seemingly) were Republican appointees - Kennedy and Souter.

[albionmoonlight]

Originally Posted by finkenst

how much of the senate is needed to affirm a judge?

Like most matters brought to the Senate, once the issue reaches a floor vote, a simple majority is all that is necessary.

The issue here is whether every judge nominated by the president should get a floor vote, or whether the Senate should approach the matter as it has approached any important matter brought to it over the last 200 years or so and only let things get to a floor vote that have gone through a vetting process (blue slips, committee, filibuster, etc.).

No easy answer, really.

[-Mojo Jojo-]

Originally Posted by Glengoyne

I would even further assert that Antonin Scalia is a good example of a Judge that the Dems would block. He is perfectly capable of holding the post of Chief Justice, but I doubt the Dems would allow it. They would definately paint him as "Outside of the Mainstream". I don't think for a second that Scalia would pass the Democrat's current litmus test.

I'm not convinced this is the case. As I noted, he was confirmed 98-0, and he had a pretty well established record at the D.C. Appeals Court by that time. It's not as if the Democrats didn't know what they were getting. And frankly, as a moderate liberal, I wouldn't have much of a problem with Scalia as chief justice.

There are two obvious interpretations as to why he was confirmed and these 10 nominees weren't:
a) the Democrats are holding nominees to a more rigid ideological test, or
b) these nominees are more ideologically extreme.

I will admit that I haven't researched these particular candidates so I'm working only off of generalizations here. But when I look at Bush's nominees for administration positions (Tom Bolton being a good example, though hardly the only one) and his general tendency to stubbornly maintain hard-line policy positions, it's not hard for me to buy that the problem here is (b). Given the intense partisanship in Washington, I'd also be willing to buy that it's a healthy mix of both (a) and (b).

If that's the case, then there are no real bad guys here (or at least they're all equally bad), and we have to fall back on first principles. And I have to fall back on my previous point that there are a ton of qualified candidates who would be confirmed, even in a system that requires a supermajority (i.e. one that includes the filibuster), and that this system would produce a less politicized judiciary than one without a filibuster. And that would be a good thing.

[-Mojo Jojo-]

Originally Posted by Flasch186

Democrats blocked 10 of President Bush's appellate court choices during his last term by filibustering. Bush re-nominated seven of them this term, and Democrats are threatening to block them again. They contend those seven are two sharply conservative to fill the lifetime appointments.

After finally reading the actual article, I just wanted to point out this egregious grammatical error. The AP should be spanked.

[finkenst]

Originally Posted by albionmoonlight

Like most matters brought to the Senate, once the issue reaches a floor vote, a simple majority is all that is necessary.

The issue here is whether every judge nominated by the president should get a floor vote, or whether the Senate should approach the matter as it has approached any important matter brought to it over the last 200 years or so and only let things get to a floor vote that have gone through a vetting process (blue slips, committee, filibuster, etc.).

No easy answer, really.

thanks, albionmoonlight.. I couldn't remember if it was a 1/2+1 or 66%...

anywho, i don't think the republicans had any problem filibustering democratic nominees when they were the minority party in the senate for the longest damn time...

[Glengoyne]

Originally Posted by finkenst

thanks, albionmoonlight.. I couldn't remember if it was a 1/2+1 or 66%...

anywho, i don't think the republicans had any problem filibustering democratic nominees when they were the minority party in the senate for the longest damn time...

But they didn't. The republicans didn't really start messing with Democratic judge nominations until they were in control of the Senate. Then they used their position in control of the committee to sqaush a number of nominations. Squashing them before they even made it to the floor for a vote. When they were functioning as the minority, all the Republicans could do was prevent nominations of judges from states with at least one Republican Senator.

As for Scalia, I think he was nominated when the process was more civil than it is today. Following him there was Bork(rightfully denied after somewhat of a fight), Ginsburg?(The pot smoker -- rightfully denied), and then Thomas(confirmed after an extensive battle). The way most Dems talk about Scalia, I don't think they'd join you with your in your acceptace of him as Chief Justice. I absolutely believe they are holding these judges to an ideological test. Certainly it extends beyond competency, as at least one of the two judges held out as most controversial received the Bar's highest rating.

