The Judicial Process
One of the things I've found irritating is the hold up on judicial appointments. Currently the Democratic Party is doing everything it can to prevent President Bush's judicial appointments from getting an up or down vote in the Senate.
This isn't a problem exclusive to Democrats, as Republicans used the same tactics when President Clinton was in office. Sen. Majority Leader Frist(R-TN) is leading the fight to end this nonsense. Currently 60 votes are needed in order to end a filibuster and send a nominee to the floor for a vote. What Sen. Frist would like to do is seek an internal ruling within the Senate saying that filibusters are not allowed on judicial nominees. All he needs in order to get a favorable ruling is a simple majority, which he would be able to get. This would eliminate the filibusters and allow candidates to find out if they will or will not be confirmed.
I think this is a fair way to do things. When a person is elected President of the United States, they are elected to set public policy. The public assumes when they elect someone to the Presidency that they will set the tone for wide range of subjects including the economy, foreign policy and judges. A person shouldn't have to wait 4 or more years to find out if they will be confirmed or not. This is plain silly. If the minority party feels threatened by a particular judge, it is there responsibility to try and persuade members of the majority party to vote against the nomination-not hold it up for years.
The last couple of paragraphs lead me into another related problem I have with judges. I was thinking about making this a separate post, but I think I can keep it short. Judges are a part of the checks and balances system created by the constitution. However, they should not legislate from the bench. It's their job to interpret state and federal constitutions and make a ruling, not make a ruling because of how they personally feel about an issue brought before them. I also do not agree with Rep. Tom Delay's(R-TX) recent comments in regards to the Shaivo mess, saying about judges: "The time will come for the men responsible for this to answer for their behavior." It's not the responsibility of congress to punish judges for handing down rulings that they don't like. Congress needs to create laws that are within our constitution that will offset rulings that they don't like. It is also their job to impeach judges who are not upholding their duties, but it isn't their job to seek revenge.
This isn't a problem exclusive to Democrats, as Republicans used the same tactics when President Clinton was in office. Sen. Majority Leader Frist(R-TN) is leading the fight to end this nonsense. Currently 60 votes are needed in order to end a filibuster and send a nominee to the floor for a vote. What Sen. Frist would like to do is seek an internal ruling within the Senate saying that filibusters are not allowed on judicial nominees. All he needs in order to get a favorable ruling is a simple majority, which he would be able to get. This would eliminate the filibusters and allow candidates to find out if they will or will not be confirmed.
I think this is a fair way to do things. When a person is elected President of the United States, they are elected to set public policy. The public assumes when they elect someone to the Presidency that they will set the tone for wide range of subjects including the economy, foreign policy and judges. A person shouldn't have to wait 4 or more years to find out if they will be confirmed or not. This is plain silly. If the minority party feels threatened by a particular judge, it is there responsibility to try and persuade members of the majority party to vote against the nomination-not hold it up for years.
The last couple of paragraphs lead me into another related problem I have with judges. I was thinking about making this a separate post, but I think I can keep it short. Judges are a part of the checks and balances system created by the constitution. However, they should not legislate from the bench. It's their job to interpret state and federal constitutions and make a ruling, not make a ruling because of how they personally feel about an issue brought before them. I also do not agree with Rep. Tom Delay's(R-TX) recent comments in regards to the Shaivo mess, saying about judges: "The time will come for the men responsible for this to answer for their behavior." It's not the responsibility of congress to punish judges for handing down rulings that they don't like. Congress needs to create laws that are within our constitution that will offset rulings that they don't like. It is also their job to impeach judges who are not upholding their duties, but it isn't their job to seek revenge.
posted by Mark at 3:36 PM
3 Comments:
I disagree with your stand on filibusters.
As you pointed out, Republicans use the filibuster when they're not in power the same way Democrats are using it now.
The presidency and both houses of Congress are currently controlled by one party. The filibuster is the only power the opposition party currently has.
The filibuster has worked for over 200 years. It's a colossal pain in the ass for the majority party, but it's still an important part of our checks and balances. It's a tool for compromise.
A little under half of all Americans voted Democratic in 2004. 51% of America should not be able to bully the other 49%. The filibuster is the best tool to prevent that.
