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March 30, 2005

Wingnut insurance

Like Swopa says, Democrats have a lot of reiterating to do. So, we'd better get started: The filibuster is wingnut insurance. The ruling party knows it has the votes to confirm anyone it wants, so the natural temptation is to pick the most partisan cronies available and ensconce them for life.

The filibuster is wingnut insurance because it forces the ruling party has to at least consider whether the minority will balk at their preferred holy rolling, race baiting, gerrymandering torture-monger.

Required reading on the filibuster. Senate Rules Meltdown, by Herman Schwartz, a professor at American University's Washington College of Law. Bookmark this article for future reference.

Schwartz writes:

Traditionally, the filibuster has not been the only weapon in an opposition party's arsenal. There are other, less visible ways whereby the Senate's rules and traditions empower individual senators to block judicial and other nominations. Between 1996 and 2000, Republicans in control of the Senate developed these techniques to a high art.

Unfortunately, the Republicans revoked them all:

But when the Republicans took over the White House in 2001 and the Senate in 2003, things sped up. In 2003, Hatch announced that he would abandon the "blue-slip system" he had insisted on since 1995, whereby a senator could block action on a nominee from his or her home state; North Carolina's Jesse Helms had used this power to block every one of three black candidates to the 4th U.S. Circuit Court of Appeals. Anonymous floor holds were abolished, as was the rule requiring that at least one minority-party senator on the Judiciary Committee must agree to a vote on a nominee if any committee member objects. These rules changes left the Democrats with only the filibuster.

The effect has been to force these contests onto the Senate floor rather than letting nominations die in committee. Ten Democratic filibusters may sound like a lot, until you consider that Republicans quashed 45 Clinton nominees behind closed doors and rewrote the rules to force all opposition into the open.

The solution is not to get rid of the filibuster. The solution is for the Republicans to stop recruiting nominees from the far-right fringe.

[Hat tip to Amanda of Pandagon.]

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» The Filibuster debate from bennellibrothers.com
Regarding the current Filibuster debate, Herman Schwartz "a professor of law at the American University Washington College of Law and the author, most recently, of "Right Wing Justice: The Conservative Campaign to Take Over the Courts." Has written a p... [Read More]

» On Protecting the Minority from Freiheit und Wissen
In case you doubt the importance of the filibuster... [Read More]

Comments

The Republicans, presuming they have the party line toed by everyone in their party need to convince 5 senators from amongst the other 45 that a vote on a nominee should take place. That's it...5.

Seems a reasonable hurdle to me to put someone on the bench for life. After all...the US Government is actually set up to protect minority concerns. And the Senate is actually, I think, the best designed body to protect minority concerns. Fooling with it while in the majority is foolish, shortsighted and insulting.

Fooling with it while in the majority is foolish, shortsighted and insulting.

This is why I have the occasional worry-free moment, because while the Republicans have become very good at getting into power, they still suck at actual governing.

The filibuster is a lovely tool, but unless the Democrats start showing some spinalized leadership, it's barely a means to an end. It just the feeds the "obstructionist" beast.

The complete vacuum of leadership by Democrats on the Schiavo issue is part and parcel of the problem. If Dems were doing something as a group that was wildly unpopular in the polls...Frist, DeLay, Hastert, Cheney, Rice and the rest of the Pussycats would be rimming the talk show circuit airwaves.

Where's the beef?

A couple of thoughts. I don't understand why Democrats would object so strongly against district judges, who are basically trial judges. These judges have little to no impact except on the work a day business of the courts. Just think that local courts can appoint magistrate judges who have many/most of the same powers as an Article III judge, but do not need judicial approval. It just seems like ones best efforts should be focused where they can have the most impact and that is the appellate level.

Also a lot of hay is made about the Senate's ability to confirm a judge "for life," but I have yet to hear a single person mention the fact that judges can be removed from the bench by impeachment. Impeachment is designed for the removal of those beyond the reach of ordinary criminal redress, and it can be used to remove judges for non-indictable offenses. Any federal judge can be tried before the Senate, convicted by the required two-thirds majority, and removed from office. So if the Dem's ever get back to power they at least have the option of taking corrective action.

I personally would welcome Senate fillibusters, just for the opportunity to watch Robert Byrd bloviate for hours upon end.

Seriously, though, fillibusters sound good when you lack enough voting power to stop things that you don't like, but if Democrats actually modify Senate procedures and force a 60 vote supermajority to confirm Supreme Court justices, they will be shooting themselves in the foot.

It is probably unlikely that Democrats will win a 60-seat majority in the Senate any time soon, and it would be a major blow if a Democrat is elected in '08 and can't get Supreme Court justice nominations confirmed because the Democrats can't rally a 60 vote supermajority to block a Republican fillibuster. And Democrats would look awfully stupid then if they tried to change the rules back to a simple 50 vote majority.

(Of course that assumes that Senate Republicans, even if they are still a slim majority, would actually have the balls to fillibuster a Democratic judicial nominee. So maybe it's a safe bet afterall.)

but if Democrats actually modify Senate procedures and force a 60 vote supermajority

[sigh]

Mike, quite apart from ignoring the Republican use of non-filibuster blocking techniques Lindsay described in her post, you are also misrepresenting history.

Oops, when I read the words 'Wingnut Insurance' I thought of something totally different. Yes, I would love to buy a "Wingnut Insurance" so that in an event that I am in a PVS, I will have insurance against Wingnutters trying to reinterpret my Living Will for me.

The complete vacuum of leadership by Democrats on the Schiavo issue is part and parcel of the problem.

I disagree Carla. The Schiavo case has been one of those (exceedingly rare) occasions where I don't find myself screaming "where the f*** are the Democrats?!"

If the polls are to be believed, most Americans have recoiled at the politicization of this whole sorry episode. And with the Dems more or less silent, that politicization can be entirely pinned on the Republicans. For the Dems to "respond" would have made the whole thing even uglier by sucking it into the vortex of partisan politics. The back and forth would have only fed the sense that both sides were equally guilty of using Schiavo for their own petty political advantage.

As it stands, the Repub leadership were more than capable of making total jackasses of themselves without any help from the donkeys. This time, anyway.

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