So, about that filibuster issue...

[The Ressurrected One]

Today's Minneapolis Star Tribune hits some kind of a new bottom in the debate on the filibuster with a "bipartisan" op-ed column by former Vice President Walter Mondale and Republican former Minnesota Senator David Durenberger. (Where is Durenberger now? Durenberger is now chair of the National Institute of Health Policy at the University of St. Thomas College of Business.) When last seen (http://www.aflcio.org/issuespolitics/politics/durenberger_comments.cfm) in the pages of the Star Tribune this past October, Durenberger was endorsing John Kerry for president:


For people who cannot afford the health insurance they need, for people whose access to care is threatened, the issue of which presidential candidate is most likely to come to their aid is their most important national security issue. It is the national security position on which President Bush and Sen. Kerry differ most and the one on which Kerry has the clearer vision for restoring security to all Americans.

So far as I can determine, Durenberger holds himself out as a Republican solely for the purpose of advancing the Democratic issue du jour -- bipartisanship a la Star Tribune! It's a beautful thing.

Today Mondale and Durenberger hold themselves out as a bipartisan team supporting the filibuster for judicial nominations in the Senate: "Preserve senate rules, filibuster and all." (http://www.startribune.com/stories/1519/5385977.html) The column is so full of nostalgia and reveries that it's a bit hard to locate the argument, but I think this paragraph is it:


Today, as it has been for 200 years, an individual senator may talk without limit on an issue; and others may join in, and they may continue to press those issues until or unless the Senate by 60 votes ends that debate and a vote occurs. No other legislative body has such a rule.
The imputation of an ancient lineage to a 60-vote filibuster rule is of course flatly mistaken. The 60-vote rule derives not from the days when "Thomas Jefferson first wrote the Senate's rules," but rather from 1975. Surely Mondale remembers; he was a member of the Senate who led the fight in favor of reducing the vote necessary to end a filibuster from 66 to 60. Or has he forgotten? (See here (http://64.233.161.104/search?q=cache:guXnEOfyT7gJ:www.senate.gov/artandhistory/history/resources/pdf/walter_mondale.pdf+mondale+filibuster+1975&hl=en): "With civil rights legislation primarily in mind, [Mondale] led a movement in 1975 to change the Senate cloture rule in order to make ending a filibuster easier...").

The filibuster rule has of course been the subject of occasional but profoundly important alteration. See John Eastman's NRO column "Filibuster preservation." (http://66.216.126.164/comment/comment-eastman051503.asp) Much more could be said on the historical vagaries of the filibuster. Most recently, Martin Gold and Dimple Gupta have explored the history of "the constitutional option" in a lengthy law review article (available here (http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf) in PDF).

In 1975 Mondale appears to have been the Senate's foremost advocate of reforming Senate rules by majority vote (see here (http://hnn.us/articles/11557.html) and here (http://committeeforjustice.org/contents/reading/032405.shtml)). Why? Because he was an opponent of the filibuster. Or has he forgotten?

The utter shamelessness of this column is a disgrace not only to Mondale, but also to the Star Tribune. Those vaunted fact-checkers on the Star Tribune editorial page who censored (http://powerlineblog.com/archives/007667.php#007667) Rudy Boschwitz's Star Tribune column on Sandy Berger must have worked overtime to flyspeck this piece of work. Good job, guys!

[Nbadan]

I don't know why this isn't being more effectively countered.

This is being pushed by the right by claiming Judicial appointments have a lesser degree of consensus than legislation and that the filibuster, creating a 60% super-majority, is somehow 'unconstitutional.' These claims fly right in the face of the Constitution and the provisions for an independent Judiciary and Rule of Law, imho.

The Constitution specifically requires a 67% super-majority of both houses of Congress to amend the Constitution, in addition to a 75% super-majority of the states. The Constitution carefully requires both advise and consent by the Senate of Judicial appointments made by the Executive, giving no unilateral authority over a supposedly autonomous Judiciary. I believe there's a comparable level of import to Judicial appointments and to Constitutional amendments, since the Constitution is the touchstone for legislation and the Judiciary is the keeper of that touchstone.

It just cannot be seen as unreasonable to effectively require a 60% super-majority in consenting to Judicial appointments, when a 67% super-majority in both houses isn't even enough to amend the Constitution.

To claim that such a 60% super-majority is more acceptable for legislation, when legislation already has the safeguard of Constituional limitations as exacted by the Judiciary, is a complete inversion of Constituional priorities, imho.

