Realistically, because the American public has a very short memory.
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.
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.
It’s not what he did as Governor of Texas. He appointed a Texas SC judge who ruled against a parental notification law.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Here is a excerpt from the Congressional record exposing the Democrats view on the filibuster of Estrada:
http://thomas.loc.gov/cgi-bin/query/F?r108:12:./temp/~r108Eh9rAN:e19867:
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.
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:
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. Instead if you peek at Rule 22 you will read in part:
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.
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.
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.
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.
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. 
Gotta appreciate honesty!
Haven’t those Republicans ever seen Mr. Smith Goes To Washington?