Regarding Bolton. Is the fact that he thinks the U.N. is a just one step above useless a good enough reason to not allow him to be our ambassador to that organization? I certainly think that is a better reason than has been trotted out at his confirmation hearings. Did you guys hear that he is mean? I mean really MEAN!!

[Jesse_Ewiak]

Well, the funny thing is 90% of Bush's nominees have made it to the bench. Is it too much to think that maybe 10% of his choice weren't that great? For example, here's some stuff on the one of the two judges the Democrats wanted blocked as part of a deal with Frist. The other seven to ten judges would be allowed a floor vote, Democrats just wanted two blocked.

The President likes to believe that his judicial nominees are being opposed because the candidates are individuals who believe in the philosphy that a judge should simply interpret the law rather than make the law from the bench. However, Judge Priscilla Owen - who may be the judicial nominee that Senate conservatives use to trigger the nuclear option - is widely opposed because of her judicial activism. Upon her nomination, several Texas papers weighed in. Here are some excerpts:

Austin-American Statesman, 4/29/03: "[O]wen is so conservative that she places herself out of the broad mainstream of jurisprudence. She seems all too willing to bend the law to fit her views, rather than the reverse."

The Houston Chronicle, 5/12/03: "Owen's judicial record shows less interest in impartially interpreting the law than in pushing an agenda...a justice who has shown a clear preference for ruling to achieve a particular result rather than impartially interpreting the law. Anyone willing to look objectively at Owen's record would be hard-pressed to deny that."

San Antonio Express, 7/21/02: "Once competency is established, the most important qualification for a judge is commitment to following the law as it is written - regardless of personal philosophy. Justice Priscilla Owen is clearly competent, but her record demonstrates a results-oriented streak that belies supporters' claims that she strictly follows the law...The Senate should not block a judicial nominee simply because he or she is more conservative or more liberal than the Senate's majority party. It also should not engage in petty personal attacks. But concerns about Owen go to the heart of what makes a good judge...When a nominee has demonstrated a propensity to spin the law to fit philosophical beliefs, it is the Senate's right - and duty - to reject that nominee.

[MrBigglesworth]

Originally Posted by Glengoyne

But they didn't. The republicans didn't really start messing with Democratic judge nominations until they were in control of the Senate...When they were functioning as the minority, all the Republicans could do was prevent nominations of judges from states with at least one Republican Senator.

The only reason they didn't is because they didn't have the votes to prevent cloture. Confirmation of H. Lee Sarokin as a member of the 3rd U.S. Circuit Court of Appeals in 1994 was almost held up by a filibuster, as were Richard A. Paez and Marsha L. Berzon when Clinton nominated them to the 9th Circuit appellate court in 2000 (Frist notably voted against cloture in those cases). The first ever filibuster against a Supreme Court judge was in 1968, conducted by the GOP. It's important to remember that there were only a few years over the past 25 where the presidency and congress were both in Democratic hands.

Originally Posted by Glengoyne

Regarding Bolton. Is the fact that he thinks the U.N. is a just one step above useless a good enough reason to not allow him to be our ambassador to that organization? I certainly think that is a better reason than has been trotted out at his confirmation hearings. Did you guys hear that he is mean? I mean really MEAN!!

You make light of it, but an asshole is not what you need in one of the top diplomatic positions in the world. But notwithstanding that red herring, the real case against Bolton is the following:

• As you alluded to, Bolton is not a guy who wants to reform the UN, but instead is a guy that disagrees with the fundamental purpose of the UN
• He has a history of misusing intelligence information, and intimidates intelligence people to conform to his views. This has happened regarding both Cuba and Iraq.
• His boss during the last four years, Colin Powell, definitely can't promote him, and seems to be silently torpedoing his candidacy.
• He made numerous requests to the NSA to disclose the names of American citizens in NSA intercepts. He has not explained why he needed to see these names, and it seems likely that he wanted them for purposes of bureaucratic retaliation, not national security.