[violentkitten]

well if it isnt perry fucking mason

[The Ressurrected One]

I don't know why this isn't being more effectively countered.

This is being pushed by the right by claiming Judicial appointments have a lesser degree of consensus than legislation and that the filibuster, creating a 60% super-majority, is somehow 'unconstitutional.' These claims fly right in the face of the Constitution and the provisions for an independent Judiciary and Rule of Law, imho.

The Constitution specifically requires a 67% super-majority of both houses of Congress to amend the Constitution, in addition to a 75% super-majority of the states. The Constitution carefully requires both advise and consent by the Senate of Judicial appointments made by the Executive, giving no unilateral authority over a supposedly autonomous Judiciary. I believe there's a comparable level of import to Judicial appointments and to Constitutional amendments, since the Constitution is the touchstone for legislation and the Judiciary is the keeper of that touchstone.

It just cannot be seen as unreasonable to effectively require a 60% super-majority in consenting to Judicial appointments, when a 67% super-majority in both houses isn't even enough to amend the Constitution.

To claim that such a 60% super-majority is more acceptable for legislation, when legislation already has the safeguard of Constituional limitations as exacted by the Judiciary, is a complete inversion of Constituional priorities, imho.

Article I, Section 5, Clause 2; and, Article II, Section 2, Clause 2 of the U.S. Constitution make absolute trash of what you just said.

[ChumpDumper]

Article I, Section 5, Clause 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.That isn't an argument that they should change the rules.
Article II, Section 2, Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.Nope, that isn't either.

[exstatic]

1) You fucking hypocrites would have been shitting yourselves if the Dems had tried this when they had the majority.

2) Politics is cylical. The Dems WILL have the House and Senate again. Don't expect your NeoCon darlings to be allowed to filibuster ever again if they do this. You can't close Pandora's box once it has been opened. If the filibuster is done away with in any way shape or form, it will never be back.

3) Expect the Senate to be closed for business if the filibuster is done away with. The Dems can refuse to supply a quota of members, or alternately, demand full R&R (which is their right under parliamentary procedures) of EVERY FUCKING BILL, grinding business to an effective halt.

[ChumpDumper]

If Republicans hadn't blocked the nominations of Marsha Berzon and Richard Paez to the 9th Circuit CoA for two and four years respectively using these same rules, I might have some sympathy for their current pant wetting.

[Clandestino]

i would love to filibuster just once in my life..
damn..
i would read Finnegan's Wake.
and then read it backwards.
then i would sing the He-Man song over and over again

you wouldn't last 5 minutes...

[The Ressurrected One]

That isn't an argument that they should change the rules.Nope, that isn't either.
The implication was that Senate rules were no different than legislation and, therefore, require super majorities to change. I was merely pointing out the two clauses in the Constitution that lay that presumption to waste.

But, thanks for playing.

[travis2]

1) You fucking hypocrites would have been shitting yourselves if the Dems had tried this when they had the majority.

2) Politics is cylical. The Dems WILL have the House and Senate again. Don't expect your NeoCon darlings to be allowed to filibuster ever again if they do this. You can't close Pandora's box once it has been opened. If the filibuster is done away with in any way shape or form, it will never be back.

3) Expect the Senate to be closed for business if the filibuster is done away with. The Dems can refuse to supply a quota of members, or alternately, demand full R&R (which is their right under parliamentary procedures) of EVERY FUCKING BILL, grinding business to an effective halt.


They did. 1975. Deal with it.

[ChumpDumper]

The implication was that Senate rules were no different than legislation and, therefore, require super majorities to change. I was merely pointing out the two clauses in the Constitution that lay that presumption to waste.No it doesn't. All it says is the Senate makes its own rules -- nothing about how they should work or if votes should require super-majorities.

Try to post something that says that.

[The Ressurrected One]

"No it doesn't. All it says is the Senate makes its own rules --"
Including the rules on proceedings to advise and consent over presidential nominations.

"...nothing about how they should work or if votes should require super-majorities."
You're right. So, why are you disagreeing with me? I've already stated, and it supports my argument that the Republican Senators are not violating the Constitution, by wanting to change Senate Rules.

"Try to post something that says that."
Why should I? You're winning my argument for me.

Okay, class, what is the number one rule concerning the U.S. Constitution?

