# What's the REAL issue with the Senate's judicial confirmation process? **URL:** \ **Category:** Great Debates\ **Created:** [April 26, 2005, 4:24pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179 "2005-04-26T16:24:10Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 26, 2005, 7:47pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/41 "2005-04-26T19:47:28Z")
> [@ElvisL1ves](#): > > Go back and reread your own claim. Fortas had forty-five votes in favor of his nomination. From my reading of the situation, it seems clear that Johnson saw he didn’t have a majority for Fortas and that is why he withdrew his name after only four days. It’s unlike the situation today where the President has been trying to get these nominees approved for years and the majority of the Senate clearly supports him. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [April 26, 2005, 7:50pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/42 "2005-04-26T19:50:57Z")
> [@](#): > > Fortas only had forty-five votes in favor of ending the filibuster. Senate Republicans have fifty-five or fifty-six. Horseshoes and handgrenades dude. Come back when you have 60. > [@](#): > > what we are talking about is the desire of a minority to prevent the Senate from fulfilling its function. Democracy isn’t mob rule. The minority is playing its role in determining the course of the judicial system. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 26, 2005, 7:55pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/43 "2005-04-26T19:55:35Z")
> [@Squink](#): > > Democracy isn’t mob rule. Actually, democracy _is_ mob rule. What we have, thankfully, isn’t democracy. > [@](#): > > The minority is playing its role in determining the course of the judicial system. It’s playing a role that it has never played before. It’s not a run-of-the-mill procedure; it’s completely unprecedented. ---
**Author:** ![NillyWilly](https://avatars.discourse-cdn.com/v4/letter/n/3da27b/32.png) [@NillyWilly](https://boards.straightdope.com/u/NillyWilly)\ **Post date:** [April 26, 2005, 7:58pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/44 "2005-04-26T19:58:58Z")
> [@Renob](#): > > It’s playing a role that it has never played before. It’s not a run-of-the-mill procedure; it’s completely unprecedented. It is NOT unprecedented. The Republican minority played this exact same role in 1997. See [my post in a different thread](http://boards.straightdope.com/sdmb/showthread.php?t=313840) for cites. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 26, 2005, 8:00pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/45 "2005-04-26T20:00:11Z")
[This explanation just in](http://talkingpointsmemo.com/) from Josh Marshall: > [@](#): > > Sen. Frist is saying, no deals. All seven judges have to go through or else. …In other words, the Majority Leader is willing to fight to the last Republican for his presidential viability. ---
**Author:** ![Renob](https://avatars.discourse-cdn.com/v4/letter/r/8c91f0/32.png) [@Renob](https://boards.straightdope.com/u/Renob)\ **Post date:** [April 26, 2005, 8:00pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/46 "2005-04-26T20:00:59Z")
> [@NillyWilly](#): > > It is NOT unprecedented. The Republican minority played this exact same role in 1997. The Republicans were in the _majority_ in 1997. ---
**Author:** ![SpartanDC](https://avatars.discourse-cdn.com/v4/letter/s/b2d939/32.png) [@SpartanDC](https://boards.straightdope.com/u/SpartanDC)\ **Post date:** [April 26, 2005, 8:52pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/47 "2005-04-26T20:52:56Z")
> [@Renob](#): > > The Republicans were in the _majority_ in 1997. Yes, they were. That’s when they bottled up several Clinton nominees in committee and didn’t even let them get to the floor. Also, from the Constitution, Article 2, Section 2, Clause II: > [@](#): > > He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, _and by and with the Advice and Consent of the Senate, shall appoint_ Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Nowhere does it say that the Senate _has_ to consent. It merely says that the president cannot _appoint_ without their consent. He doesn’t need their consent to merely nominate, obviously. So after the Senate consents, the president formally appoints. (And recess appointments are sort of the exception to all of this.) The Constitution also says the Senate determines the rules for its proceedings, one of which is advising and consenting. In this case, the Senate has decided that one of the rules is you can filibuster. So the Democrats are totally operating within the bounds of Senate rules. Now, if those rules change, we’ve got a different story on our hands. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 26, 2005, 8:59pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/48 "2005-04-26T20:59:21Z")
> [@Reeder](#): > > Do you mean naming Scalia as chief justice? All the chief justice is, is a glorified organizer. He has no more power than any other justice. I don’t see a fight over that at all. No, I mean a new justice added to the court when Rehnquist retires. I wouldn’t expect the Dems to block a Scalia nomination as CJ either. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [April 26, 2005, 9:48pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/49 "2005-04-26T21:48:23Z")
