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May 18, 2005



You know, they call the thing the president carries around, with the big red nuclear strike button, the football. There is another way that this nuclear option thing makes me think of football. It’s kind of like a game of football. In the first half of the game (during the Clinton tenure) the Democrats were trying to score by getting an up or down vote for all of Clinton’s nominees, and I guess some were even talking about ending the filibuster. The Republicans weren’t using the filibuster so much since they had control of congress they just refused to call a vote. Now, after Half Time, the teams have switched sides on the field. Republicans are calling for an up or down vote and an end to the filibuster, and the Democrats are holding up the votes. The hypocrisy on both sides is startling, and it really makes me question those who think their side can do no wrong and the other side is never right.
The Democrat’s threat of obstruction if the nuclear option is used is another classic Democrat ‘circle the firing squad’ ham-handed tactic. The last thing the country wants or needs is a congress that is paralyzed by a grudge (well some might want it but it could be messy). I guess now the Democrats have tempered that position (reinforcing their flip floppiness). How do I feel about the minority right to block judicial nominees? Stay tuned and find out…


Where do I stand on the ‘nuclear option’? Well it depends on who’s in the White House, no really, I am no buff on Senate rules and procedures, but since federal judge positions are lifetime appointments, I think it’s important that they enjoy at least 60% support. I also find it strange that it takes a 2/3 majority to change a senate rule but only a 51% majority to declare a rule unconstitutional. If you look at how many of Bush’s nominees have been confirmed, I think it suggests that the system is working. There are way more judicial vacancies because Bush simply has not nominated anyone for them than vacancies due to filibuster threats. Any talk about a judicial crisis is hogwash until Bush steps up and nominates a candidate for each of the vacancies.


They are debating this right now. (CSPAN2)

I don't think it's wrong for Reid to promise that the Senate will cease operating... fact is, if the majority thinks it can trammel the minority, it has to be shown that's not the case in a democracy, the minority does have some power, the US government is not the Superbowl where at the end you either get the ring or don't, it doesn't end, it goes on, and people are elected to represent their constituent, GASP!, even if they don't have more buddies elected than the other buddy club.

As for the ruling taking 51%... it is weird, on the one hand it's just a different kind of vote, to overturn the ruling of the presiding officer... but it is funny that it takes more than 1/3 to object to such a ruling, but I suspect there might be other cases where it would be silly to allow just 1/3 overrule the chair.

The system cannot be perfect in that regard, is my view. When you give someone a concealed weapon permit, that doesn't mean they can just shoot anyone. Just because an officer has discretion to make a ruling doesn't mean they can make any ruling at all, they are trusted to apply the criteria defined by constitution and so on.

Hatch is no arguing it's perfectly ordinary to do this...


I wonder, does anyone really feel that any of these senators really BELIEVE that the judicial nomination filibuster is unconstitutional, and that the US Senate has been practicing outside the constitution for 200 years?
There is an interesting snipped about this on talkingpointsmemo.com The gist of it is that, if the Republicans really believe the reasoning they put forward which is that all judicial nominees deserve an up or down vote, that would mean that the whole conference committee process is likely unconstitutional too. Having a nominee never get out of the committee (a practice commonly used by Republicans during the Clinton Admin.) is unconstitutional, and never scheduling a vote for a nominee (another Republican tactic) is also unconstitutional. Sure it’s hypocrisy, but does anyone think that these Republicans really believe these things are unconstitutional, or is it simply a way to get around the rules and get their way?


The only debate I think is about if it's legit to use this maneuver... after all, parlimentary maneuvers are a part of parlimentary procedure... the debate is really about can the Senate force this more than if it's really constitutional.

Everyone has to admit both parties have used the filibuster to have some power when out of power.


