McCain's Gang of 14 compromise was probably better course
By gamecock Posted in Archived — Comments (96) / Email this page » / Leave a comment »
This Fredhead's problems with John McCain are numerous and well documented. Moreover, a strong case can be made that McCain was wrong or at least premature in his leadership in forming the gang, as Spiral and Mark Levin
Here is a portion of their strong case:
1. What if John McCain had actually worked with Bill Frist and the Republican leadership as they sought to gather support to change the Senate rule preventing the filibustering of judicial nominees?
2. To say that Roberts and Alito would not have been confirmed but for the Gang of 14 is complete speculation. Roberts received 78 votes. Alito received 58 votes. In fact, four of the seven Democrats in the Gang of 14 voted against Alito – Lieberman, Inouye, Landrieu and Salazar, and one of the Republicans — Chafee. Obviously, a few Democrats who were not part of the Gang of 14 voted for Alito.
3. And it’s not at all clear that Lindsey Graham, John Warner, and Susan Collins — three of the seven Republican gang members — would have voted against changing the Senate rule if the Gang of 14 hadn’t been cobbled together. Would they have voted with the Democrat leadership and against changing the filibuster rule if it meant preventing confirmation votes for Roberts and Alito? We don’t know, but I seriously doubt it.
4. The Gang of 14 may have resulted in a few important confirmations. But it also stopped the confirmations William Myers, Henry Saad — which the Gang would not endorse. It also left others in the lurch, who remain there to this day. And now that the Democrats run the Senate, where is the Gang of 14? Where are the nominees? What happened to comity?
As an aside, McCain led the effort, with Graham, to block the confirmation of William Haynes for the Fourth Circuit, which, by the way, has (I believe) five vacancies. This was once considered the most reliably conservative appellate court.
I think this issue is a close call, but I am persuaded, especially in hindsight, that, on balance, the results of the compromise favor McCain, given the unknowns.
Now, let me preface and condition this conclusion with my extreme disagreement with how the GOP has handled judicial nominations of Democrat Presidents in the past and their timidity in using nomination hearings to reveal their "honorable" Democrat friends for the vile creatures they are, and to make the case for originalist judicial restraint.
I cringe when I hear Senator Orin Hatch brag that his GOP majority senate voted 98-0 or better for Bill Clinton's Ginsburg and Breyer since "elections have consequences" and that they were "qualified."
This meme from the pre-60's (or better, the pre-30's era) when most judges didn't (except in Lochner, Plessy and Scott) ordinarily legislate from the bench, was especially grating on the ears post the Dems' Borking of the well-qualified Bork and Thomas.
Senator Hatch, the Constitution has consequences too, but I will let George Will deal with that in more detail below.
Moreover, it would seem to me that part of the qualified in "well qualified" is that they will uphold their oath to uphold the Constitution. When nominees, like Ginsburg and Breyer, affirm the legitimacy of interpreting the Constitution via a theory other than originalism, or similar theories, then they are not qualified. To re-write the constitution as a judge should be an impeachable offense.
Finally, the GOP should use confirmation hearings to educate the public on the motive of the Dems to use the courts to impose the far left agenda they can't get majority votes for even in Massachusetts and California.
The GOP should bring home to the public that it has been liberal courts that have usurped their power to control public schools, their own private property and state social policies.
The GOP fear of the MSM must end. We can defeat them, like we do liberals in elections.
My main objections to the use of the so-called "constitutional option" are:
a) That it was not constitutional. I refer to the strategy that would have the President of the Senate, Dick Cheney, rule as Parliamentarian that filibusters of judicial nominees are unconstitutional since the Constitution does not include such votes among those such as treaty ratifications that require super majorities.
b) Robert Bork himself argues, as does Will below, that such arguments from absence are the poly of liberals to impose their will. When the Constitution is silent, we should assume that it does not prohibit actions, rather than that it assumes prohibition.
c) There is no right to an up or down vote on the floor. The Advise and Consent Clause does not require it. The Senate may advise thru inaction. many nominees don't get to the floor for a vote at all.
d) The Senate is empowered by the Constitution to make their own rules, and the rules adopted in January 2005 allowed filibusters, which did not exclude judicial nominations.
It is true, as discussed below, that their have been times when the Majority changed the rules on filibusters, though not for judges, in mid-term, by simple majority vote. But I think Will's argument against it is persuasive.
Now to Will's
Why Filibusters Should Be Allowed, an excerpt (but read it all via link):
Some conservatives say there is a "constitutional right" to have an up-or-down Senate vote on nominees. But in whom does this right inhere? The nominees? The president? This is a perverse contention coming from conservatives eager to confirm judges who will stop the promiscuous discovery by courts of spurious constitutional rights. And conservatives eager to confirm judges respectful of the Constitution's text should not read its stipulation that no nominee shall be confirmed without a favorable Senate vote as a requirement that the Senate vote.
Some conservatives oddly seem to regret the fact that the government bristles with delaying and blocking mechanisms -- separation of powers, bicameral legislature, etc. The filibuster is one such mechanism -- an instrument for minority assertion. It enables democracy to be more than government-by-adding-machine, more than a mere counter of numbers. The filibuster registers intensity, enabling intense minorities to slow or stop government.
The crucial, albeit unwritten, rule regarding judicial nominees was changed forever 18 years ago by the Robert Bork confirmation fight: Now both sides in the Senate feel free to judge and accept or reject nominees on the basis of their judicial philosophies. So, conservatives, think:
The future will bring Democratic presidents and Senate majorities. How would you react were such a majority about to change Senate rules to prevent you from filibustering to block a nominee likely to construe the equal protection clause as creating a constitutional right to same-sex marriage?
And pruning the filibuster in the name of majority rule would sharpen the shears that one day will be used to prune it further. If filibusters of judicial nominations are impermissible, why not those of all nominations -- and of treaties, too? Have conservatives forgotten how intensely they once opposed some treaties pertaining to arms control and to the Panama Canal?
Exempting judicial nominations from filibusters would enlarge presidential power. There has been much enlargement related to national security -- presidential war-making power is now unfettered, Congress's responsibility to declare war having become a nullity. Are conservatives, who once had a healthy wariness of presidential power, sure they want to further expand that power in domestic affairs?
The Senate's institutional paralysis over judicial confirmations is a political problem for which there is a political solution: 60 Republican senators. The president believes that Democratic obstruction of judicial nominees contributed to Republican gains in 2002 and 2004. In 2006, 17 of the Democrats' seats and that of Sen. James Jeffords of Vermont, their collaborator, are up, five of them in states the president carried in 2004.
It has been 98 years since Republicans have had 60 senators. But in the past 50 years, there were more than 60 Democratic senators after seven elections: 1958 (64), 1960 (64), 1962 (67), 1964 (68), 1966 (64), 1974 (61), 1976 (62). Republicans might reach 60 if the president devoted as much energy to denouncing obstruction of judicial nominations as he is devoting to explaining Social Security's problems. Solving those problems is important, but not as important as achieving a judiciary respectful of the Constitution.
