Filibuster frustration

Bill Frist, Senate majority leader, offered a proposal that would have ended the bickering over whether judicial nominees are denied an up or down vote on the floor of the Senate. The offer was rejected by Harry Reid, Senate minority leader, although he did indicate that he would consider some of the proposals made.

In his floor speech, however, Senator Reid made a cinematic reference that, quite frankly, is becoming a bit tiresome to hear from any senator. He stated, "Again, I do not really like the proposal given, but I am not going to throw it away. I am going to work on it and see if I can come back with something that is in keeping with what I think is the 'Mr. Smith Goes to Washington' scenario."

In fact, a number of Democrats have recently cited this movie as inspiration for their judicial obstruction. Here are Robert Byrd, Dick Durbin, Harry Reid (again), and Dick Durbin (again), invoking the movie in support of their filibusters of judicial nominees. Here is probably the best description of what the Democrats are not doing, by Dick Durbin (again): "So if I am perplexed by an amendment offered by one of my colleagues, and I stand up to debate it and decide I am going to hold the floor of the Senate as long as my voice and body can hold out, I can do that, until such point as 60 colleagues, Democrats and Republicans, come together and say: Enough, we want to move to a vote. That is what it is all about."

Fine with me. Let's do it. Or as Senator John Kerry might have said, "Bring it on!" If Senator Reid and Senator Durbin really want to preserve the "Mr. Smith" scenario, let's go back to the days when a filibuster was truly a filibuster, when a senator actually had to take the floor and speak for hours on end to slow down debate on a matter. That is not the way filibusters work today. Now, if a party threatens a filibuster, the matter is simply not placed on the Senate agenda for debate. Both parties are to blame for this, however. Neither party wants to bear the political cost of a good, old-fashioned "Mr. Smith"-type filibuster because the Senate proceedings are televised live on C-SPAN (or C-SPAN2 -- not sure which). And Republicans don't want to do their jobs and sit in the chamber during a filibuster to ensure that there are always a majority of Republicans there to prevent a nominee from being voted down.

That "game" is frustrating and worn out. If Senator Reid wants to preserve the "Mr. Smith" scenario, fine. Let the Democrats read from the telephone directory for hours, and let the Republicans sit in their chairs listening (heaven forbid someone doze off and be caught on camera) and find out how America really feels about preserving the filibuster rule in the Senate, and how America feels about the way the Senate conducts business and spends taxpayer money. Take the floor, senators -- let's see how long you can hold out.

A Haunting Specter

Many conservatives were leery of turning the chairmanship of the Senate Judiciary Committee over to Arlen Specter after his post-election remarks that seemed to warn President Bush about forwarding conservative judicial nominees. Specter was ultimately given the post, despite a serious grass-roots campaign against him, when he issued this statement pledging to work for the president's nominees.

Specter delivered a speech on the Senate floor on Thursday, April 21, regarding judicial nominations, filibusters, and the constitutional option to end the filibusters, and stated the following:

"On these critical issues with these cataclysmic consequences, I urge my colleagues on both sides of the aisle to study the issues and to vote their consciences independent of party dictation. I have not rendered a decision on how I would vote on the constitutional/nuclear option, but instead have been working to break the impasse by confirming or rejecting the previously filibustered nominees by up or down votes. . . . Central to the definition of deliberation is thought. And we pride ourselves on being the world’s greatest deliberative body. And thought requires independence—not response to party loyalty or any other form of dictation. The lessons of our best days as a nation should serve as a model today for Senators to vote their consciences on the confirmation of judges and on the constitutional/nuclear option." [Emphasis added.]

The highlighted portion of his speech is notable for the contrast it appears to draw with the statement he issued to ensure his chairmanship:

"I have already registered my opposition to the Democrats’ filibusters with 17 floor statements and will use my best efforts to stop any future filibusters. It is my hope and expectation that we can avoid future filibusters and judicial gridlock with a 55-45 Republican majority and election results demonstrating voter dissatisfaction with Democratic filibusters. If a rule change is necessary to avoid filibusters, there are relevant recent precedents to secure rule changes with 51 votes." [Emphases added.]