Ok I could have these numbers wrong but 205 out of 215 judges have been accepted. That is 95% of them. I think of a few of these judges were pushed through comitte(Similar to John Bolotn but not exactly the same). Like the Boloton nomination I think this comes down to one side not wanting to comprimise and wanting to wield there power no matter what. Again like Bolton I think this is somewhat of a fight within the Republican party over the far right and near right. There is a lot of grumbling that if the nuclear option came to vote it might not pass. I am not saying this would be any different if it were the other way around. I think it probably would be.


they are debating it right now... Santorum talks like it's coming to a vote... he's saying he doesn't want to have to vote for this, but obviously he's planning to have the chance.


Setting aside the undoubted hypocrisy on both sides in this situation for a moment, I have a question.
I take it that by unconstitutional, the Republicans that are calling for a vote mean that the fillibuster goes against the constitution, correct? Okay this one is for those people who have read the constitution: is it?

Does it say anything about this situation in the constitution? Is it an interpretation or some effort to understand the spirit of the law?

I don't get how a vote will determine whether something is unconstitutional. You have a legal document: read it! See if it says anything about this. Get a group of lawyers on it and perhaps they can work out what it means in regard to the law.
I find it difficult to see how a legislative body can determine this based on opinion and political expediency (either way). To me it seems wrong.


well, I think it's wrong, and I think it should be 66% or 75% for cloture in the senate on the theory that every senator is an orator and debater and should be heard (I'd like 100% but have to admit it's not practical).

I've read the constitution but of course am not a lawyer or a judge and way down the looooong list for the Supreme Court, but:

The argument that it's unconstitutional is based on the idea that the President is supposed to pick the judges and the fillibuster is being said to interfere with that for judicial nominees.

It's pretty thin reasoning, the Senate's constitutional mission is to "advise and consent"... and use of Senate rules to prove consent (e.g. coming to enough of a conclusion to actually vote) are constitutional, the constitution indicates the Senate will make it's own rules, and it has.

The constitutionality is actually determined in this case by one person, the presiding officer, and the 50-50 vote would actually be over the objection to the ruling. That is, presiding officer rules, a Democrat will object, and then the 50-50 vote is on that objections. Strictly speaking only the presiding officer is making the judgement and the rest are voting on an objection to the rulling.

I think if it happens you will have a law suit, though I'm not sure how that works, who could bring it, etc, about the constitutionality of the rule.

Most parlimentarians would say, I think, that it's not a legitimate use of the rules, but strictly speaking it's allowed, it's an abuse of discretion, but the presiding officer does have the discretion to rule on the constitutionality of a rule.

If having a filibuster for judges IS constitutional (which I think it is), but it it's also constitutional to not allow filibuster for judges (which it probably also is, though it's not in the spirit of the Senate as defined in the constitution), then a law suit will not have any standing... because it is an internal Senate issue how it's chooses one of two approaches to deliberation if both are constitutional.


The constitutionality , the hypocricy talk, the posturing are all just smokescreens. The end game will be complete Republican (neo-conservative) control of our government. Here is how it will play out:

1. Cloiture will be done away with and only a simple majority will be needed for judges.

2. The Democrats will go into a 4 corners defense (since they don't get the ball they can't play offense)

3. The Republicans paint the Democrats as obstructionists to gain public support.

4. To keep the government running during a time of war so it will be necessary to eliminate cloiture and effectively the fillibuster for all Senate matters including legislation.

Imagine the legislative agenda if there were no minority rights whatsoever in either the House or Senate. Get ready for maelstrom of shit to come flying out of Washington.

If it was about judges they would havbe already cut a deal. The prize is a totalitarian government. Welcome to the home of the Freepers and land of the knaves.


Phew Chum,
I'm glad somebody else said that, cause I thought it was just my liberal paranoia.

If the Democrats were better at spinning this could actually look pretty bad for the Republicans as well. I think they are all asshats for even having this conversation. Give up 10 for the minority and save yourself a year and a half of frustration. Sounds like a good deal to me.

Ryan Somma

My libertarian side says keep the fillibuster. Anything to slow down our Government is a good thing. I would also like to see Robert Heinlein's idea of having a legistative branch whose only purpose is to stop legislation and can do this with a 1/3 vote.