And now, Misjudging McCain
In early 2005, Bill Frist and others seized upon "the nuclear option": a parliamentary tactic that would have ended judicial-nominations filibusters. Simply stated, Majority Leader Frist would have interrupted debate on the nomination, calling for the presiding officer to bring the nomination to a vote. While filibusters normally continue absent a super-majority vote for "cloture," the Senate's presiding officer (most likely Vice President Cheney) would have agreed that further debate was inappropriate, and his decision would then be subject to a majority vote by the Senate. Thus, the nomination debate would end upon the approval of at least fifty Senators and the tie-breaking vice president.
Such a maneuver was almost certainly proper under Senate precedent, as Martin Gold and Dimple Gupta demonstrated in a widely-read article in the Harvard Journal of Law & Public Policy (although the Senate Parliamentarian publicly disagreed). But the mere fact that the nuclear option was a legitimate tactic did not by itself mean that Frist could successfully execute it--and, contrary to wishful thinking by McCain's present critics, Frist's plan was destined to fail.
Given the presence of only fifty-five Republicans in the Senate (and the tie-breaking vice president), Frist could afford to lose no more than five votes--and it quickly became apparent that Frist would lose at least six. Roll Call reported that Lincoln Chafee and Olympia Snowe opposed the option, and that Mike DeWine, Lindsey Graham, and Arlen Specter were possible if not likely defectors as well. The Washington Post reported that Susan Collins, Chuck Hagel, and John Warner expressed substantial misgivings about the scheme. And, of course, there was the threat of other surprise defections, just as George Voinovich surprised everyone by suddenly opposing the John Bolton nomination later that year.
Thus, McCain, who also opposed the nuclear option, was hardly alone in his stance; nor was he the deciding vote on the subject. Simply put, for Frist to succeed would have required the political equivalent of drawing to an inside straight in poker: all of the cards needed to fall in place. Multiple GOP senators with a history of bucking the leadership and administration would have had to fall in line, and no surprise defections could have occurred.
Conservative activists hoped for success then--and too many still believe that success was a given--but such hopes were utter fantasy. In 2005, the odds were so decisively stacked against Frist that even he and the Bush White House reportedly asked Graham and DeWine to broker a compromise.
IT WAS IN THIS CONTEXT, then, that McCain, Graham, and twelve other Senators entered into a ceasefire agreement that ended the threat of the nuclear option. Specifically, the bipartisan "Gang of 14" agreed to bring to a majority vote three controversial nominees: William Pryor, Janice Rogers Brown, and Priscilla Owen. (Each eventually was confirmed.) They specifically cited two nominees (William Haynes and Henry Saad) whose fates would not be decided by the agreement, effectively killing those nominations. And they agreed that filibusters of all other judicial nominees would be improper absent "extraordinary circumstances."
Conservatives greeted this development with at best skepticism and at worst outright anger; liberals, by contrast, treated the development as outright victory. But over the course of the subsequent months, the Gang of 14's agreement proved to be an unequivocal success for proponents of judicial nominations: not only did President Bush successfully seat two conservative judges in the face of vociferous liberal opposition, but he also succeeded in seating a number of controversial lower-court nominees who previously had languished under the filibuster. While the agreement's "extraordinary circumstances" clause was vague and perhaps even unenforceable, the Gang never allowed it to be used successfully to allow a filibuster--most likely because the Gang of 14 also did not foreclose ultimate resort to the nuclear option in such situations.
Thus, in the end, the Gang of 14's compromise paved the way for the confirmation of some of the finest conservative judges in recent history: John Roberts, Samuel Alito, Janice Rogers Brown, William Pryor, and others.
IN LIGHT OF THE HISTORY'S CLEAR RECORD, it can fairly be said that John McCain, John Warner, and Lindsey Graham deserve no less credit for the successful confirmation of controversial conservative judges than do Bill Frist and proponents of the nuclear option. McCain's critics may well have regretted the Gang of 14 deal, wishing to have suffered principled defeat--filibustered judicial nominations, and perhaps even filibustered Supreme Court nominations--rather than pragmatic victory. But McCain, Graham, and the other pro-confirmation members of the Gang took the path most consistent with prudential conservatives of years past: Just as William Buckley and James Burnham once favored "the most conservative electable candidate," McCain favored "the most conservative achievable outcome." For that he deserves conservatives' praise, not scorn.
I think this is a close call. Given that, and given that we got such superior judges like Bill Pryor (against whom the Dem-Libs in the senate imposed a religious test against practicing Catholics), Janice Rogers Brown (against whom they imposed a "not authentically black" test) and others, not to mention Chief Justice Roberts and Associate Justice Alito, who have already reversed precedents on free speech and so-called affirmative action, I think we should drop this objection to John McCain's candidacy.
Mike Gamecock DeVine @ The Charlotte Observer
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I think the attacks on McCain based on the Gang are mainly from people who dislike him for other reasons and are fishing for another offense to hang him for. It was also mostly older Senators who dislike partisan bickering trying to avoid it. Maybe that doesn't appeal to "very conservative" voters, but it is one of the reasons that McCain is so popular nationally. The country is ready for someone who isn't thinking "What is best for the Rs?" and instead is thinking "What is best for the country?"
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and you are absolutely right about mccain. he bases every position on what is right for the country - even though he is wrong sometimes.
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and a promise kept :)
My only quibble "Chief Justice" in the last paragraph, not "Cheif Justice"
Also, here was my day after analysis of The Deal:
2. "The Deal" turns out to be a pretty good one although that could change.
It perserves the filibuster which is generally a friend of conservatives and does not take us on the first step toward eliminating all filibusters. It sets a standard for when judicial filibusters are acceptable and that standard is high. Most likely Supreme Court nominees will not be filibustered unless they are unqualified (i.e. not judges) or disturbing enough that they wouldn't even pass an up-or-down vote in the first place.....
The bottom line: For a filibuster to happen, 3 of the "moderate" Democrats must choose on their own that a nominee creates an "extraordinary circumstance." Then Sens. Graham and DeWine must agree with those Democrats on their assessment. To be honest, if Sens. DeWine, Graham and 3 of the Democratic moderates agree on a candidate, then they probably wouldn't get voted up by the whole Senate. Thus, the filibuster is dead for this Congress but perserved for the future.
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Mike Gamecock DeVine @ The Charlotte Observer
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in part because it preserved a political strategy that violates the meaning of the Constitution. The Constitution give the Senate the President the power to appoint judges subject to the "advice and consent" of the Senate. Now, what does "advice and consent" mean if not majority vote? The filibuster is a product of Senate rule. If you think that the Senate can unilaterally change the definition of "advice and consent" from 50 votes to 60 votes, then you must believe that the Senate could also unilaterally change the definition of "advice and consent" from 50 votes to 100 votes. The Senate could always change its rules to require a unanimous vote on judicial nominees. Ask yourself, is that consistent with the Constitution allocation of powers regarding the selection of judges? Each Senator will become as influential as the President regarding the makeup of the judiciary.
John McCain's efforts to preserve Democratic filibusters of Republican judicial nominees was wrong, not only because it prevented some good legal conservatives from being confirmed to the bench, but also because it gives future Republican Senator's a Hobson's choice: an even playing field (60 vote standard) for republican and democratic nominees OR fidelity to the Consitution.
I will never forgive McCain for putting us in this situation.
