Redstate

for Alito.

I will point out that the nuclear option would have done the same thing.

The next issue will be HOW HARD ARE WE REPUBLICANS WILLING TO WORK for the 2006 Senate Elections.

Here in Georgia, we are idle for the year.

But it seems that there are some areas where the GOP has a chance to win where people are not all that invested in helping, whether it is in Florida or in Montana.

The deal while great this year will be something we will rue if we don't keep close to the same majority over the next two year.

I, for one, would like Bush to be able to put conservatives of the same stripe on the court should Scalia, Stevens, Ginsburg, and/or Breyer.  If the nuclear option had happened instead of the deal, then that would happen for sure.  With the deal in place for 2006, we are okay, but the deal may take back our gains if SCOTUS nominees get blocked in 2007 and 2008.

Because of you my freedom is more protected and Roe v. Wade is closer to being placed on the ash head of history.

The only reason The Deal™ works is that we have 55 R's in the Senate. If we didn't make those gains in 2004, we would not have Justice Alito today (and might not have had CJ Roberts).

I'm not sure whether Alito would have won or not w/out the Deal.  The Dems who voted for him would have still voted for him and voted for cloture.

But I think the Deal helped.  I supported it at the time and think it can help in the future.  It would have been fun to see the Dems nucked though.

With the Byrd option in place, Alito would've been confirmed as well.

I have been infamous for flogging the "55 Rs is the difference" argument.  Without the gain in 2004, we would never have gotten Judges Owens and Brown nor Justice Alito onto those courts.  It was a prerequisite for "The Deal" just as my contention above only applies through the 2006 election.  If Sen. Santorum loses, Rs must win in MD, MN, and/or NJ to make up for that loss.

Nevertheless, I am happy the filibuster is where it should be: available in only "extraordinary circumstances" and I thank those responsible Senators who made it happen.

If there are truly extraordinary circumstances the nominee will be withdrawn, and barring that, voted down. There is no need to a filibuster on judicial nominees.

...to Associate Justice Samuel Alito!

I thought the "Deal" was good when it was newly minted, and as of today I feel vindicated in the assessment.  

Adam, your steadfast support for this even though it was a difficult thing to defend at times and partially a value judgement, and even a bit of a roll of the dice, gives me great confidence that once you get your Ph.D. you'll be a tremendous asset to whomever you choose to work with.  It was largely your advocacy for The Deal that assuaged my doubts about it and I want to thank you, too.  It gives me a lot of pleasure to know that one of my friends exhibits such perspicacity and good judgment.  Congratulations to us all, and congratulations to Associate Justice Samuel Alito.

Alito would have been confirmed a week ago without the "deal" because the filibuster would have been nuked already.  All the "deal" did was empower the 14.

     Those who praise the deal for the confirmation of Justice Alito and Chief Justice Roberts forget that they would have been confirmed without the deal. The constitutional option would have passed, and there would be no deal to overcome judicial filibusters because there would be no such thing as a judicial filibuster.

     So what happens after November 2006 if, as feared, Republicans lose a couple of seats in the Senate? If the Dems pick up enough seats to prevent the constitutional option from ever being invoked, the deal will fall apart in a heartbeat and we'll be back to having good judges filibustered, and the moment to overcome this will have passed.

     

Results are what matter... Two SCOTUS Justices confirmed is a heck of a result.  Senator McCain deserves credit.

Matpruitt must have gone to school at the same school I did with that grammar ;)

http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cf
m?congress=109&session=2&vote=00002

Why do you assume that Bill Frist would have gotten the votes for the nuclear option?  What evidence is there that the votes existed?  Why would conservatives vote to give up the filibuster knowing that it is possible the Democrats, god forbid, could be in the majority some day?  

How do you know the Constitutional option would have passed?  I think confidence in Bill Frist is short-sighted.

I'm not sure it's a lack of confidcence in Frist as much as lack of confidence in Northeast Republicans, etc.

The fact is, there would have been a political cost associated with changing the rules. Should there have been? No. But in the liberal media, the GOP would have looked like they were abusing power over changing the rules.

If necessary, it still would have been worth it.  But we were able to get Roberts and Alito through without having to change the rules.  That is a positive.

Of course once the G14 happened, he didn't have the votes. The G14 perpetuated the fillibuster and gave veto power over nominees to a small clique of Senators. Yea... that is the system working. You are crazy if you believe the Democrats would stand for our filibustering one of theirs. They would change the rules in a second. Not that we would ever try anyway. If Ginsberg is worth 97 ayes, who is going to get filibustered?

vote against a "well-qualified and ethical judge"?  Because the left, unable to change the hearts and minds of the majority of the American people, largely abandoned the legislative process as a means of altering policy.  Their reliance on judicial fiat to accomplish their political goals led to a concerted effort by the right to fill the bench with judges who would resist the siren call of social engineering.  The effort has paid off, and the noise you hear is the wailing of a politically checkmated fringe.  Perhaps in 20 years the Bush nominations will be seen as a watershed in American politics, the time when the opposition abandoned using the courts to legislate.  A debate on ideas is much healthier for our nation, even if we lose a few now and then.

I'll raise my hand and admit to being converted. Good work.

since Robert Bork.  Sometime prior to 1987, the far left realized that they could no longer compete with the mainstream at the ballot box.  Their socialsitic agenda is defeated time after time after time. I guess it was the 94 states that Reagan won in 1980 and 1984 combined.  The liberal agenda is forced on the US by the judiciary, not Congress nor the exectutive branch.  This is their last bastion of hope.  I really feel sorry for the next nominee because you aint seen nothin' yet.

     Both Frist and Majority Whip Mitch McConnell said repeatedly that they had the votes to invoke the constitutional option in the days before the deal was announced.

     I don't think either of these men are liars, nor are they prone to making empty statements.

http://www.washtimes.com/national/20050424-112053-9266r.htm

I'll give credit where credit is due. If you're claiming that The Deal was dispositive to Alito being confirmed, then I strongly disagree. Consider the following contributory causes:

1. 55 Republicans.
   
