The upcoming Judicial Crisis

For those who haven’t been paying too much attention, Bush is putting up a huge fuss over the Democrats filibustering two judicial nominations in the senate.

The democrats are pointing out that they have allowed 98% of what Bush wants in nominees, but they don’t want Owens and Estrada because they are too far to the right.

Senate Majority Leader Bill Frist ® is proposing changing the rules, which Minority Leader Daschle is saying there isn’t a snowballs chance in hades of that being happening.

The Justices of the Supreme Court are getting older, and there’s a good chance there will be retirements this year or next year. If Bush decides to do what I think he’s going to do, he will nominate a Conservative Activist to the Court, and the Democrats will have no choice but to filibuster it until Congress adjourns.

If Bush has the chance, he is going to appoint a Justice that would overturn Roe vs Wade. I have a gut feeling that this is what he is aiming for. Considering his hard line stance against federal funding for stem cell research on one week old embryos, there is little doubt in my mind that Bush will refuse to nominate a moderate to the court that would follow precedent in that case.

A major battle is going to ensue. A constitutional crisis of epic proportions. I pray that those old geezers on the Court can hold on until the next election, because I fear what will happen otherwise.

Where were the Republicans who are hand-wringing over the current “judicial crisis” when Bill Clinton’s nominees were getting blocked for months and years on end last decade?

This is nothing more than a glorified version of “how dare they do to us what we did to them!” :rolleyes:

That makes it right? I suppose you will dutifully keep your yap shut when its the Republicans turn to do so, in however many years? It is rather un-democratic of the Democrats to keep these nominees from a vote, since the vote will be in favor. Some good news, though, is that the GOP is pushing to fix the problem.

Blalron, don’t be so certain that Bush won’t get re-elected. Stranger things have happened in American politics.

Even if Bush gets re-elected, I can still hold on the glimmer of hope that the Senate will become majority Democrat as a result of the 2004 election.

As Senator Schumer of NY said, the chances of Frist getting this filibuster rule change though the US Senate, which will require 67 votes, are as much as a snowball’s chance in Hell. (Actually, he said Hades, but we can speak freely on the internet, can’t we?):smiley:

I don’t think it is as bad for the left as the OP suggests if it is Rehnquist that is being replaced. It is basically one far right for another. But if it is O’Connor (or even worse for the left, Stephens or Ginsburg) that is being replaced, the balance would shift dramatically.

And yes, though I am on the right, I acknowledge that this is no worse than what we did to the DEMS during the Clinton era.

I am not sure I approve of the tactic for either side, but since it is a LIFE term, I feel that it is appropriate for the other side to give STRONG consideration to the candidates. If you don’t like them, I guess it is ok to stand by your principles.

I am eager to see the filibuster/debate over a SCOTUS replacement. It will be a lot nastier. Right now, more people know who Howard Dean is than know that the Senate is having trouble getting judges confirmed (not a lot!)

But when it is the SCOTUS, it will be a top story EVERY night. Then the GOP will force the DEMS to launch a FULL filibuster (it isn’t REALLY a filibuster if SOMEBODY ain’t wearing a diaper!)

I think the GOP will prevail (assuming there isn’t a smoking gun against the nominee) because they will force the DEMS to “shut down” the Senate (actually the judiciary committee at first, but it will look like the “Senate” to the average news watcher!)

Americans don’t like parliamentary obstructionists. Look at the price the GOP paid for shutting down the government (a bit worse, I admit).

I’d say Bush learned three lessons from the short comings of his father’s presidency that are clear in his approach:

(1) Don’t let Saddam stay in power,
(2) Don’t look out of touch after winning a war if the economy is sagging,
(3) Don’t “Pull a Souter”

What will Bush do if it is Rehnquist that is leaving? Will he appoint a new Chief Justice or elevate a standing member and appoint a new associate justice?

Congressional attempts to limit the ability of a president to fill prominent judicial positions have a long history here in the United States. Twice Congress has lowered the number of seats on the Supreme Court in an attempt to keep a President of the other political party from putting his stamp on the high court. The outgoing Federalists did it to Thomas Jefferson in 1801 and the Republicans did the same in 1965 to the much maligned Andrew Johnson. ( Cite: see page 6 of this PDF. )

I don’t see how Republicans can maintain that the current amount of congressional obstructionism is greater than historic levels. Nor do I see how the effectivity of the Supreme Court will be impaired if it is forced to get by with seven, six, or even five Justices. I would say, however, that if it were a uniform rule of cloture for the Senate and not just applied to confirmations I support Frist’s initiative. Filibusters are used not just to torpedo to candidacy of ideologues like Pickering and Owens but also useful legislation coming out of the House. I am interested in democatic and efficient congressional action. Somehow I doubt the Republican leadership is as committed to democracy as I am and is more interested in having their way then making a stand for principle.

There are several SC justices who are getting on in years. Should one retire, Bush will most likely nominate someone who would vote to reverse Roe v. Wade should a similar case appear before the court again. He will probably announce this publicly before consulting anyone, and his aides wil double their ulcer medication.

He would have to be an idiot to make such a nomination before the election. Oh, wait…

Or, he would have to have some means of knowing that he had the election in the bag regardless of such a move, which would mean he might be involved in some kind shenanigans in election engineering, and we all know that can’t… Oh, wait…

If all this does come to pass, then yes, the Democrats will be forced to do the job of the congress, and seriously question and oppose the nomination. Which is GOOD! Congress is SUPPOSED to act a check to the power of the Executive Office.

the only “crisis” is if the Democrats prove themselves completely incapable of mounting a serious opposition to the rebublicans, and we all know… Oh, wait…

You will have to ask Al Gore that last question, after all he did invent the internet. lol

But in a serious tone, where does the 67 votes required to pass this come from? I had read it would only take a simple majority (51 votes).