Mike Gamecock DeVine @ The Charlotte Observer
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it would be even easier to have "inaction" if the filibuster rule was re-written to require 100 votes for judicial nominees.
In your view, would that unilateral change in senate rules be constitutional?
a floor vote at all, much less have a "right" to be confirmed by a mere majority vote.
Mike Gamecock DeVine @ The Charlotte Observer
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but Presidents have a right not to be converted into the 101st senator by operation of a senate rule.
A Senate rule requiring a unanimous vote on judicial nominees would do just that.
I am the first to admit that I can't give you a count on how many got through and how many are still stalled in the senate and how many just gave up. That part isn't important to the analysis though.
Mass, Filibustering judges was something pulled out their hats by the Democrats as a last ditch effort to thwart the expressed will of the people. The gang of fourteen lent legitimacy to the practice. So instead of having the tactic go by the wayside as it should have, we wound up with a small group effectively controlling the selection of judges.
You can say what you like about who got through. It doesn't matter, what was lost was representative government and accountability. Most unconservative thank you much.
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Mike Gamecock DeVine @ The Charlotte Observer
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Nominees who had previously not gotten votes did not have majority approval. In such cases, the Senate withheld its consent through inaction just as it would have withheld its consent through action. The filibustered judges, though, had majority approval and would have been confirmed, but Senators were unable to fulfill their constitutional duty to give that consent.
agree that invoking the Byrd rule would be an acceptable course of action.
Mike Gamecock DeVine @ The Charlotte Observer
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This was a special case, in which judges had majority approval, but a minority kept the Senate from doing it's proscribed Constitutional duty.
As for the specific way of getting past this obstacle -- this obstacle that IMO is CLEARLY unconstitutional. I don't know whether the "parliamentary procedure" method, or the "bring it to th DC Court of Appeals" method, or the "hoist Daschle up by his petards" method would be the "right" method.
I don't know. I don't really care all that much. But I know the Gang of 14 thwarted the will of not only Senate leadership, but rank and file Republicans across the nation who worked EXTREMELY HARD and gave MUCHO BUCKS to get a 55-45 majority.
Kill the terrorists
Protect the borders
Punch the hippies -- Frank J
McCain has absolutely no qualms with stabbing conservatives in the back anytime he can get away with it. This was only a symptom of his diseased contempt of conservatives.
His interest is in being adored by the liberal press, not to conservatives. I think the gang of 14 was motivated deep down by that point more than it was as a constitutional point. The CFR bill proved that.
put gang of 14 aside, then add....
Comprehensive Immigration Reform
Campaign Finance Reform
Very Public Torture debate to undercut the president going into an election
Voting against Bush Tax Cuts (The senate transcripts show his using the "tax cuts for the rich" Democrat talking point, and not the spending point he is using now)
Now He Is Proposing Global Warm Carbon Gas Tax!
Should I research and come up with more?
You can excuse the Gang of 14, but you cannot possibly tell me that all these other things are just as noble and good hearted. You cannot convince me that with these other things he was trying to save conservatives from themselves.
The "I'll build the Da*ned wall" statement was the true John McCain slipping out. Wait till you see what else slips out after he gets nominated.
Why else is he already talking about not running for a second term? It is because once he is in office, he will totally pi*s off the base and he will lose the nomination a second time by a land slide and he knows it. He just wants his chance to do the things he believes in.
...but that is just my opinion, but something tells me that I am not wrong.
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public static void main(String[] args) {
System.out.println("An argument is a sequence of statements aimed at demonstrating the truth of an assertion.); }
Are we to believe that Lincoln Chafee and Snowe and Collins are the real guardians of the US Constitution, since they were part of the Gang of 14 deal?
The most obvious conclusion is the one we should accept: That a handful of mushy-moderate Republicans don't like the idea of putting judicial conservatives on the federal courts, especially if they have to take away a procedural tactic (the judicial filibuster) from their good Democrat Senate buddies.
On the other side of this are a large majority of Republican Senators who look at things this way:
When Republicans were in the Senate minority under Clinton (1993-1994), we didn't filiubster any of Clinton's judicial nominees. We didn't think it was appropriate.
When Democrats are in the Senate minority under Bush (2003-2004), they used the judicial filibuster on several occasions.
It seems very fair to remove the judicial filibuster from the minority so as to put both party's judicial nominees on equal footing, both requiring 50 votes to be confirmed.
Keeping the 60 vote filibuster would be fine with me, as long as the Republicans had the spine to actually use it themselves to keep major libs out of the courts.
However, we also know Senate Republicans don't have a spine to do that, and the Democrats do. So, it is a matter of compensating for Republican spinelessness.
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System.out.println("An argument is a sequence of statements aimed at demonstrating the truth of an assertion.); }
Gamecock, you argument would make sense if the Republicans had filibustered Clinton's judicial nominees.
Put it this way, in some sense, it doesn't matter whether a judicial nominee need 50 votes or 60 votes, as long as the rule is the same regardless of which party occupies the White House and which party has the majority in the Senate.
But Republicans not only didn't filibuster Clinton's judicial nominees, many Republicans (including John McCain) voted for Clinton's judicial nominees.
A Republican like John McCain is obligated, in my opinion, to do one of two things:
(a) Filibuster every one of Clinton's judicial nominees who is not a judicial conservative.
(b) Support the Byrd option and eliminate the ability of 41 out of 100 US Senators to defeat a judicial nomination.
McCain is trying to have it both ways.
If McCain is ever asked about his vote to confirm ACLU General Council Ruth Bader Ginsberg, he could very reasonably say that a US Senator should defer to the president on judicial nominations absent a serious ethical problem.
But when President Bush nominates a judicial conservative and Democrats do not apply the "defer to the president on judicial nominations" formula and use a procuedure where 41 out of 100 Senators can defeat a judicial nominee, McCain's response is not to remove the availability of that procedure (denying 60 votes for cloture) but to side with those who are applying a higher standard than was applied to liberal nominations.
Clearly, this is a standard that will result in liberal judicial nominees getting confirmed and conservative nominees getting denied even an up or down vote. This is what happened to nominee Miguel Estrada.
My opinion is that requiring 60 votes to get a nominee confirmed is a bad idea.
But even if I thought that a 60 vote threshold were superior, we should first put that 60 vote threshold into the US Constitution before bowing down and worshiping it.
If a procedural hurdle creates a circumstances where liberal judicial nominees get on the federal courts and conservative judicial nominees like Miguel Estrada do not, it's time to remove that procedural hurdle.
McCain simply played into the hands of the Left on an extremely important issue. For him to say that he will, as president appoint judicial conservatives to the federal courts, after assisting the Democrats in blocking judicial conservatives as a US Senator doesn't seem like a promise we should believe to be truthful.
Because they were not qualified given their judicial philosophy that violated their oath.
This is a close call, ie the invoking of the Byrd option.
Mike Gamecock DeVine @ The Charlotte Observer
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was first to invoke the fillibuster on judicial nominations. It depends on the merits incl the consequences for the future.
Its a close call in my eyes, esp considering the parctical issue of the likely number of votes for it at the time.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
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game
But you missed on the real reason behind the Gang of 14. The extremists from both parties, Democrat and Republican were and are interested in packing the courts to achieve their goals through the power of the judiciary not in the legislature.
