Eating Crow, and making up for it
I'll be serving myself a heaping helping of crow before somebody points out my gaffe from yesterday, when I said:
The Senate Democrats are using powers granted to them in the Constitution. Last time I checked, if our representatives work within the bounds of the Constitution, then their actions are not wrong. Maybe the Republicans and CNN should retake their high school civics class before they speak of this topic again.
I may need to take a Civics class again, too. But this issue isn't as cut and dry as I originally thought it was.
When I said the Senate Democrats were using "powers granted to them in the Constitution", I was referring to their filibuster (which is continuing, since the Republicans could only muster 53 votes against it.) Last night I took a look at the Constitution and I could not find the word "filibuster" anywhere in the text. That doesn't mean that members of the Senate don't have a right to filibuster, which a Republican Senator from West Virginia whose name escapes me tried inciting when I heard his speech on C-Span last night. Filibustering, and how to stop it, is appearently a slippery slope, and the Republicans are trying to change the rules so that a filibuster can be killed with less than 60 votes. They are claiming that since filibustering is not in the Constitution, but the Constitution mandates that the Senate approve or reject judicial nominees from the President, it is unconstitutional for those nominees to not receive a vote.
Taking filibuster out of the picture for a moment, this is an interesting argument. I'm not an expert on the Constitution, but I'm taking a look at it again and here's what I found in Article 2, Section 2, Paragraph 2: "He [the President] shall have Power, by and with the Advice and Consent of the Senate ... and he shall nominate, and by and with the Advice and Consent of the Senate ... Judges of the supreme Court ..."
With Advice and Consent. Hmm.. So, unless I'm (again) missing something huge here, what exactly is the problem with the Democrats filibuster? They are using Senate procedures to provide their advice and consent (in this case lack thereof) to the President on his judicial nominations. I see nothing in the Constitution mandating a vote, only advice and consent. The Constitution does not mention any procedures different from what the Senate already uses in the case of judicial nominations. If any party is being unconstitutional in this mess, it is the executive branch which is not dating the "advice" of the Senate that it is mandated to take.
Back to filibustering. Here's what the History of the Senate has to say on the topic of "Filibuster and Cloture":
In the early years of Congress, representatives as well as senators could use the filibuster technique. As the House grew in numbers, however, it was necessary to revise House rules to limit debate. In the smaller Senate, unlimited debate continued since senators believed any member should have the right to speak as long as necessary.
In 1841, when the Democratic minority hoped to block a bank bill promoted by Henry Clay, Clay threatened to change Senate rules to allow the majority to close debate. Thomas Hart Benton angrily rebuked his colleague, accusing Clay of trying to stifle the Senate's right to unlimited debate. Unlimited debate remained in place in the Senate until 1917. At that time, at the suggestion of President Woodrow Wilson, the Senate adopted a rule (Rule 22) that allowed the Senate to end a debate with a two-thirds majority vote -- a tactic known as "cloture."
The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.
There you go. Filibustering, which has been practiced by both parties, is well within the rules of debate in the Senate. The safeguard against excessive filibustering is "cloture", which the Republicans have failed to meet.
The rules of cloture have been changed before. Can they be changed again? Yes, they can be. I don't know if that's going to be a strong issue, though.
The Republicans could attempt to change the rules of cloture for judicial nominations only, keeping filibustering/unlimited debate rules intact for all other Senate activities. Judicial Watch sides with the GOP on this matter, and they are taking the case to court. Given what the Constitution says, though, I think the Republicans are wrong. But I'm not a lawyer and I do not know what previous decisions, if any, have been made on this matter.
In conclusion, I'd like to note that I tried to be as objective as possible with this post. If the Republicans think it's unconstitutional for four Bush nominees to not receive an up or down vote, what do they think about the fifty-five Clinton judicial nominees that never received a vote, who were never even filibustered. They were simply held up by one Republican committee head who refused to bring a vote for their approval to the Senate floor. (If memory serves me correct, it was Orrin Hatch who was the head of the Senate Judicial Committee when Clinton was President, and he held up the votes on Clinton nominations.)
The Republicans think the Democrats current filibuster is unconstitutional, but they are being highly hypocritical by not thinking their actions during the Clinton era, which were far more extreme, are not somehow considered unconstitutional by their very own ideology. Senate Democrats have also made great points questioning why the hell Republicans are dragging them through an almost 40 hour session to question the nominations of four judges when they have already approved 168 of Bush's 172 nominees. This isn't addressed by the Republicans. Senate Democrats have also mentioned that they should be debating about other issues, like how come we don't have a budget, what's happening with our energy policy, and correct me if I'm wrong but I think I heard something about Iraq. Still, the GOP won't budge.
In my opinion, all I have to say is.. What a bunch of little fucking crybabies. We need to send the GOP senator's mothers onto the Senate floor, all welding large wooden spoons to discipline them with. Maybe the mothers can wash their mouths out with soap and change their diapers while they are around. I mean, honest to god, all this over 4 stalled judicial nominations? Have I stepped into an alternate reality dictating that this issue is so important that it should take precedence over all other issues facing the nation. Jesus. Earth to GOP: Shut the fuck up and pick some less extremist nominees to goto the federal bench. The problem isn't the Democrats, it's you.