   
2. The Deal
   
   
3. The Ridiculous Grandstanding of Ted Kennedy
   
   
4. Chairman Specter's unexpected, and much appreciated control over the judiciary committee.
   
   
5. The fact that Alito performed OUTRAGEOUSLY well at the hearings- knowing every case/facts/holding off the top of his head.
   
   
6. The threat of the nuclear option.

Which of those can we say is most important? I don't think any of them. Numbers 1, 4, and certainly 5, and arguably 6 were all dispositive to Alito getting confirmed. 2 is probably the weakest case, but the point remains: there was a lot more going on here than John McCain, and the deal.

Personally, I think the single most efficient cause to Alito's confirmation was that he was easily qualified for the job, and demonstrated it with flying colors to the judiciary committee.

The rules would have been changed if a filibuster was allowed.  There has never been a rule that judical nominees could be filibustered.  This is an invention of the Democrats.

From my understanding, The Deal is silent on the confirmation vote - it's the cloture vote that is addressed. To be fair, everyone should use the actual cloture vote and the 60-vote requirement when discussing this issue - not the simple majority required for confirmation.

And yes, I realize that calculus goes against the broader fact that SCOTUS confirmations require a simple majority under the Constitution.

This issue is and always has been a winner for the R's.

to pick.

All seven democratic members of the gang voted for cloture, not against it.  A cloture motion is a motion to end debate.  Voting for cloture means you are willing to stop talking and vote.  Voting against cloture means you want the debate (or filibuster) to continue.  

http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Clot
ure.htm

No offense Adam.

While it may appear that the G14 deal paved the way for Alito to get confirmed, in reality, Alito and Roberts would have been confirmed without the deal if the judicial filibuster was barred by the nuclear/Byrd/Constitutional option, which is what would have happened if the G14 deal didn't happen.

Moreover, because the filibuster still exists, losses by the GOP in the Senate not only open up the next nominee up to a filibuster, but it also closes the door on the ability of the GOP to defeat it by going nuclear. In other words, after '06 if the GOP loses Senate seats, which is certainly a possiblity, the filibuster still exists, but the ability and will to do anything about it will be gone.

Believe or not, the abortion vote on the court is now perceived to be 5-4 in favor of Roe, and a replacement of a pro-Roe justice with a Bush nominee who is as conservative as Alito or Roberts would constitute an extraordinary circumstance that would justify G14 Dem "moderates" joining in a filibuster. If the GOP can't stop that filibuster, forget about getting the 5th vote to overturn Roe. We'd be stuck with a stealth nominee and/or squishy moderate that can get past a filibuster and we'd be back where we were before, with the Dems controlling the nomination process by their obstructionism and the Supreme Court a vote of away from restoring the constitution.

The G14 deal may have had some short-term percieved political gain for the GOP, but in the end, it could be a huge burden because we didn't get rid of judicial filibusters when we had the chance.

and the VP would have been 51. Frist had the votes. It was the McCainiacs who didn't want to appear partisan so they cooked up the G14 deal to avoid the confrontation.

This site is, I believe, widely read by internet-savvy conservatives and even by some on the left who are interested in getting insight into what the right is thinking on a given issue.  That being the case, it is important that the opinions expressed here be presented in their most favorable light, which means without spelling errors and properly edited.  This post, for instance, has at least two spelling errors (unprecendented and perserved) and at one point says the seven democrats voted "against" cloture, rather than "for" cloture or "against" the filibuster.  I enjoy this site quite a bit, so take this as some constructive criticism - a little proof-reading goes a long way.      

I've seen analysis (and sorry but I don't have a link) that Rove and the RNC have used the "legislating from the bench" issue effectively in senate races in the past.  Does the confirmation of these two conservative justices make this issue less compelling in 2006?

I ask because there's more than post in this thread that implies that any slippage in Republican seats in 2006 could make this apparent progress moot as the next conservative nominee might be successfully filibustered.

You are crazy if you believe the Democrats would stand for our filibustering one of theirs. They would change the rules in a second.

And what if they would?  The lowest common denominator is not a standard for governance.

I supported the deal, and I'm happy to see that it has resulted in the confirmation of two justices who largely share my views on the Constitution.  

Incisive and cogent analysis General Grant. The deal hasn't given us anything we wouldn't have already had, but it has potentially cost us a great deal. You are right on the money.

And what if they would?  The lowest common denominator is not a standard for governance.

The lowest common denominator here is the use of the fillibuster to derail judicial appointments.

I changed the oil in my car a couple of weeks ago too. I am glad to see that resulted in the confirmation of two excellent justices. We would've had both of these justices without the G14 and the ones that were abandoned as a result of this deal as well. The G14 deserves no credit for this.

I'll go even further than Adam: the G14 paved the way for a smooth confirmation process for JUSTICE Alito (love saying that!) while defending a critical Burkean conservative principle, that being [liberally paraphrasing]:

We should be cautious and skeptical about tossing aside ancient traditions designed to protect the minority just because a simple majority is temporarily inflamed by the results of the minority exercising those rights in a particular instance.

Sen. McCain understood this when he created the G14, and this is yet another reason that despite conservative grumbling about McCain, I maintain that he is in fact one of the few true conservatives left in Congress.  The right to filibuster -- a very conservative and traditional right -- was preserved, and a non-activist, intellectually honest conservative jurist was elevated to the Supreme Court.  It's a double victory for conservative principles if you ask me.  

(And for the record, the phrase "constitutional option" is an Orwellian abomination devised by PR consultants who know nothing about the Constitution.  The option is neither conservative nor grounded in the Constitution.)

First, the Dems will face fierce resistance to filibustering a Supreme Court nominee during a Presidential election year.  The issue of judicial filibusters has proven to be deadly to the Dems and as yesterday's cloture vote on Alito showed, many Senators from Red states or competitive seats are ready and willing to break away from the Schumers, Kennedys, Kerrys, and Boxers of the Democratic Party.  

They may vote against the nominee on passage but they don't want to be seen as "gaming the rules" which is what judicial filibusters were all about.  

Alito received 72 (really 74) votes on cloture but only 58 on confirmation.  The cloture vote seems to be reverting back to the "easy" vote and Senators can cast their "real" vote on confirmation.  This happened on Bork and Thomas , one loss and one very close win.  However, neither was filibustered.    

