# The upcoming Judicial Crisis **URL:** \ **Category:** Great Debates\ **Created:** [May 10, 2003, 7:16am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296 "2003-05-10T07:16:31Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![middleman](https://avatars.discourse-cdn.com/v4/letter/m/e9a140/32.png) [@middleman](https://boards.straightdope.com/u/middleman)\ **Post date:** [May 10, 2003, 8:12pm UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/21 "2003-05-10T20:12:04Z")
> [@](#): > > \*Originally posted by 2sense \* > \*\*I don’t see how Republicans can maintain that the current amount of congressional obstructionism is greater than historic levels. Realistically, because the American public has a very short memory. > [@](#): > > 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. \*\* If it is a member of the right, you would see a lot of 4-4 ties, so they will only grant cert to cases where it looks like there will be a majority. In other words, the controversial cases will sit at the lower courts until there is a new justice. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [May 10, 2003, 8:15pm UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/22 "2003-05-10T20:15:56Z")
> [@](#): > > \*Originally posted by Blalron \* > 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. I thought Daschle got the better of the argument, but what he said was a bit spun. Although the Democrats are currently filibustering only two judges, the indication is that they will filibuster others. There’s no evidence at all that Estrada is on the right. In fact, his Supreme Court representation of the Clinton Administration and his high recommendations from the Democrats he worked with argues the other way. > [@](#): > > 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. It’s not what he did as Governor of Texas. He appointed a Texas SC judge who ruled against a parental notification law. > [@](#): > > 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. This follows if you evuated judges in terms of political philosophy. However, Bush says he evaluates judges in terms of _judicial_ philosophy, so there’s no relation. Note that an SC judge could think that Roe v. Wade was wrongly decided, but still vote to uphold it because of _stare decisis_. I agree with others that there’s no chance that the Senate will adopt Frist’s recommended rule change. Note that the filibuster procedure follows Senate rules, but there a case (far-fetched, thought it be) that these rules are unconstitutional. The Constitution requires judges to appointed with the advice and consent of the Senate. A filibuster arguably prevents the Senate from doing its Constitutional duty. I don’t think the Dems will filibuster a SC nominee, unless they find significant fault with him/her. Their grounds against Owen and Estrada are pretty thin. They’d be embarassed to have to justify their reasons if the nomination received intense publicity. Finally, current projections are a Bush re-election and the Republicans picking up Senate seats. Among the expiring Senate terms in 2004, a lot more Democratic seats are at risk than Republican seats. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 10, 2003, 8:29pm UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/23 "2003-05-10T20:29:12Z")
> [@](#): > > 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. Article 1, Section 5: _Each House may determine the Rules of its Proceedings._ If the rules of its proceedings require a two thirds vote to change the rules of its proceedings, changing it by a majority would override the Senate’s constitutional right to make rules for itself. ---
**Author:** ![Conflict\_of\_Interest](https://avatars.discourse-cdn.com/v4/letter/c/57b2e6/32.png) [@Conflict\_of\_Interest](https://boards.straightdope.com/u/Conflict_of_Interest)\ **Post date:** [May 10, 2003, 10:02pm UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/24 "2003-05-10T22:02:55Z")
I thought that the rules for when a supermajority were required to break a filibuster were specific and I heard that judicial nominations were not one of them. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [May 11, 2003, 12:19am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/25 "2003-05-11T00:19:17Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*If the rules of its proceedings require a two thirds vote to change the rules of its proceedings, changing it by a majority would override the Senate’s constitutional right to make rules for itself. \*\* Not necessarily. The Senate may “determine the rules of its proceedings”–but _which_ Senate? _This_ Senate, the Senate of the 108th Congress, sitting from January 3, 2003 to January 3, 2005? Or the Senate as a collective entity, sitting as a “continuing body” since 1789? In practice the Senate follows the latter model; unlike the House it does not readopt its rules or reelect its officers at the beginning of a new Congress. But it’s not clear that this practice _must_ or should be followed in all cases, or that an earlier Senate must be allowed to prescribe supermajority requirements for invoking cloture on rule changes in _this_ Senate. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 11, 2003, 12:46am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/26 "2003-05-11T00:46:36Z")
> [@](#): > > Or the Senate as a collective entity, sitting as a “continuing body” since 1789? The Senate as a collective entity. Seems logical to me. Whenever Congress makes a rule, that rule is in effect forever unless (1) There is a time stamp made in the rule itself (2) It is repealed or modified. It’s the same logic that keeps old Indian Treaties ratified by the Senate from the 1850s in effect. I don’t see how rules of procedure are any different in that respect. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 11, 2003, 12:50am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/27 "2003-05-11T00:50:51Z")
As far as I am concerned, the Senate’s rules of procedure are fully binding until the sun explodes and destroys earth, unless it is changed in a manner pursuant to its own rules. ---
