Redstate

They've been talking about this for months, and there are judicial nominations in the pipeline that will provoke a Democratic reaction.  At this point, the delay in confrontation is becoming tiresome--Specter needs to let the controversial nominations come to the floor, and Frist needs to force the issue.  Now.  

Blow it up now.

That's why it's called the nuclear option.

I believe those who call for the 1st use will reap the ire of the public, such as notice anyways, and not those acting in defense of the Senate rules and the constitution and Roe v Wade of course.

stone cold wrong in this assumption; and,

misjudge the larger public sentiment on the issue; and,

completely confuse differences between Senate Rules and the Constitution.

I've been convinced.  It's time to drop the bomb.

one day a few years down the road, hopefully sooner, Republicans will not be looking favorably on their predecessors for destroying a key tool in the minority party's arsenal.  Are seven judges really that important or is it the principle of the thing?  The belief that the President should be able to always have an up or down vote on judicial nominees?  Is that what we're arguing over?

I read that Reid and Frist have been getting together to come to a compromise on this issue, I believe it was this week's Newsweek.  Although it's very interesting politics, I'd rather see that than a brutal political fight over this thing.

confused by the Senate rules or the Constitution.

Neither am I at all confused about the fact that this whole fight is about one side wanting to pack the court to overturn Roe v Wade and the other side wanting to protect it.

A Senate rule?  

I'm not particularly a fan of selective re-interpretation and adjustment of the rules regarding filibusters (and, let's be clear, that's what's going on here).  But, c'mon, (1) there's no support that I can see in the Constitution for the filibustering of a nomination to a federal court and (2) the Republic will (somehow) survive the resulting "nuclear winter."

If the Republicans have 50 votes, incidentally, it probably means that there are a couple less-than-enthusiastic members who are hoping to strike a deal with the Democrats at the last minute.  It's a game of chicken, folks; and it ain't over yet.

(1) there's no support that I can see in the Constitution for the filibustering of a nomination to a federal court

And it isn't precluded either, in fact the Constitution makes no mention of filibustering at all.

(2) the Republic will (somehow) survive the resulting "nuclear winter

But Roe v Wade won't, which is the point.

I mean don't republicans control the house of representatives and the senate and the white house - why is this such a problem for them...there is other work that needs to be done - what exactly have republicans accomplished now that they control the federal gov't?

when Democrats launched a series of tactical nukes by making circuit court appointments cross a 60% supermajority threshhold.  Nuke away, Frist.  This has nothing to do with the Constitution and everything to do with Senate rules and power politics.

One of several excellent side effects.

being in danger from these judges.  It's a hot button issue that won't be revisited by the courts for some time, I think.

You know, nuke...nuclear option, i.e. their gonna "nuke" or use the nuclear option on the rule concerning filibustering.  Just using colorful terminology, nothing sinister was meant by it.

And I don't think the Republic will be in danger if it is done, but what I'm saying is it could have far reaching consequences in how a minority checks the majority.  And you're completely right about this being a game of chicken, and I see both sides swerving myself.  

the Wall Street Journal put it:

"Almost three months into President Bush's second term, a raft of economic and social issues -- Social Security, immigration, gay marriage and the recent national debate over Terri Schiavo -- is splintering the Republican base.

    After winning re-election on the strength of support from nine in 10 Republican voters, the president is seeing significant chunks of that base balk at major initiatives, a new Wall Street Journal/NBC News poll shows. One-third of Republicans say Democrats in Congress should prevent Mr. Bush and party leaders from "going too far in pushing their agenda," and 41% oppose eliminating filibusters against Mr. Bush's judicial nominees -- the "nuclear option" that Senate Republican leaders are considering."

When 41% of your own party disapproves....

That 59% approves.

here's some more numbers then:

By 48-30, the public disapproves of taking away the Senate filibuster and approves, 48-35, of Democrats responding to a takeaway of the filibuster by a drastic slowdown in conducting Senate business.

This ain't a winner.

They said the same thing about the budget.

If this comes to pass, the Republicans will rue the day they made this choice.

Stop being so petty! Look: Are there really so few acceptable nominees out there? If person X or Y is getting the shaft (ie, being unfairly treated by the Democrats) get over it! Throw them overboad and nominate someone else. This is politics, not patty-cake. Sometimes the game gets rough.

Using the nuclear option is an act of weakness, not power. It is an act that says "we fear losing power soon, so we want to ram our nominees through before the public catches on to us and throws us out."

Forget the nuclear option. Earn your way to 60 seats in the next congress and make the issue moot.