It's important we keep a comfortable majority in the Senate.  If we don't, it will hurt us on the cloture and confirmation votes together.

(And for the record, the phrase "constitutional option" is an Orwellian abomination devised by PR consultants who know nothing about the Constitution.  The option is neither conservative nor grounded in the Constitution.)

So where does the constitution lay out the requirement for a supermajority of Senators to approve a President's judicial nominees? They certainly weren't shy about spelling it out where they thought it was necessary. Maybe it just slipped their mind in this case.

We should be cautious and skeptical about tossing aside ancient traditions designed to protect the minority just because a simple majority is temporarily inflamed by the results of the minority exercising those rights in a particular instance.

How does the filibuster of judicial nominees qualify as an, even remotely, ancient tradition?

So is it only a minority of 40-49 that we need to be concerned with? If we really want to protect the rights of the minority, why not make the test unanimous consent?

I agree with you, which is why I fervently hope that either Stevens or Ginsburg retires in the next few months so that another appointment can be made before the midterms.  That most likely won't happen, so Nov becomes even more important.

I think if the GOP loses more than one seat in the Senate, then any hope of nuking filibusters will be gone, which will inturn embolden the Dems to block a vote on any judge who doesn't pledge undying fealty to Roe and the 'living Constitution.'  Had the filibuster been done away with, then with another opening Bush could have felt bold enough to at least try with Emilio Garza or Edith Jones, knowing he'd only need to get to 50.  Otherwise, a conservative nominee will depend on all of these red-state Dem senators who admirably voted for cloture for Alito.  I wouldn't count on that same admirable conduct if they smell blood in the water after Nov.

The stakes are too high.  After Reagan and Bush the Elder failed so miserably in rescuing the Supreme Court from judicial activism (2/5), the chance has thankfully arrived again, and can be achieved with just a few more victories over the next few Novembers.

You seem to be one of the few clear thinking people here on this issue. The gist of most others seems to be that only results matter, how we get them doesn't. I like to think I'm a bit more principled than that. IMO, everyone who likes that deal is tacitly endorsing the idea that far left nominees can be confirmed easily, but conservative nominees need a special deal.

I thought the President selected nominees and the Senate offered advice and consent. The filibuster removes the full Senate from the picture, or at least requires a supermajority for a vote, essentially rewriting the Constitution and diminishing the President's Constitutionally granted powers without amendment. Isn't that why we want better judges to begin with, so that the Constitution is not changed improperly? What a strange way to get there.

But they'd look worse shutting down the Senate becuase they would no longer be allowed to block judicial nominees.

All things being equal, I'd rather get true conservatives on the court for 20+ years than have the short term political gain of having Democrats look bad during an election year. Trust me, they'll find other ways to do that.

I can not sit here any longer and read another post that seeks to spit-shine Senator McCain for his notorious sellout known as the " Gang of 14 " Deal.

Let me be more respectful in my disagreement with many posters at RedState by laying out some facts that you may not have considered in all this euphoria over Alito's confirmation.

1. John McCain did not bring this group together with any high-minded ideals or principles. He brought this group together because he is a self-serving man who wanted to put on a show for the nation and proclaim that he had helped keep the Senate functioning by this deal. What he really did though was thumb his nose at all the people who worked hard to elect enough Republicans to the Senate to end the parlimentary abuse known as the Judicial Filibuster.
   
   
2. We would have gotten ALL our nominees confirmed with the enactment of the Constitutional Option, not just 5 of the 7 judges who were being filibustered at that time.
   
   
3. When history gives you a once-in-a-lifetime opportunity to TOTALLY DESTROY your policital opposition, you seize it. Had we done what was right and not been underminded by Emperor McCain(yes, I have no doubt he has a Napoleon Complex), we would have rendered the Democrats completely helpless to stop us from advancing our agenda. You take away the filibuster, you take away the ONLY THING that they could effectively use to delay and obstruct since they have NO NEW IDEAS except to say NO to everything that our party tries to do.
   
   
4. By taking away the Judicial Filibuster, we would have actually made the Democrats a better opposition party by forcing them to fight on ideas instead of strict partisanship. Once they couldn't obstruct anymore, they would have to turn themselves to the process of trying to convince people that THEY are right and not our side. It's called the Arena of Ideas, and the Dems haven't fought there in about ten years.
   
   
5. By going with the Constitutional Option, we could have returned the Senate to it's historic ROLE in properly debating and giving votes on nominees.
   
   
5. The Dems would HAVE NEVER cut such a deal with us had we been in the minority. No sir, they would just have enacted the option and gone right on with our business.
   
   
6. McCain also did what he did to try to appeal to independents and moderate Democrats who he thinks he needs to win in 2008.

Bottom line? McCain will get ZERO CREDIT from me for his betrayl of the American voters, and he should pay a HUGE POLITICAL PRICE when he runs. I've already begun to organize and inform my fellow Republicans and friends to work hard for his defeat in the primaries leading up to 2008.

Don't be fooled by the back-slapping and praise of some for this ego-maniac. John McCain cares only about the guy staring back at him from his vanity mirror.

Glad I got that off my chest.

"Today 42 obstructionist Senators voted against a 'well-qualified' nominee because they disagree with his judicial philosohphy of allegiance to the original intent of the Constitution."

- I think that's kind of a misstatement. They disagree with his record, which they say (right or wrong) suggests that he's against abortion rights and tends to favor corporate over individual interests.

Go through the list of GOPers and see what public statements they had made in support of the constitutional option.  You'll find we were quite a bit short of the 50 votes to deploy the constitutional option.  We were in the mid to high 40s.  Many people seem to be under the impression deploying the constitutional option was a slam dunk.  IT WAS NOT.

And as for the leadership saying they had the votes.  What do you expect them to say?  "We don't  have the votes to deploy the constitutional option so just forget it."  That hardly instills the fear of God in the Democrats.  

And don't forget, taking the vote and losing would have been catastrophic for the President.  You lose Janice Rogers Brown, Bill Pryor, Priscilla Owen.  Oh, and John Roberts and Sam Alito never see the light of day.