I don't understand why Republicans would want to start to get rid of the filibuster. The only large item on the GOP legislative radar, tax cuts, are not subject to filibusters anyway. On the other hand, large progressive matters like civil rights and universal health care can be filibustered. And on top of that, tax cuts are easy to repeal, but the momentum of liberal programs make them almost impossible to stop (just look at SS, or how not a single politican in Canada talks about stopping their universal health care.

[-Mojo Jojo-]

Originally Posted by Glengoyne

Ginsburg?(The pot smoker -- rightfully denied)

I disagree here. Doug Ginsburg is a fine judge, one of the most respected appellate judges in the country. I could give a crap that he smoked pot. We've had a president who smoked pot, and another who, by many reports, did coke (and at the least was an alcoholic). How is it a disqualification that Ginsburg toked a few times?

As far as the whole judicial nomination scene is concerned, I wish they'd just overturn Roe already. In a political sense I support the ideas advanced by Roe, but it's just not worth the effect it's had on the judiciary and the nomination process. It's a fine line the Supreme Court treads. On the one hand we expect them to be a counter-majoritarian guardian of civil rights (Brown v. Board), but on the other hand a decision that I think the Court felt was along a similar line of reasoning (Roe v. Wade) touched off a decades long political firestorm that has had remarkably destructive impact on the judiciary. They ought to admit defeat on that front and return abortion to the political arena. As a side benefit it would deflate a lot of the Religious Right fervor. They built an entire movement around that decision and I'm not sure how they'd define themselves once it was gone.

On Bolton, the fact that he thinks the UN is a load of crap is an important factor. The fact that he's mean is also a factor. An important element of the position is to be a diplomat. I think it's pretty well accepted that we need to be more effective in winning over support in the UN than we have been the past four years, and the fact that Bolton is an asshole is not going to help us in that regard.

[MrBigglesworth]

Originally Posted by -Mojo Jojo-

As far as the whole judicial nomination scene is concerned, I wish they'd just overturn Roe already. In a political sense I support the ideas advanced by Roe, but it's just not worth the effect it's had on the judiciary and the nomination process. It's a fine line the Supreme Court treads. On the one hand we expect them to be a counter-majoritarian guardian of civil rights (Brown v. Board), but on the other hand a decision that I think the Court felt was along a similar line of reasoning (Roe v. Wade) touched off a decades long political firestorm that has had remarkably destructive impact on the judiciary. They ought to admit defeat on that front and return abortion to the political arena. As a side benefit it would deflate a lot of the Religious Right fervor. They built an entire movement around that decision and I'm not sure how they'd define themselves once it was gone.

I agree with a lot of what you said in your other paragraphs, but I do not agree with your thesis that returning abortion to the political realm would lessen its impact in the public discourse (ideologically I also disagree with overturning it, like you said I would think it would be akin to overturning Brown vs. Board, which would be repugnant to almost everybody). There is no SC decision on gay marriage, and look at what an issue it is. The religious right will not tolerate federalism on this. After all, it is a moral issue with them. They will not settle for people crossing the state line to commit murder. Just look at the parental notification bill regarding crossing state lines that is currently making it's way through congress. Democrats tried in committee to add amendments exempting bus drivers and taxi drivers from liability. The GOP not only shot the amendments down, but changed the description of them to imply that Democrats were attempting to shield sexual predators from prosecution. So pretty soon if you are a pregnant teen you will not be able to get on a cross-state bus for any reason. The religious right will not just go away if RvW is overturned.

[Glengoyne]

Originally Posted by -Mojo Jojo-

I disagree here. Doug Ginsburg is a fine judge, one of the most respected appellate judges in the country. I could give a crap that he smoked pot. We've had a president who smoked pot, and another who, by many reports, did coke (and at the least was an alcoholic). How is it a disqualification that Ginsburg toked a few times?
...
On Bolton, the fact that he thinks the UN is a load of crap is an important factor. The fact that he's mean is also a factor. An important element of the position is to be a diplomat. I think it's pretty well accepted that we need to be more effective in winning over support in the UN than we have been the past four years, and the fact that Bolton is an asshole is not going to help us in that regard.

