Notes on the Atrocities
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Friday, June 06, 2003  

Coup d'etat

I've taken a quick spin around the blogosphere, and no one seems to be covering this story:

"Senate Majority Leader Bill Frist's proposal to curb filibusters aimed at blocking judicial nominations prompted a passionate debate yesterday over constitutional principles and practical politics, even though there is widespread agreement that his plan is probably doomed."

A little context.
Wrangling between presidents and the Senate is an old, old tradition. The framers of the Constitution were highly attuned to the forces within government, and they intended to put safeguards in place to make these checks and balances robust. I can't find the reference at the moment, but the decision to have the President nominate judges was inserted late in the process--originally it was intended to be the complete purview of the Senate. And NPR reported this morning that early in the Senate's deliberation, the decision to vote on something had to be unanimous. Later it was changed to a two-thirds majority, and finally, as now, is a three-fifths majority.

More context.
The People for the American Way document some of the recent history of judicial nominees.

During the years Republicans controlled the Senate, 45.3 percent of President Clinton's nominations to the courts of appeals were returned to the White House, a rate 72 percent higher than the 26.3 percent return rate for Presidents Reagan and Bush when Democrats controlled the Senate. . . .

During the final two years of Clinton's term, the blockade was even tighter, with less than half of Clinton's appeals courts nominees being confirmed. More specifically, during the 106th Congress, 56 percent of President Clinton's nominations to the courts of appeals were blocked. This failure rate for President Clinton's appeals court nominees was 60 percent higher than for Presidents Reagan or George H.W. Bush, each of whom saw only 35 percent of his appeals court nominees go unconfirmed in the 100th and 102nd Congresses, respectively.

President Clinton's nominees were nearly shut out altogether during his final year in office. In his last year, 89 percent of appeals court nominees were stopped, with only one out of nine nominees being confirmed. At the end of the 106th Congress in 2000, 16 circuit court of appeals nominees made by the President were returned without a vote. In President Bush's final year, only 36 percent of his appeals court nominees were blocked.

If numbers are calculated so as to eliminate the effect of multiple nominations of individual nominees, serious discrepancies remain. Nominees were blocked during the six years Republicans controlled the Senate under President Clinton at a rate nearly 40 percent higher than during the six years Democrats controlled the Senate under Presidents Reagan and Bush - 35 percent under Clinton vs. 25 percent under Reagan and Bush.

And under Bush, judicial nominees are 126 our of 126, with just two under filibuster.

Bush's assault on the Constitution
The current proposal, to quote from the Post piece, "would gradually reduce the votes necessary to break filibusters against nominees, to a simple majority of 51 votes, ensuring a final vote within about two weeks." So, if the proposal were to pass, this President would have effective control of all three branches of government. The issue isn't a political question, it's a constitutional one. Should any President be able to have this kind of control?

(The issue is, of course, also political. This President is attempting to assure he leaves a legacy of unchallengeable Republican/conservative dominance. From the lefty perspective, it is part and parcel of his anti-democratic agenda of pre-emption and the removal of civil liberties.)

Now, it takes a two-thirds majority in the Senate to change its rules, so this is an academic question, right? Unfortunately no.

"The filibuster is now under fierce challenge in all three branches of government. The most drastic form of a challenge would involve a ruling from the Senate chair, occupied for the occasion by Vice President Dick Cheney, that filibusters no longer can be used against judicial nominees -- a simple, unmistakable display of power that could leave the Democratic minority with no option but to stall virtually all Senate business. . . .

This is not something that either Republican or Democratic senators are actively talking about in public, because it looks drastic in the gentle-mannered Senate. But lobbyists seem preoccupied with it these days."

| link |

No more analysis is necessary, really. The President has been staging a quasi-legal coup d'etat. He's hoping that the extra-legal actions he's taking now will later be ruled legal by the conservatives he's installing on the bench. (And the timing isn't coincidental: it's the initial salvo in the fight for the Supreme Court.) I suspect Bush will be unable to execute this coup--at least in this case--but the fact that he's trying it is evidence of his motivation.

I would love to hear that someone has created a MoveOn like effort to lobby the Senate on this. Any chance it exists? Any chance someone can start it? We need to act now, and soon, before it's too late.

posted by Jeff | 11:48 AM |
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