Judicial Filibuster
 

Now for a topic that I’m sure everyone is gnashing at the bit to discuss!

I got an email that points to this article about the "radical" arguments for filibustering judges. The article claims that filibustering judicial nominations "imperils the constitution". The author likens not giving the nominees a vote is like the president not nominating any officials. If the President didn't nominate any officials for, say, the DoE, he would be de facto shutting down the DoE and failing to uphold the law that creates the DoE. or in this case, the judiciary. And thus if there were no nominations or no votes, the constitution would fall apart.

Or so his logic goes.

And while it may be true that Filibustering judicial nominees only ever happened once before in this country (at least, that’s the claim I hear from the right wing talking heads), it is also true there are only 10 nominees actually being filibustered (at least, that’s the claim I hear from the left wing talking heads).



My personal opinions that the Judges should not attempt to expand or contract the constitution by "interpreting" new means, but instead tell the congress to ask the people themselves, and if 3/4ths of the people agree that the government's powers should be changed, then its changed by the proper amendment procedure. So called "judicial activism" annoys the fuck out of me, because it means to me that the government is saying "aha, we're changing shit and we don't even pretend to care about your opinion! neener neener!"

However, as long as the Judges are taking it upon themselves to ignore the people and make up rules, In a very real sense the Judges are the ones calling the shots in this country. And despite the fact that judges making up rules with out conferring with the people is already an erosion of the principles of the constitution, at least we can demand that the judges be approved by as many people as possible, if not 3/4ths.

So, if we are to honor the logic that only laws that are agreed upon by a super majority are inherently valid and constitutional, then I think removing the ability of the minority to block a new judge is a bad choice.


ZNC talking points:
The constitution should ONLY be changed by a super majority, therefore, if judges are changing the constitution, they should be appointed with a super majority approval. Hence, minority filibustering should remain in place.

Btw, here’s the article that sparked this post: http://www.washtimes.com/commentary/...4114-3504r.htm

Well we elect the people who elect the judges, so in a sense we do ahve a say in the way the alw is interpreted... Thats waht a lot of people will say, but imo its a load of shit. Yes, we elect one person, who casts his vote for or against the judges nomination, but not only do we not control waht he says (he may not care about reelection so doesn't even consider if we will or will not agree with him), but we can't control waht teh judge does afterwards.

But then again the only other real alternative is have us vote on everything... which would be too time consuming and jsut plain ole stupid. can you honestly say that you would feel better knowing that almost every day you wake up you would be expected to vote on at least one issue? Besides the fact that you would loose track of which issue you were voting on which day, people are stupid, its a fact of life. People are stupid, a person can be smart, but people as a whole are stupid.

The judiciary can interpret the constitution, but can not change it on their own. I do think that they should continue reviewing how it is interpreted, because I do believe that the constitution is a living document that changes to be relevant throughout time. If we were to follow it to the letter, then some of hte conversations on this forum could be deemed illegal. Because while we would still ahve the freedom to speak freely, we would not have those same rights extend to waht we type on the internet.
On the subject of filibustering, I say let them do it. It is one of their rights as senators, so why not let them do it? If it is within their power, and they feel they ahve jsut cause why stop it?

I think the system for judge promotion itself should be changed. The judicial branch is the passive arm of government, meant to be separate from the partisan politics of the other two branches.

Maybe have the courts decide who moves to the higher courts, then the higher courts decide the next tier, and so on. The nominating judges is too much executive power to begin with (in my opinion). Also, is the number of SCOTUS justices fixed or not? If Congress did decide to change it, that would be pretty nasty.

That is sort of an experimental idea, and if someone has that awaited reason I overlooked why this is a terrible system that would destroy republican democracy, please post it, before I go and post this on any other threads.

I am neutral about judicial activism. In some cases, it's done an effective job at stopping morality legislation, particularly at the state level. And when it has overstepped, it's been ideologically in my favor a good number of times. Though there are instances when it wasn't.

The Supreme Court should say what you can't make the law. It does that very well, but with some cases, the effect of not having the law against is the same as having a law for, when none actually exists.

The constitution is clear about where a filibuster can be used. It defines what a filibuster is in article 2 and gives a list for cryin' out loud. Nowhere in that list does it say "judicial nominations."

And that's only for a real filibuster. The senate isn't even actualy filibustering anything. Just threatening to. A real filibuster is when all action on capitol hill stops. The people filibustering take the floor and they don't give it up. They don't sit. They don't eat. They don't drink. They don't piss. They just stand there and talk. They can talk about anything they like. They can talk about the new recipe they found. They can show everyone their photo albums. They can tell everyone how great the boom-boom was with their secrataries the other night. The point is that they take the floor and they talk and they don't stop until either the other side gives in or they just can't take it anymore. Nobody is doing that, therefore there is no filibuster. It's all a load of crap and I don't understand why the Republicans aren't just trying to force an up or down vote and let the damn Democrats talk. They can't last forever.

No, the Supreme Court Justices are not fixed. At one point, one party reduced the number to 8 to deny the other party the ability to influence new justices. Then they were upped to 10, and eventually settled at 9... i think after the Civil War. But the 9 has sort of become a sacred number. FDR tried to up it to 15 to try to pack some judges on the court that would support more of the New Deal, but he got disastrously defeated in that attempt.

I agree that the constitution is a living document. We aren't ruled by kings, and we aren't ruled by the ghosts of our fore fathers, as hoopy as the froods may have been. But we also aren't ruled by unelected judges.