On Ginsburg. I agree that he is a great legal mind, but so was/is Bork. The deal is issues of character do come into play somewhat. Bork should have been disqualified for simply agreeing to be Nixon's "yes man" back during Watergate. That is my beef with him. I could't trust him to place the law above his agenda, when he so eagerly placed his agenda over his ethics in the past.

As for Ginsburg. I think it is pretty tough to be a Supreme Court Justice interpreting and applying the laws of the land when you used to smoke pot with a bunch of your own students. That type of willful disregard for the law should make it a bit tougher to advance your career to the highest court of the land.

I like Ginsburg, and while I agree that he would have made a great Justice, I don't have a problem with how his nomination ended.

With Bolton. I think it is entirely possible to be an asshole and effective at the same time. I've seen it before. Bosses who treat their subordinates like crap, but manage to do an exceedingly good job on their own. I don't think how a guy treats his employees should come up in Congressional hearing. I think it is embarrassing that it did. Not embarrassing to Bolton, but to anyone who thinks it should be given any merit. I don't know for a fact that Bolton has been effective, but I'd at least like to see evidence to the contrary before it is decided that he isn't competent to serve as the U.N. ambassador.

[Flasch186]

Originally Posted by MrBigglesworth

Democrats tried in committee to add amendments exempting bus drivers and taxi drivers from liability. The GOP not only shot the amendments down, but changed the description of them to imply that Democrats were attempting to shield sexual predators from prosecution. So pretty soon if you are a pregnant teen you will not be able to get on a cross-state bus for any reason. The religious right will not just go away if RvW is overturned.

I couldve lived with those additions and feel bad for a cab driver or bus driver who didnt check everyone's belly size when they got on the bus BUT I think that the bill is a move in the right direction...perhaps the right is just letting their religion get the best of themselves, again, by not allowing those exemptions.

[Sharpieman]

Originally Posted by -Mojo Jojo-

I'm not convinced this is the case. As I noted, he was confirmed 98-0, and he had a pretty well established record at the D.C. Appeals Court by that time. It's not as if the Democrats didn't know what they were getting. And frankly, as a moderate liberal, I wouldn't have much of a problem with Scalia as chief justice.

There are two obvious interpretations as to why he was confirmed and these 10 nominees weren't:
a) the Democrats are holding nominees to a more rigid ideological test, or
b) these nominees are more ideologically extreme.

I will admit that I haven't researched these particular candidates so I'm working only off of generalizations here. But when I look at Bush's nominees for administration positions (Tom Bolton being a good example, though hardly the only one) and his general tendency to stubbornly maintain hard-line policy positions, it's not hard for me to buy that the problem here is (b). Given the intense partisanship in Washington, I'd also be willing to buy that it's a healthy mix of both (a) and (b).

If that's the case, then there are no real bad guys here (or at least they're all equally bad), and we have to fall back on first principles. And I have to fall back on my previous point that there are a ton of qualified candidates who would be confirmed, even in a system that requires a supermajority (i.e. one that includes the filibuster), and that this system would produce a less politicized judiciary than one without a filibuster. And that would be a good thing.

Scalia IS as bad as he sounds. If you look at his record, its pretty clear that he's a conservative hardliner. I would say that he more of a economic conservative than anything, his record on labor disputes and labor laws is particularly scary - From his record it seems like treats workers more like robots then humans.

Pertaining to the whole fillibustering issue, I think its pretty absurd that Republicans are going after the tactic. I mean, do they think that they will be the majority forever? Besides, there are other tactics that need to be addressed before even looking at the fillibuster. Gerrymandering has got completely out of hand and is a huge threat to democracy.

[Glengoyne]

Originally Posted by Sharpieman

... Gerrymandering has got completely out of hand and is a huge threat to democracy.

So Governor Ahnold can expect your vote on that particular initiative in November?

[Sharpieman]

Originally Posted by Glengoyne

So Governor Ahnold can expect your vote on that particular initiative in November?

I haven't read the actual initiative but I've heard of it, if its as good as its sounds of course I'll vote for it.