Which side is approaching the issue of judicial filibuster correctly?

[Palefire]

I've got to say the moderates. Cooler heads negotiating is the way things get done. But, as Senator Lindsey Graham noted today on the issue of getting a deal done "We're all grown men and women and we're behaving like we're in the third grade. Yes, it's very doable if people of good faith will come together."

I do have a hard time faulting the Democrats much. The Republicans have told them that they can keep the filibuster as long as they don't use it. That really doesn't leave the Democrats with any choice but to fight in one fashion or another. The kind of negotiating ploy that the Republican leadership has put out there makes it pretty clear they are itching to have this fight.

[A18]

Republicans. The filibuster was never used to block judicial nominees that would otherwise be confirmed before. The Democrats are completely out of power, so now they want to stack the courts with Kennedy/Stevens-types so they can legislate from the bench.

Just beat back the obstructionists and be done with it.

[CARLHAYDEN]

While (as I have previously noted), I believe the filibuster should be available against really bad nominees, none of the nominees in this case fit that category.

The truth is that it is highly unlikely that a really bad nominee would win confirmation.

What is happening is that a number of Democrat Senators (who would probably vote for at least one of the nominees) are toeing the party line by supporting what they know are unreasonable blockage of nominations.

I suspect they believe by doing this they can make book with the lefties in the party without appearing to climb into bed with them.

[WalterMitty]

the republicans are just making asses of themselves (something theyre good at).

[J. J.]

I feel that the GOP strategy is very bad, in that it opens up the issue to judicial review on constitutional grounds.  Basically the ruling is based on an interpretation of the Constitution, which throws this into the judicial arena.

That said, I feel that a rule change would not create these problems.  Even though the process would be longer and uglier, the result would be more likely to hold up.  It also could promote a compromise solution.

[Moooooo]

the republicans are just making asses of themselves (something theyre good at).

Ive been wondering where you stand on this issue.  Care to explain in detail your position on the Nuclear Option?

[A18]

Obviously any "judicial review" (i.e. made up crap) concerning the ruling should be laughed at and ignored.

[WalterMitty]

the republicans are just making asses of themselves (something theyre good at).

Ive been wondering where you stand on this issue.  Care to explain in detail your position on the Nuclear Option.

i strongly beleive that the democrats have blocked way too many bush appointments for frivolous reasons, just like the republicans did with clinton.

however, i do not believe the senate rules shoud be changed.  it would be extrememly damaging to the great institution.  the right to filibuster is an integral part of the senate.

[Moooooo]

i strongly beleive that the democrats have blocked way too many bush appointments for frivolous reasons, just like the republicans did with clinton.

however, i do not believe the senate rules shoud be changed.  it would be extrememly damaging to the great institution.  the right to filibuster is an integral part of the senate.

Makes sense...  Thats pretty close to where I stand.

[A18]

The filibuster has been weakened countless times. This is just another example, and since the filibuster has never even been used like this before, it's piss poor argument to talk about tradition.

[I spent the winter writing songs about getting better]

the republicans are just making asses of themselves (something theyre good at).

Ive been wondering where you stand on this issue.  Care to explain in detail your position on the Nuclear Option.

i strongly beleive that the democrats have blocked way too many bush appointments for frivolous reasons, just like the republicans did with clinton.

however, i do not believe the senate rules shoud be changed.  it would be extrememly damaging to the great institution.  the right to filibuster is an integral part of the senate.

they blocked 10. They confirmed 208. How much is "way too much"?

[A18]

One is way too much. You're the minority party.

[WalterMitty]

the republicans are just making asses of themselves (something theyre good at).

Ive been wondering where you stand on this issue.  Care to explain in detail your position on the Nuclear Option.

i strongly beleive that the democrats have blocked way too many bush appointments for frivolous reasons, just like the republicans did with clinton.

however, i do not believe the senate rules shoud be changed.  it would be extrememly damaging to the great institution.  the right to filibuster is an integral part of the senate.

they blocked 10. They confirmed 208. How much is "way too much"?

it isnt the number so much as it  is the 'reasons'  why they are blocking them.

what they did to charles pickering was nothing short of character assassination.

[A18]

This is all about the U.S. Supreme Court.

The judiciary has no authority to review Senate business, which is specifically made an autonomous unit in the Constitution. The Senate is its own supreme court.

[J. J.]

This is all about the U.S. Supreme Court.

The judiciary has no authority to review Senate business, which is specifically made an autonomous unit in the Constitution. The Senate is its own supreme court.

Well, how much business does the have in determining if something is constitutional?  Actually, the court can review rules on constitutional grounds.  I just don't want to give them any reason to review it.

[CARLHAYDEN]

the republicans are just making asses of themselves (something theyre good at).

Ive been wondering where you stand on this issue.  Care to explain in detail your position on the Nuclear Option.

i strongly beleive that the democrats have blocked way too many bush appointments for frivolous reasons, just like the republicans did with clinton.

however, i do not believe the senate rules shoud be changed.  it would be extrememly damaging to the great institution.  the right to filibuster is an integral part of the senate.

they blocked 10. They confirmed 208. How much is "way too much"?

it isnt the number so much as it  is the 'reasons'  why they are blocking them.

what they did to charles pickering was nothing short of character assassination.

You are absolutely correct.

It should also be noted the while the Democrats really don't care a hoot about District Court judges, they are terrified of Bush getting Appealate and Supreme Court nominations.

Currently the judiciary is the major government bastion of liberalism in the federal government.

[Emsworth]

The judiciary has no authority to review Senate business, which is specifically made an autonomous unit in the Constitution. The Senate is its own supreme court.

Well, how much business does the have in determining if something is constitutional? Actually, the court can review rules on constitutional grounds. I just don't want to give them any reason to review it.