Eventually the country will swing the other way, whether it's in 2006 or 2026. When that happens, Republicans will use the filibuster the same way Democrats are using it now.
With specific regard to judges, the filibuster is a crucial tool. In 2004 Americans voted to have a Republican president until 2008 and a Republican controlled congress until 2006.
But judges have life terms. It's no coincidence that the Senate confirms judges and only the Senate has the filibuster. The filibuster ensures that those who serve longest and are most above reproach are also moderate enough to be palatable for everyone.
And this segues nicely into "legislating from the bench." (At least you didn't use the term "activist judges"... we'd have Blogger Smackdown then.)
Yes, it's true. Sometimes judges interpret laws in ways we never intended.
But it's worth noting here that federal judges legislated from the bench to end segregation. I have an immense amount of respect for Martin Luther King Jr., but Chief Justice Earl Warren did far more to advance the civil rights movement than anyone else.
When the civil rights movement won battle after battle in the courts, millions of Americans were furious. Millions of Americans felt that blacks were inferior and that segregation was a just reflection of this. These Americans voted for legislators that would reflect those ideas. Millions of citizens and voters and taxpayers.
And every last one of them was wrong.
Just because millions of people believe an idea doesn't mean that idea is correct or legal or moral.
Segregation is a non-typical example, but it illustrates that sometimes the Will of The People needs a check and balance too.
The best way to make sure that judges don't abuse their immense power is to make sure we have moderate judges.
And the best way to do that is to keep the filibuster.
Good points. I'll admit I haven't looked at filibusters from that perspective before.
You also make a strong arguement in regards to the civil rights movement, although as you said, it's a non-typical example.
It's true that it isn't by mistake that our forefathers granted the senate with both judicial confirmation and filibuster powers.
You cite good examples of why a filibuster is a good thing and it's hard to argue otherwise. I don't really have a problem with filibusters as a legislative tool, I have a problem with the motivation behind them and how it's currently and recently been used.
In the case of both Clinton and Bush nominee's the filibuster isn't and hasn't been used so much as a tool for compromise or a tool to have a nomination pulled as it has been a tool to attack the sitting president, and it's proven to be the most effective method of doing so. I'd have less qualms about the use of filibusters if this wasn't the case. I think it's fair to say that both presidents nominated pretty good people to fill the seats and both parties have used the filibuster not so much to show disapproval for the candidates as they have to show disapproval for each presidents policies and agenda's. Which is to say that the filibusters are inappropriately being used. I wouldn't have a problem with filibusters if they were being used to voice dissatisfaction over a nomination.. that's what both parties will say they are doing when they are in the minority, but I don't feel it's truely the case.
Currently the buzzwords involve abortion, and certainly any judge a Republican president nominates will be pro-choice. Just because a judge is personally pro-choice doesn't necessarily mean they will immediately repeal any and all abortion rulings. And I certainly would have a problem if they did in fact do that, not withstanding your comments about the civil rights movement.
I haven't spent countless hours analyzing senate records, but I don't think I've heard any of them express that desire. They all have said that they would use the constitution and judicial precident as guidelines when dealing with abortion. I'm not going to go off on an abortion tangent because I'll save that for a seperate posting.
Certainly one can make a good arguement against my opinion, as you have, but I think the best overall way to ensure that judges don't abuse their immense power is to confirm judges that will follow the constitution more so than their personal opinion on a subject. You only have to look at the Banana Republic known as the 8th Circuit of Appeals to see everything I find wrong with moderate judges.
More important to me is the checks and balances on the judicial branch created by the people we elect as president. As you've said, the tide will eventually turn, and a person will be elected that will want more moderate judges, and they will eventually get them on the bench either through confirmation or recess appointments.
You make a good point about the filibuster being abused. It's true that some in the minority party will use the filibuster "just because."
After we sort through my good points and your good points, the remaining problem is how to get Senators to use the filibuster responsibly. Getting every Senator on the same page has got to be a lot like getting a room full of cats to perform a few show tunes.
It's irritating to everyone, including me, when the filibuster is abused. But it's an important tool. We need to be damn careful in the ways we tinker with it.
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