•  Senate rules are in place because of that organizations being operated by separate political parties - political parties, by the way, that were NEVER mentioned in the Constitutioin or any of its components. They are structural-constitutional anachronisms and anomolies so far as the original intent of the Founders.
•  Want a lesson in court-packing?  Check out the sainted FDR's first and second terms.  FYI, filling vacant seats in the judiciary (especially at the urgent request of the Chief Justice of the Supreme Court) is not PACKING.  It is acting responsibly and constitutionaly. And, packing is NOT nominating judges who adhere to the same sense of judicial restraint as the President. It is perfectly normal, ethical and constitutional conduct by the MAJORITY.
•  Brace yourself.  You must come to grips with the notion that the most important function of the Federal Judiciary is to neither OVERTURN nor SUPPORT Roe v. Wade.  The function of the Courts are simply to take care of this country's judicial business - not to serve the interests of a set of over-pampered, activists devoted to a single issue.

Wade, you see, is not nearly as important to many of us as it seems to be to others.  Besides, if one subscribes to living by the Court regulating valued social issues, one must also be prepared to suffer the consequences when the courts inclined to support alternate social views.

Can't have it both ways - especially forever.

That is journalistic jargon. The WSJ merely points out that the Republicans are:

•  addressing difficult issues.
  
•  functioning as an inclusive Party, rather than one demanding cadre-like unanimity on virtually every issue.
  
• candid in their differences.

And . . . I wish you would save the term "Filibuster' as employed towards this issue for those who do NOT understand the difference between a filibuster and compartmented institutional obstructionism.  Filibustering occurs on the floor of the Senate, in the open, so the public can see, and in the presence of the entire body.  It is an institutional instrument of some historic usage and value.

What is occuring here is a one-party unilateral mangling and deformed manipulation of committee rules for no purpose other than partisam impediment of constitutional processes IN COMMITTEE, to foreclose upon a full-Senate vote.  Have we seen the word 'cloture' applied to this new form of Democratic obstructionism?  No?  Must not be a real filibuster, then -eh?

It is THEY, the Democrats, who have ALREADY employed a back-shooting partisan 'nuclear option' to disrupt this nations legislative business.

Democrats need to be 'corrected' - immediately.  That they have no serious alternatives (or arguments) has already been made quite clear to most Americans.  Frankly, the Democrats really should attempt a 'disruption of legislative process' in addition to their renegade conduct; and watch the show go on without them - as it does at any rate.

   Nuke the Democrats and allow the Senate to get back to the business of the country via the elected MAJORITY, rather than languish at the leisure of a dysfunctional, disreputable and disaffected minority.

Who is on the Senate floor, recognized from the dais,  at this moment; and what is he/she filibustering?

59% 0f 53% is 31% of the popular vote at the most recent election agrees.

of Supreme Court nomination battles that will follow in this Presidents term.  The instant the right to lifers believe they have a 5-4 majority, cases will appear on the Supreme Court docket to re-visit Roe v Wade.

You should revisit your knowledge of Senate rules and procedures to get yourself up to date.

No protection for the minority, it's your due I suppose.

That's the best and most logical viewpoint on this issue I've ever seen.

And I suspect those are actual voters, not just folks who answer polls.

It has to be the right thing to do.

Weakness is being more intimidated by the Beltway Editorials than breaking obstructionism.

Yahuti, you're right, sort of.  The most important roll of the judiciary is not to support or overturn Roe and is to take care of judicial business.  The problem, however, is that Roe and other decisions like it, such as those that say that homosexual relations are Constitutionally protected, "under God" is not, and decisions that cite international law, show that the federal judiciary does not understand what is and what is not properly considered "judicial business".  The judiciary is now taking care of the business of Congress, the President, 50 Governors and 50 state legislatures.  Instead of the "judicial business" of applying the law, judges have chosen to rewrite it.  I don't understand how you can consider that "judicial business".

role of the judiciary is to interpret law (they do not "apply" it), and part of that role involves determining whether laws passed by the legislative branch are constitutional.  We live in a constitutional democracy for a reason, it protects the minority view in many cases.  You may not agree with the courts interpretations, and you may even want to stack the courts so that they adhere more closely with your view, but that is still all politics and has nothing to do with the proper role of the judiciary.    

That it's pretty silly to talk about a rule change as the legislative equivalent to nuclear war.  It's a rule change.  Let's not lost our heads.

Look, Roe v. Wade was a crappy constitutional decision --Even Justice Ginsberg has suggested as much.  You'll also note that the judicial line on Roe has not generally been that it was a good decision, but that it's a purportedly "important precedent," which we shouldn't disturb.  Well, so was Lochner and Dred Scot -- but that don't make them right.  I'll shed no tears if Roe goes.

