November 28, 2004


Senate GOP set to go 'nuclear' over judges (CHUCK LINDELL, November 28, 2004, The Cox News Service)

Senate Republicans, boldly confident after their Nov. 2 electoral success, are preparing to end months of frustrating delays over President Bush's judicial picks by hitting Democrats with Republican's ultimate legislative weapon. [...]

Because all appointments must be resubmitted when a new Congress convenes, the first move will be up to Bush.

Based on the president's track record, Ornstein expects to see most of the 10 filibustered judges renominated to the circuit courts of appeal — one step below the Supreme Court. New nominees also will be scrutinized.

"He can up the ante here or reduce the temperature, which will make a difference in terms of the prominence of the issue," Ornstein said. "I think it's going to be big because I have a hard time imagining Bush not pushing the envelope on these nominees."

Even renominated judges must begin the process anew, sitting through grueling hearings before the Judiciary Committee, receiving approval from the panel's Republican majority, then waiting to see whether if Democrats filibuster on the Senate floor. If they do, Republicans likely will counter with two measures before considering the nuclear option.

One would mandate a timetable for judicial nominations — probably 30 days to hold a hearing, followed by 30-day deadlines for a committee vote and a floor vote.

The second gradually would reduce the number of senators necessary to halt a filibuster with each successive vote, from the current 60-vote threshold to 57, then 54, then a simple majority of 51.

Both options were introduced last Congress as resolutions, but Republicans chose not to press forward. Next Congress, however, they'll have a stronger majority with 55 seats, up from 51, improving their odds of success but still not enough to stop Democrats if they choose to filibuster the resolutions.

The nuclear option would be a last resort if other measures fail, said Sen. John Cornyn, R-Texas, who will likely play a central role in the debate as a member of the Judiciary Committee and chairman of the Constitution subcommittee.

Cornyn argues that judicial filibusters unconstitutionally require a 60-vote supermajority to approve nominees, not the simple majority mandated in the Constitution.

"Democrats must stop not only for the good of the Senate but out of respect to the president, who received almost 60 million votes on November 2, and out of respect for the Constitution itself," Cornyn said. "No group of senators has the right, no minority has the right to tyrannize the majority of the Senate."

The nuclear option would begin with Frist taking the Senate floor to seek a ruling from the presiding officer, likely to be Vice President Dick Cheney in his role as Senate president, to determine whether judicial filibusters violate the Constitution.

Cheney's affirmative response would initiate a vote on changing the filibuster rule which also would be subject to a filibuster unless Cheney over- rules the Senate parliamentarian on whether normal debate rules apply. Then, only 51 votes would be needed for approval.

Another option includes changing Senate guidelines to disallow judicial filibusters, which also would require the Senate president to declare that normal filibuster rules do not apply, so 51 votes could prevail. Changing Senate rules should occur early in the session to gain legitimacy, some Republicans say, making this option potentially less appealing.

Either way, it would be pure power politics, leaving Democrats unable to respond.

Easy enough to defuse the nuke, just agree to get rid of the anticonstitutional filibusters for appointees.

Posted by Orrin Judd at November 28, 2004 7:17 PM

Rehnquist is obviously never going to return to the Court. So when his seat opens up, nominate Janice Brown. She'll get through--they won't be able to get 40 Senators unwilling to allow her a vote. Then if the Dems still want to play hardball with other nominees, Bush can point out that the Dems are hypocritical losers for not allowing Brown a vote for Appeals Court but confirming her for the Supreme Court, and how does that make any sense? I doubt rewriting the filibuster rules will be necessary...

Posted by: brian at November 28, 2004 11:50 PM

The MSM will spin the end of this unconstitutional practice into an unfair power grab by those fascistic, baby-eating Republicans.

I don't see how it will be necessary, when there are so many Democrats in marginal seats, up in 2006 and 2008.

Posted by: Bart at November 29, 2004 5:31 AM

"Cut the blue wire."

If I remember the climactic scene from Juggernaut correctly, the red wire was the one that defused the bomb.

Posted by: Mike Morley at November 29, 2004 6:20 AM

How is it unconstitutional?

Posted by: David Cohen at November 29, 2004 11:22 AM

It's at least anticonstitutional, giving a superminority of Senators a veto over executive appointments.

Posted by: oj at November 29, 2004 11:33 AM

Yes, I've noticed how carefully you've been saying "anticonstitutional" rather than "unconstitutional". I don't really know what anticonstitutional means, but if we got rid of all facets of the federal government that were anticonstitutional, you'd have ... well, a good start.

But how is it unconstitutional? The Senate is the boss of when it consents, and it says that it hasn't consented.

Posted by: David Cohen at November 29, 2004 2:11 PM

The Framers were not inept draftsmen, had they intended requiring a supermajority for mere appointments they'd have included it.

Posted by: oj at November 29, 2004 3:04 PM

Much of religion is about fighting or overcoming one's nature rather than setting out to live in synch with it by surrendering to desires and impulses in the name of the 'real me".

Sauce for goose
Sauce for gander.

Posted by: Ken at November 29, 2004 3:19 PM

They didn't intend to require supermajorities. They didn't forbid supermajorities. They do say, "Each House may determine the Rules of its Proceedings" and that the President "shall nominate, and by and with the Advice and Consent of the Senate, appoint" federal office holders. The Senate's rules say that it has not consented unless a majority votes "aye" and that a minority may block a vote. This might be a bad idea, it might even be anticonstitutional in the sense that the Framers didn't foresee it, but it is not unconstitutional.

Now, I do think that a rule stating that a future Senate could only change that rule via a supermajority vote is unconstitutional and that a majority of Senators voting on a rule passed by a previous Senate can change that rule regardless of any provision thereof to the contrary. In other words, at the beginning of a new Senate, that Senate can, by simple majority, change the cloture rule, even though Rule XXII says that it can only by changed by a supermajority of 67 votes.

Posted by: David Cohen at November 29, 2004 3:53 PM

Yes, anticonstitutional, not unconstitutional.

Posted by: oj at November 29, 2004 4:03 PM

So we're in perfect agreement here? That's boring.

Posted by: David Cohen at November 29, 2004 4:19 PM

You admit there's no Julia Roberts?

Posted by: oj at November 29, 2004 4:25 PM

Obviously, you suffer from a complete misunderstanding of the word "here", which draws into question everything else you've ever written ... ur ... here.

Posted by: David Cohen at November 29, 2004 4:41 PM

Your part of the weird sect that think there's no Eric?

Posted by: oj at November 29, 2004 4:50 PM

Granting your premise, I would much prefer that it is Julia masquerading as Eric, rather than vice versa. I guess I'm just insecure in my masculinity.

Posted by: David Cohen at November 29, 2004 5:06 PM

See, I'd sooner wake up in Eric's cell than her bed...

Posted by: oj at November 29, 2004 6:00 PM