**Author:** ![Jimmy1](https://avatars.discourse-cdn.com/v4/letter/j/ea666f/32.png) [@Jimmy1](https://boards.straightdope.com/u/Jimmy1)\ **Post date:** [May 11, 2003, 1:03am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/28 "2003-05-11T01:03:57Z")
> [@](#): > > The Constitution requires judges to appointed with the advice and consent of the Senate. A filibuster arguably prevents the Senate from doing its Constitutional duty. In my opinion the exact opposite is true. The Senate has given its advice, at least some members of the Senate have given their advice, and their advice to Bush is HELL NO on two judges. In my opinion the Senators have debated over the two nominees, they have held hearings where testimony was given, their testimony was scrutinized, their judicial record was scrutinized, the nominees themselves were scrutinized and after this process a considerably large minority in the Senate was dissatisfied and their advice to the President was NO on these two nominees. SO in my opinion the Senate, after going through the preliminary steps which has led up to this point, has fully complied with what is required of them by the Constitution, which is to give their advice and denied their consent. The Senate is not required to give its consent but denying to the President an appointment is complying with the advice and consent clause. What I don’t understand is why it is proper to deny to a nominee a position on the federal bench because of their particular interpretation of the U.S. Constitution? The President and the Senate have specifically nominated Justices to the U.S. Supreme Court and inferior courts because the position they took was contrary to the lengthy precedent existing up to this time in regards to a particular provision of the U.S. Constitution. So what if Miguel Estrada finds the conclusion that abortion is protected by the U.S. Constitution to be dubious. Why keep him off of the bench only because of his interpretation on this sole issue? I don’t think nominees who are approved by the ABA, have the type of credentials and accolades of Estrada, along with his impressive resume should be denied appointment to the federal bench because of his specific interpretation of the U.S. Constitution on a sole issue. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [May 11, 2003, 1:23am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/29 "2003-05-11T01:23:51Z")
> [@](#): > > \*Originally posted by Blalron \* > **Seems logical to me. Whenever Congress makes a rule, that rule is in effect forever unless (1) There is a time stamp made in the rule itself (2) It is repealed or modified.** That most certainly is not the practice in the House of Representatives. The House readopts its rules _de novo_ at the beginning of each new Congress. No rule adopted by any earlier House has any force whatsoever. > [@](#): > > \*\*It’s the same logic that keeps old Indian Treaties ratified by the Senate from the 1850s in effect. > > I don’t see how rules of procedure are any different in that respect. \*\* Well, because they _are_ different. Treaties and laws apply to people outside of Congress. They remain in force unless and until they lapse or are repealed. Parliamentary rules normally govern only the body which enacted them, and a new session with new members is usually considered a new “body”. The Senate is somewhat unique in following this carry-over practice whereby rules apply to subsequent sessions unless and until changed. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 11, 2003, 5:01am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/30 "2003-05-11T05:01:45Z")
Here is a excerpt from the Congressional record exposing the Democrats view on the filibuster of Estrada: > [@](#): > > \*\*Mr. LEAHY. Mr. President, for some reason the Republican leadership is forcing what may be the fifth vote on a cloture motion on this divisive and controversial nomination. > > I mention that because none of these cloture motions would have been needed if the administration had simply cooperated with the Senate as did prior administrations, Democratic and Republican. I have been here with six different administrations. The previous five always, no matter who was President, no matter who was in the majority in the Senate, always showed cooperation on judicial nominations as, I believe, has every President in the last century. Not this one. > > I mention that because we are having this vote yet nothing has changed since the last cloture vote. No effort has been forthcoming by the administration to accommodate Senators’ requests for access to the executive branch documents requested last May, almost a year ago. Everybody says Mr. Estrada is perfectly willing to come up and answer Senators’ questions but not to answer the only questions the Senators really want to ask him. > > Remember, this man was appointed based on what the administration knows of his writings while employed in the government. They have access to these writings. They say, in effect: Trust us. I am a strong supporter of Ronald Reagan’s position: Trust but verify. I would like him to verify what was in these writings. We have not had access to them. If we did, we wouldn’t be needing all these cloture votes. > > Since the beginning of this year, despite the fixation on the President’s most controversial nominations, we have worked hard to reduce judicial vacancies even further. As of today, the number of judicial vacancies is 49. That is the lowest it has been in many years. That is lower than at any time during the entire 8 years of the Clinton administration. We have already reduced judicial vacancies from 110, when I became chairman of the Senate Judiciary Committee, to 49. We did this in less than 2 years. We have reduced the vacancy rate from 12.8 percent to 5.7 percent, the lowest it has been in a decade. If we could get even a modicum of cooperation from the administration, think of the additional progress we could be making.\*\* [http://thomas.loc.gov/cgi-bin/query/F?r108:12:./temp/~r108Eh9rAN:e19867:](http://thomas.loc.gov/cgi-bin/query/F?r108:12:./temp/~r108Eh9rAN:e19867:) ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 11, 2003, 5:13am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/31 "2003-05-11T05:13:14Z")