Judicial review is not in the Constitution.  It was created in Marbury v. Madison.  That was a usurpation of power by the Court to give it more authority than it had.

Also, we do not live in a democracy of any kind.  We live in a republic, a form of government in which legislatures, not judges, are supposed to pass laws.  Judges "interpreting" law is bogus, as this means that they do as they please, such as they did when they said that a moment of silence in school somehow violated the first amendment, which states, "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof."

Finally, the only law that American Courts are permitted to deal with is American law.  It is not within their authority to cite "world opinion" or treaties that the Senate has not ratified.  Decisions that come from such origens are invalid not because I say so but because they exceed the authority of the judiciary.  Such abuses of power are worthy of impeachment.

enacted by the majority (likely a bare minimum majority) that abrogates minority rights and effectively turns the Senate into the House.  If we want to enshrine simple majority rule into our government then let's clear the decks and go for it.  Combine the executive and legislative House, make the leader of the House Prime minister, do away with the imperial presidency and keep the Senate around for ratifying treaties and protecting States rights.

If I understand properly, this would not be a change to the rules, but a majority decision to "clarify" (i.e. creatively reinterpret) the existing cloture rules to exclude cloture votes on judicial confirmations.  An actual change to the rules requires a cloture vote, meaning it can, itself, be blocked by filibuster, right?

How would the "nuclear option" be anything more than a slim majority getting together and deciding they simply aren't going to follow as written the rules they can't amend or suspend?  Would the text of the rules be changed, and if so, by what mechanism?

But all rule changes are enacted by a majority. But ignoring the fact that the minority, in essence, have already changed the rules - in practice - I think the rhetoric is a little overblown.

that the majority have changed the committee rules that benefited them when they were a majority considering a Democratic Presidents nominees doesn't  help to cut thro the rhetorical fog either.

This is all about power and maximising the power of a party and an ideology that holds a bare minimum stranglehold on power in 3 of the 4 branches at the expense of minority rights.  A "uniter not a divider" my a**.

While your statements appear noble you are the one missing the point.

dlev is right on this one.  You all are about to burn down your own house so that you can try to blame democrats for burning down your house.

A LARGE MAJORITY of americans isn't going to believe you nor will they support you in the next elections.

Sometimes, you need to get out and talk to others that don't neccesarily agree with you to see where you stand in the world.

This is exactly what happened in November.

Waitaminnit...

and Josh Marshall had this to say about the current state of the republican party wrt the judiciary:

"I guess we're into the black helicopters phase of the anti-judiciary crusade.

A question, though. Are we allowed yet to point out that a party whose members routinely make threats against members of the federal judiciary and suggestively dangle hints of violence has any claim to being a constitutionalist party?

There's a legitimate and healthy debate over whether contentious issues like abortion are best hashed out in the courts or in legislatures. But to say that the trend is moving toward greater judicial assertions over and against legislatures is foolishness. That's not what this is about. These people are uncomfortable with the rule of law itself.

Across the board, Tammany rule in the House, keystone kops loyalty tests at presidential events, tolerance and emulation of crankish attacks on sitting judges. This Republican party just isn't a constitutionalist party. It's just not."

Now I realize that Josh is a liberal so many of you won't buy his line of reasoning.  I only ask you to consider what he says as his line of reasoning may be more common than you might prefer, even among your fellow republicans.

Fight the battles that get you something.  This is a battle you may win but could very well cost you the war.

ownership of firearms, how would you go about stopping that law?  Who would you turn to?

Marshall's priorities are clearly different than mine and the bulk of the Republican Party.  Saying that the trend is moving toward greater judicial assertions over the legislature isn't just true - it's overwhelmingly true.  The question becomes: what do we do about it?

If you care about the rule of law, you recognize that judicial law-making is a dangerous thing indeed.

A President appoints a nominee, the nominee is approved by a majority of the Senate.  The people have spoken.  If you are expecting 2006 to change that, so be it.  But from now until then, the 2004 election determines the make-up of those offices.  

Here is the question from that one:

26A.*[SPLIT-SAMPLE] U.S. Senate rules allow the minority party in the Senate to use a tactic known as filibuster (FILL-ih-bus-ter) -- where one party engages in a prolonged debate -- as a way to prevent certain judicial nominees from being confirmed. This tactic has been used by both Senate Democrats and Republicans. 60 votes are needed to end a filibuster. Senate Republican leaders, whose party is now in the majority, want to change the rules to require only 51 votes to end a filibuster- thereby eliminating the current system of checks and balances on the majority party. Would you approve or disapprove of changing Senate rules to take away the filibuster, allowing all of George W. Bush's judicial nominees to get voted on by the Senate?

