Mullings: An American Cyber-column By Rich Galen

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Rich Galen

Friday April 29, 2005

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From the Small Business Administration Expo '05
Washington, DC

The US House and Senate are now fully engaged in the process they love best: Arguing over the always arcane and often unwritten rules by which they govern themselves, specifically, the rights of Senators to filibuster judges; and the rights of House Members to throw dirt-bombs at one another using the Ethics Committee for political cover.

The US Senate bills itself as the World's Greatest Deliberative Body, although there was a time when Mae West might have made a creditable claim to that title.

The whole idea of deliberation is defined in Webster's Third Unabridged as: "The act of weighing and examining the reasons for and against a choice or measure; careful consideration; mature reflection."

The background of the fight over Federal judges is found (for those of you who were absent the last time we discussed this in class) in the U.S. Constitution, Article II, Section 2, Clause 2:

[The President] 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.

If the Framers had had their heads on straight back in 1788, they might have argued for a super majority - maybe three-fifths - for Federal judges to be approved inasmuch as (via Article III, Section 1) "Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior," which translates to life-time tenure.

But they didn't.

Democrats in the Senate who don't want to change the filibuster rule on judges know they don't have a legal - much less Constitutional - leg to stand on, so they have offered what the popular press has allowed them to call "a compromise."

There are seven Federal judges at issue. The Dems say they will allow floor votes on some nominees if the Administration will withdraw the names of some of the others. This appears to represent a change in the meaning of Advice and Consent by adding a minor precedent giving the minority party in the US Senate an absolute veto over Presidential nominees to the Federal bench.

Senate Majority Bill Frist (R-TN) yesterday proposed his own "compromise" which would require all Circuit and Supreme Court nominees (the top two judicial levels) to be reported to the floor.

During the time when the GOP controlled the Senate and Bill Clinton was President the Republicans didn't filibuster his nominees - they simply bottled them up in committee and didn't allow them to come to the floor in the first place. That was the same tactic the Democrats used after the Jeffords defection and they gained control of the Judiciary Committee.

Frist also promised the Democrats that they could have 100 hours of debate on each nominee which should be more than enough time for the Democrats to (a) explain why a nominee should not be confirmed, and (b) give each Democratic Senator plenty of time to get some wonderful video clips for home state consumption.

A hundred hours of debate is, generally speaking, what is allowed under Senate rules if a filibuster is cut off by sixty votes anyway, so Minority Leader Harry Reid (D-NV) said the Frist proposal was nothing more than a "big wet kiss to the far right."

The US Senate is sounding more and more like the US House every day.

All this may well come to a head between now and the July 4th recess. Why? Because it seems likely President Bush will have at least one, and perhaps as many as three, nominations to the Supreme Court over the remainder of his term.

Each party will use these Circuit Court nominees as pre-season tests of party resolve and (if-you-know-what-I-mean-and-I-think-you-do) party potency.

On the Secret Decoder Ring page today: Last night's Associated Press account of the state of play in the Senate, and a Mullfoto showing the Yin and the Yang of being the MC of last night's SBA Awards Dinner.

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