> [@John Mace](#): > > No, I mean a new justice added to the court when Rehnquist retires. > > I wouldn’t expect the Dems to block a Scalia nomination as CJ either. Heck no. I’d support it. I view Scalia and Rehnquist as interchangable, so the CJ position would essentially remain the same. If Scalia gets the CJ, then his old AJ slot will be vacant and Bush, having promoted the rightest of them all to CJ, might be more inclined to moderate his appointment to the Scalia vacancy. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 26, 2005, 9:53pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/50 "2005-04-26T21:53:07Z")
> [@BobLibDem](#): > > If Scalia gets the CJ, then his old AJ slot will be vacant and Bush, having promoted the rightest of them all to CJ, might be more inclined to moderate his appointment to the Scalia vacancy. I would be \*\*\*very \*\*\*surprised if that turned out to be true. ---
**Author:** ![Reeder](https://avatars.discourse-cdn.com/v4/letter/r/c6cbf5/32.png) [@Reeder](https://boards.straightdope.com/u/Reeder)\ **Post date:** [April 26, 2005, 10:24pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/51 "2005-04-26T22:24:03Z")
It’s no secret Bush wants Gonzalez on the court. So my guess is that’s who gets picked. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 26, 2005, 10:36pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/52 "2005-04-26T22:36:12Z")
> [@Raygun99](#): > > I suspect the operative word in Bricker’s statement is “must”, as in “are required as a part of the process”. Well, in retrospect, I think **Bricker’s** statement must have been a whoosh. I mean, you didn’t mean it seriously, did you, **Bricker?** Please tell me it’s a whoosh. ---
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [April 27, 2005, 12:09am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/53 "2005-04-27T00:09:01Z")
All that’s behind the Nuclear Option is GWB’s and the Republican’s tendency to treat a slender majority - in the electoral college and the Senate - as unbridled permission to do whatever the they want. I’m in the minority party, but it is the minority party’s job to stop the majority from doing stupid things, not to roll over and let the majority do whatever it wants, whether it is a good idea or not. The R’s have overplayed their hand by so blatantly trying to change the Senate’s rules. ---
**Author:** ![EvilHamsterOnCrack](https://avatars.discourse-cdn.com/v4/letter/e/3ab097/32.png) [@EvilHamsterOnCrack](https://boards.straightdope.com/u/EvilHamsterOnCrack)\ **Post date:** [April 27, 2005, 12:46am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/54 "2005-04-27T00:46:54Z")
> [@ElvisL1ves](#): > > Only if one of the normal meanings of “approve” is “reject”. Actually, I think his interpretation of bricker’s quote is correct: “that is why the senate must approve them” would be more clearly written as “that is why the senate must approve them for them to be made judges. If the senate doesn’t approve, they won’t become judges” or “that is why the senate must approve them, and they aren’t just picked and put into position, so that the senate has a say” I believe that is what he meant. The senate must approve them ( that they can become judges) ---
**Author:** ![Frostillicus](https://avatars.discourse-cdn.com/v4/letter/f/e9bcb4/32.png) [@Frostillicus](https://boards.straightdope.com/u/Frostillicus)\ **Post date:** [April 27, 2005, 2:10am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/55 "2005-04-27T02:10:52Z")
I think most people are missing the true motivation for why the Republicans are threatening the nuclear option over these 10 or so judges. The whole point is to create an issue that will distract the party faithful from noticing how crappy the vast majority of their lives have become under Bush 43. Gas prices are through the roof, the deficit is at an all-time high, the war in Iraq is a fiasco, health care is unaffordable, but what is the real problem? Those evil liberal “activist” judges. (You know, the ones who refused to act to prevent the removal of Terry Schiavo’s feeding tube.) As long as the Republicans can continue to create false “boogeymen”, they can count on the votes of the mindless sheep who get their news unfiltered from the likes of Rush Limbaugh. It worked with gay marriage, so they think it can work with this issue as well. ---
**Author:** ![DoctorJ](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/doctorj/32/2904_2.png) [@DoctorJ](https://boards.straightdope.com/u/DoctorJ)\ **Post date:** [April 27, 2005, 4:29am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/56 "2005-04-27T04:29:42Z")
It’s about far more than these few judges or the SC seat. It also means that for the next three years, the judges that he picks for other vacancies don’t have to be the sort that a few Democrats will vote for, the way he had to with his first 250 appointments (of which 240 or so went through). He can pick the nuttiest of the right-wing nutjobs with impunity. This is exactly why the filibuster is important. Those who call this “unprecedented” are relying on a very narrow description of what is happening. Of course this _exact_ situation has never happened before, because we’ve never had this combination of personalities, interests, and motivations before. The Republicans have certainly engaged in equivalent tactics in the recent past. ---