(empasis mine).

Yeah, don't parrot Dem talking points in your questions if you want them to be taken seriously.  If the question was

Should Republican leaders end the unconstitutional use of the filibuster to deny votes on judicial nominees?

the answer would be different, but just as biased.

Moreover, while I can't speak for Yahuti, my guess is he's pointing out that the filibuster is no longer like that in "Mr. Smith Goes to Washington."

Filibusters today are a joke. If people want filibusters, fine. But it should be a real filibuster, not just a parliamentary technique.

the filibuster.  The president was elected, and has the right to nominate his judges, thereby fulfilling his promises to those who elected him.  But if we step back and look at the country as a whole, 49% of voters did not vote for Bush.  Their protection lies in things like the filibuster.  If it were used on every nominee, there would clearly be a backlash against the users, but this is not the case by a long shot.  When the republicans have enough votes to call for cloture, they can work around the filibuster, and the ability to do this will reflect a large enough majority to justify clearing this hurdle.  But these procedural hurdles serve to ensure that 51 percent of the country can't easily authorize 100% of the judges without some minority opposition  

The line about "suggestively dangle hints of violence" is from his own dowdification of Senator Cornyn's speech which is pretty much par for the course for TPM.  

When will people learn that you need to fact check TPM before believing anything Marshall posts?

I don't think the Republicans can play the 'innocent babe in the woods' role in regard to blocking judicial nominations.  

I agree that each nominee deserves an up or down vote, but the Republicans' hands are not too clean in this regard; The Republicans blocked quite a few of Clinton's judicial appointments from receiving an up or down vote.  They just didn't have to use the filibuster to do it.

Either it is always wrong to block an up or down vote or it isn't.  I think everyone who gets nominated by the President deserves a vote of the full Senate.  Is it your opinion that only Bush's nominees deserve an up or down vote?

The Republicans are going to look very hypocritical when their actions in regard to Clinton's judicial nominees are brought up.

Re: Also, we do not live in a democracy of any kind.

You are arguing against yourself then, since you are also arguing that the Courts are usurping power from the elected branches. But it is true that the Founders did not want the US to be a pure democracy, and they designed a system with signbificant anti-democratic features. No one on the right objected to the Electoral College and the SCOTUS decision propelling Bush to the presidency in Y2K, so as the say-goes 9pun intended) it deepnds whose ox is being gored. If the courts were striking down liberal laws as they did back in FDR's day the right would be toasting the courts as Guardians Of Liberty.

Finally, Marbury v. Madison could hardly have been a usurpation. It was decided within the Founders' lifetimes, by justices who themselves qualify as Founders. If judicial review had been thought improper or unconstitutional you would think that Mssrs Jefferson, Madison etc. would have been up in arms about it and would have promptly done something to prevent the practice in the future.

Re: I read that Reid and Frist have been getting together to come to a compromise

Indeed, why can't they all get together and find nominees who will be acceptable to the vast majority of everyone, save only the far out extremists? To be sure such people do exist, since the vast majority of Mr. Bush's appointees have sailed right on through the Senate to the bench.

. . .steaming piles pulled from JMM's posterior can be a bit unpleasant, Thorley--it's understandable that some would be reluctant to do it.  Nonetheless. it is indeed a necessity.

1. the courts
   
   
2. um...elections?

There's a reason the Dems have largely tossed that part of their agenda like the big fat guy from a small lifeboat.

They already have passed gun regulation, albeit to a lesser extent, with the assault weapons ban.  So, we turned to pro-gun candidates, defeated those who supported the ban, and now it has expired without anyone really taking notice.  That's Republican republican government.

Do you have any links?  I'd like to read that as I think it would be the best way out of this situation.

Blue, while I agree that judicial nominees should have an up-or-down vote, the filibusters now are different from what the GOP did.  When the GOP blocked a nominee, it did so because as a majority.  A majority has every right to block or defeat a nominee.  It's also worth nothing, however, that inJustice Ginsburg was confirmed with only three Senators voting against confirmation.  Would anyone suggest that the Democrats would not filibuster a SCOTUS nominee who is half as conservative as she is liberal?

but he linked to the entire speech or Cornyn's and to DeLay's comments the day after they were made.  So with that in mind, his comments weren't taken out of context.

What you seem to be saying is only nominees with enough votes to be confirmed deserve an up or down vote.  That is different from every nominee deserves an up or down vote.

Jefferson was up in arms about it.

Andrew Jackson didn't believe in it.