Now that he is safely ensconced in the Judiciary Committee chairmanship, Senator Specter apparently feels free to act as though that position were never in doubt. While the recent Senate speech would no doubt be cast by the senator as a pox on both the Republicans' and Democrats' houses, the tone of "I have not rendered a decision on how I would vote" on ending judicial filibusters stands in stark contrast to his assurance that there are "precedents to secure rule changes with 51 votes." We'll see if the major media pick up on this story. The Washington Times has run an article, but I have seen little elsewhere.

Deconstructing Ginsburg

Supreme Court Justice Ruth Bader Ginsburg, a Clinton appointee, recently gave a speech defending, even extolling, the virtues of looking to foreign law in interpreting the meaning of the United States Constitution. Today on National Review Online, Edward Whelan does a masterful job of dissecting Ginsburg's speech and explaining both why her view is contrary to the Declaration of Independence (the document Ginsburg uses as the basis for her speech), and exposing the fallacy behind her logic. It's a must-read for anyone interested in these recent developments on the Court.

Slippery slope of compromise

According to this story, Senate Minority leader Harry Reid is proposing a compromise to stave off a manuever that would ban judicial filibusters, the much talked about "nuclear option." Under Reid's proposal, Democrats would agree to up or down votes on two Bush nominees to the Sixth Circuit Court of Appeals, but are demanding that a third presidential nominee be withdrawn and replaced "by an alternative who is preferred by Michigan's two Democratic senators."

This is not a proposal that should be taken seriously by the Republicans in the Senate or, for that matter, anyone who seeks to preserve the constitutional design, and the maintenance of the presidential power, Republican or Democrat, to nominate the judges of his choice. The Constitution provides in Article II, Section 2, paragraph 2, that the president "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." Alexander Hamilton elaborated on this presidential power in The Federalist Number 66:

"It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy." [Emphasis added.]

In recent years, with the increasing politicization of the judicial nomination and confirmation process, it has become fashionable for senators whose party does not control the White House to place undue emphasis on the "advice" portion of the "advice and consent" clause in an effort to convince the public that they are entitled to assist the president in selecting the nominee. If Hamilton is to be believed, however, it was never the vision of the Framers for judges to be selected by a committee consisting of the president and a group of senators. The choice of nominee lies solely with the president, regardless of party. The role of the Senate is to accept or reject that nominee. The compromise proposed by Harry Reid chips away significantly at this presidential power. It should be declined.

UPDATE: I recognize that, since Washington's first administration,there has existed the tradition of senatorial courtesy. As the Senate's website notes, however, that courtesy has traditionally been extended to senators of the president's own party in recommending nominees from the states which they represent. It is not a practice that allows senators of a party different from the president to dictate presidential nominees,the scenario envisioned by the Reid compromise.

Joe Lieberman, shame on you

I generally have a great deal of respect for Joe Lieberman, so when I came across these two separate speeches, given almost a decade apart, I was deeply disappointed in the rank partisanship from a politician who is usually better than this. First, from the Congressional Record, January 4, 1995, on the amendment to Senate rules to do away with the filibuster in the Senate (keep in mind, this was just after the 1994 midterm elections, when Republicans took control of both the House of Representatives and Senate):

"It is important now to make this effort to show that we have heard the message and that we are prepared to not only shake up the Federal Government but shake up the Congress. And not just for the sake of shaking it up, but because of a fundamental principle that is basic to our democracy, that is deep into the deliberations of the Framers of our Constitution and appears throughout the Federalist Papers, which is rule of the majority in the legislative body. It is this majority rule has been frustrated by the existing filibuster rule. So I am privileged to join as a cosponsor with my colleague from Iowa in this effort.

"Mr. President, whenever I explain to my constituents at home in Connecticut that a minority of Senators can by a mere threat of a filibuster --not even by the continuous debate, but by a mere threat of a filibuster --kill a bill on the Senate floor, they are incredulous. When I tell them that now as a matter of course a Senator needs to obtain 60 votes in order to pass a bill to which there is opposition, frankly, the folks back home are suspicious. . . .

