Friday, May 20, 2005

Filibuster & Hiatus

     I am about to embark on a 7 day excursion to the eastern caribbean (the hiatus). It's apparently the doldrums of the blog season anyway, with people going on vacations and such, but as selfish as the thought may be, I'd like to see some of the previous discussions fleshed out (the filibuster). The biggest downside with having a new topic each day is that we leave a lot of good discussion on the table in order to pay attention to new ones. So if you have the inclination, skim through some older posts and post inflammatory and incendiery (but not derogatory) comments. I may also have the privelege of a super-secret guest blogger one or two days this week. I'm actually very excited about the possiblity but I don't want to get anyones hopes up, especially my own. Also, since the remnants of a Pacific hurricane seem to be headed toward my very expensive vacation, I may have a good bit of time to compose a lot of future blogs next week, so watch out!
     I leave you with these parting, inflammatory thoughts: Lindsay Beyerstein, on her delightful philosphic blog that is 50% of the time over my head, suggests that a potential outcome of removing the threat of filibuster from appointments may cause "judicial activism" to explode like never before. Now, judges try to appear neutral, even when they're not. They try to be neutral as much as possible, especially if they're itching for a federal judgeship. But if the ruling party can install extremist judges (not to imply that Bush's judges are extreme, just that the possibility to do so exists), judges will try to pander to the party lines to be nominated. Earlier in their careers, judges will try to get the attention of the party elite by moving farther and farther from the center - from objectivity. "Judicial Activism" on both sides of the fence will go nuts as judges try to twist the constitution to their will in order to get appointed to higher and higher office.
     Case in point - my Congressional district is solid red. No Democrat will get elected here in my lifetime (unless minorities start moving in enmasse - then the Repubs will flee north again like they did in the 60's in Atlanta). Therefore the Republican primary was the election, and the two main Repub candidates battled it out in extremism royale, competing to see who could call the other gay-friendly more, who could call the other abortion-friendly more, despite the fact that both were extreme homophobes who would stone their daughters if she tried to have an abortion even if she had been raped by Adolf Hitler.
     So the question is, what do the Republicans have to gain by getting rid of the filibuster? I understand the appeal when Republicans are in power, but image if Hillary Clinton were President. Would they want her to have no opposition in choosing the judges of her choice? If this plan would increase judicial activism, maybe the Republicans are blowing a little smoke up our skirts. Maybe they don't hate the idea of judges creating law at all, as long as it's in their favor.

20 comments:

Mike said...

Scott, you make it sound like there is a 200 year tradition of filibustering judges. Up until 4 years ago the filibuster was never used to stop a judicial nominee from getting a vote. I would submit the crisis you claim to want to avoid is exactly what the democrats want. They want judges who will uphold abortion and rule in favor of gay marriage. It's clear that's what they want and that's all it comes down to for them. Now that they have lost their majority they fear their legislative bypass is about to come to an end. The republicans are being forced into playing this card to get back to having judges who interpret the Constitution rather than rewrite it. And just like you said, when the democrats are in charge someday (God forbid), they will be able to turn it around on the Republicans. And I'm truthfully fine with that.

Ben said...

You're both a little right. Scott is right in that ending the filibuster NOW might cause judges to be more extreme later. However, that's only because the Dems decided to use the filibuster in such a nontraditional manner. Had they not started this whole mess by not doing their constitutional duty, then it wouldn't be a problem whose solution had other adverse effects.

And Mike is right. If you look at the history of "liberal" versus "conservative" judges on teh Supreme Court, the liberals are much more likely to suddenly discover a new interpretation of some phrase in the constitution which allows them to do what they want. The conservative ones, befitting their conservative philosophy, are much more likely to be strict constructionists who read the constitution as written. Whatever my opinion on abortion might be, there's certainly nothing anywhere in the constitution that says the federal government has any say in such an issue, but liberal activist judges managed to reinterpret things to make it their problem and thus we have Roe v Wade. Good may have come out of it, but it is absolutely NOT in the Supreme Courts' purview to be ruling on abortion.

ORF said...

No doubt the Republicans will just do like they did when DeLay came under indictment for K Streeting last fall and reverse the law they wrote to prevent someone from being under suspicion and also holding a leadership position in the House. I believe the term they like to use is "flip-flopping."

Mike, I agree, there is nothing in the constitution that says a word about abortion. However, I believe it should be a legal right and until someone can tell me otherwise without invoking the man upstairs, then I really don't think the Right has a leg to stand on about it. We've discussed this before, you and I...
As for whether or not the SC should be deciding things like that, well, I feel like much of the important civil rights legislation in this country exists because someone brought a court case up about it, which either ultimately struck down an existing law or established a legal precedent. Which is what the legal system is all about. The courts may be over crowded and corrupt, but I would tremble to think that they would ever be restricted in their jurisdiction (no pun intended) as they are the most direct means of recourse we have as members of the American public.