When was the first instance of judicial review that ordered the President or the Congress to do something?  Not during the first courts.  When Jackson was ordered not to remove indians by the court, he did anyway.  Congress approved.  So much for judicial supremacy in the early days.

"Marbury" claimed review then declined to order anyone to do anything.

No, I'm talking about the right to prevent a nominee from having an up-or-down vote.  Whether a majority has the right to do something and whether it should exercise that right are two different things.  Congress has the right to declare war on Sweden and Togo tomorrow, but that doesn't mean that it should exercise that right.

everytime a new party takes control?  And if so, doesn't that just turn the judicial branch into an arm of the legislative?  What is the role of the judiciary?

Judges should be removed when they make rulings that: a) are intended to be universally applicable rather than dealing with just the two parties invovled (this would take a while until legislators regain a proper understanding of courts), b) usurp power from the other two branches, c) make rulings citing anything other than the law that governs their jurisdiction, as the SC recently did with the death penalty case.

A large majority of Americans couldn't care less about this.  Of those who do, the vast majority are on our side.  Speaking strictly in political terms, there's a huge upside and virtually no downside.  The base will be happy.  We'll have conservative judges on the courts.  The Democrats will either roll over and play dead, as The Hill suggests today, or shut down the government and get blamed for it.  If, however, Senate Republicans don't act, we'll leave judicial nominations to the junior Senator from New York and lose our majorities quickly because the base will have no reason at all to show up.

unconstitutional would make that ruling universally applicable by the nature of the case.  So no court in the U.S. should be able to take any case regarding constitutional issues?

For Josh Marshall the "Rule of Law" means the "Rule of Democrat Judges and whatever they say the Law is".  

Yeah, I am uncomfortable with that.

I don't know where you get your #'s.  Did you see those posted in this thread.  A large majority of americans DOESN'T support this.  only 60% of Republicans support it.  40% don't.  You have to figure the Democrats & other party folks don't support it.

I wonder why you are all so spun about this that you continue to make stuff up and then get angry when we call you on your bluff.

Would anyone support a President or Congress removing people from their homes in Georgia and sending them to live in Oklahoma today based on race?  And the fact that gold was discovered on their land and white people wanted it.

My (incomplete) understanding is that "Marbury" allowed the Court to claim review, declining to order anyone to do anything allowed the Court to actually keep it.

Is your position... every nominee is entitled to an up or down vote or is it only nominees who have the votes to be confirmed entitled to an up or down vote or is it something else?

I think every nominee deserves an up or down vote regardless of the outcome.  The Senate's duty is to advise and consent it isn't to advise and consent or ignore.  

The Court has the authority to say that a particular application of a law is unconsitutitonal, which is not the same as saying that the law itself is unconstitutional.  Congress has independent authority to consider the constitutionality of laws, hence the judiciary committees and their oaths of office.  Robes do not, contrary to popular belief (not necessarily your belief), bring a divine wisdom.  It is the Congress's responsibility to consider the constitutionality of a law when they are debating it.

Here is the exit polling from Florida, but I'd encourage you to check it in other battleground states, including Senate races, too: http://www.cnn.com/ELECTION/2004/pages/results/states/FL/S/01/epolls.0.html
.  Go down to "Most Important Issue".  To be sure, this relates in some degree to every issue there, but most directly and obviously to moral values.  The President carried this vote 74-22%, equating to an eleven point gap overall.  For those people, the judiciary is (or is extremely close) to their number 1 priority.  For everyone else, their attention lies elsewhere.  Try asking ten people in any diner outside the greater DC area what the nuclear option is and it'd be a lot if three people knew that it didn't involve the war on terror.  

Further, just because people have an opinion doesn't mean that they care about something.  I have an opinion about whether the United States should change over to the metric system.  Do I plan on basing my vote on that?  Of course not.

Every nominee should have an up or down vote, but a majority killing a nominee is different from a minority killing a nominee.  If a majority of Senators opposes a nominee, it has the right to kill that nominee by any means, but it should do so by voting.

Robes do not, contrary to popular belief (not necessarily your belief), bring a divine wisdom.

But the rigorous vetting process of rising through the ranks of the judiciary does bring with it a worldly wisdom and an expertise in the law that raising money and campaigning for congress simply does not.  I would much rather a group of carefully-selected jurists with a lifetime of legal experience consider the constitutionality of laws than leave the task to the likes of Dennis Kucinich or Tom Delay, or even their more moderate but equally unqualified colleagues.  Federal judges aren't priests thrust upon us by a pontiff.  They are the village elders, and they were put where they are by our elected representatives.

