But the real kicker is: why is a filibuster necessary to have debate, as opposed to an ordinary agreement between majority and minority leader to have extended floor debate? The reason: the latter doesn’t threaten to (a) shut the Senate down and take away an unpredictable amount of extremely valuable floor time, and (b) it won’t get the same kind of public attention (there is no bad publicity, after all).

Folks who propose the use of the filibuster to draw out debate on nominees should have to answer why they pitched all their anti-filibuster arguments overboard, when, on the face of it, simple floor debate would suffice to highlight the issues they want to highlight.

Perhaps they’d say that without the threat of filibuster, they won’t get enough floor debate. But if using the filibuster to kill nominees is bad, how can it be good to threaten to use the filibuster to kill nominees in order to extend debate?

Remember: Eastman said that the minority “faction” has literally no constitutional role in nominations, and the central Advice and Consent check on the judiciary is not the Senate but presidential appointments responding to popular will. I don’t understand how he squares that view with his support of the filibuster to draw out debate by threatening to kill the nominee.

If the Framers of the Constitution had thought it prudent to require a two-thirds or three-fifths vote, they would have included that requirement. But they intentionally did not. In fact, it was argued that even giving the Senate an “advise and consent” role would make the President a minion of the Senate and thus subordinate the office of the Presidency to the legislative branch.

A careful reading of the deliberations of the Framers at the Constitutional Convention make it clear that the argument that we now need 60 votes to confirm a federal judge is a blatant misrepresentation of the Framers’ intentions. It is another example of how liberals work to bypass the Constitution and impose their agenda on the rest of the nation, usually against the will of the majority. This is the very thing that the Framers wanted to avoid by taking the appointment power away from the Senate.

What does this mean in the context of the debate over changing the Senate rules to eliminate the filibuster of the President’s judicial appointees? It means that the rules of the Senate, which are written and adopted by the Senate and not the people, should be made subservient to the Constitution and the people.

The rules of the Senate are not sacrosanct and they are not above or even equal to the Constitution. Despite what the liberals say, the Framers gave us a Constitution that is a contract between the people and their government. And in that contract the power to appoint judges resides with the President and that power is not to be diminished by a minority of liberal obstructionists senators.

http://www.alabamapolicy.org/g…..id_art=145

https://www.hslda.org/courtreport/V20N1/V20N101.asp

The easiest change would be to eliminate the filibuster rule in the U.S. Senate. If judges were approved by a simple majority vote—not the 60 votes currently required—it would be a victory for self-government in every aspect of the decision.

We need to urge this permanent change. We should not worry about what happens when the liberals are in control of the Senate. Republican Senators almost always vote to confirm Democrat-nominated judges anyway. The principles of self-government and majority rule should be the same in good times and in bad.

If the Senate refuses to do this, more radical measures must be considered.

The “more radical measures” include term limits and election of judges.

“The Constitutional Structure of the Appointment Process Envisions a
More Limited Role for the Senate than is Currently Claimed, and None
for a Minority Faction of the Senate.” Heading I, p. 3.

Yes, “none,” i.e., the Constitution gives the minority faction (the Republican party) no role in the appointment process. Pretty stunning, when stated that way.

Let me first note that I’m not opposed to the filibuster, per se, either as a matter of policy or constitutional law. I think the Senate, within certain structural limits is authorized to enact procedural mechanisms such as the filibuster pursuant to its power to adopt rules for its own proceedings. And I think that by encouraging extensive debate, the filibuster has in no small measure contributed to this body’s reputation as history’s greatest deliberative body.

But I think it extremely important to distinguish between the use of the filibuster to enhance debate and the abuse of the filibuster to thwart the will of the people as expressed through the majority of their elected representatives.

The use of the filibuster for dilatory purposes is particularly troubling in the context of the judicial confirmation process, for it thwarts not just the majority in the Senate and the people that elected that majority as any filibuster of ordinary legislation does, but it intrudes upon the president’s power to nominate judges and ultimately threatens the independence of the judiciary itself.

. . .

Contrary to the testimony of Senator Schumer earlier and the comments like Senator Kennedy, [the Advice and Consent Clause?] is not designed to [provide?] a co-equal role in the confirmation process to this body.