The Republicans are expanding federal powers when their supposed to be the party of small government. I wish Conservatives would take issue with this.


Ryan, that is an interesting proposal. Perhaps another panel would be one that goes into the law books and flags old laws for eradication. I know that here in NC it is against the law to “shack up” I live with my girlfriend and am blissfully breaking the law every night in my bed. Lame old school laws like this need to go. I just found out about it after reading a news report about a woman who was fired from the sheriff’s department for living with her boyfriend. It also mentioned a certain judge who checks the status of witnesses and defendants to be sure they aren’t breaking the law by living with the one they love (but don’t have a legally binding contract with (marriage that is)).


If our Constitution wanted to require a supermajority for the advise and consent of judges, I would suggest that they would have outlined same, much like they did for international treaties.

To me, this is a purely and completely politically driven fight for the Courts. Period. Both sides have been willing to block judges, etc ... when the other was doing the nominating. However, the Dems filibuster of judges that would be otherwise confirmed is an escalation of the battle, make no mistake about it. Abe Fortas was filibustered by a bipartisan group, and it is highly doubtful that he would have been confirmed.

This idea that the sky is falling, the Senate will never be the same, seems to be pure hyperbole. The Senate rules in regards to filibusters have been changed a multitude of times in the past, none of which has destroyed the Senate. They do not have the ability to filibuster budget bills. They cannot filibuster conference committee reports. There are many other examples of times where the process has been changed, none of which destroyed the Senate. Heck, in Sen. George Mitchell's Senate, he proposed doing away with the filibuster altogether.

Both sides have block judicial nominees, and both sides have abused the process, to varying degrees. Sweetchuck, to a certain extent, I agree with your points about how the Republicans blocked some of the Clinton nominees. However, and this does not excuse their actions, that was done by the Majority party, and many of those actions were taken on judges appointed late in Clinton's second term, another common practice by both sides.

Kav, from my reading of the Constitution, it clearly lays out areas where supermajorities are required. In the case of advise and consent, it is not laid out, and from my experience, the silence on the issue makes it a majority vote.

Chum : I presume that you have a definition of neoconservative that now encompasses all Republicans? When did this term become such a misunderstood derogatory term? You are so right, the right just wishes for a totalitarian state. Screw the minorities. Could we paint in broader strokes ?


Compromise ?! These freaking "moderates" (read : glory hounds) drive me freaking batty! Let us see here ... the Dems argued before this "deal" that they were legitimately going to filibuster Owens, Brown, Pryor, etal. because they were extremists, and not fit to serve on the federal bench, their considered principled opinion. The Reps were going to pursue their considered principled position that these judges were sufficiently qualified, and the principle of a floor vote should be upheld.

This deal shows that which we already knew to be true. Neither side was in this for a principle, because if they truly felt their position was the principled one, they would not have compromised it awaw. Did Owen, Brown, and Pryor just suddenly become mainstream enough for the Dems? Is throwing Saad and Myers overboard a truly principled position for the Reps?

Additionally, is there anything binding about this? If Chuck Schumer decides that any conservative nominated to any position deserves a filibuster, since he was not a signatory to this agreement, what purpose will it serve? Is this left as a matter of conscience to the Democrats to determine what an extraordinary circumstance is? Where does this group of Senators get off trying to define, or rather, re-define, what the terms advise and consent mean? Where in the Constitution does it say that the President should run his selections by the Senate first?

What movie is the quote "moderation is masturbation" from ?



well we agree, I would have much rather seen this come to a head rather than hear about how it was unswervable principle last week but now the Republic itself has been saved.

For one... on the Democrat side is a blow to the filibuster, these 10 judges were already filibustered... now they will go through with Democrat consent.


But also, as you said, similarly from the conservative side.