Mike said...

Well, I see we're heading down the abortion road again. Sorry to open that can of worms. I'll just say this. I'm personally against abortion. I don't think that surprises anyone. ORF calls it a civil rights issue for the woman. I disagree and say what about the civil rights of the child? But besides that issue, I would accept abortion if it had been passed through congress and signed into law by the President. But it wasn't. Before Roe v. Wade the law of the land was it was up to the states to decide. I would have been ok with that. If I'm in the minority I can accept it, don't have to like it, but I can live with it. What I can't stand is when a group of unelected officials decide to take power away from the states and dictate their moral values on all of us. If they had ruled it were up to the states to decide on abortion, I could accept that because it gives power back to the people. I'm not in favor of the Supreme Court ruling abortion is illegal. That would be just as bad as saying it's legal. Now, that being said, I would absolutely vote for a governor, congressman or president who opposed abortion because I think that is the proper way to address the issue.
I think the difference here is, liberals want judges who will uphold liberal social standards. Conservatives want judges who will butt out and let the states and the legislatures decide.

Ben said...

Exactly my point, Mike. Abortion, like a whole lot of other issues, should be decided at the state or local level. The federal government is supposed to be there to run foreign policy and ensure domestic security. Just about everything else they do was imagined by the founders (except Alexander Hamilton, who wanted the Federal government running everything, if memory serves... been a long time since those history courses) as a state by state issue.

ORF said...

My intention wasn't to turn this into an abortion discussion, I was merely using that as an example of a law the court established through precedent. Precedent is considered a valid, accessible means of legislation. So basically, I hear you calling for the abolition of the Supreme Court.

But what I really wanted to do was respond to this, because it's the point I've been trying to get across to you all along and now you've gone and said it yourself:
"What I can't stand is when a group of unelected officials decide to...dictate their moral values on all of us." Something we finally agree upon!

ORF said...

p.s. my last comment was in response to Mike. Not Scott. sorry!

Mike said...

ORF, I'm the one who first used the "A-word" so blame me for starting the abortion discussion.

So if you don't support judges legislating from the bench, as you claim that is our common interest, why do you support the Supreme Court overturning the majority of the state legislatures as they did in Roe v. Wade? Why do you support the federal court throwing out the Nebraska state ammendment, which was passed by a 70% majority on the state ballot, to declare marriage is between a man and a woman? (I'm assuming you support that even though I've never heard you say one way or the other. If I'm incorrect please feel free to correct me, but most liberals supported the ruling.)

What I'm hearing is you guys support judges legislating from the bench as long as it supports the liberal agenda, but you oppose it when it threatens your agenda. I don't support any judge saying yes or no to abortion or gay marriage, or pornography. They are issues that should be left to the state legislatures.

Ben said...

According to http://althouse.blogspot.com/2005/05/how-about-supermajority-to-reject.html ,the authors of our Constitution initially wanted to require a 2/3s vote of the Senate to REJECT a judicial nominee. Why? Because judges are supposed to be appointed by the Executive Branch. The dems have decided to go against this and make it so that judges are really appointed by them, with the President's appointment only a formality, as they will block any judges they don't like. Despite the fact that the Constitution does say 1/2 to approve, the Dems are using the filibuster, a concept not even once mentioned in the Constitution, to make it 3/5s to approve a judge. They have, in all reality, stolen a power of the Executive Branch and thrown off the system of checks and balances.

The use of the filibuster to block judicial nominations is tantamount to Bush suddenly declaring a new ammendment. It's not his job! Now is it the Senate's job to put judges in office. They are stealing it for political reasons and going against how the system was designed to work. They will regret this weakening of the executive branch if they are ever in power again (and if they keep going like they are, with Dean as chair and hijacked by the far left, they won't be in power again).

ORF said...

Mike, I was being tongue in cheek about my comment and also taking you somewhat out of context. While you intended "unelected officials" to mean judges, I meant it to be members of the Evangelical Right Wing movement.

As for the Nebraska ruling, I was unaware of it, but you guessed correctly that I'm in favor of it. Again, I feel that same-sex marriage is an issue being driven by the Right on an evangelical basis and I think that is contrary to the constitutional structure of our country in which what God has to say is separate from what the government has to say. Just because the constitution doesn't explicitly state something about gay men doesn't mean they are a less-important part of the citizenry than I am as a heterosexual woman. Give me one good reason, aside from a reference to Sodom, Gomorrah or letters from Paul, that gay people should NOT be allowed to live together in matrimony? Seriously. (I'm not picking on you directly as I know you are ambivalent about gay rights, but I feel like the entire movement against gays is very religiously-based and that really bothers me.)