No, what makes it right are the rules of the Senate. Democrats are doing what they feel is in the best interest of the country, from their perspective, and Republicans are doing the same thing. Everything is working as it is supposed to. Don’t act like democracy has been hijacked just because everything doesn’t go your way.

Changing the Senate rules requires a two thirds vote.

Blalron, this was what I read earlier:

"The Virginia Beach-based American Center for Law and Justice, an international public-interest law firm, released a report this week indicating that a simple majority in the U.S. Senate – 51 senators – could act immediately to end filibusters in the Senate over the two nominees now hanging in the balance.

The ACLJ has presented its findings to members of the U.S. Senate, including Sen. John Cornyn, R-Texas, chairman of the Senate Judiciary Subcommittee on the Constitution. (The ACLJ report is posted at

“The simple majority principle presents the clearest and best resolution of this conflict involving judicial nominees,” said Jay Sekulow, chief counsel of the ACLJ. “It is clear through our research and legal analysis that a simple majority of the Senate may determine the rules by which it proceeds and may bring an immediate end to the filibusters. While the Constitution gives great latitude to Congress itself on how to operate, there is nothing in the Constitution to prevent a simple majority of senators to act to change their rules and bring an end to the obstructionist tactics being used against nominees.”

Sekulow added: “It is our hope that a simple majority in the Senate assert its authority and act to bring an end to a destructive strategy aimed at the confirmation process – a process that is clearly broken.”

The ACLJ believes the “clearest and best resolution of the present conflict” is the simple majority option. The ACLJ determined that there is existing legal and Senate precedence that would permit the majority (51 senators) to change Rule XXII, bring an end to the filibusters, and call for a vote by the full Senate on Miguel Estrada and Priscilla Owen.

“There is no easy solution to resolving this current conflict,” said Sekulow. “However, there is significant reason to believe that if a willing majority acted immediately to resolve this crisis, those efforts would succeed and survive any legal challenges that may be brought.”

The Republican leadership also has a plan of action called a “nuclear option.” As it stands now, 60 votes are needed to break a filibuster. The GOP resolution, co-sponsored by several senators, would require only 60 votes in the first attempt at evoking cloture. In each attempt after that, the vote requirement would drop by three until it reaches a simple majority (51 votes). "

Well, your first problem is believing that the American Center for Law and Justice is “an international public-interest law firm”. It is not. I fact, Jay Sekulow & co. are hard-line theocrats. They have an interest in promoting the currently blocked nominees. What Sekulow is arguing is that the Senate (or , rather, members of the Senate) should deliberately violate its own rules in order to assure these gentlemen a given a lifetime judgeship. This is unlikely to happen.

Of course not, and I never said it did. I just can’t muster up any sympathy for this round of whining because I see it as the usual political bayback.

Frist and Bush can go cry me a river, I don’t give two poots about their “crisis.”

I get the sense that people here are assuming that SCOTUS will sua sponte reverse Roe. People: you could have nine pro-life justices on the court, and Roe still might not get reversed if a case never makes it before the high court. In other words, Roe couldn’t possibly be reversed overnight.

But it’s not a crisis. The senate is only blocking two nominations out of more than a hundred. The republicans are throwing a temper tantrum over tactics that they themselves have engaged in. This is nothing more than hypocrisy on their part.

To paraphrase Jesus, why do they call attention to the speck of dust in their brothers eye, but ignore the beam in their own?

To a certain extent, i agree Blalron. It isn’t really a crisis. What I see as the problem is that the filibuster is stopping the process from working. Any judicial nominee that passed out of committee should be voted on by the whole senate. Thats where I see the problem. When the Democrats held the senate and kept them from going to the whole senate by defeating them in committe was fine. This is how the senate works. But refusing to allow them from getting voted on is just obstructionist tactics in my opinion.

I would be interested to know how many of the Bush nominations were defeated in the Democratically held commitee. I thought it was more than just the 2 that are being denied a vote though.

An even worse (IMHO) crisis was going on during the Civil Rights movement. Southern Senators were filibustering to stop crucial civil rights legislation from passing.

Even then, the problem was solved by following the senates own rules. Two thirds voted to change the rules and allow 60 votes for cloture.

To sue over this would not be appropriate. The senate has the constitutional power to make its own rules. Until it votes to change its own rules by following its own rules (only by a two thirds vote), its rules are fully binding upon itself.

Nitpick–actually the Senate passed civil rights legislation in 1964-65 simply by meeting the two-thirds requirement for cloture. The rule change to 60 votes didn’t take place until 1975 and was not directly related to any pending civil rights laws.

Ah, but there’s the paradox–the supermajority requirement, last modified by the Senate of 1975, denies to the Senate of 2003 its constitutional power to make its own rules by majority vote. If a majority of 51 finds the earlier rule to be non-binding for this reason, and invokes cloture and adopts a rule change, the opponents will be in the position of having to resort to litigation to enforce the earlier rule. They will probably be unsuccessful.

In the long run, I think this will be a good thing. Given that we’ve given the federal government control over a third of our economy, a tradition of unlimited debate and obstructionism by a minority of a single house is no longer workable. Democrats will raise holy Hell for a few weeks and then concentrate on winning future elections so that they can take advantage of the change to pass their laws and confirm their nominees. Within five years both sides will wonder why we put up with this nonsense for so long.