I'm thrilled with Roberts and Alito, both as Roberts call it "Honest Umpires", not participants in the game. I would not be happy to see ether a Far Left (just about anyone from the 9th Circuit) or a Roy Moore type justice nominated to sit in any court. In that regard, I tend to believe that the Gang of 14 were the real adults taking back the levers of government from the extremists of both parties.
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about what I "missed." I didn't miss anything about the gang but I'm sure I would miss you if I didn't get insulted from time to time.
Roy Moore and DeVine are non-extremist adults and legal scholars bar none.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
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"McCain and the Gang of 14
There’s no defending it.
By Andrew C. McCarthy & Mark R. Levin" at
http://article.nationalreview.com/?q=OTI2NzVjYzY5MGZkMDMzOWVkMjMyNzhlZjQ...
As Paul Weyrich wrote
http://www.gopusa.com/commentary/pweyrich/2005/pmw_05301.shtml
when memories of this evil were fresher:
"Constitutional Option: Gang of Fourteen Won the Battle, Not the War
By Paul M. Weyrich
May 30, 2005
I am not into spin. So I will do what I always try to do. I will tell you in a straight-forward manner. Seven Republican Senators well could be termed traitors to the cause of constitutional government. Seven Republican Senators affirmed the legitimacy of filibustering Presidential nominees to Federal Courts. Seven Republican Senators sold out their President, their Majority Leader and their country. Why? We know why NBC's favorite, Senator John McCain (R-AZ), did so. He and his longtime supporter, Senator Lindsey O. Graham (R-SC), and his buddy, Senator Mike DeWine (R-OH), could not bear to have Senate Majority Leader William H. (Bill) Frist (R-TN) regarded as a hero to the conservative movement. That is what would have happened if Senator Frist had delivered. Mind you, Senators Graham and DeWine both had pledged to support the constitutional option or what the other side calls the "nuclear option."
Unfortunately, Weyrich overestimated conservative and grassroots/evangelical memories:
"...The deal is anathema to grassroots conservatives, the kind of folks who would be elected delegates to the 2008 nominating convention. They will not forget it. Their anger, shock and disappointment and, in many cases, desire for pay back is too great to be forgotten, regardless of the intervening events in the next three years. That John McCain will not be supported by these activists is a weak and unrealistic statement. John McCain will be actively opposed by grassroots activists who worked heartily for passage of the constitutional option..."
The Senate's Web page has a lot of material on Senate Rule 22, well worth the read. It's a .gov site, so I am being a bit over the line with how much is being quoted, but we the people own this site and the material posted there.
http://www.senate.gov/artandhistory/history/minute/Cloture_Rule.htm
"March 8, 1917
Cloture Rule
Woodrow Wilson considered himself an expert on Congress—the subject of his 1884 doctoral dissertation. When he became president in 1913, he announced his plans to be a legislator-in-chief and requested that the President’s Room in the Capitol be made ready for his weekly consultations with committee chairmen. For a few months, Wilson kept to that plan. Soon, however, traditional legislative-executive branch antagonisms began to tarnish his optimism. After passing major tariff, trade, and banking legislation in the first two years of his administration, Congress slowed its pace.
.
.
.
On March 8, 1917, in a specially called session of the 65th Congress, the Senate agreed to a rule that essentially preserved its tradition of unlimited debate. The rule required a two-thirds majority to end debate and permitted each member to speak for an additional hour after that before voting on final passage. Over the next 46 years, the Senate managed to invoke cloture on only five occasions."
In my view, those that seek to overturn a long held Senate rule that has worked for a very long time need to be very clear about what the motives are behind this change and what the long term consequences of such actions are, especially when they are out of power in Washington.
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This made it a little more difficult to just be an annoyance.
______________________________
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
If you are talking about the current version of Senate Rule 22, it came into affect in 1975.
The fact of the matter is that the way the Senate operates can be changed by a majority vote. Former Senate Majority Leader Robert Byrd changed the way the Senate operated on several occasions.
The reason why the Republicans should have removed the judicial filibuster as an option for the Democrat minority is clear:
The Republicans, when in the Senate minority under Clinton (1993-1994), did not use the judicial filibuster agianst Clinton's judicial nominees.
In other words, if you get rid of the judicial filibuster you are simply creating a situation where conservative judicial nominees by a Republican president are given treatment similar to the treatment given by liberal judicial nominees made by a Democrat president.
If Republicans had filibustered Ruth Bader Ginsberg until her nomination had to be withdrawn, then it could look at Republican outrage against Democrat judicial filibusters as just more partisan blather.
But in fact the Democrats are using the rules to their maximum advantage and John McCain assisted them.
The "long held Senate rule" was already changed when the requirement dropped from two-thirds to three-fifths.
If a conservative like you or me is concerned about the direction of the federal courts, what should be his opinion about the way John McCain has handled his responsibilities as a US Senator on this issue?
I would be willing to give McCain a pass on his opposition to the nuclear option if he had been trying to filibuster many of Clinton's judicial nominees. McCain did say that one of the reasons why he opposed the nuclear option is because he wanted the option of filibustering a liberal nominee.
But are we to believe that none of Clinton's nominees were liberal activists? McCain was in the US Senate for the entire 8 years of the Clinton presidency and he didn't attempt a judicial filibuster.
If McCain had wanted the rules to be fair for both conservative and liberal nominees, he would have supported the nuclear option, which would have removed a procedural hurdle for conservative judicial nominees that did not exist for liberal judicial nominees.
Otherwise, it is very reasonable to conclude that McCain does not view the direction of the federal courts with any kind of concern that most conservatives have. If we are to look at McCain's record, we have to conclude that a conservative judicial nominee requires 60 votes while a liberal judicial nominee requires 50 votes (possibly including McCain's vote as in the case of Ruth Bader Ginsberg).
This discussion makes me look forward to another Clinton presidency so that I can watch and observe how diligently McCain and Graham filibuster Hillary Clinton's nominees to the federal courts.
Care to take bets on this?
I agree with gamecock. Initially I was so angry with McCain on this issue I started questioning whether I could support him anymore. Judges are my biggest thing after foreign policy and the military. The more I looked at it and researched it, however, the more I felt McCain had actually outgamed the Democrats. When Roberts and Alito happened later, I was then convinced that McCain had rolled the dice and won.
As far the Pres. Clinton nominees, I think the Reps. as a whole tried to bring sanity to the process. It was an attempt at a ceasefire on SCOTUS and other judicial appointments. Well that didn't happen, now there should be no quarter given on judicial nominees. I don't mind compromising on other issues, but this is not one of them.
If McCain wins the nomination and the presidency, the biggest problem he will have is he won't have a working majority in the Senate. I think he will nominate the most conservative judge he can get through, so that will depend on when the position becomes available and McCain's political power at that time. Gamesmanship may also be involved. He may have to offer a sacrifice or two before nominating his actual choice.
Sad, but the SCOTUS is not going to take a case that defines its own membership - especially if that involves telling another branch how to make its own rules.
What do Republican presidential candidates say when they are asking for Republican votes in the primaries (and in the general election)?
That if you elect them, they will nominate judges who will interpret the law, not legislate from the bench.
