The Right Would Filibuster Too...Right?

[Gem]

This is a great piece....it plays "WHAT IF." What if we had a Democrat President nominated a judge who held views that by most peoples standards would be considered extemely far-left...the Republicans, now in the position the Democrats presently find themselves in, would filibuster like mad....right? They would stand up and read the phone book if that is what it took to keep such an extremist away from such a position of power over this nation....right? I mean, thats what the Democrats have been saying would happen if the situation was reversed...right?

Imagine, if you will, that a Democrat President nominated a judge whose constitutional and policy views were, by any measure, on the extreme left fringes of American society.

Let’s assume, for example, that this nominee had expressed strong sympathy for the position that there is a constitutional right to prostitution as well as a constitutional right to polygamy.

Let’s say, further, that he had attacked the Boy Scouts and the Girl Scouts as organizations that perpetuate stereotyped sex roles and that he had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.

And, to get really absurd, let’s add that he had called for an end to single-sex prisons on the theory that if male prisoners are going to return to a community in which men and women function as equal partners, prison is just the place for them to get prepared to deal with women.

Let’s further posit that this nominee had opined that a manifest imbalance in the racial composition of an employer’s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer. But then, lo and behold, to make this nominee even more of a parody of an out-of-touch leftist, let’s say it was discovered that while operating his own office for over a decade in a city that was majority-black, this nominee had never had a single black person among his more than 50 hires.

Imagine, in sum, a nominee whose record is indisputably extreme and who could be expected to use his judicial role to impose those views on mainstream America. Surely such a person would never be nominated to an appellate court. Surely no Senate Democrat would support someone with such extreme views. And surely Senate Republicans, rather than deferring to the nominating power of the Democrat President, would pull out all stops—filibuster and everything—to stop such a nominee.

Well, not quite. The hypothetical nominee I have just described is, in every particular except his sex, Ruth Bader Ginsburg at the time she was nominated to the Supreme Court in 1993.

President Clinton nominated Ruth Bader Ginsburg on June 22, 1993. A mere six weeks later, on August 3, 1993, the Senate confirmed her nomination by a 96-3 vote.

(The source for the information in the second through fourth paragraphs is “Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law,” co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974. The information in the fifth paragraph can be found in the transcript of Ginsburg’s confirmation hearing.)

http://www.nationalreview.com/benchmemos/063778.asp

 

[nakedemperor]

Republicans certainly filibuster.. here's a list of some recent Republican filibusters of nominees reported to the floor...

Richard Paez, 9th Circuit (2000)
Marsha berzon 9th circiut (2000)
Lee Sarokin, 3rd Circuit (1994)
Rosemary Barkett 11th Circuit (1994)

that said, filibuster doesn't make much sense to me.

 

[Annie]

Republicans certainly filibuster.. here's a list of some recent Republican filibusters of nominees reported to the floor...

Richard Paez, 9th Circuit (2000)
Marsha berzon 9th circiut (2000)
Lee Sarokin, 3rd Circuit (1994)
Rosemary Barkett 11th Circuit (1994)

that said, filibuster doesn't make much sense to me.

This is different than what I've heard and read. So I thought I'd google down. Here's the first one:

Paez:

http://www.law.com/regionals/ca/judges/9circuit/paez.htm

[...]

Senate Majority Leader Trent Lott wanted a friend, the mayor of Tupelo, Miss., named to the Tennessee Valley Authority. Boxer blocked the mayor, whom she had never heard of, causing a Lott aide to ask what possible interest the Californian could have in the TVA.

Boxer is said to have replied: "Richard Paez."

Boxer's chief of staff, Sam Chapman, confirms the context: Boxer did go on record in October saying Lott shouldn't expect his nominations to sail through while people she supported, specifically Paez and a woman judge who had waited two years for a vote, sat in limbo; the following month, Lott agreed to call the two judges for a vote on March 15.

Notwithstanding a mini-mutiny filibuster by conservative senators who labeled Paez a radical, Lott stood by his word and the judge won confirmation. [...]

 

[Annie]

Berzon:

After wading through a couple pages from dem. underground and moveon, found this:

http://www.nwherald.com/print/283220052998861.php

[...]