In the Senate:

Unanimous opposition from the Democrats plus Jeffords

Among Republicans, 3 Senators were NO votes.  These were McCain, Snowe, and Chafee.  They just don't believe this was the proper venue to change the rules and a rule change should require the usual 67 votes.

Several others were on the fence and refused to commit to voting in support.  Many of these continue to refuse to state a position on this.  They include Collins, Murkowski, Stevens, Warner, and Specter.  If we lost 2, we were at 50.  If we lost Murkowski we also lost Stevens who was not going to leave her hanging.  Also, Hagel did not come out in support of the constitutional option until after the Gang of 14 deal was reached.  It was a DICEY situation.

As for the judges who were not guaranteed votes, do you really think confirming William Meyers, the General Counsel at the Interior Department would be a walk in the park.  Remember, the Interior Department is going to be very deeply involved in the whole Abramoff/Indian/Interior investigation.    Do we really want to go there?

Over time, one thing I've found to frequently be true of "constitutional option" advocates is that they determined that the option is based on the Constitution NOT by examining the Constitution itself, but merely by examining RNC talking points.  I consider myself a conservative Republican, but I also consider myself intellectually honest, and in that regard I have to reject those talking points.

1. Article I, section 5 of the Constitution provides that the Senate has the authority to make its own rules.
   
2. The Senate is a continuing body, meaning its rules carry over from Congress to Congress unless the Senate affirmatively amends those rules.
   
3. The filibuster rule has existed almost as long as the Senate itself.  The filibuster rule has never contained an exception for judicial nominees.
   
4. Article II, section 2 of the Constitution empowers the President to make appointments "with the advice and consent of the Senate."  
   
5. Nowhere is "advice and consent" defined to require a simple majority as opposed to a super-majority.  Such a decision is left to the Senate rules, duly adopted under Article I, section 5 (above).

QED.

The exercise of the misnamed constitutional option works like this: (1) a Republican senator raises a point of order that the filibuster does not apply to judicial nominees; (2) the Chair rules against the objection and in favor of the filibuster; (3) the objecting senator moves to appeal the ruling of the Chair; and (4) 51 GOP senators vote to overrule the Chair.

The problem is, the vote to overrule the Chair would not be based on any objective constitutional analysis.  It would be based purely on political motives.  In that regard, it violates the principle of the Rule of Law -- and uses the same type of reasoning used by liberal judicial activists.  Ignore what the rules actually say, and vote to "interpret" the rules based on the political result you want.  Nice.

When history gives you a once-in-a-lifetime opportunity to TOTALLY DESTROY your policital opposition, you seize it.

Spoken like a true leftist dictator.  Chairman Mao would be proud.  As for me, I define "conservative" to reject such behavior.

The Dems would HAVE NEVER cut such a deal with us had we been in the minority. No sir, they would just have enacted the option and gone right on with our business.

I agree completely.  The Dems also would raise taxes, nationalize health care, and legalize abortion during all nine months of pregnancy.  Does that mean Republicans should do the same?  I hope not.  That's what makes us better than them.

First off, you owe me an apology. If you disagree with my post, no big deal. State your case, but how dare you compare me with a mass murderer like Mao Se Tuong! Destorying someone from a political standpoint means to make them ineffectual, as anyone could figure out by reading the rest of my comments.

By the way, one of my heros in history is Otto Von Bismark, who knew something about winning against your political opponent. Call is realpolitic or call it whatever you like, but it's the same brand of politics I'm alluding to in my post. Play to win, not to cut deals with your enemy.

Another thing, you need to study your facts a bit more. The filibuster HAS NOT been around since the beginning of the republic. That is a flat-out lie. The first filibusters were not even used until the late 19th century, and they were NEVER USED against Presidential nominees until the Daschle led Dems began them in 2001. Until then they had only been used against legistlation.

Last point. Are you really a Republican? I doubt it. Your opening shot at the RNC coupled with your last point reveal your true colors. The Dems would do it to us, but we should never do it to them? That makes you " consevative " according to your post thus showing that you don't even know the meaning of the word as applied to someone who actually is one. Under you logic, Republican are just supposed to " suck it up " and allow Dems to abuse the process, but it's OKAY for Dems to do it? Good try with that one, but WRONG.

Happy trolling.

Thanks for the correction.

I apologize for the errors.  I was running out the door and wanted to post before the SOTU posts started taking over.

The are three main reasons why Alito and Roberts were not filibustered:

(1) After the 2004 US Senate elections, Republicans hold 55 US Senate seats, compared to 51 seats in the previous Senate.  This puts a Bush judicial nominee 5 votes short of cloture instead of 9 votes short.  

(2) The Republican Senate leadership threated to use the Byrd option and get rid of judicial filibusters.  The Democrats believed that Republicans might have the votes to do it.

(3) It is politically more costly to filibuster a US Supreme Court nomination than it is to filibuster a nomination to the US Court of appeals.  

But the Gang of 14's "deal" was a bad deal for Republicans.  

The deal keeps the judicial filibuster alive, even though judicial filibusters were almost unheard of prior to the 2003-2004 Senate sessions.  

Among the gang of 14, DeWine and Graham deserve a little bit of praise because they threatened to vote for the Byrd option if Democrats filibustered the Alito nomination.  

But let's get it straight.  

It was the threat of the Byrd option made by Frist, McConnell, Santorum, Kyl, Allen and others that forced Democrats to back off their filibustering ways, not the gutless wonders: McCain, Chafee, Snowe and Collins.

...judicial nominations, putting himself in the same camp as Chuck Schumer and Ted Kennedy convinced me that McCain does not deserve my vote for anything, in the primary or the general election.  

When McCain appeared on Hardball with Chris Matthews and said that he would vote with the Senate Democrat caucus and sustain judicial filibusters, I knew then that I could not support him, even if the alternative was a Hillary Clinton presidency.  

Most the gang of 7 (the 7 of the gang of 14 who are Republicans) disappointed me.  

Instead of publicly announcing that they would do whatever they could to get rid of judicial filibusters, they kept the door open for them.  

I can understand why Blue State Republicans like Lincoln Chafee and Olympia Snowe took this position.  But I will not forgive the fact that a Red State Republican like John McCain kept the judicial filibuster alive.  

Sir, you have the temperment of a Kossite, even if you have a different ideology.