Mike said...

Ok. Anyone who gets upset over gay rights better leave now cuz it's about to get ugly. You want to know why I'm against gay rights without involving God? Here goes...

We need to have standards in our society. Certain levels of decency we should all live up to as a community. Homosexuality is a perversion. It isn't natural. Men weren't meant to stick their you-know-what you know where. I group it with other perversions, like polygamy and beastiality. As a society we don't accept these behaviors, and I don't think we should accept homosexuality either. We set standards where adults are not permitted to have sex with minors. This is an extension of that to me.
Now, you can call me a bigot. You can call me intolerant. I am intolerant. I will not accept it and I will not offer it as a choice to my children. They will be told marriage is between a man and a woman. Period. Does this put me "out of the mainstream"? Hardly. In 2004 something like 11 states put marriage ammendments on their ballots. In every case, the ballot passed and they declared marriage will only be recognized between a man and a woman. So who is out of the mainstream?

Now, that being said, I do not consider any gay person to be a second class citizen. They are free to work for whomever they please. They are free to live wherever they please. They are free to enjoy all the privileges we enjoy as Americans. But getting married is not a Constitutional right. I don't remember seeing it in the bill of rights. Our government is supposed to be a government for the people by the people. When the wishes of 70% of the people are overturned, it ceases to be a government by the people. Much like the abortion issue, if 70% of Americans supported gay marriage and voted it into law, I would accept that I was in the minority and move on. But I'm outraged when 70% of the majority is overturned by a small minority.

Scott said...

A few questions: what if 70% of the people decided that it was OK to send Jews to the gas chambers. Does that make it OK? Does that mean the other 30% had better hurry up and get on board? Sometimes the majority is not right.

Why is polygamy illegal? Beastiality? The answer is religion. So you can't hold these up as examples of why gay marriage shouldn't be allowed. Besides, bestiality is probably already covered in laws against animal abuse, like pedophilia is illegal because of child abuse. Take out religion, and there are no good reasons why you should have the power to ban someone's "you know what" from doing anything in the privacy of their own home.
Civil marriage is a contractual basket that gives two people the ability to make a life together. It confers power of attorney, power to make life and death decisions, joint property, etc etc. Forget the word "marriage" which for some reason has conservatives freaked out. Why are they against private contractual agreements, which are becoming illegal under state anti-gay amendments?

Ben said...

I have no beef with two gay people wanting to be together and enjoy all the rights a married couple has. I think the government should get out of the marriage game and do civil unions in which any two people can unite and have all the tax breaks and such formerly accorded to married couples. Religions can then do marriages separately however they want.

alex said...

I agree with ben that the senate is attempting to take away part of the executive branches responsibility. I myself am a conservative and prefer a more literal interpretation of the consitution and am particularly disturbed by liberal judges using foreign laws as part of there reasoning for creation of legal precedent particularly the SC using such reasoning to declare something unconsitutional when the constitution itself says that it is the supreme law of the land not laws of other nations or international bodies. However to get back to the issue of the filibuster my main complaint with this practice is that it has become painless due to changes in the rules of the senate. It used to be that once there was a filbuster all senate buisness stoped because you could not move on to other buisness until debate on the issue stoped and that took a 60 percent vote of senators present at the debate. This mean't that you had to consider an issue important enough to stop all senate buisness over. I believe we should return back to this system that way democrates can keep the filbuster since they believe it is so important but they can't filbuster people at there convience they will have to expend political capital to do it. They can explain to the american people why judge so and so is so dangerous that all buisness must stop to keep him from getting onto a certain court.

Mike said...

Ok you oppose sending Jews to the gas chamber, but killing millions of babies every year is ok. But whatever.

Sometimes the majority isn't right. Slavery and segregation come to mind. But in each of these situations, the American public began coming to their senses and realized they were wrong. Unfortunately, in both cases small factions of people tried to keep these institutions by using tactics like filibusters. (Usually they were democrats, but that's beside the point.) Over the years the filibuster has only been used by the small radical minority when they realized they were out of the mainstream and they were on the losing side. But back to the point.

All of our laws must be based on some sort of morality. If you don't have morals, you cannot have laws. So what we're talking about is where we draw the line in the sand. We all agree on pedophelia and beastiality. Some societies allow polygamy. Where we're split is on homosexuality. For the record, again, I would not support any law that banned people from performing sexual acts in their homes between consenting adults. However, I think we should recognize that marriage is a religious institution and as such it should be governed by the laws of God. I'm not opposed to civil unions where individuals can get tax breaks and legal contracts insuring rights of attorney and inheritance. If you're willing to commit your life to another person I'm not opposed to giving you those rights. However, you must somehow prevent situations where two heterosexual friends don't use civil unions just to get the tax breaks and abuse the system. I'm not sure how you do that.