HOW it 'lives' is through the amendment process, NOT by Judicial fiat. When the government over steps its bounds, the courts shouldn't say "gee, it was for a good cause so we'll ignore it". They should say "People of America! This is for a good cause! Please pass an amendment so that we can uphold this law."

Judges are not inherently wise. Supreme courts turn over supreme court decisions. Justices disagree. For every case you hear about in Civics class where the court advanced liberties, there is a case where they ignored an intrusion.

Also consider that when the court "gives" you a freedom, they can take it away. To bring up a contentious decision, take Abortion. One court said its ok, but a lot of people are worried that the next court could say its a no-no (or rather, say that its not protected. they cant actually ban abortion). Personally I want to see that decision as a codified amendment. Or rather, I want to see the BASIS of that decision (that we have a right to privacy) as a codified amendment. When that sort of thing is divined out of "interpreting" amendments that don't say what its being interpreted, the next Justice can read the decision (as has been done many times before) and say "shit, it doesn’t say THAT!"

And this all might have been building to an exciting conclusion, but I totally got distracted by stories about messing with Telemarketers.

EDIT: also
what section of Article II was that?

They aren't filibustering, yet, but people are worried about it and think they shouldn't. I'm just saying let them do it when they want, if he can stand up without sitting for 60 hours I'll vote for him, regardless of his political views... lol

I personally don't believe that we should follow the constitution to a 't' just because it doesn't say somethign doesn't mean it shouldn't be. where it sasy "man" i assume it ment people in general, of all race and sex. And judging by your comment about when a filibuster can be used, I'd assume that to at least a certain degree you believe we should follow it to a 't' ?

Did I get the wrong article? I'm prety sure that article 2 is the legislative branch. I can't remember off the top of my head. Tommorow, when it's a little earlier than 2:30 am and I have access to my books on the subject i'll be more specific.

Where the document is so extreamly specific, it should be followed prisicely. I'm not saying that nothing in the constitution is up for interpretation. Just the parts that were writen the way they are, and quite obvioulsy in my oppinion, to minimize loopholes. The filibuster was meant for certain things. If you want to use it for other things, ammend the constitution.

well the word "filibuster" is never used in the constitution, and in Article I, which outlines legislative power, it does have lists of powers granted, and a few powers forbidden of the legislature, but I don’t think it mentions filibuster.

Mainly because it isn't a power of congress. its a procedural tactic within congress.

But maybe I'm missing something there.


Napolean, as to whether or not "Man" means "human" or "male", I ask you to check out Amendment 19.

Also, the 3/5ths compromise was expressly about black slaves. It did NOT mean people of all races and sexes.

And that required an amendment to change, not a judicial decree. Because the Judges do NOT have the power to change the constitution. Only the people, through the amendment process, have the power to do that.


I’d also like to point out that I’m NOT talking about MORAL answers. I don’t think men have the right to govern women or white govern blacks, despite the original constitution saying as much. But the Court doesn’t get its power from God. It gets its power from the constitution, its charter. When it violates its own charter, it violates its own reason for existence. If it can violate the Constitution by ignoring it, then we could violate the Constitution and just ignore the courts. Tossing out the rules that make the courts tosses out the rules that the courts enforce.

A bit rambly, but this early in the morning, it'll have to do.

The filibuster is never mentioned in the Constitution. It's actually derived from a loophole in the original Senate rules -- put in layman's terms, the original rules didn't allow any official method to shut up a Senator once they'd taken the floor. The system continued until World War I, by my recollection, at which point somebody filibustered a defense bill and pissed off all the wrong people. Shortly thereafter (or perhaps to end that incident?), the cloture rule was adopted. I know it's had a few changes, but as it stands today: 16 Senators petition for a motion, a day passes, and if 60 Senators vote in favor of the petition, debate is limited to 30 more hours and no Senator may speak for more than an hour.

In a sense, think of it like this: normally, a bill will require a majority of at least 51 to pass. With a filibuster, it'll require at least 60. It may not sound like the biggest hurdle, but it's surprisingly difficult to achieve that sort of lead. The Democrats don't currently control enough votes in the Senate to really shut down any major Republican legislation, but when they present a united front, they can vote down any motion for cloture and filibuster indefinitely.

In terms of voting power, there really isn't that much difference between threatening a filibuster and actually using one. If it's known that a bill will be filibustered, it more than likely won't be brought to the floor until it's edited to the point that it has enough support for a cloture vote. I'm somewhat of the opinion that a very good deal of Congressional business takes place unofficially, and that on key issues, it's almost odd if the outcome of a vote is unknown beforehand.

The Democrats don't have any such power in the House, but the filibuster's power is felt there, as well. Judicial nominations are confirmed by the Senate, so the House is effectively irrelevant in any surface-level discussion of the matter. On controversial matters like Social Security reform, the House is unlikely to expose itself to the danger of passing a controversial bill if it won't even come to a vote in the Senate.

It all gets more complicated when you factor in that changing the rules to outlaw a filibuster is actually easier than stopping one within the frame of the rules.

Quick references:
http://www.law.cornell.edu/constitut...ion.table.html - Constitution
http://rules.senate.gov/senaterules/menu.htm - Senate Rules

Ok, I shoul've been more specific.. my bad :p

Obviously in certain areas it does refer to a certain race or sex, I was referring more to general areas, like where it says "man" when referring to the senators. Obviously now its not uncommon to have a female senator, see what I mean? oh well, I'm not a morning person, I'm normally jsut now going to bed not waking up...