First, I'm almost certain that I've done far more for the GOP than you have.  You don't know me, and it's dangerous to make assumptions based on ignorance -- something you do with astonishing comfort.  I get paid a great deal of money to help advance the Republican agenda, and I do it very effectively, receiving the gratitude of some of your favorite politicians.  So stop throwing around accusations that would only make you look childish if the truth were revealed.

Second, I find it curious that you would demand an apology for my referring to your ruthlessness as Maoist, and then in the next breath claim that you idolize the ruthlessness of Bismarck.  I can't help but feel there's something inconsistent in your reasoning there.  If Otto von Bismark is your hero, then we can certainly agree that we have very different definitions of conservatism.  Bismark's motto was "blood and iron."  He was an authoritarian dictator, anti-democracy, and created the first modern welfare state in the world.  He also helped lay the foundations for what became known as national socialism.  I suggest you read up a little on Bismarck before claiming him as a hero.

I consider myself something of a neo-Hayekian, which would be very different from -- almost opposite to -- a neo-Bismarckian.  Hayek believed that limited government was a moral imperative because bigger government encouraged the most ruthless elements of society to seize power and wield it for less-than-virtuous ends.  You, OTOH, seem to crave political power precisely so that you can wield it for ruthless ends.  This is the spirit in which I compared you to Mao, not in the spirit of mass murder.  But if you want me to compare you to Bismarck, I'm more than happy to.  Hayek and Bismarck provide visions that would be hostile to each other, and it seems strange indeed that both visions can simultaneously be called "conservative."

I forgot to mention that your accusation that I'm wrong about the age of the filibuster is mistaken.  I am, in fact, correct, and putting your words in ALL CAPS doesn't change that.  The filibuster has been a part of the Senate rules since the early days of the Republic, as the Senate historian explains here:

http://www.senate.gov/artandhistory/history/common/briefing/Filibuster_Clot
ure.htm

You might be confusing the filibuster with the cloture motion, which has been around since 1917.  But that's a rule to STOP a filibuster (my turn for ALL CAPS now).  Before the cloture rule was adopted, there was no method at all by which a majority could stop a filibuster.  Filibusters were unstoppable.

Furthermore, going back to your charge of not being a "real Republican," I'll be spending my afternoon today on the floor of the U.S. House of Representatives advising Republican congressmen on policy and procedure.  What will you be doing this afternoon?

you say

Nowhere is "advice and consent" defined to require a simple majority as opposed to a super-majority.  Such a decision is left to the Senate rules, duly adopted under Article I, section 5 (above)

While it is true that advice and consent is not specifically mentioned as requiring a super majority, it is also true that super majorities are specifically called for when:

1. Convicting an Impeachment (2/3)
   
   
2. Expulsion of a member of one house of Congress (2/3)
   
   
3. Override a Presidential Veto (2/3)
   
   
4. Ratify a treaty (2/3)
   
   
5. Passing of a Constitutional Amendment (2/3)

There are a couple of other instances where super majorities are required.

Is it your position that the Framers of the Constitution forgot to include a super majority for advice and consent?  If so I respectfully disagree.

Is it your position that the Framers left open the door for the legislative branch to expand its power with respect to executive power by permitting a maneuver that has the affect of requiring a super majority for advice and consent?  Surely you would agree that a super majority requirement reduces executive power and increases the power of the legislature?

Is it your position that the Senate may pass rules that infringe on the executive's constitutionally granted powers?

It seems to me that by listing specific instances where super majorities are required, the clear implication is that they are not required in the remaining instances.

Don't deserve much credit.  The uproar in Ohio was such that DeWine's relative was caught in the backlash.  Graham caught hell from his SC constituents.  Their backdown was pure self interest, not principle.

McCain, the darling of the MSM, is untouchable.  Warner is in solid with the "moderates" of VA since he helped defeat Ollie.  The other 3 are the definition of a RINO.

BTW, McCain (as in McCain-Feingold) will never get my support.  Aside from his "gang of 14" preening, his sponsorship of the "have-you-stopped-beating-your-wife?" proposal to outlaw even "degrading" treatment of terrorists was an abomination and a slap in the face of his country.  To degrade means to bring to dishonor or contempt.  There's not a jail or prison in this country that doesn't "dis" their inmates.

So the Army Field Manual is a slap in the face to this country?

Earl,

I wrote a long response to you yesterday and somehow it disappeared into the ether.  Sorry about that.  I'll try again.  Thanks for your questions; I'll take them one at a time...

Is it your position that the Framers of the Constitution forgot to include a super majority for advice and consent?

No, that is not my position.  My position is that the Framers were silent with respect to a standard for advice and consent, whereas they were not silent, and in fact they were very explicit, with respect to the Senate's rule-making authority.  I believe the strict constructionist reading of the Constitution looks at the plain language, and the plain language seems to leave discretion in the Senate's hands.  To read a right to an up-or-down vote into the Constitution is much like reading a right to privacy into the Constitution -- you have to use "penumbras, formed from emanations."  And that's why I referred to it as judicial activism.

Is it your position that the Framers left open the door for the legislative branch to expand its power with respect to executive power by permitting a maneuver that has the affect of requiring a super majority for advice and consent?

In a sense, yes.  But I would quibble with the word "expand", because I don't mean to say that the legislative branch would create a power not already permitted by the Constitution.  I mean to say that such power is explicitly granted by the Constitution, and therefore it's not really an expansion, but rather a legitimate exercise of an enumerated power.

Surely you would agree that a super majority requirement reduces executive power and increases the power of the legislature?

Yes, and frankly I like it this way.  And I assert that the Framers liked it this way too.  The Framers were very suspicious of centralized executive power; in fact, they fought a revolution over the matter.  They also make clear that the legislative branch of article I had primacy over the other two branches, through both the text of the Constitution itself as well as secondary sources such as the Federalist Papers.  Alexander Hamilton wanted a strong, vigorous executive, and the historical record proves that he lost that battle.  I believe the "conservative" position is to continue to be wary of executive power, because it is the political power most likely to infringe upon the people's liberties.

Is it your position that the Senate may pass rules that infringe on the executive's constitutionally granted powers?