**Author:** ![Digital\_Stimulus](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@Digital\_Stimulus](https://boards.straightdope.com/u/Digital_Stimulus)\ **Post date:** [April 27, 2005, 5:48am UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/57 "2005-04-27T05:48:11Z")
> [@Renob](#): > > > [@](#): > > > > A guy on the Daily Show was saying that the current fight over nominees was about free speech – that the Pubbies would be able ot put anti-free speech zealots in the Supreme Court and gain even more control over the public discourse than they have now. > > Whoever said this is an idiot. Just to clarify this, that’s not what he said. (I’m gonna paraphrase it as I remember it; someone correct me if I’m wrong, please.) The question was what worried him most as regards restrcitions to the first amendment. His answer was that the judiciary is the backbone of the first amendment; weakening the power of the judicial branch was therefore his greatest worry. I believe he was speaking to the “activist judge” meme moreso than possible future appointments. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [April 27, 2005, 1:06pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/58 "2005-04-27T13:06:07Z")
> [@DoctorJ](#): > > It’s about far more than these few judges or the SC seat. It also means that for the next three years, the judges that he picks for other vacancies don’t have to be the sort that a few Democrats will vote for, the way he had to with his first 250 appointments (of which 240 or so went through). He can pick the nuttiest of the right-wing nutjobs with impunity. This is exactly why the filibuster is important. > > Those who call this “unprecedented” are relying on a very narrow description of what is happening. Of course this _exact_ situation has never happened before, because we’ve never had this combination of personalities, interests, and motivations before. The Republicans have certainly engaged in equivalent tactics in the recent past. This sounds like the likeliest explanation so far. All this foofaraw over what’s essentially a moppin-up operation doesn’t make any sense, unless something more sweeping is in the offing. Clearing the decks for a raft of judicial nominees who are so far to the right that they make Scalia and Thomas look reasonable by comparison, and who are rabid Pubbie partisans to boot, well that’s NASTY. Especially since very close elections are being ruled on by federal courts lately. This could actually be a long-term election strategy by the Pubbies. That’s nasty enough, alirghty. ---
**Author:** ![MMI](https://avatars.discourse-cdn.com/v4/letter/m/53a042/32.png) [@MMI](https://boards.straightdope.com/u/MMI)\ **Post date:** [April 27, 2005, 7:31pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/59 "2005-04-27T19:31:18Z")
> [@Shodan](#): > > But what we are talking about is the desire of a **minority** to prevent the Senate from fulfilling its function. > > The Democrats are trying to prevent the Senate from doing what it is Constitutionally bound to do. > > If the power to “advise and consent” is meaningless, the Democrats are the ones trying to render it so. They are the ones trying to prevent the Senate from acting. > > Regards, > Shodan Back in the old days, before the Republicans had control of both the Presidency and the Senate (and house for that matter), way back when, the rules of the Senate and the Senate judiciary committee had provisions which allowed the minority to influence nominations in several ways. IIRC Judiciary committee rule four required at least one minority member of the committee to approve a nomination for it go to the floor. If you can’t persuade one centrist democrat/moderate republican (or any good-faith senator) that the nominee is a good choice, maybe you should rethink the guy. Some time after Bush was elected and the Republicans took over the senate it was decided that this rule would no longer apply to nominations (and further that it never had). There was also such a thing as the “blue-slip”. If one of the senators of the state from which the nominee comes disliked the nominee the nomination would be quashed no questions asked. (The idea being that they were likely to know the nominee best, especially in a pre modern media age). When George W Bush was elected president and the republicans took the Senate Orrin Hatch first changed the rule so that both senators from the nominee’s home state would have to object to disqualify the nominee, and finally eliminating the practice altogether. You can certainly argue that both of these practices were “undemocratic” (blue slips in particular) or that blue slips are archaic. However, to pretend that the reason that the democrats are filibustering is that _they_ are trying to change the tenor and practice of the process is misleading at best. Filibustering is merely the only method left for the minority party in the Senate to have any effect on the process at all. Should the Dems take the senate I would hope that they would at least restore rule four. Blue-slips I have mixed feelings about. ---
**Author:** ![Happy\_Fun\_Ball](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/happy_fun_ball/32/17664_2.png) [@Happy\_Fun\_Ball](https://boards.straightdope.com/u/Happy_Fun_Ball)\ **Post date:** [April 28, 2005, 6:25pm UTC](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179/60 "2005-04-28T18:25:00Z")
> [@Shodan](#): > > But what we are talking about is the desire of a **minority** to prevent the Senate from fulfilling its function. Is it OK for the **majority** to prevent the Senate from fulfilling its function as it did for the 62 Clinton nominees? [Previous page](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179.md?page=2) [Next page](https://boards.straightdope.com/t/whats-the-real-issue-with-the-senates-judicial-confirmation-process/301179.md?page=4)