By jurists, do you mean those who imposed slavery on free territories (Dred Scott)?  Or those who imposed segregation (Plessy)?  Or those who upheld interment (Korematsu)?

I think the point is changes to the rules through a vote wouldn't be subject to the filibuster, if it could be blocked, there would be no reason to even try and use it.

I'm not sure how they can just get together and decide not to follow the Senate rules, although anything's possible.  The filibuster is all about utilizing a loophole in the rules, right?  I think Republicans are threatening to close that loophole.  

apparently likes to have his cake AND eat it too.

How convienient....

say what, do you see any difference between being a majority and minority party?

That was my intended message. It became entangled with my lame, halt delivery.

For BlueState:  I am familiar enough with the rules to understand that filibustering is NOT what is happening in the Senate.  Further, if the Republicans use the 'nuke' option, it will have no effect upon the real filibuster process - it will simply unknot a bad-faith parliamentary process (thanks again, Walt) that is unrelated to filubustering a Senate floor vote.  I understand that, and so - I think - do you.

BEING the minority?

We are not addressing the majority/minority of American citizens; or even the majority/minority of Congress.  We are addressing a radical element of the minority party represented in the Senate.

If you seek protection for the minority party in the Senate - stop obstructing committee functions, bring issues to the floor and let the minority VOTE UPON them.

The Senate minority doesn't need protecting here - except from its own radical elements in key committees.  The Constitution and its intended processes are in dire need of it, however.

"No one on the right objected to the Electoral College and the SCOTUS decision" in the Y2K election, because there was nothing unconstitutional to complain about.

The "right" has no objections to the Electoral College to begin with, so I'll leave it at that.

As to SCOTUS and the election, they did not either intervene in the election or usurp anyone's rights. They ended the unconstitutional intervention of the Florida courts in the election and did so because those courts actions were a denial of both equal protection and due process rights of 100% of Florida state voters.

Gore was on a vote-hunting expedition. He was not  on a principled search for an 'accurate count' of the total Florida state vote. The valid (Florida state constitution) complete machine recount did not provide a change in Gore's favor. Gore then selected a small group of Florida counties that contained sizeable Democrat majorities and looked for an excuse to challenge the vote counts there (not the whole state, and assuredly not in counties with big Republican majorities). The initial recounts did not provide a change in Gore's favor. At this point Gore should have ended his vote-hunting expedition, because hearafter is where he, his lawyers and willing Florida judges began to discard Florida law, Florida's constitution and the U.S. constitution.

State election laws are written, county election rules are established based on those laws and, in time, elections are held. After the election, after everyone has voted, if you are unhappy with the election results, you may claim the law was not followed, or the rules were not followed but you shall not ask that the rules be changed, in violation of existing law, or the law re-written by judicial fiat, just to seek a different result than what occured under the terms with which the voting took place. Even more importantly, you shall not seek such measures to affect only some part of the result (recounts only in the counties you are hunting for votes in) as opposed to the actual result that will be affected (the total Florida state vote).

Some Florida judges, ignoring the Florida state constitution attempted to re-write Florida election law from the bench, to mandate county election board rule changes that neither Florida's constitution or Florida law required (as its Chief judge noted in his dissent - election laws/election law changes may only be affected by the Florida state legislature).

Such changes, disputedly, may or may not have provided some benefit to someone but that someone was only Gore, and only if it changed the vote in his favor. They held no legal benefit to the voters, all the state voters, whose due process rights (they had already voted on the basis of existing law; whould they have made marked their ballot differently if the rule changes had been in affect when they voted) and whose equal protection rights (all the counties left out of Gore's recounts) were ignored by those decisions, simply to satisfy Gore's vote hunting expedition (new state law written from the bench and its legal applicability leaves  out most of the state).

SCOTUS simply put an end to the charade perpetrated by Florida's elected judges, who continually vote on a political basis and not a constitutional basis.

There was only one recount that SCOTUS would not and could not argue with, on constitutional grounds. An immediate manual recount of the entire state (all counties) based on the laws and rules in existence when Florida's voters voted. Gore never chose that path because he had been told, on good scientfic authority that, statistically, the slim difference may shift across the state but in sum Bush's advantage would hold.

A number of independent studies, conducted after things had been settled, showed that even if the rule changes Gore had asked for had been put in place, in the entire state and a manual recount of the entire state was done, Bush would have retained his lead. They only found one possible recount change (trying to re-count over-votes, where the voter marked in favor of more than candidate) where Gore may have had an advantage, but with two caveats. It was a rule change Gore did not request and it would have required too much subjectivity in the decisions of the officials doing the recount.