Not in so many words, but as I indicated above, I think the Senate's powers in this case come from a strict reading of the plain language of the Constitution.  In the sense, they do not infringe upon an executive power.

It seems to me that by listing specific instances where super majorities are required, the clear implication is that they are not required in the remaining instances.

Agreed.  But "are not required" and "is prohibited" are two different things.  The Senate is not required to adopt a supermajority rule, but it is free to do so if it pleases.  It's a logical fallacy to conclude that because the law is silent on a super-majority, a super-majority therefore is prohibited.  The Constitution does not require a super-majority to increase tax rates, and yet when we won control of Congress in 1994 one of the House's first rule changes was to require a 3/5 majority to raise tax rates.  This super-majority most certainly would withstand a court challenge, even though the Constitution is silent on it, because the Constitution is quite clear on the House's power to determine its own rules.

My problem with your argument is one of the premises that you started out with -- that the Senate is a continuing body, whose rules carry over from one Congress to the next.

This is not consistent with long-standing parlementary views, and I would argue is contrary to the Constitution.  

As you point out, the Constitution says that each house (i.e. the House of Representatives and the Senate) makes its own rules.  But every two years, the composition of each house changes -- there are new Senators and new Congressmen.  We actually call it a new Congress (i.e. the 104th Congress, etc.)  I believe it violates the Consitution to say that when there is a new Congress, it is bound by the last Congress' rules, since the Constitution clearly allows a new Congress to form its own rules.  So, if a particular Congress or a particular Senate wants to impose a rule saying that the only way to express "advice and consent" is by 2/3 majority, that's fine -- but ONLY for that one Congress (i.e. for the two years until the next election).  After that, all bets are off, and the new Congress can make new rules saying it only takes a simple majority.

Let's do a little conceptual game to prove that this is the only way to preserve a republican form of government.  Let's imagine that one political party (we'll call them the Power Grabber Party) won a 2/3 majority in the Senate, and decided to pass a new Senate rule saying that from thenceforth only Power Grabbers can serve on Senate Committees, that all bills must be passed by the committee before coming to the floor, that no amendments are allowed on the floor, that no debate is allowed on the floor, and it will take a 100% vote of the Senate to change that rule.  Let's further assume that the people in the various states go crazy (as they should), say that the Power Grabbers have gone too far, and vote all but 1 Power Grabber out of office.  Can the new Senate, that has only 1 Power Grabber and 99 Freedom Party members change the rule at the beginning of the new Congress?  Absolutely!!!  Because one Congress or one Senate cannot bind what the next Congress or Senate can set as its rules.  Only the Constitution can restrain their power in that regard.

Therefore, even though the Senate Rules say that the rules carry over from one Congress to the next, such a rule is unconstitutional.

Historically, early in each Congress, the Senate votes to reaffirm the Senate Rules.  Once they do that, then those rules are binding for those two years.  But to my recollection, Frist deliberately did not take such a vote in this Congress -- precisely because he did not want to be bound by them.

Therefore, the Senate can, by majority vote, do whatever it pleases.  In the absence of binding rules (or a specific Constitutional requirement), the presumption of a republican form of government is that only a majority of the legislative body needs to approve an action.  Therefore, the "nuclear" option clearly is the "Consitutional" option as well.

Hey Samwise,

Can you provide me with any citations supporting your argument that the Constitution prohibits the Senate from being a continuing body?  Or is this just your theorizing?  Article I, section 5, clause 2 reads:

"Each House may determine the Rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two thirds, expel a Member."

Nowhere do I see that new rules must be adopted at the beginning of a new Congress. Each chamber may determine its own rules, and if the chamber determines it's a continuing body, then that seems to be the end of the discussion.  Section 2 states that all Representatives are elected every second year, and section 3 states that senators are divided into thirds and each third is elected every second year.  I construe nothing in this to mean that rules cannot carry over.

It's pretty well-settled that the Senate's rules carry over, and that this element is consistent with the Constitution.  If you have any contrary sources, I'd love to hear about them.  Without some sort of support, I think this long-standing practice accepted by both parties and ratified every Congress carries a presumption of constitutionality.  That being the case, the rest of your argument would be moot.

I admit it's an interesting and creative argument your making, but once again it smacks to me of "judicial activism" in the sense that you are pulling a new constitutional requirement out of the ether in order to justify the result you want.  Looking at the text, I don't see it.

The concept that one parliament (or Congress) can't bind a future parliament has been a long-standing feature of representative/republican government since long before the American revolution.  The power to enact laws (or rules of procedure) includes the power to repeal laws (or rules of procedure).

This may be one of those few circumstances where there's a potential difference between an "originalist" and a "textualist" in interpreting the Constitution.  An originalist (like Scalia) asks the question "what did the framers of the Constitutuion originally mean by the language they used."  In answering this question, it is fair to look at the historical context at the time it was written.  Since it was widely assumed at the time the Constitution was written that a simple majority was all that was needed (absent a specific super-majority in the written Constitution), and since it was widely understood that one legislature could not bind a future legislature, the drafters of the Constitution did not think to say otherwise.  An originalist therefore concludes that it's clear that when the Constitution says "Each house maydetermine the Rules of its Proceedings" that each new Congress can change the rules of the proceeding Congress.

On the other hand, a textualist doesn't start with the question, "what did the writers of the Constitution mean," but rather, they ask, "what did the writers of the Constitution actually, literally say?"  

I must admit that I am generally more of a textualist than an originalist.  But even the most ardent textualist must sometimes resort to extra-textual evidence to interpret a text.  The "black letter" rule is that in interpretting a text, you first look to see exactly what a text says.  If you can interpret it without looking further, that's what you do.  But if there is some ambiguity in the text (which there often is), then you look next to see what the authors of the text meant by their writing.  

Most originalists and textualists would give a fair amount of weight to Blackstone's commentary on the law.  It was a fairly good description of the common understandings of the law during the revolutionary period.  Blackstone was clear that one parliament could not bind a future parliament, and it is reasonable to understand the Constitutional language in light of his writings.

Both of these ways of interpretting are quite different from the judicial activist, who asks, "what do I want the text to mean to me today, given the current society's social mores."

