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The biggest
rightwing lie
of all:
"Democratic obstructionism,"
"Up-or-down votes for judges"
There are so many rightwing lies that choosing
their biggest, most egregious could be a real
chore. However, it is now clear (as of May
2005) that the greatest rightwing lie is the one
they are spreading about "activist judges,"
"Democratic obstructionism," and "every nominee to
the federal bench deserves an up-or-down vote."
The filibuster is one of our democracy's oldest
and most important checks on the power of the
majority. It preserves two of our bedrock values:
protecting the rights of the minority and
promoting compromise.
It works like this: If at least 41 senators
strongly oppose a bill or nominee, they can vote
to continue debate and block a final vote on the
issue. A final vote can only be taken if and when
the majority wins 60 senators' votes.
In the context of a Supreme Court battle, the
filibuster means that 60 Senate votes may be
needed to confirm out of the mainstream judicial
nominees rather than a simple majority of 51. For
two centuries, our leaders have supported the
tradition of the filibuster in order to
promote cooperation and compromise, and because
they have recognized the dangers of one party
control and the importance of protecting the
rights of the minority.
Proponents of the “nuclear option” to break Senate
rules and eliminate the filibuster on judicial
nominations continue to repeat the false argument
that the Constitution requires an up-or-down vote
in the full Senate on every judicial nomination.
This argument is
utterly refuted by more than 200 years of Senate
history, during which literally thousands of
judicial and executive branch nominees have been
blocked in the Senate by filibusters, delays, and
other tactics.
What is the "Nuclear
Option"?
As the name suggests, the "nuclear option" is a
radical tactic that would prohibit senators from
using filibusters against extremist judicial
nominees.
Right-wing senators and leaders are supporting
this destructive action because they want to
guarantee the Senate confirmation of far-right
ideologues to our federal courts, especially the
Supreme Court.
The "nuclear option" is actually a
series of steps that right-wing senators would
take to eliminate the filibuster. The "nuclear"
attack would likely begin with one party’s
senators provoking a filibuster, most likely by
trying to force a confirmation vote on an
out-of-the-mainstream appeals court nominee. A
senator would then object, claiming that the
filibuster cannot be used on a judicial
nomination. Vice President Cheney or another
senator presiding over the Senate would rule in
the Radical Right's favor, and then that ruling
would be appealed. A simple majority (with Vice
President Cheney as the tie-breaking vote if
necessary) would then uphold the ruling, and the
filibuster would be history.
The "nuclear option" earns its alarming name for
two reasons. First, it breaks the Senate rules in
order to eliminate another rule: the filibuster.
Under normal Senate procedures, it takes 67
senators, or two-thirds, to end debate on changing
a Senate rule. The "nuclear option" would violate
Senate rules and require only 50 senators plus the
Vice President's tie-breaker. Second, the
atmosphere in the Senate after this attack would
resemble a "nuclear winter." All bipartisan
cooperation would vanish and the Senate's
legislative business could grind to a halt, only
adding to the price Americans would pay for the
right's reckless abuse of power.
Talking Points:
- Filibusters Are Constitutional.
The U.S. Constitution gives senators the vital
responsibility and power to confirm or reject
the President's nominees to our federal courts
(U.S. Con., Art. 2, Sec. 2). The Constitution
also gives senators the authority to create
rules for Senate proceedings (U.S. Con, Art.
1, Sec. 5). For over 200 years, the filibuster
tradition has been maintained under this
authority and used by senators of both
parties, including GOP Senate Majority Leader
Bill Frist, in an effort to prevent the
confirmation of judicial and other nominees.
- Filibusters Reflect The Democratic
Vision of Our Nation’s Founders.
A primary goal of the filibuster is to force
greater deliberation and compromise on
controversial Senate matters by requiring that
they receive 60 votes to proceed. Since it is
legitimate to filibuster controversial
legislation that future Congresses can
revisit, it is even more appropriate to allow
filibusters when considering lifetime
appointments to powerful positions on the
federal judiciary. Our founding fathers wanted
America’s courts to be an independent branch
of government – free of partisanship. Because
federal judges serve lifetime terms it is
important that both parties help determine who
is appointed.
- Filibusters Are Necessary to Prevent
One Party from Having Absolute Power.
The outgoing Republican chairman of the
Judiciary Committee, Sen. Orrin Hatch, has
himself explained that the filibuster is "one
of the few tools that the minority has to
protect itself and those the minority
represents." For 200 years the filibuster has
been an essential part of our system of checks
and balances and has promoted cooperation and
compromise. Senators have retained the
filibuster rules because they recognize the
dangers of one party control and the
importance of protecting the rights of the
minority. America works best when no one party
has absolute power.
Fact versus Myth: The Truth about the
Nuclear Option
Claim: “Until now, EVERY judicial
nominee who received the support of a majority of
Senators was confirmed.”
Facts:
This argument ignores the 60 Clinton judicial
nominees who were denied up or down votes by
Judiciary Chairman Orrin Hatch between 1995 and
2000. Presumably these nominees had majority
support on the floor and in Committee or Senate
Republicans would have simply allowed the process
to work its will and defeat the nominees.
Regardless, Senator Hatch’s complete obstruction
means we will never know because they were denied
any vote whatsoever.