Here is the situation that John McCain and Linsday Graham left us with:
When Democrats win the White House and the US Senate, liberals get nominated for the federal court of appeals and confirmed. No filiubster. No Gang of 14 deals. No midnight debates over the fine points of Senate history.
When Republicans win the White House and the US Senate, conservative judicial nominees are told, "Sorry, we can't give you a vote on the floor of the Senate because we don't have the guts to tell the Democrats that they lost the election."
In the future, it's going to be hard to sell Republican voters on the idea that the Republican party is serious about moving the federal courts in a more conservative direction if a Republican president and a 55-45 seat Senate majority can't get up the guts to tell the Democrats, "Too bad. You lost. Better luck next time. For now, we will have votes on judicial nominees."
What do you say? Next time we will win the White House and 60 Senate seats?
Nonsense.
If the Gang of 14 was good means we need 60 GOP Senators in order to get conservatives on the federal court of appeals.
That's bad news for conservatives because the GOP has not had 60 US Senators in at least 60 years.
So, this means that the Gang of 14 deal will result in a liberal judiciary for the forseeable future, unless somehow you can convince Pat Leahy and Chuck Schumer to convert to judicial conservatism.
Hello? Anybody home?
McCain has demonstrated 2 impulses in his capacity as a US Senator.
(a) Defer to the president on judicial nominations. This explains why he voted to confirm Ruth Bader Ginsberg and Stephen Breyer, despite their liberalism on judicial philosophy.
(b) Oppose using the nuclear option to remove the capability of a Democrat Senate minority to prevent a Republican Senate majority and Republican president from confirming judicial conservatives like Miguel Estrada.
If all Republican US Senators took these 2 positions on judicial nominations, this is what would happen:
(1) Democrat presidents would be able to easily confirm liberal judicial nominees like former ACLU General Council Ruth Bader Ginsberg.
(2) Republican presidents would not be able to get conservative judicial nominees confirmed because a Democrat Senate minority could filibuster them and the Republicans would refuse to use the nuclear option. The "Miguel Estrada scenario" would happen over and over again until the Republican president nominated a Harry Blackmun.
The obvious response to this is "No way. Look at how John Roberts and Samuel Alito got confirmed."
To that I would respond this way: That is because the Democrats knew that most Republicans didn't subscribe to McCain's position on the nuclear option. The Democrats believed during the fight over Roberts and Alito that the possibility of the Republicans exercizing the nuclear option still existed if the Democrats had dared filibuster either Roberts or Alito.
So, rather than credit McCain, Graham and DeWine for cobbling together the Gang of 14 and getting Roberts and Alito confirmed, we should give credit to those Republicans who publicly stated that they still supported the nuclear option in the event of a Democrat filibuster (ironically, this group includes Graham and DeWine but not McCain).
The threat of the nuclear option has to be on the table or else 41 Democrats will defeat any Republican judicial nominee via filibuster unless that nominee is another Harry Blackmun.
I would argue that Roberts and Alito were not that divisive, in my opinion. They are not as much "in the mold of" Scalia and Thomas and Bork and several others. While that was less so with Alito, both he and Roberts were well enough within the "mainstream" to avoid more intense opposition from some Democrats.
You can read their records and this is clear from the beginning, plain and simple. I've predicted this from the beginning having gone over their testimony compared to plenty of other true originalists, a theory of interpretation they deny and have never supported or critiqued 14th Amendment due process overreaching, plain and simple.
Conservatives were duped by Bush, who wanted to overturn Roe about as much as his father and McCain. Anyone who thinks otherwise is fooling themselves out of bias of not wanting to be played for a fool as they were in the past.
You have to appoint someone with the exact ideology of Justice Thomas. To my knowledge there are 2 that meet that criteria, John Yoo a former clerk of his and Judge Janice Rogers Brown who is on the D.C. Circuit. You don't want them to just overturn Roe though, you have to go all the way back to Griswold v. Connecticut that puts an end to all forms of substantive due process.
If your not fully aware of the differences between Scalia and Thomas read some of Thomas's concurrences and dissents he's much farther to the right than Scalia is and thats saying a lot.
He wouldn't, however, support making abortion illegal from the bench. He'd hand it back to the states. He has also said that substantive due process is a contradiction in terms. I like Justice Thomas, but I prefer Scalia's approach.
Roe was overturned with Casey sub silentio, which makes things more muddled. Even if Roe's "reasoning" still held, you don't have to strike down any of the phony "rights" upon which a new phony "right" was "discovered." A judge need only lower the standard of review and/or find that the state's interest in protecting human life can trump the applicable substantive due process "rights." They could say the state does not have sufficient interest to violate all their other due process inventions. A judge could also do away with Harry Blackmun's unsupported assertion in Roe, assuming it still holds post-Casey, that the "right to privacy" is "broad enough" to include abortion. And of course, there are all sorts of blatant lies within the written opinion (like 'no consensus" on the beginning of life).
Realize it does not depend on the judge's Constitutional views but on his or her views of precedent. The latter is even MORE important.
Furthermore, I would add Edith Jones and Leon Holmes to your list of judges. I don't think we have enough to know what Brown or really any other sitting judge who isn't a known liberal would do.
I believe the court will never even grant cert in such a case. If you want Roe "overturned," you have to overturn Casey first or fill one of O'Connor's conditions she put in there for overruling. One of those included a refusal to enforce the ruling, something no state has bothered to attempt. THAT will be the ONLY way to get any change.
Don't forget also that some judges like Ginsburg who find Roe in error "find" a "right" to abort in the equal protection clause. Then some find in the ninth amendment. But those are usually only the views of known liberals in the first place.
I agree with you in part. Both Roberts and Alito had expressed their desire to see Roe overruled before Casey. Unfortunately, Casey "overruled" Roe instead. And, like Rudy, Roberts and Alito are probably more supportive of Casey and O'Connor's opinion in it.
It's certainly not a matter of how they interpret the Constitution. That is no longer as crucial an issue since nearly EVERYONE agrees that Roe was legally improper. What matters FAR MORE is the judge's views on precedent. That is where the problem comes in with Roberts and Alito.
What is most likely, and what people often skip over, is that cert will not be granted in such a case. Alito and Roberts and anyone else will be covered. They can keep the ruling in place without letting anyone know about it.
Even so, the states could follow O'Connor's opinion in Casey to have it overruled by "dooming" the enforcement of the ruling. It's that simple, and it's the only way it will EVER be granted cert, much less overruled.
We usually just need a simple majority to get a Republican committee chair and majority leader and enough Democrats willing to toe the party line elsewhere in the Senate.
if same is necessary, it would be nonsense.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
I refuse to believe that McCain in any way either helped or harmed the situation.
I honestly don't think this whole ordeal made a lick of difference one way or the other. Even if it did, it was only with a small number of lower court nominees who would likely have not made any significant impact on any important cases. I KNOW it made no difference regarding Alito and Roberts. Those two were not even comparable to Thomas or Bork.
For the most part, I think those who were not confirmed would not have been confirmed anyway. Those who were would. Such divisive nominees would have been few in number and of little public impact in the judicial system.
I will add that I disagree with the notion, in theory, that filibusters give the "minority" a say. If that were the case, we would have to require a majority (or some threshhold) from both parties. It may have worked in George Washington's vision before there was a formal two-party system, but the whole political and legal process is controlled by parties.