Kara0303 said...

Scott, sweetie, your blog makes my brain hurt. LOL. Thanks for visiting mine, but I hope you don't mind if I only check in and comment on yours every once in a while. I'm a smart girl, just can't spend my free time after work using my brain, HA! :P

ORF said...

Mike,
How do you feel about Socrates? Did you read him in college? Or what about Plato's Republic? Ever learn about Euclidean geometry? And what about Homer? Because there is strong evidence to suggest that all of these men engaged in homosexual activity at one point in their lives. Most Greek men of a certain social class did. A lot of people throughout history did. Men and women. To little effect on their success. My point is, there is no psychological basis that proves that this being attracted to a member of the same sex is a perversion the way getting it on with a pig or a horse is a perversion. And if you dig a little deeper into why YOU think it's a perversion, I guarandamntee you it is because the Bible tells you so. Which nullifies your argument because I said it had to be without biblical reference.

You go on to state in your second comment about gay rights that you don't really care what gay people do in the privacy of their own homes after you said "I don't think we should accept homosexuality" in your first comment about it. Are you confused about this? Seriously, what would you do if your son or daughter grew up, went to college and came home with his or her boyfriend or girlfriend? Kick them out?

Look, I grew up in the South; I know all about certain social aberrancies that make people uncomfortable and nervous like gay men or biracial couples. But the fact remains that gay men, white women and their black husbands and any other minority group are all citizens of this country. We all get equal access to life, liberty and the pursuit of happiness. And just because part of the electorate is squeamish and undereducated about the situation doesn't justify denying people the right to be happy and to live their lives just like every other American who is straight.

Perhaps the reason I don't really understand the crux of this whole gay marriage debate is that I find it laughable that people talk so much about the "Sanctity of Marriage." What crap. I mean, hell, Jim Bakker couldn't even keep it in his pants and he had that jewel of a wife in Tammy Faye. And nobody really seemed all THAT offended by Britney Spears' Vegas nuptial or her subsequent union to that loser Kevin Federline. Let's get the divorce rate down to 15% and then we'll talk about how sacred we all think marriage is. Until then, if people want to sign themselves up for the potential headache of it all, then far be it from me to stop that. Also, I don't really believe you need to have God involved for it to equal marriage so I make no distinction between "marriage" and "civil union," because once everyone's wearing their rings, we still say define that person as "married."

And your comment about preventing two heterosexuals from "taking advantage of the system" is silly. Don't be ridiculous. We don't need to legalize gay marriage for two straight people to get hitched any way they'd like and qualify for IRS benefits. I can go to City Hall tomorrow with any guy I know except my brother or father and get married with very few questions asked so we can file a joint return next year.

Sylvana said...

Just for the record, you don't need a ring to be married.

sideshow bob said...

But you do need a mood ring to be gay.

Mike said...

Ok, so Greek philosophers were gay, so therefore I should embrace it. And how did that Greek civilization end up? Oh yeah, it crumbled when it was taken over by the Romans. The Romans also indulged in sins of the flesh and where did it get them? Oh yeah, their empire too crumbled. I guess embracing the homosexual lifestyle isn't exactly the pinnacle of a civilized society afterall.
"Sanctity of Marriage" is crap? You know what's crap? Calling gay marriage a "civil rights" issue. If I were an African-American who lived through segregation or I traced my roots back to where my ancestors were sold off the boat I would be deeply offended that someone was comparing gay marriage to the struggle African-Americans went through.

Getting married is not a right. It's not listed in the Bill of Rights. You can't go down to your local courthouse and say "I demand my right to be married be recognized" and be hitched with a spouse by the state.

Why is marriage so important to gays? Who says they can't live together and have a lawyer write up a power of attorney and will to provide for legal rights? I'm totally in favor of giving gay couples all the priviledges of married couples, like tax breaks and medical insurance benefits, but why this need to call it marriage? The answer is acceptance. Gays want society to accept their lifestyle. I can understand their position. We all want acceptance. But they are going about it all wrong. They should be working to educate people about their lifestyle, but instead they are trying to infiltrate our society with their gay pride parades and their gay tv shows. They are in our face with their protests and their taking over of college campuses. They have given up trying to win legislative battles so they have turned to the courts and tried to find a few activist judges to rule in their favor to dictate their agenda to the rest of the country. I think this is what most people resent. This is what is cranking up the conservatives. America hates a bully and that is how they view the gay rights lobby today.

But I must say you guys have somewhat swayed me. A month or so ago I was against giving gays any priviledges married couples enjoy, but now I find myself supporting civil unions. We're making bridges here, people! We're finding common ground! Does this make me a maverick like John McCain? I so want to be called a maverick by someone.