A majority of Senators voted to end the filibuster
of Abe Fortas’ nomination to be Chief Justice in
1968. And a close reading of the historical record
indicates that Fortas had majority support. In any
event, because of the Republican filibuster, the
exact same “up or down vote” that Republicans have
accused Democrats of blocking, was denied Fortas.
Claim: “The current use of filibusters to
require 60 votes to confirm judicial nominees is
UNPRECEDENTED”
Facts:
Use of the filibuster against judicial nominations
has a long history. According to the Congressional
Research Service, senators attempted to filibuster
14 Court of Appeals nominations between 1980 and
2000. As recently as 2000, Republican Senators
attempted to filibuster the nominations of both
Richard Paez and Marsha Berzon to the Ninth
Circuit. In fact, Senator Frist was among those
voting to continue the filibuster of the Paez
nomination. And, of course, Republicans
successfully filibustered the nomination of Abe
Fortas to be Chief Justice of the Supreme Court in
1968.
What is “unprecedented” is the consistent refusal
of the President and Republican Leadership to
reach across the aisle to consult and compromise
on nominations, and the President’s repeated
nomination and renomination of candidates whose
controversial records lead them to be rejected by
the Senate.
Claim: Things were different under
President Clinton – His blocked judges didn’t have
majority support.
Facts:
More than 60 of President Clinton’s nominees were
denied a final up or down vote, often through the
actions of just a single Republican senator.
Fully one-third of President Clinton’s appeals
court nominees from 1995 through 2000 were kept
off the bench – many without even a hearing or
committee vote – while others were delayed for as
long as four years.
Presumably these nominees had majority support on
the floor and in Committee or Senate Republicans
would have simply allowed the process to work (as
seen with Paez and Berzon). Regardless, the GOP’s
obstruction means we will never know because they
were denied any vote whatsoever.
The difference is that Senate Democrats are acting
in the open on the Senate floor, under
longstanding rules and traditions of the Senate.
In contrast, Republican obstruction of President
Clinton’s nominees was secretive, involved no
recorded votes, and no accountability. How can it
be unconstitutional for 41 senators voting
publicly to block a nominee, but appropriate for a
single senator to secretly block many nominees?
The only other difference is the magnitude. While
Democrats have been judicious in using the
filibuster and have blocked a handful (ten) of the
worst of the worst of the President’s more than
220 nominations to date, the Republican campaign
was far more sweeping in scope.
Claim: “Until now, Senators of both parties
agreed that it is wrong…to prevent up or down
votes [on judges].”
Facts:
Nuclear proponents reference the statements of
several Democratic Senators in the late nineties
calling for Senate votes on judicial nominees. But
they take their statements badly out of context;
these statements were made in the face of an
unprecedented, successful effort by then-Senate
Judiciary Chairman Orin Hatch to deny up or down
votes to 60 of President Clinton’s nominations,
without following the Senate rules.
Yet even as Democrats protested, not once did they
suggest or attempt the use of an illegitimate
procedure like the nuclear option, even in the
face of massive obstructionism by Republicans.
Furthermore, staunch nuclear option proponents
like Senators Hatch and Frist have their own
histories to explain.
- In 1994, when some Republicans were
opposing a cloture vote on a judicial
nomination, Hatch defended the minority’s
right to filibuster, declaring that the
filibuster is “one of the few tools the
minority has to protect itself and those the
minority represents.”
- More recently Senator Frist voted to
support a Republican filibuster of a Clinton
appellate nominee, Richard Paez, and even
voted for a motion to postpone consideration
of the nomination after cloture had been
invoked – an exceedingly rare tactic used to
avoid a final vote.
- Senator Howard Baker Jr. (R-TN), stated
during the successful filibuster waged against
Abe Fortas (which he supported): "On any issue
the majority at any given moment is not always
right."
Claim: A supermajority requirement for
confirming judicial nominees would badly
POLITICIZE THE JUDICIARY.”
Facts:
To the contrary, the filibuster plays a critical
role in preserving the independence of the
judicial branch. Unlike the other two branches,
the federal courts are intended to be objective
and nonpartisan, not subsidiaries of either
political party.
The filibuster rule prevents a President with a
narrow majority in the Senate from appointing
partisan judges, or radical ideologues, to the
Supreme Court and other federal courts. Revoking
this rule would enable a President with a 51-vote
Senate majority to appoint anyone to the Supreme
Court, and there would be nothing that the rest of
the Senate, or the rest of the country, could do
about it.
President Bush himself has politicized the
nomination process:
- The President chose to cut out bipartisan
consultation and compromise on nominations –
even with home-state senators.
- The White House has effectively contracted
out its judicial selection process to the
radical-right Federalist Society.
- The President decided to renominate twelve
extremely controversial nominees who were not
approved by the Senate the first time around.
Claim: Filibustering judicial nominees
undermines the President’s constitutional duty to
appoint judges to the federal judiciary.
Facts:
While the Constitution grants the President the
authority to nominate judges, it also requires the
assent of the Senate in order to confirm them.
The Constitution does not grant the President the
unchecked power to appoint judges.
The President, whether Democrat or Republican, has
historically conferred with both the majority and
minority leaders of the Senate on judicial
nominees, but President Bush has changed that
precedent and chosen not to do so during his time
in office.
As conservative columnist George Will recently
said, “[C]onservatives eager to confirm judges
respectful of the Constitution’s text should not
read its stipulation that no nominee shall be
confirmed without a favorable vote of the Senate
as a requirement that the Senate vote.”
- More to come -- check back later.
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