Gore lost in Y2K because he lost; not because of SCOTUS.

who were wholly complicit in those crimes?  Are you saying things would have turned out better had those decisions been left up to the other two branches?

. . .like how the left has pushed for an interventionist judiciary (FDR probably would have had something to say to you about why that was a bad idea, were he still with us), but are now trying to make sure that conservative judges who might use that structure to make decisions that the left doesn't like never get on the bench?  Now that's trying to have it both ways. . .if you want to build a pendulum, you'd better be ready for it to swing back your way.

Do we even have a real filibuster process anymore?  I think that's the point BlueState was getting at.  There's a good history on this by a conservative writer on this site if I could just find it.  The action being proposed by Frist and company would remove the filibuster entirely, because the only filibuster currently in existence is the procedural one.  Thus kill this kill it all.

Happy to be corrected if I'm wrong.

If Frist proposed re-instating the traditional filibuster, I would be all for it.  And I daresay my party would be hardpressed to oppose that.  But if my original understanding is correct, Yahuti, this would kill the filibuster.

none of this has to do with filibustering on the floor of the Senate.  

These commentaries are focused upon sending candidates up from committee (with pro and/or con recommendations to the full Senate) to the floor where a vote can at least take place.  You state that this how it ought to be.  I completely agree.

However, keep in mind that Senatorial filibustering is not threatened here.  A renegade procedure activated by radical elements in committee minorities have interrupted full Senate processes.  These renegade procedures are at risk of the nuclear option - as they should be.

Republican exercise of the nuclear option (god I detest that term) will produce NO EFFECT on the full Senate - other than to permit it to get down to business after committee logjams.  The intended effect will be within committee.

am unaware that real Senate filibustering has been either curtailed or eliminated.

Also, don't feel Frist is targeting the real Senate floor filibuster process - just the procedural mutation being employed in committee.

I'd like to see the minority engage in real filibustering rather than the current feckless charade - and I think Frist might, as well. But, real filibustering is dangerous. It is in the public eye, can be politically painful to the filibustering party and individual; and can be stopped by cloture.

I do not believe anything stands in the way of real filbustering.  I, too, would like to know if that is correct.

Also, BTW a question for the experts:

If real filibusters can be stopped by cloture vote - what is the difference between cloture and the so-called nuclear option?

But my understanding is that cloture takes 60 votes, thus requiring the supermajority to end debate.  What's being proposed here is that Cheney, as the Senate chair, rules the debate/filibuster/motion/whatever out of order, thus stopping the filibuster.  At that point, a simple majority can overturn the ruling of the chair, but that would require 51 votes (or 50 + Cheney), thus defanging the 40 vote filibuster.

As a matter of fact, two of those three problems were solved by the elected brances and not the courts.  The other simply became outdated.

I believe you've got it right.

Thanks.

So, we're back to what is really happening in Senate committees which appears to successfully curtail passage to the floor for up or down vote by the full Senate.

It isn't what we've all grown to know and love as a filibuster which would require the 60 pax cloture vote.  So, the obstruction seems to be a procedural paradox which requires yet another to overcome.

Interesting times.

You have a funny definition of "solved" if you don't include these rulings when talking about the end of legal segregation.

The argument isn't about, shouldn't be about, whether judicial supremacy brings about 'better' results, but whether it is or should be Constitutional and is or ever was consistent with freedom.

You think a better result would have been acheived if the courts had taken over in the 1820's.  Maybe so, but the point is that the Executive and Legislature in the 1820's were able to withstand an assault against the Constitution by the Supreme Court.  The continued presence of apratheid indian homelands within the US is a testimony of how awful decisions enforced by the judiciary linger and fester.  If they weren't protected by judicial activism the problems of fully integrating indian nations into the US would have been completed by now.  By preventing a political/social solution the judicial solution freezes thought and stifles progress and growth.

There's an easy way to resolve this filibuster conundrum we are in.  Let's do a thought experiment here......  

What if the a Democrat US Senate majority were blocked in their attempts to confirm judicial picks nominated by a Democrat President by Republican Senators representing a minority of the Senate?  Let's say we have a President Hillary Clinton, elected by a 51 to 49 percent margin over George Allen in 2008.  Let's further stipulate that the US Senate contains 55 Demcorats and 45 Republicans.  

Isn't it possible that the talking points we are reading could be reversed?  Republicans defending the filibuster of judicial nominees and Democrats threatening to use the "nuclear option?"

Not really.  The situation I described above actually existed in 1993 and 1994.  But Republicans didn't filibuster judicial nominees.  

In any case, we need a way out of this dilemna.  Here goes......