If you want to read more about the restriction of one Congress binding another Congress's authority to make its own rules, see:

http://writ.news.findlaw.com/amar/20030627.html

I found your reply very cogent, quite impressive.

Having read your post and given it some thought I agree with your position with respect to calling a rule change to eliminate filibusters of judicial candidates a 'constitutional' option.  

However, it seems to me that there is a contradiction in your argument.  You said

The problem is, the vote to overrule the Chair would not be based on any objective constitutional analysis.  It would be based purely on political motives.  In that regard, it violates the principle of the Rule of Law -- and uses the same type of reasoning used by liberal judicial activists.  Ignore what the rules actually say, and vote to "interpret" the rules based on the political result you want.

Yet in your reply to me you also  said

But "are not required" and "is prohibited" are two different things.  The Senate is not required to adopt a supermajority rule, but it is free to do so if it pleases.

It seems to me that the since it is free to adopt a supermajority if it pleases, it is also free to eliminate the need for a supermajority if it pleases.

If we accept the following two facts: the Senate is a political organization, the Senate is free to make its own rules with respect to advice and consent, then how can you assert that

The problem is, the vote to overrule the Chair would not be based on any objective constitutional analysis.

You have asserted (and convinced me) that the constitution leaves this up to the discretion of the Senate, therefore at the discretion of the majority party, the rule is changed.

The majority party is not

Ignore(ing) what the rules actually say

they are exercising the discretion you are saying they have.  You yourself said there are no constitutional prohibitions in this area.

Your response?

I'm not going to get into a name-calling posting war with you. I have no problem with your fundamental disagreement with my opinion. You chose to make things personal when you labeled me a Maoist, which was completely out of line and had nothing to do with my point.

My original point about " crushing your opponent " was about politics as strategic policy. To equate using a legal parlimentary proceedure(the Nuclear or Constitutional Option), with herding dissidents into a Communist Gulag is ludicrous, yet this is what you infered I meant.

Also, I never applauded Bismark for Prussian Militarism or Absolutism as you attested. I said he was hero of mine in history due to his approach to politics. He had big capital with the German people. Through his diplomatic prowess and intellect, he engineered the creation of the German state. Once the nation was unified, he used his influence with the majority of the Reichstag to defeat attempts by the Catholic and Socialist parties at killing his budget requests for conscription, armaments and other issues. Despite what you posted, he was not a dictator. He was appointed by the Prussian/German monarch. True that he wasn't a huge fan of democracy, but that wasn't his background as a junker from a traditional Prussian family. He believed in monarchy, but that didn't make him a Hitlerian figure.

By the way, I used CAPITALIZED words for EMPHASIS. The word is in Websters in case you're interested.

Know what else? I can post links as well. Here's a good one that is relevant to some of my original post remarks - www.nationalreview.com/levin/levin200503210842.asp

Very last thing. I think it's wonderful that you get to work in Washington and have some influence. Tell me how that makes you a better Republican or Conservative that the average, middle-class American who donates to his party, is a member of the RNC and has recruited scores of new party members and voters over many years?
It doesn't.... but it did give me some insight about you. My original post was about NOT giving John McCain any credit for undermining the Senate Leadership with the GANG OF 14 deal. Perhaps you work in some capacity for the wayward Senator from Arizona and took offense.

That would explain a whole lot.
Peace! I won't respond to your posts anymore unless you want to have a civil exchange.

Thanks for your response, Earl.  You make good points and ask good questions.  I will do my best to answer.

I think the reason we're missing each other here is that very few people understand exactly how the nuclear option works.  This isn't a slight towards you.  This is real inside-baseball, arcane parliamentary procedure stuff here.  Let me explain exactly how the nuclear option would be effected, and then tell me if it answers your question.

1. Frist would move to invoke cloture.
   
   
2. The Senate would vote on the cloture motion, and the motion would fail to get 60 votes.
   
   
3. The Chair would announce that the motion failed and that debate would continue.
   
   
4. Frist would raise a point of order that the Constitution prohibits judicial nominees from being filibustered.
   
   
5. The Chair (a Republican senator), advised by the Senate Parliamentarian (Alan Frumin, a Trent Lott appointee), would rule the point of order not well taken on the grounds that the Senate Rules authorize the filibuster and the Constitution does not prohibit it.
   
   
6. Frist would move to appeal the ruling of the Chair, on the grounds that the Chair's interpretation of the current rules is incorrect.
   
   
7. At least 51 senators would vote to overrule the ruling of the Chair, agreeing with Frist that the Chair's interpretation of the rules as they exist is incorrect.
   
   
8. The Chair would announce that he had been overruled, and that the filibuster must cease.

Earl, I agree with you wholeheartedly that the Senate has the power to change its own rules.  In fact, if the Senate amended its rules to prohibit a filibuster of a judicial nominee, I probably would support that amendment.  But the point is, that is not the process that I just described above in steps 1-8.  With the nuclear option, the Senate is not amending its rules; the Senate is interpreting the current rules in a politically convenient way.  The presiding officer and the Parliamentarian are telling the senators that the current rules allow a filibuster, and the GOP senators are saying, "No, the current rules prohibit a filibuster."

Why are they using this process instead of actually amending the rules?  Because under current rules, a motion to amend the rules can be filibustered.  In other words, amending the rules requires 60 votes, which the GOP doesn't have.  Therefore, they must use the disingenuous tactic of insisting that the current rules actually say something entirely different than what the presiding officer and the Parliamentarian have determined they say.  

Do you see why I call this analogous to liberal judicial activism?  We have a situation where the advocates of a certain policy do not have the votes to adopt their policy through the normal democratic process, and therefore they invent an interpretation of the Constitution that gets them what they want, even though that interpretation is not supported by the text of the Constitution.  This interpretation is not based on an objective analysis of the Constitution.  It is based on political expediency.  And so they impose their will by fiat on everyone else, and eliminate the rights of the minority.

Does this answer your question?  The nuclear option doesn't change the rules through regular order.  Rather, it re-interprets the rules that already exist.  It's a pure power grab, and I'd hate to open that door.

Because I know that the Democrats will be in the majority someday, and I shudder to think what they'll do to this country if we don't have the filibuster to stop them.