I find myself in total agreement with A18. There can be no doubt that a ruling of the President of the Senate is nonjusticiable. Precedent is entirely in line with such a view.

[J. J.]

The judiciary has no authority to review Senate business, which is specifically made an autonomous unit in the Constitution. The Senate is its own supreme court.

Well, how much business does the have in determining if something is constitutional? Actually, the court can review rules on constitutional grounds. I just don't want to give them any reason to review it.

I find myself in total agreement with A18. There can be no doubt that a ruling of the President of the Senate is nonjusticiable. Precedent is entirely in line with such a view.

No it isn't, dating back to US v. Ballin (1892), though in that one the Speaker was sustained.  Yes, something like this did happen once before (at least).  That was the House.

The problem arises when the chair makes a "constitutional" ruling.  The rules of the House and Senate are not sudject to judicial review, unless there is a constitutional claim.  This wghole process is based on a constitutional claim.

[J. J.]

Here is what the Court said, overturning a lower court opinion.  Emphasis is added:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=144&invol=1

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If outside of the limitations, you start getting problems.

[A18]

Well, the Senate could also just interpret the filibuster rule as not applying to presidential appointments.

[Emsworth]

Here is what the Court said, overturning a lower court opinion. Emphasis is added:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=144&invol=1

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If outside of the limitations, you start getting problems.

I would argue that Ballin is not particularly germane. If the Senate were to hold (through a ruling upholding the Chair) that filibusters are impermissible on nominations, then there is no recourse. The rule would not contravene the Constitution, as the Constitution does not require that filibusters be permitted. You would be correct that such a ruling would stand on very flimsy constitutional grounds; however, the grounds are irrelevant. The fact would remain that the Senate has, in pursuit of the power granted by the Constitution, decided that filibusters are no longer allowed on nominations, and that the Supreme Court cannot compel the Senate to change such a rule.

A rule that could be justifiably challenged would be, to take an example, a rule that dispenses with the Yeas and Nays even if 1/5 of the members present demand otherwise.

[J. J.]

Here is what the Court said, overturning a lower court opinion. Emphasis is added:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=144&invol=1

You must be logged in to read this quote.

If outside of the limitations, you start getting problems.

I would argue that Ballin is not particularly germane. If the Senate were to hold (through a ruling upholding the Chair) that filibusters are impermissible on nominations, then there is no recourse. The rule would not contravene the Constitution, as the Constitution does not require that filibusters be permitted. You would be correct that such a ruling would stand on very flimsy constitutional grounds; however, the grounds are irrelevant. The fact would remain that the Senate has, in pursuit of the power granted by the Constitution, decided that filibusters are no longer allowed on nominations, and that the Supreme Court cannot compel the Senate to change such a rule.

A rule that could be justifiably challenged would be, to take an example, a rule that dispenses with the Yeas and Nays even if 1/5 of the members present demand otherwise.

The problem is the grounds used.  A constitutional issue is litigable.  Claiming that this ruling is based on a constitutional provision, puts this into the judicial branch.  If there were some "non-constitutional" ground, that could possibly be different, but they are arguing it on constitutional grounds.

Now, if they could reasonably interpret the rules, as the exist, as permitting the majority to limit debate, it would not be a constitutional issue and could not be reviewed by the courts.

The GOP argument here is ultimately, this violateds the rules, but the rules violate the Constitution.  The problem is, the Senate is not the final word on constitutional issues.  The courts would almost have to rule that the senate did not have the power to create the 2/3 vote cloture rule in the first place.

[Emsworth]

The problem is the grounds used.  A constitutional issue is litigable.  Claiming that this ruling is based on a constitutional provision, puts this into the judicial branch.  If there were some "non-constitutional" ground, that could possibly be different, but they are arguing it on constitutional grounds.

Now, if they could reasonably interpret the rules, as the exist, as permitting the majority to limit debate, it would not be a constitutional issue and could not be reviewed by the courts.

The GOP argument here is ultimately, this violateds the rules, but the rules violate the Constitution.  The problem is, the Senate is not the final word on constitutional issues.  The courts would almost have to rule that the senate did not have the power to create the 2/3 vote cloture rule in the first place.

The Senate may change the rules for whatever reason it pleases, including perceived unconstitutionality, and the Supreme Court does not have the authority review the rule change unless the new rule is itself unconstitutional. The grounds of the rule change, in my opinion, are absolutley irrelevant; what matters is whether the rule itself is constitutional or not. Otherwise, the independence of the Senate would be meaningless.

[A18]

I am quite sure they don't have to, and will not, specify the reason, anyway. Basically, they're just ruling the Democrats out of order for filibustering a presidential appointment.

[J. J.]

The problem is the grounds used.  A constitutional issue is litigable.  Claiming that this ruling is based on a constitutional provision, puts this into the judicial branch.  If there were some "non-constitutional" ground, that could possibly be different, but they are arguing it on constitutional grounds.

Now, if they could reasonably interpret the rules, as the exist, as permitting the majority to limit debate, it would not be a constitutional issue and could not be reviewed by the courts.

The GOP argument here is ultimately, this violateds the rules, but the rules violate the Constitution.  The problem is, the Senate is not the final word on constitutional issues.  The courts would almost have to rule that the senate did not have the power to create the 2/3 vote cloture rule in the first place.

The Senate may change the rules for whatever reason it pleases, including perceived unconstitutionality, and the Supreme Court does not have the authority review the rule change unless the new rule is itself unconstitutional. The grounds of the rule change, in my opinion, are absolutley irrelevant; what matters is whether the rule itself is constitutional or not. Otherwise, the independence of the Senate would be meaningless.

You notice in Ballin, they said or fundamental rights.  The right to demand that an in force rule be enforced is a "fundamental right."