The best solution, I believe, would have been for Congress to stop its recognition or division of political parties. We should not have majority/minority leaders, committee chairs, or other divided positions in Congress. Leaders, speakers, committee chairs, whips, etc. should be selected by all members regardless of party. No position should be limited to people within a certain party. Likewise, none should only be selected by people within a certain party.
It seems to me that the reason the Democrats *had* to filibuster Bush's judges is that they were surely going to be confirmed.
And by that standard, anyone who opposes Roe is divisive and would be barred by McCain and his kind. I'm not comfortable with that.
I think in most cases, the filibuster would have just ENSURED the nominee would be voted down. I think the Democrats just wanted to be sure they had all their bases covered. As I said, it may have made a difference in rejecting a few people. But what are the chances these very few individuals, on the lower courts, would have made any significant difference on any significant issues.
A nominee who came out expressing opposition to Roe and Casey would not be divisive except for show; he or she would not have gotten even a simple majority, even in the 109th Congress! That simple majority will never exist in our lifetimes. In the Senate, there are and were far too many more Republicans who favor Roe and Casey than there are or were Democrats who oppose them.
"And by that standard, anyone who opposes Roe is divisive and would be barred by McCain and his kind. I'm not comfortable with that."
And that, Neil, encapsulates my inability to support him. Judges are the cornerstone of all the legs of the conservative stool and, thus, the one area I just hold my nose on.
"All that need be done for evil to triumph is for good men to do nothing."
Ok isn't that awkward though ?
______________________________
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
...if that's what I had meant to say. Kinda left out the word "not" before "hold" (not to mention I lost the thread) That's what I get for trying to post whilst watching the Packer game :-)
"All that need be done for evil to triumph is for good men to do nothing."
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
What seems not to be getting much play in this thread is that when you monkey around with the relative powers of majorities and minorities, the political cycle will always eventually come back and bite you in the butt. If the Republicans weakened the powers available to the Senate minority, we would have to deal with those consequences, and not only on judges if a Dem wins this election.
By so recently and controversially setting such a precedent, we would have risked giving the Democrats excuses to manipulate the rules to ram things through on all kinds of topic using the same method. The nuclear option works without a constitutional argument. They just need to make the case to the people. The chair ruling out of accordance with the rules and being upheld by a majority It is a well-known flaw in standard parliamentary procedure.
We do not want to destroy the recourse of a Senate minority, because sometimes that minority will be us. The rules changes we should want are ones inherently more beneficial to us. The president trying to increase his war powers through precedent is a great example. These war powers will only help hawkish presidents, but be useless to doves, In such a fashion, the rules evolve to benefit hawks. That is the kind of rule change we want, not that nuclear waste.
and other nominees subject to advice and consent.
Please don't misconstrue it.
______________________________
"Those who expect to reap the blessings of freedom must, like men, undergo the fatigue of supporting it."
-Thomas Paine: The American Crisis, No. 4, 1777
The Nuclear option would be GOOD in the long run.
The Republicans didn't filibuster any of Clinton's judicial nominees.
The Democrats made filibusters of Bush's judicial nominees routine.
The nuclear option would mean that Presidential elections and Senate elections matter.
Currently, here's the situation:
When Democrats win the US Senate majority and the White House, liberal nominees get confirmed.
When Republicans win teh US Senate majority and the White House, conservative nominees like Miguel Estrada get filibustered and eventually withdraw and develop a lucrative law practice.
Sound like fair rules to you? Your name must be John McCain.
The filibuster is overrated in any case.
The filibuster (rule 22) doesn't even apply to tax increases made part of a budget reconciliation. That's why Vice President Al Gore's tie-breaking vote put the Clinton tax increase over the top into law.
Also, it's much easier to get 60 votes in support of increasing the amount of free-bees people get than it is to get 60 votes in favor of raising the age of eligibility for Social Security or for drilling in ANWR.
If it were up to me, I'd change Rule 22 to a 51 vote requirement. In 1975 the Senate changed Rule 22 so that instead of requiring two-thirds of all Senators present and voting the rule became three-fifths of all Senators chosen and sworn.
I would just change that to 51 Senators in support of cloture and no more than 49 Senator opposed to cloture.
If we really want the 60 vote rule to be part of our constitution, let's put it there. The framers of our constitution never wrote 3/5ths into the Constitution except with respect to "persons in service of labor" (slavery).
Can you imagine all the different laws and versions of laws and repealing of laws that would happen if that were the case. We'd have a yo-yo effect of federal laws, and no one would know what the law was.
I think the 60-vote requirement is at best a means to keep laws from being enacted and repealed on a whim every couple of years. There ought to be some limit to the quantity of federal legislation passed, especially when there are contradictions with other laws.
Of course for those whose desire is to keep a check on the majority, then the laws need to require some specified quantity of bipartisan support.
The Republicans would only use it on judges, but they would provide cover for the Democrats to bypass a filibuster with a similar type of power grab on some other matter.
In fact, it could even lead to a chain reaction that significantly breaks down the gridlock built into the system and creates faster change and rapid reversals as parties change control, something that we should not want to see.
Additionally, while Republicans in the Senate did not filibuster any of Clinton's judges they could have, and they can start doing it in the future if they wanted. Your talk of double standards are about Republican decisions, not rules.
All it takes is a few double standard Republians like McCain.
People like McCain "defer to the president" when Clinton is the president. But when Bush is the president McCain comes out in favor of the majesty of the minority veto over judicial nominations.
All it takes is a few like McCain and we are on our way towards a more liberal federal court every decade, as liberal nominees get confirmed (with the assistance of John McCain) and conservatives like Miguel Estrada get filibustered and withdraw (as McCain announces his opposition to the nuclear option as a remedy to judicial filibusters).
See how the game works?
Even if I thought the results were OK (and I'm not convinced), I can't think of any circumstances where I would pat a guy on a back and congratulate him on a job well done on his excellent power grab. The gang was just a cartel, and like all cartels, the purpose is to concentrate power in the hands of the people who are in the cartel at the expense of those who are not. There's nothing praiseworthy about the gang, whether you think it worked in our favor or not.
---
Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
The gang of 14 deal also gave us insight into how McCain sets his priorities.
A conservative who views the leftward drift of the federal courts as a serious problem would look at the Democrats' judicial filiubsters as a problem to be solved, at the very minimum by threatening to vote for the nuclear option.
To be fair to Lindsay Graham and Michael DeWine, they both announced that they would vote for the nuclear option if the Democrats filibustered Roberts or Alito.
McCain, however, announced that he would not vote for the nuclear option. No ifs, ands or butts. He just wrote the Democrats a blank check and said, "Go ahead and filibuster as many conservative nominees as you want."
The reason why Roberts and Alito got confirmed is that the Democrats suspect that there might not be 6 John McCains in the US Senate and that a critical block of Republican Senators might fit more in the Lindsay Graham/Michael DeWine camp: Reluctant to vote for the nuclear option, but willing to do so if a highly qualified judicial nominee were filibustered.
with no benefit. R&A would have been confirmed without G14.
G14 is nothing more than McCain sticking his finger in GWB's eye & GWB letting him get away with it.
