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"America has two great dominant strands of political thought - conservatism, which, at its very best, draws lines that should not be crossed; and progressivism, which, at its very best, breaks down barriers that should never have been erected." -- Bill Clinton, Dedication of the Clinton Presidential Library, November 2004

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Tuesday, March 01, 2005


judicial filibuster precedent and consquences

posted by Aziz P. at Tuesday, March 01, 2005 permalink View blog reactions
Jerome has written a moving diary at myDD about the historical use of the filibuster in the Senate, which he reminds us is known has traditionally served a watchdog role over abuse and excess of power by other branches of the government, including the House. He relates some relevant history involving FDR which has direct bearing on the present debate of whether filibustering of judicial nominees is a violation of the Senate's traditions or not.

Perhaps more directly relevant to our discussion of the "nuclear option" are the seven days in 1937, from July 6 to 13 of that year, when the Senate blocked Franklin Roosevelt's Supreme Court-packing plan.

Earlier that year, in February 1937, FDR sent the Congress a bill drastically reorganizing the judiciary. The Senate Judiciary Committee rejected the bill, calling it "an invasion of judicial power such as has never before been attempted in this country" and finding it "essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the Government." The committee recommended the rejection of the court-packing bill, calling it "a needless, futile, and utterly dangerous abandonment of constitutional principle. . . without precedent and without justification."

What followed was an extended debate on the Senate Floor lasting for seven days until the Majority Leader, Joseph T. Robinson of Arkansas, a supporter of the plan, suffered a heart attack and died on July 14. Eight days later, by a vote of 70 to 20, the Senate sent the judicial reform bill back to committee, where FDR's controversial, court-packing language was finally stripped. A determined, vocal group of Senators properly prevented a powerful President from corrupting our nation's judiciary.

But let's leave precedent aside. What's the harm, you might ask? What threat does the so-called "nuclear option" really pose? Jerome answers. Read on, for the more infinitely more compelling reason than mere precedent or tradition, to oppose the nuclear option, regardless of your party affiliation:


For the temporary gain of a hand-full of "out of the mainstream" judges, some in the Senate are ready to callously incinerate each Senator's right of extended debate. Note that I said each Senator. For the damage will devastate not just the minority party. It will cripple the ability of each member to do what each was sent here to do - - represent the people of his or her state. Without the filibuster or the threat of extended debate, there exists no leverage with which to bargain for the offering of an amendment. All force to effect compromise between the two political parties is lost. Demands for hearings can languish. The President can simply rule, almost by Executive Order if his party controls both houses of Congress, and Majority Rule reins supreme. In such a world, the Minority is crushed; the power of dissenting views diminished; and freedom of speech attenuated. The uniquely American concept of the independent individual, asserting his or her own views, proclaiming personal dignity through the courage of free speech will, forever, have been blighted. And the American spirit, that stubborn, feisty, contrarian, and glorious urge to loudly disagree, and proclaim, despite all opposition, what is honest and true, will be sorely manacled.

Yes, we believe in Majority rule, but we thrive because the minority can challenge, agitate, and question. We must never become a nation cowed by fear, sheeplike in our submission to the power of any majority demanding absolute control.


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Judicial filibusters.

I am generally against the nuclear option; however, I am also against filibustering judicial nominees. If Dems stop filibustering, Reps will forego the nuclear option. If Dems filibuster, they have started the hostilities and I cannot really hold it against Republicans who move to stop that action.

If a judge is "out of the mainstream" then 50 Senators should vote against him/her in an up or down vote. If the President tried to pack the court by creating a 15 person Supreme Court, it would go down in flames without a filibuster (as did FDR's attempt).

One thing that could make the process more fair would be to bring back the old filibuster. If you want to filibuster something, you have to stand up there and talk for hours and hours (a la Senator Byrd and the Civil Rights Act). The point was to extend debate on something to make it harder to pass nefarious things under the radar. It is now to easy to filibuster and thus it is overused. It was only a matter of time before someone decided judicial nominees should be subjected to it as well.


count me in for the forced-speaking requirement, if only for the additional theater!

Still, I think that the "tradition" argument is well-countered by Jerome's diary, and that the entire point of how the Senate has a duty to represent and protect the minority, well-explains and justiies the use of the filibuster to block the extreme 2% of nominees out of te mainstream.

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About Nation-Building

Nation-Building was founded by Aziz Poonawalla in August 2002 under the name Dean Nation. Dean Nation was the very first weblog devoted to a presidential candidate, Howard Dean, and became the vanguard of the Dean netroot phenomenon, raising over $40,000 for the Dean campaign, pioneering the use of Meetup, and enjoying the attention of the campaign itself, with Joe Trippi a regular reader (and sometime commentor). Howard Dean himself even left a comment once. Dean Nation was a group weblog effort and counts among its alumni many of the progressive blogsphere's leading talent including Jerome Armstrong, Matthew Yglesias, and Ezra Klein. After the election in 2004, the blog refocused onto the theme of "purple politics", formally changing its name to Nation-Building in June 2006. The primary focus of the blog is on articulating purple-state policy at home and pragmatic liberal interventionism abroad.