Then there was the case of two Californians Clinton nominated, Richard Paez and Marsha Berzon. Paez's nomination languished for more than four years, Berzon's more than two, before then-Majority Leader Trent Lott agreed to a vote. "I didn't think it was right to filibuster judicial nominees then. And it's not right now," the Mississippi Republican said recently.

Except it took the threat of another filibuster before he agreed to a vote in 2000, officials say. Boxer intervened at the time, promising to block action on a Lott-backed nominee to the Tennessee Valley Authority unless there was final action on Paez and Berzon. Paez was confirmed with 59 votes, Berzon with 64.

A decade ago, Democratic Sen. Tom Harkin called the filibuster "a dinosaur, a relic of the ancient past."

Frustrated at the multiple filibusters Republicans had launched in the run-up to the 1994 elections, the Iowa senator proposed a gradually receding filibuster, in which supporters would eventually need a 51-vote majority to prevail.

His attempt died on a test vote of 76-19.

Nine Democrats still in office backed the effort, and now support efforts to block Bush's controversial nominees. "Senator Harkin's position has evolved since then," said a spokeswoman, adding that unlike the current GOP move, he attempted to amend the rules in straightforward fashion rather than through a parliamentary ruling.

Among the 76 opponents of Harkin's rules change were 24 Republicans still in office, many of whom now argue heatedly that judicial filibusters are an abuse of the rules.

Among them is Sen. Bill Frist, newly elected from Tennessee at the time. [...]

 

[Annie]

This is different than what I've heard and read. So I thought I'd google down. Here's the first one:

Paez:

http://www.law.com/regionals/ca/judges/9circuit/paez.htm

Sarokin:

(lucky me, found this on another mb:
http://mediamatters.org/items/200503160004

In addition to the approximately 60 judicial nominees that the Republican-led Senate blocked without resorting to a filibuster, several Republican senators, including current Majority Leader Bill Frist (R-TN), unsuccessfully attempted to filibuster other Clinton judicial nominees. The Los Angeles Times reported on November 13, 2003: "As recently as March 2000, several Republicans voted to filibuster two Californians whom President Clinton had named to the 9th Circuit appellate court: Richard A. Paez and Marsha L. Berzon. ... Ultimately, the Republican stalling tactics failed, and both jurists now sit on the appellate court." The Washington Post documented a third attempted filibuster of a Clinton judicial nominee on October 5, 1994: The Senate "voted 85 to 12 to cut off a filibuster against confirmation of U.S. District Judge H. Lee Sarokin as a member of the 3rd U.S. Circuit Court of Appeals. But Republicans continued to talk into the evening against Sarokin, whom they condemned as a 'liberal' and 'judicial activist.' "

As you can see the Senate wasn't having any part of the fillibuster being extended to judicial nominations in 94. There never was a filibuster of a Dem candidate for the bench. To use one of Rufs (or one that he would use) analogies, It's like robbery, there's attempted robbery and then there's robbery.

 

[Annie]

This is different than what I've heard and read. So I thought I'd google down. Here's the first one:

Paez:

http://www.law.com/regionals/ca/judges/9circuit/paez.htm

And Barker, well actually all of them:

http://www.nationalreview.com/comment/cornyn200311131044.asp

[...]

But Senate Democrats have already admitted — at least amongst themselves — that their current obstruction is unprecedented. In a November 3 fundraising e-mail to potential donors, my colleague, Jon Corzine, the chairman of the Democratic Senatorial Campaign Committee, acknowledged — actually, he boasted — that the current blockade of judicial nominees is "unprecedented."

It is dishonest for Senate Democrats to tell their donors one thing, and the American people another thing. My colleague from New Jersey is right that the current filibusters are unprecedented. And the alleged precedents now cited by Senate Democrats for the current filibusters are all false.

For example, some say that the current filibusters are justified because of the previous treatment of Stephen Breyer, Rosemary Barkett, H. Lee Sarokin, Richard Paez, and Marsha Berzon.

That is a rather bizarre argument to make. Breyer, Barkett, Sarokin, Paez, and Berzon were all confirmed by the U.S. Senate: Breyer became a judge on the First Circuit until he was elevated to the Supreme Court; Barkett now sits on the Eleventh Circuit; Paez and Berzon are now judges on the Ninth Circuit; Sarokin served as a judge on the Third Circuit until he retired.