____
CongressCritter™: Never have so few felt like they were owed so much by so many for so little.
After almost a year this is the first time I disagree.
POTUS has the right to appoint judges and there is NO WAY the senate should infringe on that power by requiring a super majority.
Advise and consent does not = super majority
Not that it's any of my business but I hope this isn't the fisrt of your support for McCain. Say it ain't so bro.
it was a close call to me. Not enough qualifiers? How 'bout this one:
I could be wrong!
I am going to study about 30 more pages tonight. But if Frist didn't even have the 50 votes, then McCain was right.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
GC,
That's letting McCain off the hook waaaaaay too easy. Remember, McCain was one of those 55 Republican Senators. McCain could have been one of those 50 votes if he had wanted to sign up.
So, to say, "McCain saved the day with this Gang of 14 thing. After all, we didn't have 50 votes," you have to step back and ask, "Is McCain part of the reason why we didn't have 50 votes?"
Also, even if we didn't have 50 votes, how about putting Republicans on record? How about getting it out in the open and letting everyone know who really supports conservative judicial nominations and who does not?
The way it is now, McCain can blow smoke in our faces and say, "Yep. I support conservative judicial nominations," while assisting Democrats on the procedural issue of whether a conservative judicial nominee will even get a vote.
for the Dems' jugular diring confirmation hearings and educate the public on the issue while the cameras are on the Dems live when it makes it harder for the MSM to edit them. Live Dems on TV talking is the best vote getter for the GOP ploy their is.
Two, I was so thrilled to get Pryor, Brown and Owen, given that they are so Scalia-Thomas-like, that the details at the time didn't matter as much.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
And that's why I can not support a Republican presidential candidate who opposed the nuclear option as McCain did.
Even if Republicans were to be more controntational than they have been in the past, that wouldn't necessarily mean filibustering Democrat judicial nominees. In the case of Ruth Ginsberg and Stephen Breyer, Republicans not only didn't filibuster, they voted for them.
The Democrats aren't going to help us out on the federal courts.
If Democrats sense that Republicans don't have the self-confidence to take their victories and use them to get their judicial agenda passed, the Democrats will take advantage of that. That's why the Gang of 14 happened after Majority Leader Frist threatened the nuclear option.
The Democrats used the filibuster effectively in the 2003-2004 time period to kill the Estrada nomination (and also for the time, the nominations of Owen, Brown and Pryor).
Why did the Democrats let these guys have a vote in the 2005-2006 Congress and not in the previous one?
Republicans gained 4 seats. A 51-49 seat majority became a 55-45 seat majority. This made the nuclear option more credible because we could afford to have up to 5 turncoats like McCain and still win.
by eliminating the filibuster, which we might need in the future. I agree that we were wrong to eschew it in the 90s. Doesn't mean we can't in the future.
But, like I said, its a close call to me. You raise good points and have some things to read on your side that could sway me back to your side.
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
George Will's opinion notwithstanding, judicial filibusters and the incorporation of undue influence into the judicial confirmation process by the Second Branch, as evidenced by the Gang of 14, are unconstitutional.
Article II, Section 2, Clause 2
Records of the Federal Convention
[2:80; Madison, 21 July 1787]
The motion made by Mr. Madison July 18. & then postponed, "that the Judges shd. be nominated by the Executive & such nominations become appointments unless disagreed to by 2/3 of the 2d. branch of the Legislature," was now resumed.
Mr. Madison stated as his reasons for the motion. 1 that it secured the responsibility of the Executive who would in general be more capable & likely to select fit characters than the Legislature, or even the 2d. b. of it, who might hide their selfish motives under the number concerned in the appointment- 2 that in case of any flagrant partiality or error, in the nomination, it might be fairly presumed that 2/3 of the 2d. branch would join in putting a negative on it. 3. that as the 2d. b. was very differently constituted when the appointment of the Judges was formerly referred to it, and was now to be composed of equal votes from all the States, the principle of compromise which had prevailed in other instances required in this that their shd. be a concurrence of two authorities, in one of which the people, in the other the states, should be represented. The Executive Magistrate wd be considered as a national officer, acting for and equally sympathising with every part of the U. States. If the 2d. branch alone should have this power, the Judges might be appointed by a minority of the people, tho' by a majority, of the States, which could not be justified on any principle as their proceedings were to relate to the people, rather than to the States: and as it would moreover throw the appointments entirely into the hands of ye Nthern States, a perpetual ground of jealousy & discontent would be furnished to the Southern States.
[Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.]
(emphasis added)
Although the motion failed its initial committee vote (Ayes-3, Noes-6), the foundation had been laid. Madison lobbied against and succesfully defeated the proposition to allow for the election of Judges by the Legislature and the proposition to allow for the appointment of Judges by the Second Branch.
"But in whom does this right inhere? The nominees? The president?"
Mr. Will, the inherent constitutional right in question (an up-or-down-vote on judicial nominees) belongs to the Executive.
As further evidenced by the final language of Article II, Section 2, Clause 2:
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.
(emphasis added)
Note:
In his letter to the Senate committee, George Washington said this about Advice and Consent:
George Washington to Senate Committee on Treaties and Nominations
10 Aug. 1789The President has the "power by and with the advice and consent of the Senate, to make treaties and to appoint Officers."
The Senate when these powers are exercised, is evidently a Council only to the President, however [necessary] its concurrence may be to his Acts.
[The Writings of George Washington from the Original Manuscript Sources, 1745--1799. Edited by John C. Fitzpatrick. 39 vols. Washington, D.C.: Government Printing Office, 1931--44]
(emphasis added)
***
“Well, the trouble with our liberal friends is not that they are ignorant, but that they know so much that isn't so.” – Ronald Reagan
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
Here's a clean way of judging the success of the Gang of 14 deal:
How many appeals court nominees were confirmed during the 2005-2006 time period?
Compare that to how many appeals court nominees were confirmed during the 1993-1994 time period.
In 2005-2006, Republicans held 55 Senate seats and the White House.
In 1993-1994, Democrats held 56 or 57 seats and the White House.
If the Gang of 14 deal was successful, we should expect that these confirmation numbers were very similar.
Anyone has some numbers on this?
Conceding that what you say is right about the nuclear option, etc. Let's suppose McCain does support a strict constructing judiciary. Well then - where was his opposition to the extreme Clinton appointees? Exactly there was none. Now for the Republicans not in Go14 - they can make the claim that they believe the standard is to defer to the POTUSA unless there is an extreme case, otherwise normal voting procedure should follow. But for the Go14 guys they are basically saying "no no no - filibustering is perfectly fine, and we should work out political solutions within the senate." Now if McCain believed that - then he should have been forcing the Dems to find compromise positions on the Clinton appointees. This leads me to the conclusion that the Go14 was completely self serving AND/OR that McCain just doesn't value a restrained judiciary. The problem here is a R POTUSA going against a Dem Senate - who doesn't really believe strict construing judiciary is worth fighting for, will send compromised candidates for the courts, fearing a fight.
Additionally this shows poor understanding of tactics, the Republicans most likely could have gotten a better deal, by forcing the Dems to negotiate en bloc on specific judges. By removing the option to change the filibuster rule, it removed leverage on Dems, that could have been excercised case by case.