I'm a cynic. I have idealistic moments but deep down I am a cynic. That said I find it difficult to believe that all republicans in the senate are acting as partisan hacks. It cannot all be about sticking it to the democrats over this issue surely?

Are the republicans all so convinced that they will hold power that they will happily dismantle minority rights in the senate? Are they that supremely confident that they will always be in control - for ever? At least until the USA ceases to exist? Can they really only be thinking in short terms?

It makes no sense to me and so I wonder whether the worry anf fear that the left is showing over this issue is perhaps exaggerated. And if I am starting to wonder about that then what does average joe in the US street think?

That said I still worry about a legislative body deciding on the turn of a single vote whether something is against the constitution. Regardless of the particular issue, it seems wrong to me that something like that could come down to partisan politics. Is this perhaps an indication of the failings of a two party system?


JD, while you were boning up on the history of filibusters the Republican party has been hijacked by a Cabal of idealogues who now have near complete control of the government.

The neo-cons control the Presidency (Bush), Vice Presidency (Cheney), the State Department (Rice), Homeland Security (Chertoff), Intelligence Czar (Negraponte) and the Pentagon (Rumsfeld). Supporters of neo-con idealogy one and all. They control the FBI, CIA and Justice Department thru the White House. They are also trying to get Bolton into the UN and already took over the World Bank by installing Wolfowitz as the head.

The House of Representatives is nothing more than a clearing house for White House (neo-con) legislation, much of which flies in the face of traditional Republican beliefs (small government, fiscal responsibility, championing the rule of law, upholding the traditional roles of government, among others).

Don't be mistaken that through Frist's designs on the Presidency that the neo-cons tried to seize the Senate by getting their agenda rubber stamped under the name of Republicanism.

You may agree with and embrace neo-conservatism. It strikes me how many of those who may be down with such policies find it to be denigrating to be labeled as such. The Republican Party of Ronald Reagan no longer exists, although the fringe elements of his adminstration have taken control, and near complete control I might add.

What you saw last night were 14 people out of 100 who put patriotism ahead of partisanship. It will only be a temporary reprieve because Cheney will eventually force the "extraordinary" circumstance which will fracture the agreement. How about a Pat Robertson or Bob Jones for the Supreme Court? Think of the most unacceptable "conservative" to the Democrats and that is who will be put up.

Moderate masturbation is better the ballistic blue ball.


"You are so right, the right just wishes for a totalitarian state. Screw the minorities. Could we paint in broader strokes ?"

Regardless of how else you try to spin it, this is precisely what any White House would like to see happen. It would not be good for the Dems or Repubs to be in this position. Even Rush Limbaugh when in one of his tirades about Tom Daschle's obstructionism he said the best thing that could happen would be if the Republicans brought the Senate to a grinding halt. His claim was that the American people were better off with no legislation than with partisan bills. One of the few things with which I agree with him on.

Kav, you don't have to be a cynic to recognize that a party that controls the election counting process has little to fear by forever changing rules that could eventually be used against them in the future. Stalin got it exactly right when he said that it doesn't matter who votes...

I'm REALLY tired of hearing that the Republicans won the majority so now they can run roughshod over the rest of us. Bush only got 32% of the eligible voters, at least that is what we are told, to put him in office while 31% voted for Kerry. That means the largest bloc, the 37% disinterested, found neither of the candidates (or parties) worth their support. So yes, the 2 party system is broke and if the government ever comes under one party control then we will have a Republic no more.

Ryan Somma

Great Comments guys, one criticism:

We shouldn't fall into the partisan trap of demonizing compromise and moderation. To characterize the two parties finding a middle ground on this issue as sacrificing principle is falling prey to the rhetoric of the pundits. We have enough zero-sum games in our political world without adding this to the list.

If the Democrats allow the nomination of some judges in exchange for Republicans withdrawing some nominations, then I admire and respect their pragmatism. Neither side wins or loses in such an arrangement. Each side gains a little and loses a little, any principles sacrificed are done so for the greater good making progress in this debate.