Indeed, Paez was confirmed only because Republican senators refused to filibuster his nomination. Fewer than 60 senators ultimately voted to confirm Paez. But although his opponents could have filibustered him, Paez got a vote — and his judgeship — because Republican senators understood it is wrong to filibuster judicial nominees.

I would love to see Pryor, Owen, Pickering, and Estrada "mistreated" the same way Breyer, Barkett, Sarokin, Paez, and Berzon were treated. If you take the Democrats' argument seriously, then Pryor, Owen, Pickering, and Estrada must be confirmed.

Some argued overnight that the current filibusters are justified because of the failed 1968 nomination of then-Justice Abe Fortas to be chief justice.

This claim is also unfounded. The Congressional Record makes clear that a confirmation vote would have likely failed by a vote of 46-49. Moreover, Fortas's opponents explained repeatedly that they were not filibustering — they just wanted adequate time to debate and expose serious problems with his nomination. So Fortas wasn't denied confirmation due to a filibuster; he was denied confirmation due to the opposition of a bipartisan majority of senators. (Indeed, shortly thereafter, Fortas resigned from the Court altogether, under threat of impeachment.)

Finally, some say that the current filibusters are justified because some of President Clinton's nominees were held in committee.

But there is nothing new — or relevant — about a judicial nominee who is not confirmed due to lack of support from a Senate majority. At the end of the first Bush Administration, there were 54 judicial nominees who had not mustered majority support and thus were not confirmed. At the end of the Clinton administration, there were 41 such nominees. If a majority of senators chooses to defer to a committee's decision not to bring someone to a vote, that is the majority's right under our constitutional system for confirming judges.

The current situation is precisely the opposite. Today, an enthusiastic bipartisan majority wants to confirm judicial nominees, yet for the first time in our nation's history, a minority is stopping them.

That's why Georgetown Law Professor Mark Tushnet — no shill for President Bush's judicial nominees — has written that filibusters are clearly different from the holds and committee delays used against nominees from the earlier Bush and Clinton administrations. He has written that "[t]here's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules — on scheduling, on not having a floor vote without prior committee action, etc. — to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster rule can't be overridden that way. A majority of the Senate could ride herd on a rogue Judiciary Committee chair who refused to hold a hearing on some nominee; it can't do so with respect to a filibuster." He has also written that "[t]he Democrats' filibuster is . . . a repudiation of a settled pre-constitutional understanding."

The arguments being peddled in defense of the filibusters resemble the arguments against the nominees themselves. They are baseless and outcome-oriented. They have been rejected by a bipartisan majority of senators. And they are offensive to basic principles of democracy, including majority rule and the right to vote.

 

[manu1959]

excellent posts Kathianne

i particularly enjoyed this quote:

Jon Corzine, the chairman of the Democratic Senatorial Campaign Committee, acknowledged — actually, he boasted — that the current blockade of judicial nominees is "unprecedented."

 

[Annie]

Thanks Manu.

Lookie what Ann Althouse, (law prof) has up:

http://althouse.blogspot.com/2005/05/how-about-supermajority-to-reject.html

Seems a search of original constitutional convention notes gives proof that the framers considered a supermajority to REJECT judicial nominees. Interesting indeed. I've given 2 links within the post, there are more:

How about a supermajority to reject judicial nominees?
Did you know that the Constitution's Framers considered requiring a supermajority vote in the Senate to reject the President's judicial nominees?

Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.

Today, under the filibuster, the idea is that a minority of Senators can defeat the President's nominee, but Madison's idea at one point was that it should take 2/3 of the Senators to reject the nomination.

UPDATE: Betsy Newmark takes this post as a prompt to read through the whole debate on the subject of judicial appointments (and to make her own observations). Really, I recommend reading through the original debates when these questions come up. It is very easy, at the Founders' Constitution website to click on individual clauses of the Constitution and get to the relevant historical materials. It's often quite striking how different these are from the things people are saying about them.
posted by Ann Althouse at 9:27 AM