> [@](#): > > The Senate is somewhat unique in following this carry-over practice whereby rules apply to subsequent sessions unless and until changed. Here’s the way I see it. If the Senate has been operating under carry over rules since the very beginning, and the carry over rules are only now being suddenly challenged by de novo rules, I think the permanent rules deserve a heavy presumption of constitutional validity. ---
**Author:** ![Mandelstam](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Mandelstam](https://boards.straightdope.com/u/Mandelstam)\ **Post date:** [May 11, 2003, 5:48am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/32 "2003-05-11T05:48:01Z")
FYI, since **december** has me busy over in another thread, reading the Times’s editorials: "President Bush got it wrong last week when he blamed Senate Democrats for the impasse over his judicial nominees. And he started down a risky path when he urged the Senate to abandon its longstanding rule permitting filibusters of judicial nominations. The reason his nominees have met with resistance is not Democratic intransigence or a flawed rule. It is that many are far-right ideologues whose views offend most Americans. There is only one way to end the deadlock: compromise. Speaking in the Rose Garden on Friday, President Bush warned of a “crisis” over the Senate’s failure to confirm his nominations quickly enough. Judicial vacancies, he said, “are causing delays for citizens seeking justice.” In truth, judicial vacancies are at the lowest level in years, and the Senate has been confirming President Bush’s nominees more rapidly than it did President Bill Clinton’s." Source: > **[Opinion | The Reality of the Judicial 'Crisis' (Published 2003)](https://www.nytimes.com/2003/05/11/opinion/the-reality-of-the-judicial-crisis.html)** > > Editorial holds some of Pres Bush's judicial nominees have met with resistance from Senate Democrats and others because they are far-right ideologues whose views offend most Americans; opposes proposal by Sen Bill Frist to rewrite filibuster rules... ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [May 11, 2003, 5:57am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/33 "2003-05-11T05:57:41Z")
All of the handwringing over the Senate rules is moot. You will find no requirement for a supermajority vote to change the [Rules of the Senate](http://rules.senate.gov/senaterules/menu.htm). Instead if you peek at Rule 22 you will read in part: > [@](#): > > …the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: > > “Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn – except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting – then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of. We see that the American Center for Law and Justice was right in the first place: a simple majority of Senators CAN change the rules on fillibusters. They just need to get 2/3 of their colleagues to agree to stop arguing against them. So Senator Schumer is right as well. It’s not gonna happen. ---
**Author:** ![Dogface](https://avatars.discourse-cdn.com/v4/letter/d/9d8465/32.png) [@Dogface](https://boards.straightdope.com/u/Dogface)\ **Post date:** [May 12, 2003, 4:20pm UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/34 "2003-05-12T16:20:11Z")
Why blame the Senate? After all, Bush is being equally as intransigent. The USA does not grant dictatorial powers to the Presidency. If the Senate, by following its own rules, blocks a President’s actions, then the President has to compromise. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 14, 2003, 2:58am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/35 "2003-05-14T02:58:24Z")
A retirement seems extremely likely this summer. There haven’t been any vacancies on the Court for 9 years, and retirements usually don’t occur on election years. There’s going to be a showdown this summer. I just know it. If the Republicans actually take the filibuster issue (which I believe to be a purely in-branch dispute the courts ought not touch) to the courts like they are threatening to, and SCOTUS rules 5-4 in their favor, I’m gonna be pissed off. ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 18, 2003, 5:59am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/36 "2003-05-18T05:59:35Z")
Once thing that really bothers me is the way the Republicans use the appointment of minorities as a way to shield them from criticism from their extremist views. ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [May 18, 2003, 9:54pm UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/37 "2003-05-18T21:54:56Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*If the Republicans actually take the filibuster issue (which I believe to be a purely in-branch dispute the courts ought not touch) to the courts like they are threatening to, and SCOTUS rules 5-4 in their favor, I’m gonna be pissed off. \*\* Will you feel the same way if _Democrats_ take the issue to court? That is, if Republicans vote that the 2/3 cloture requirement on rule changes doesn’t apply, because it was adopted by an earlier Senate, and then break a filibuster and change the rules by majority vote, leaving _Democrats_ no recourse except litigation? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 18, 2003, 10:14pm UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/38 "2003-05-18T22:14:32Z")
> [@](#): > > \*Originally posted by jklann \* > \*\*Will you feel the same way if _Democrats_ take the issue to court? That is, if Republicans vote that the 2/3 cloture requirement on rule changes doesn’t apply, because it was adopted by an earlier Senate, and then break a filibuster and change the rules by majority vote, leaving _Democrats_ no recourse except litigation? \*\* No. 😃 ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [May 18, 2003, 10:24pm UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/39 "2003-05-18T22:24:10Z")
Gotta appreciate honesty! ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [May 19, 2003, 1:02am UTC](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296/40 "2003-05-19T01:02:46Z")
Haven’t those Republicans ever seen Mr. Smith Goes To Washington? [Previous page](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296.md?page=1) [Next page](https://boards.straightdope.com/t/the-upcoming-judicial-crisis/174296.md?page=3)