The primary role, as Joseph Storey (ph) himself acknowledged in his constitutional treaties (ph), was given to the president with a limited check in this body to make sure that the president did not abuse that power. Ultimately it becomes clear that one of the few ways that we have to control the unelected judiciary, which was designed specifically to be counter-majoritarian, is over time, through the use of the president elected by the citizenry of this country to appoint judges who agree with the political views of the country.

I really doubt we’ll hear him emphasize the last part any time soon.

More fun from the full testimony, at the internet archive here:
http://web.archive.org/web/200…..timony.pdf

Heading 1, p.3 reads:

The Constitutional Structure of the Appointment Process Envisions a More Limited Role for the Senate than is Currently Claimed, and None for a Minority Faction of the Senate.

Then we have, “The advice and consent role envisioned by the Constitution’s text is one conferred on the Senate as a body, acting pursuant to the ordinary principal of majority rule.” (p. 11). “Whether the filibuster is an unconstitutional restriction on a majority of the Senate in ordinary legislation has been much debated, but its use in the judicial confirmation process is particularly troubling.” (p. 12).

As I note above, Eastman doesn’t think that the filibuster for judicial nominees is unconstitutional as such (but see below). “A filibuster rule designed to encourage necessary debate is certainly within the scope of this constitutional provision, but a filibuster designed not to encourage debate but to thwart the will of the majority long after the debate has run its course runs afoul of other constitutional norms, such as the requirement for majority rule in the absence of a specific constitutional provision to the contrary.” (p. 13). But he also argues that the President’s power to appoint judges is a check on the judiciary, and that the President has a constitutionally greater role because the president is accountable in ways that Senators are not (14-15). (Not clear how that is an argument from original constitutional design given the electoral college, but never mind).

Eastman supports modifying the cloture rule to make sure that debate is limited, not unlimited. (”A third alternative would be to amend Senate Rule XXII to allow for a limited use of the filibuster to guarantee a reasonable time for debate without ultimately giving to a minority faction a veto power over a Senate majority.” (p. 17)). One question for him would be whether the filibuster of judicial nominees is justified absent such a change in the rules, i.e. when the minority is using an essentially limitless power but pays lip service to the idea of debate without acceding to demands for institutional constraints on the power. If Democrats did that, it’s pretty clear where Eastman would stand, I think.

He closes with the following: “In sum, there is good reason that the filibuster has only rarely been used in the context of judicial confirmations, and never before against a circuit court judge. The use of the filibuster thwarts the will of the majority, and is therefore not only undemocratic but very likely unconstitutional.” (p. 21).

So perhaps he wants to have it both ways.

Yep, just what I want on the supreme court 6 people who will decide based on a religion that even southern crackers look down on.

Yes, but she’s a woman. So what? How many votes have been decided by one more woman on the court, two, three? Drop the nomination and the waste of energy until you get an american who is actually democratically inclined. Sotomayor can get along just fine at her present level. She should never have been nominated. Until all five of the current catholics are retired, there is absolutely no reason to nominate anyone for a position on the court.

From the history of the court so far in this century, the average american would be much better off if the court could not assemble a quorum. No one but a total idiot would allow another of these cultists on the court.

How would a Great Debate be complete without full and complete coverage of the entire Republican case supporting the Party’s conclusion that she is racist, and all the juicy evidence to support that (member of La Raza, likes Puerto Rican food, etc.)

In fact, I think that such a Great Debate on these important issues, stretched out for an extended time, with television “cut aways from regular programming” to check on the status of the Great Debate, and the important arguments would be highly informative and educational for American voters.

I personally believe that the result of this Great Debate would be a staggering decline in Hispanic support for the Republican party as far as the eye can see. What’s not to like?

The only problem is forcing Senator Reid to actually allow the Republicans to destroy their party by making them actually debate, instead of backing off at the slightest threat of the filibuster and giving in to whatever the Republican “bullies” want him to do.

http://www.va11gop.org/campaign/hd34.php

Among the posts on their home page was a piece on the “radicalism” of Dawn Johnsen, and of course, a “statement” on the death of George Tiller by an “unidentified gunman.”
“This week as we gather for our annual June Tea event, themed Love Lets Live, we will lift up George Tiller’s loved ones in prayer.”
Words fail.