If it doesn't specifically enumerate or prohibit a power, responsibility, or obligation, such power, responsibility, or obligation is left to the States or the People. Senators are representatives of the States and, therefore, are free to set their own rules, however they see fit, unless prohibited by the U.S. Constitution.

And, Senate rule changes only require a simple majority.

Class dismissed.

[ChumpDumper]

So, why are you disagreeing with me?Because you did nothing to discount the precedent and tradition of supermajorities.
Why should I? You're winning my argument for me.Nah, all you're saying is the Senate makes the rules. They have the power to make any stupid rule they want -- that does nothing to say they should change the existing rules -- which Republicans had no problem with whatsoever when they were blocking Clinton's appointees for up to four years. Were they wrong to do that then? Were you all hot to change the rules then?

Basically your argument is that the Senate should make any rule they want simply because they have the power to do so. They have the power to make appointees give testimony while standing on their heads then -- should they do so just becasue they can?

[The Ressurrected One]

Because you did nothing to discount the precedent and tradition of supermajorities.
Because, I don't have to. The U.S. Constitution is clear...the Senators can make their rules. The Democrats did it when they lowered the cloture vote requirement from 67 to 60.

I suspect that if they had only had 53 Democratic Senators they would have lowered the threshhold to a simple majority too.

So, you see, there's nothing precedent setting about lowering the vote requirement and there's nothing traditional about the 60 vote rule.

Nah, all you're saying is the Senate makes the rules. They have the power to make any stupid rule they want --
Within the constraints of the U.S. Constitution, yeah. And, they've made a buttload of stupid rules over the centuries. What's your point?

"...that does nothing to say they should change the existing rules -- which Republicans had no problem with whatsoever when they were blocking Clinton's appointees for up to four years. Were they wrong to do that then? Were you all hot to change the rules then?
First of all, you're confused. There was never a Clinton judicial appointee filibustered on the Senate floor. Yes, they were blocked in committee...but never did a Clinton judicial appointee come out of committee and NOT receive an up or down vote on the Senate floor.

Second of all, I wasn't arguing what the senate should or shouldn't do...I was specifically responding to Nbadan's nonsense that the advice and consent provisions of the U.S. Constitution were no different than legislation.

Basically your argument is that the Senate should make any rule they want simply because they have the power to do so. They have the power to make appointees give testimony while standing on their heads then -- should they do so just becasue they can?
So long as it does not violate the U.S. Constitution, yeah. But, I'm thinking you're example might conflict with at least a couple of Constitutional principles.

[ChumpDumper]

First of all, you're confused. There was never a Clinton judicial appointee filibustered on the Senate floor. The supermajority rules were used to block a Clinton appointee for four years. Period. Don't deny it.
but never did a Clinton judicial appointee come out of committee and NOT receive an up or down vote on the Senate floor.Four years later? You're defending this?
Second of all, I wasn't arguing what the senate should or shouldn't do.BS
I was specifically responding to Nbadan's nonsense that the advice and consent provisions of the U.S. Constitution were no different than legislation.He's speaking more to the traditions of the Senate -- sure alot of it is derived from the Constitution but even more is BASED on it. Dan isn't arguing it can't be done. Just that it shouldn't because it goes against many Senate traditions.
So long as it does not violate the U.S. Constitution, yeah. But, I'm thinking you're example might conflict with at least a couple of Constitutional principles.Show me the protections against being made to stand on one's head in the Constitution.

[The Ressurrected One]

The supermajority rules were used to block a Clinton appointee for four years. Period. Don't deny it.
I can't deny something I don't know about. Who was it and what were the circumstances?

Four years later?
Huh?

You're defending this?
What?

BS
Such eloquence. Specifically, I was responding to:

This is being pushed by the right by claiming Judicial appointments have a lesser degree of consensus than legislation and that the filibuster, creating a 60% super-majority, is somehow 'unconstitutional.' These claims fly right in the face of the Constitution and the provisions for an independent Judiciary and Rule of Law, imho.

He's speaking more to the traditions of the Senate -- sure alot of it is derived from the Constitution but even more is BASED on it. Dan isn't arguing it can't be done. Just that it shouldn't because it goes against many Senate traditions.
And, again, since the Democrats changed this very rule in the 60's -- there is no tradition.

Show me the protections against being made to stand on one's head in the Constitution.
That's probably a matter that would have to be adjudicated if the Senate were foolish -- as silly as you to suggest it, anyway -- enough to pass such a rule.