Finally as a political move it was McCain elevating himself and his ambitions over the good of the party - part of the 2006 disaster was judge induced depression amongst the base.
Sorry I don't buy it, Go14 was about McCain's need to be loved by the NYT and stick his finger in the GOP's eyes. Thanks Senator Coriolanus. And McCain the nominee WILL be touting Go14 as a "bipartisan success" even if primary McCain isn't. Making base turn out a problem.
McCain votes for Ruth Bader Ginsberg and Stephen Breyer when Clinton is president. That would be acceptable if McCain supported the nuclear option when the Democrats began filibustering Bush's nominees. It would mean that judicial nominees from both Democrat and Republican presidents would be treated similarly.
When Democrats filibuster Bush's nominees, Republicans threaten the nuclear option. McCain announces that he will vote with the Democrats on the nuclear option so that the minority Democrats will be able to defeat Bush's judicial nominees with only 41 Senators out of 100 (and Democrats had at the time only 45).
McCain's position here would be acceptable if McCain had been filibustering all of Clinton's leftish activist nominees for the courts. But McCain didn't filibuster a single Clinton judicial nominee.
Today, McCain supporters say that McCain will, as president, nominate people like Scalia and Thomas to the US Supreme Court. Why should we believe that when his Senate record is one of apathy in the face of Leftish efforts to move the federal courts to the Left?
You have it exactly right.
The more I learn about the "nuclear option", the less I like it.
Thanks for this--that "Gang of 14" meme does not add anything to people's arguments against McCain; in fact, it detracts from it. It makes McCain's opponents look intellectually dishonest and simply contrary for the purpose of being contrary.
---
Beth
wrong while he and the 13th ganged up on Frist, even if he was barely right on substance!
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
I question that. But let me point out that it did NOT give us Roberts and Alito. It got us a stealth candidate who we had NO FIRM ASSURANCE could not be another Souter. And it got us Harriet Miers. WE -- the conservative base -- got us Alito.
If Bush were so confident that G14 would deliver, he would have led off with a bona fide, known Constitution-loving judge like Alito (or any of a number of others like Edith Jones, Luttig, Garza, or Alito). It is a blessing from God that Roberts has turned out to be what we hoped (and then some). He ran Harriet out there too, in large part because she had no serious conservative record for the Dems to oppose, and he was personally convinced that she'd be "our" kind of justice.
And aside from that, G14 took the air out of the entire conservative movement. McCain fronting it just added to his reputation for shivving GOP Leadership, President Bush, and conservatives, while giving himself yet another chance to grandstand before the media as a powerful arbiter and a 'maverick' (while the same media call Leibermann a traitor and the party runs a primary opponent against him).
I will never bend on this. Not one bit.
Kill the terrorists
Protect the borders
Punch the hippies -- Frank J
Don't be so sure about Roberts and Alito just yet, as discussed earlier in here. And certainly pro-life supporters should be glad Luttig was not only not chosen but is now out of the judiciary.
Shumer and Kennedy are going to TELL their "good friend" Johnny who is acceptable to sit on the court and Johnny will concur. End of story!
Mike Gamecock DeVine @ The Charlotte Observer
http://thehinzsightreport.com
www.theminorityreportblog.com
www.race42008.com
www.fred08.com
Enacting the constitutional option would have given Frist a huge victory, and a foundation for a presidential campaign. McCain knew it and worked feverishly to destroy its chances.
I will happily vote for McCain if he's the nominee, but let's not invest his actions with some concern about judicial integrity. He wanted to nail Frist and couldn't care less if many good, decent individuals who had been nominated for judgeships went down.
McCain has many strengths, but he's also incredibly arrogant and narcissistic.
Do you really believe that Bill Frist --- a heckuva nice guy, but a heckuva weak leader -- would have succeeded in enacting the Constitutional Option if John McCain hadn't been there? Really? That's some amazing revisionist history there.
By the way, now that we're in the minority in the Senate and facing a potential Democrat president, isn't the whole not-doing-away-with-the-filibuster thing looking a bit smarter to you?
It should be.
Say what you want about both guys, but Frist had me missing Lott.
... that the Democrats would hesitate to fire the nuclear option themselves if Republicans were to muster the guts to actually do more than nervously frown at a judicial nominee from a President Clinton.
And what I'm a 100% sure of is that John McCain is going to vote for that nominee.
And I'm shocked that anybody actually gives the Republicans (that they would actually try to filibuster a nominee) OR the Democrats (that they wouldn't simply trigger the BYRD option and be done with it) that much credit.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
They'll stand around for maybe an entire day or two before they use the option and the whole thing becomes a moot point. We stood around for YEARS talking about maybe doing it if they don't play nice (when they hadn't been playing nice the entire time).
Anyway, in the end, their rhetoric wasn't any good anyway and it certainly didn't win them anything. Most of it was focused on lying about the glorious tradition of filibustering nominees or about how the Republicans wanted to eliminate the filibuster for legislation. We don't need to borrow that kind of rhetoric.
It won't even come down to that, though, because I expect any Democrat nominee to continue to get the 90+ votes in their favor. We don't play by the same rules as the Democrats.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
The original point Jeff was making was that we'd be thrilled that the filibuster of judicial nominees was left in tact if we ended up with a President Obama. There won't be anything to be thrilled about. We won't use it. If we did the Democrats wouldn't let us, anyway.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
Republicans would ever use a filibuster on a SCOTUS nominee. Remember that Breyer and Ginsburg drew a combined total of 12 "nay" votes. This particular weapon is exclusively used by Democrats, and we should have disarmed it.
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The Red Sox Republican: Burkeanism, Baseball, and Sundries.
McCain was in the middle of an issue he had NEVER taken an interest in. All of a sudden he's up to his eyeballs. And he's never been heard from again on this topic (at least till the primaries).
Lindsay Grahma until the Gang of 14 had been a huge critic of the Democrats for their stalling. And he turned on a dime. If you don't think he was doing McCain's bidding, I think you're neglecting Graham's desire to be AG in a McCain administration.
I'm not saying that Frist would have succeeded. He was an atrocious strategist. But he was close enough and he was planning to run for president in 2008. And it would have been his major accomplishment. And the people reputed to be nervous about this were folks like Stevens and several of the other big porkers who feared a breakdown of "comity" (read log-rolling). So along comes McCain and saves the day for the appropriators? McCain didn't do it for "comity".
And his treatment BTW of Haynes' nomination was also atrocious.
As I said, I'll support McCain happily if he wins the nomination, but his role in this debacle had nothing to do with the greater good.
I have written many comments critical of John McCain. Gang of 14 has never been one of my criticisms. It doesn't take a rocket scientist to figure out that there will likely be a time in the next twenty years (maybe as soon as 1 year) when a Democratic president will have a Democratic senate. We may want our Republican friends in the Senate to block a few judicial nominees in that instance.
I also give McCain full marks for his foresight in his evaluation of Iraq.
That's all I've got to say about that.
There are other objections to McCain's candidacy with more evidence behind them. This one is too close to call. There are strong conservatives on both sides, and there is evidence for both.
And thanks for the lengthy and, above all, fair discussion. It's nice to see someone take both sides seriously, whatever the subject.
W.C. Fields for President!
www.shortenurl.com/7cxfm