First, thought-provoking article by Professor Amar.  He raises some issues that are fun to think about, and I'll have to chew on it some more.  But I do have a couple of criticisms of his article.  For one, he says this:

In spite of that, though, my sense is that most constitutional analysts believe that each new Senate over time has a right, by majority vote, to make whatever procedural rules it wants.

The Supreme Court seems to think so, too. In a number of cases arising in a variety of different constitutional areas, the Court has expressed its belief in the principle of legislative equality - meaning one legislature has the same powers as another, and by implication, that none has the power to bind its successor. Thus, there are strong indications in Supreme Court caselaw that the Court would not approve of the 67-votes-to-amend rule-change rule, and would deem it unconstitutional.

He then proceeds to cite exactly ZERO cases for this proposition.  I would like to take a look at these alleged SCOTUS cases and see if I draw the same conclusion he did.  But he doesn't give me that opportunity.  I'm supposed to take him at his word, and I'm far too skeptical a thinker for that.

Also, he himself admits that his argument might actually mean that the U.S. Constitution itself must expire every 2 years!  Again, fun to think about at midnight, but in the real world it's patently absurd.  (Before I read this part, I was asking myself if his logic means that all entitlement programs must expire every 2 years -- but he did me one better!)

Second, you do the same thing as Amar.  You say:

Since it was widely assumed at the time the Constitution was written that a simple majority was all that was needed (absent a specific super-majority in the written Constitution), and since it was widely understood that one legislature could not bind a future legislature, the drafters of the Constitution did not think to say otherwise.

You use the word "widely" twice to describe what the Framers believed, and then offer no evidence at all.  It's not self-evident, and I need citations to give your assertions serious consideration.  Blackstone isn't enough.

Earl,

Senate Rule 23 actually requires a 2/3 vote to change the Senate rules.  So when I said that we need 60 votes to change the rules, I was technically off.  We need 67.  But that doesn't change my point.  If anything, it strengthens it.

something new every day.  Thank you Peloponnesian.  I believe I understand why you were concerned now.

So, where do we go from here?  It seems the day may come when the republicans must fight fire with fire.  I share your concern about opening that door, but I fear that if their situations were reversed the democrats wouldn't hesitate to invoke the nuclear option.

So the dilemmas we may eventually face will be; do we respond to ideologically based votes on judicial nominees by doing the same when (and hopefully if) the democrats get a turn at nominating?  And in the event of an ideologically based filibuster do we use an option that the democrats almost certainly would if the roles were reversed?

If we stand on principle, while the democrats fight dirty, I fear any victory we enjoy will be phyrric at best.

Without oversimplifying, you could almost compare it to an encounter between a violent criminal and a pacifist.  Should the pacifist submit, following his principles, or defend himself with whatever means are available?

If, in the future, we have a choice between fighting dirty to confirm our next Bork, or playing fair and getting another Kennedy I would lean toward doing what is necessary.

Imagine six or seven Ruth Ginsbergs sitting on the highest court in the land for life.  The country might not be recognizable by the time they were through.

What would you do?

You want cites?  You could do some research.

Here, however, is an article that cites two Supreme Court cases and a Stanford Law Review article.  The Stanford Law Review article is the probably the most comprehensive source.  It was discussed widely in the media last year.  If you Google its authors, you will find lots of commentary on this issue, on both sides of the fence.

Happy reading!

http://www.cfif.org/htdocs/freedomline/current/in_our_opinion/nuclear_optio
n.htm

Yeah, I don't have an easy answer for that.  I know that one of the main reasons I consider myself a conservative is that I believe very strongly in the principle of the Rule of Law, and I fear the exercise of arbitrary power by the state.  Do I at some point endorse violating those principles because of some sort of end justifies the means situation?  I tend to take a very long term view, and so while I think it's B.S. for the Dems to filibuster appellate court nominees, in the long run I'd rather lose a few judicial nominees than set a precedent that could lead to repeated abuses of power by the majority.

I think this has something to do with the fact that I care deeply about not just where we go, but about how we get there.  The process can be just as important as the result.  Usually, it's more important to ensure a fair and just set of formal rules for the future than to risk encouraging arbitary exercises of power just to achieve a specific policy end, such as confirming a particular judge.

Is there a limit to my patience?  Probably.  If the Democrats successfully filibustered Alito, my patience would have been seriously tested, and my sympathy for the nuclear option -- at least on an emotional level -- would have grown.  Fortunately, I did not have to confront that dilemma.  But the Democrats' juvenile behavior suggests that at some point I probably will. Just as majority power can be abused, so can minority rights.

thanks.

I am not an advocate of the 'by any means necessary' position.  However, in the context of the nuclear option, I believe that republican's who chose to excercise said option could make a credible argument that their action, viewed from a long term perspective, adhered to the spirit of the constitution if not the letter.  By that I mean that by putting strict constructionists on the court via the nuclear option they safeguarded the constitution's integrity.  

Let's hope republican's retain the Whitehouse in 2008 and pick up at least five more senate seats in '06 (although I'm skeptical of the latter).  Thanks for a good conversation and for educating me about the nuclear option.

treatment has been outlawed in various international accords and declarations of "rights" that have little relation to reality, but I am unaware of this statement in any FM.  Please give me the FM# so I can confirm this.

If this statement has been plugged into our FM's by the PC types, then:

1. It is already the law governing our military, and McCain's efforts to put his country on the hot seat by introducing his act as if it were something new that needed to be passed to stop our abuse is even more despicable.  It is his timing and phrasing that is a "slap in the face,"and
   
   
2. A requirement that those who have committed contemptible acts, such as purposely blowing up women and children, should not be treated with "dishonor and contempt" by their captors is impossible to enforce and unrealistic in its inception, inviting disobedience.
   

But it's not McCain doing the slapping.  It's those policymakers and policy implementers who "degrade" the reputation of the U.S. military by engaging in illegal and immoral activities that are slapping the vast majority of ethical soldiers in the face.  God save our good men and women in the military who are captured by our enemies -- enemies fully aware of how we now treat our prisoners.

We should be concerned if our captors "degrade" our soldiers instead of beheading them?  Allah should forbid them to "dishonor" our guys?  Where is your mind?