But, I would suspect it would violate the constitutional protections afforded individuals to be secure in their person against unreasonable search. Congressional testimony is equivalent to interrogation or, a search, and making the person stand on their head could be, in my opinion, held to be unreasonable and given it is not a natural posture, insecure -- and, at the very least, irrelevant to the testimony being given.

Also, there's an amendment protecting individuals against cruel and unusual punishment. The amendment does not specifically address whether or not the punishment is the result of criminal conviction therefore, it could be intepreted that government has no authority to inflict unusual punishment -- which, in my mind, standing on one's head to testify could be construed to be.

[The Ressurrected One]

you don't know how long finnegans wake or the he-man song is, do you?
I have a feeling both sides of the aisle would forget their differences and band together to shut you up...but, that's just me.

[jalbre6]

i would love to filibuster just once in my life..
damn..
i would read Finnegan's Wake.
and then read it backwards.
then i would sing the He-Man song over and over again

I would sing "Blister in the Sun" over and over until someone threw my ass out.

[The Ressurrected One]

then my objective would be achieved now wouldn't it?
That would depend on which side of the aisle cried "uncle," wouldn't it?

[ChumpDumper]

And, again, since the Democrats changed this very rule in the 60's -- there is no tradition.Sure there is, especially since the Democrats didn't do away with the supermajority altogether. You just want to do away with it when it suits your purposes. The Senate EXISTS to bolster minority voices, and it's rules and traditions reflect that.
I can't deny something I don't know about. Who was it and what were the circumstances?Scroll up, then google.

[The Ressurrected One]

Sure there is, especially since the Democrats didn't do away with the supermajority altogether.
Trust me, it was only because they didn't have to. They had enough of a majority that 60 votes was sufficient, otherwise, you'd of seen a lower requirement. Don't be dense.

You just want to do away with it when it suits your purposes. The Senate EXISTS to bolster minority voices, and it's rules and traditions reflect that. Scroll up, then google.
Find me the place in the U. S. Constitution where it says the Senate exists to "bolster minority voices."

[FromWayDowntown]

Find me the place in the U. S. Constitution where it says the Senate exists to "bolster minority voices."

Sure, there is no express provision of the Constitution that articulates such a principle. But it has never been in doubt that the Constitution, in Madison's words (Federalist #51), operates to protect the minority from the tyranny of the majority. Would your argument then be that Madison had no intention of extending that logic to the floor of Congress? that Madison's Constitutional theories are somehow outdated or outmoded? that the current members of Congress are better versed in how the Constitution should operate than Madison was?

[The Ressurrected One]

Sure, there is no express provision of the Constitution that articulates such a principle. But it has never been in doubt that the Constitution, in Madison's words (Federalist #51), operates to protect the minority from the tyranny of the majority. Would your argument then be that Madison had no intention of extending that logic to the floor of Congress? that Madison's Constitutional theories are somehow outdated or outmoded? that the current members of Congress are better versed in how the Constitution should operate than Madison was?
Okay, you're talking about the Madisonian ideal on the function of government. We're talking about Senate rules.

Yeah, I would argue that Madison had no intention of extending that logic to the floor of the Congress. Which is why he, as principal author, didn't specifically constrain the Congress -- and, in the case, the Senate.

The Congress is specifically designed to act as a body where majority vote carries. However, in matter of great import, Madison specifically crafted the Constitution to require a super-majority.

For instance, regarding Constitutional amendments and Senate consent to international treaties; a super-majority is required by the U.S. Constitution.

[ChumpDumper]

Find me the place in the U. S. Constitution where it says the Senate exists to "bolster minority voices."The mere existence of the Senate says so.
Trust me, it was only because they didn't have to.I don't trust you at all and you can't prove such a charge, so don't make it.
Okay, you're talking about the Madisonian ideal on the function of government.Upon which the Constitution is largely based.

[mookie2001]

The mere existence of the Senate says so.I don't trust you at all and you can't prove such a charge, so don't make it.
TRO you just got Dumped!, Chump!

[The Ressurrected One]

The mere existence of the Senate says so.I don't trust you at all and you can't prove such a charge, so don't make it.
Okay. You win...I can't compete with such a superior constitutional expert.

[jalbre6]

madison was just a potsmoking hippie, along with all the other founding fathers...

liberals.

how dare they challenge king george, i mean, he's the KING!


There's only one king.

http://www.spotonentertainment.co.uk/ELVIS%20WILLIAMSON.jpg