Kav - I would take issue with only one point. This was not about dismantling the minority rights in the Senate, insofar as this only applied to judicial nominees, and the Senate's responsibility to exercise their role of advise and consent.

Chum - I would agree that the Republican party of today does not resemble the Republican party under Reagan, and that, in my estimation, is sad. However, my guess is that for a party to remain viable and relevant, it must evolve, and in doing so, some of the prior foundations may have to be altered or changed. I would suggest that today's Democratic party is equally, if not moreso, different that the Democratic party of JFK.

I fail to see how utilizing Presidential appointment powers amounts to an ideological takeover of government. I do not recall Reagan appointing any Communists to any posts. I do not recall Clinton appointing any freepers or knaves.

I personally do not consider myself to be a neocon. What I was referring to is the act of throwing that term out there in a clearly derogatory manner (forgive me if you intended it as a compliment) without a clear understanding or even definition of what one is.

How exactly will Cheney force the extraordinary circumstances ? That would be Rovian beyond compare.

You are right, you have unveiled the Republicans and their totalitarian designs on our system of government.

I agree with you on only one point ... I have no problem with complete gridlock, none. The less Washington DC does, the better.


Ryan, there is an old quote, which I am about to butcher, but it said something to the effect of "In matters of style, swim with the current. In matters of principle, stand like a rock". Both sides claimed to have been defending a bedrock principle, and each side abandoned their principle for political expediency, and a lot of positive fawning from the press. If the nominees were truly extremists, and did not deserve to sit on the federal bench, they did not magically become no-extremists just because of this compromise. If the principle of advise and consent and the appropriateness of a filibuster for judicial nominees was so important, it was equally as important for the remaining judges who were not included in this compromise.

In my business, often times a negotiated settlement that pleases neither side is usually a pretty good deal for all involved. In this case, despite all sides making some concessions, the participants abandoned their stated principles. I can see no other way to describe it. As such, this was yet another example of pure politics, and yet another reason why people tire of same.

Who gets to define extraordinary circumstances? Anybody willing to bet how long it takes for one or both sides to break this agreement? If Estrada is renominated, would that be extraordinary? Will this apply to any potential Supreme Court nominees? Why is it referred to as President Bush attempting to pack the courts with ideologues when he does it, but not when other Presidents make their appointments?

Ryan Somma


I can see your point and I think our differences of opinion on this are a matter of perspective. It is true that each side has argued that their stance is founded on strong principles, and in that respect a compromise is a betrayal of their principles.

The problem I have with this logic is that it applies to everything in our political discourse. Everytime Democrats and Republicans agree on anything they are sacrificing some principle somewhere, even if it's just the principle of holding the party line. Politicians who uphold principle over pragmatism absolutely don't last very long and don't accomplish much.

"Why is it referred to as President Bush attempting to pack the courts with ideologues when he does it, but not when other Presidents make their appointments?"

I would say that anytime a Republican invokes the term "Judicial Activism," they are engaging in this same sort of hyperbole. Perspective is important in this particular debate, because we are talking about Democrats using this rhetoric with very few nominees in the scope of all those presented. Just as Republicans accuse even their own appointments of activism when a ruling fails to go their way.



in my experience the mainstream Republican tendency is yes, to assume they will be in power forever now.

they think, like many Americans in all parties, in terms of winning and losing... when you win, you are teh winner... game over!

when Bush I was soaring in approval ratings because of Gulf War I, I watched elected Republicans predict a thousand times that it was a Republican presidency for the rest of the century etc. etc.

they really are that short sighted but that's not all, the reason their philosophy works is it's also a business philosophy of... "actually, it may not last forever, so get what you can while you can!"



I consider myself one that is pro-compromise. I leave a compromise happy even if I give up something, if I also know the other side got something, their satisfaction is important to the compromise. It creates the good will that is important to compromise, beyond whatever concession was made.

But this was not something for the minority to compromise on. They were defending filibuster.

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