Sunday, March 06, 2005
A pretty pathetic op-ed from the NY Times in support of the filibuster. The op-ed first notes:
The Republicans are claiming that 51 votes should be enough to win confirmation of the White House's judicial nominees. This flies in the face of Senate history. Republicans and Democrats should tone down their rhetoric, then sit down and negotiate.
Well first, the Constitution says 51 votes is enough (actually more than enough):
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
(Art. II, Section 2.)
Note, Congress could allow the President alone to appoint lower court judges without any need to receive a vote on each judge from the Senate. Also note that it takes only a majority of Senators who are present to confirm a lower court judge.

Historically, the President has always been allowed to appoint whomever he wanted as a judge - most Senators will confirm whoever the President names. And it has always been by a majority vote, usually with almost no opposition to the President's nominee:
Throughout the nation's history, appointments to judicial posts below the Supreme Court have generated little controversy. This has been due in part to the large number of such appointments and to the tradition of "senatorial courtesy," which defers to the preferences of senators belonging to the president's party who represent a particular nominee's home state. Lower court judges have been considered less potentially mischievous because they are more closely constrained by precedent than are Supreme Court justices, and they do not have the final judicial say on significant issues.

It has only been in the last 20 years or so, starting during Regan's administration, that the Senate has started to use a litmus test on lower court judges. So "historically" the NY Times is completely wrong.

The NY Times next argues:

President Bush likes to complain about the divisive atmosphere in Washington. But he has contributed to it mightily by choosing federal judges from the far right of the ideological spectrum. He started his second term with a particularly aggressive move: resubmitting seven nominees whom the Democrats blocked last year by filibuster.

The Senate has confirmed the vast majority of President Bush's choices. But Democrats have rightly balked at a handful. One of the seven renominated judges is William Myers, a former lobbyist for the mining and ranching industries who demonstrated at his hearing last week that he is an antienvironmental extremist who lacks the evenhandedness necessary to be a federal judge. Another is Janice Rogers Brown, who has disparaged the New Deal as "our socialist revolution."

Oh, now I understand - if they disagree with you they are extremist, but if they agree with you they are okay. Understandable, but not really a proper position. I personally don't think judges should rewrite the constitution by reading their own personal values in to that document. But if the President nominated a "judicial activist" type, so long as they were qualified and fit to serve, then I think they should be approved by the Senate. But of course I am not a hypocrite (at least not on this issue).

The NY Times next point:
To block the nominees, the Democrats' weapon of choice has been the filibuster, a time-honored Senate procedure that prevents a bare majority of senators from running roughshod. Republican leaders now claim that judicial nominees are entitled to an up-or-down vote. This is rank hypocrisy. When the tables were turned, Republicans filibustered President Bill Clinton's choice for surgeon general, forcing him to choose another. And Bill Frist, the Senate majority leader, who now finds judicial filibusters so offensive, himself joined one against Richard Paez, a Clinton appeals court nominee.
A time honored tradition blocking a bare majority from running "roughshod" and doing things like giving minorities equal rights and things like that. Thank god for the filibuster or blacks would have had equal rights much earlier than they did! And is 59 Senators really a "bare majority"? No.

As far as Republicans filibustering President Clinton's surgeon general that is simply not relevant (note, the NY Times use of the red herring fallacy - we aren't talking about cabinet appointments, we are talking about judicial ones). But that said, I agree that the Republicans shouldn't have done that. But does one wrong make the next wrong acceptable? Of course not. So that is not a legitimate justification for the use of the filibuster. But again, I agree it is hypocritical for Frist and others. This is just another reason why the filibuster should be permanently removed.

In short, the NY Times article does nothing to support its opening assertions that (1) the White House has damaged the judiciary by appointing only far-right judicial nominees; and (2) that the filibuster has somehow served a valuable role historically.
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I am an attorney in Chicago. Politically speaking, I am an indepedent that tends to lean conservative on fiscal issues and progressive on social issues. I try to remain as unbiased and open-minded as possible. Please email or post any comments, and especially criticisms. If something I say is wrong, or you disagree - let me know about it!

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