First, the House and Senate judiciary committees should draft a Constitutional Amendment that would require that both legislation and nominations receive 60 votes in the US Senate and a simple majority in the US House.  

Second, the full House and the full Senate should vote on this proposed Constitutional Amemdment.  

If less than 2/3rds of both the House and the Senate votes in favor of this Amemdment to the US Constitution, the Senate should immediately adopt new Senate rules nearly identical to the rules of the US House.  In other words, run the place on a simple majority basis.  

If 2/3rds of both Houses vote in favor of this Amemdment, then the Senate should adopt new Senate rules identical to those of the US House until the Constitutional Amendment has been ratified.  

The debate and vote over whether the 60 vote requirement is a good idea or a bad idea (and thus, whether it should be in the US Constitution) wouldn't just resolve this filibuster/cloture issue for this Congress and this Senate.  Such a debate and vote would resolve this issue permanently.  

Sound good to you?

Segregation remained ruthlessly in force long after Brown. Segregation only was "solved" (and then, only in a de jure sense) after the Congress passed the Civil Rights Act of 1964, the Voting Rights Act of 1965, and I believe, an Equal Accomodations rider that went with the former.  Brown was an important step, but its "all deliberate speed" language allowed the Democrats in the South to practice the same ol' same ol' until the Acts were passed ten years after Marshall won his case in 1954.

Roe v. Wade remains devisive today precisely because it was taken out of the hands of the voters. Liberals haven't figured that out that when an important cultural decision such as, say, abortion, is handed over to an unelected Supreme Court, a body accountable to no one, half the country will be pissed off with the result. It was Ruth Bader Ginsberg, a pro-choice Justice, who remarked that Roe had interrupted a process of reform of abortion laws that had already been underway in the early 1970's. Indeed, Ronald Reagan signed the California Abortion Bill into law in 1970, I believe.

Court decisions that strip legislatures of their constituional powers, such as Roe or that nonsense up in Massachussetts back in 2003 upset our republican (small "r") chain of being, if I can borrow from Shakespeare. You'll never settle abortion, for instance, simply because the liberal activists who brought Roe to the court wanted the issue taken out of the hands of the people.

When that happens, divisiveness is foreordained. Dred Scott and Plessy return.

judicial nominees in 93-94 because they didn't have to.  They were able to have any one Senator put a hold on a nominee and that nominee would then not be able to be considered or voted on.  They did this to more than 60 of Clinton's nominees.

So, why are we fighting about 10 nominees?

have pointed out SCOTUS should not have taken the Florida vote case, but should have left it to be decided at the state level.  With Florida's votes uncertain, the state legislature would have been empowered to act to decide to whom the state's electoral votes would belong. Or, barring that, the House of Representatives would have decided the election as the Constitution directs.

Re: A majority has every right to block or defeat a nominee.

A majority did not block Clinton's appointees. A small minority did (in some cases a single senator). In most (all?) cases the appointees would have been confirmed by a full vote of the Senate, just as President Bush's would be now. The GOP used various arcane Senate rules to block the appointees from being voted on.

Re: If, however, Senate Republicans don't act, we'll leave judicial nominations to the junior Senator from New York and lose our majorities quickly because the base will have no reason at all to show up.

The GOP base will have a number of reasons to show up next election, assuming the GOP provides good governance of a conservative nature. Are you seriously sggesting the Republicans care only about judges and nothing about foreign policy, terrorism, law and order, taxes, regulations, social security, etc, etc?

Re: Go down to "Most Important Issue".

Judges are not mentioned in the poll.

You are correct, constitutionally; in that the course you suggest SCOTUS should have taken in Y2K, would have been the preferred course, to many constitutional lawyers. At the same time, the action SCOTUS did take, given everything in the context of what was asked of them, was not outside of constitutionally "safe" action, as laid out in the language of their ruling.

Politically, either course was a loser for Bush, in the public arena and a loser for Gore in the result. And, the months of additional political process to reach that result, ending with a Republican majority in congress voting to accept the electoral vote-result declared by the Florida legislature; would have still be used by the Dims as a 'theft' of the election against their perception of a different popular vote outcome.

In the end, politically, given the Dims love of the Supremes (usually), I think the quicker resolution was less costly (for us) and easier for the country to take - grudgingly - than the longer and more vitriolic fight in congress that would have provided the same end result.

I did not, and still do not complain about what SCOTUS did, while I do hope our voting demographics do not frequently bring us to the same point, going forward.

Before that happens, people need to be educated about the benefits of the Electoral College and the constitutionally defined role of congress in resolving 'disputed' or 'tied'  presidential elections. Will that education take place? No.