"For too long, we have accepted the premise that the filibuster rule is immune. Yet, Mr. President, there is no constitutional basis for it. We impose it on ourselves. And if I may say so respectfully, it is, in its way, inconsistent with the Constitution, one might almost say an amendment of the Constitution by rule of the U.S. Senate.

"The Framers of the Constitution, this great fundamental, organic American document considered on which kinds of votes, on which issues the will of the majority would not be enough, that a vote of more than a majority would be required, and the Constitution has spelled those instances out quite clearly. Only five areas: Ratification of a treaty requires more than a majority of the Senate; override by the Senate of a Presidential veto requires more than a majority; a vote of impeachment requires more than a majority; passage of a constitutional amendment requires more than a majority; and the expulsion of a Member of Congress requires more than a majority.

"The Framers actually considered the wisdom of requiring supermajorities for other matters and rejected them.

"So it seems to me to be inconsistent with the Constitution that this body, by its rules, has essentially amended the Constitution to require 60 votes to pass any issue on which Members choose to filibuster or threaten to filibuster.

"The Framers, I think, understood--more than understood--expressed through the Constitution and their deliberations and their writings, that the Congress was to be a body in which the majority would rule." [Emphases added.]

Joe Lieberman, in a press release from April 6, 2005, now supports the filibuster wholeheartedly:

“I am standing with my fellow Democrats in the Senate against the Republican nuclear option to ban the requirement for bipartisan majorities because I want to ensure judges appointed for life have bipartisan support and to ensure important legislation and rulings are upheld,” Lieberman said. “I am standing up to save the filibuster because it is vital to moderate, bipartisan government. That was the vision of our founding fathers and the spirit of our constitutional government.” [Emphasis added.]

Seriously, Joe. Today the filibuster is "the vision of our founding fathers and the spirit of our constitutional government," yet a decade ago the filibuster was "inconsistent with the Constitution," and "the Framers . . . expressed through the Constitution and their deliberations and writings, that the Congress was to be a body in which the majority would rule"? You even claimed that the Senate had amended the Constitution by its own rules in allowing the filibuster.

These are not the comments of a statesman. They are pandering to a political base. It's a shame a fine man has stooped so low.

UPDATE: Thanks to Lance at Ragged Edges for the link and the additional research.

The New York Times shifts on filibusters

On Tom Harkin's 1995 proposal to eliminate the filibuster, as re-printed in the Congressional record, here is a New York Times editorial:

"Time to Retire the Filibuster

"The U.S. Senate likes to call itself the world's greatest deliberative body. The greatest obstructive body is more like it. In the last season of Congress, the Republican minority invoked an endless string of filibusters to frustrate the will of the majority. This relentless abuse of a time-honored Senate tradition so disgusted Senator Tom Harkin, a Democrat from Iowa, that he is now willing to forgo easy retribution and drastically limit the filibuster . Hooray for him.

"For years Senate filibusters--when they weren't conjuring up romantic images of Jimmy Stewart as Mr. Smith, passing out from exhaustion on the Senate floor--consisted mainly of negative feats of endurance. Senator Sam Ervin once spoke for 22 hours straight. Outrage over these tactics and their ability to bring Senate business to a halt led to the current so-called two-track system, whereby a senator can hold up one piece of legislation while other business goes on as usual.

* * *

"One unpleasant and unforeseen consequence has been to make the filibuster easy to invoke and painless to pursue. Once a rarely used tactic reserved for issues on which senators held passionate convictions, the filibuster has become the tool of the sore loser, dooming any measure that cannot command the 60 required votes.

"Mr. Harkin, along with Senator Joseph Lieberman, a Connecticut Democrat, now proposes to make such obstruction harder. Mr. Harkin says reasonably that there must come a point in the process where the majority rules. This may not sit well with some of his Democratic colleagues. They are now perfectly positioned to exact revenge by frustrating the Republican agenda as efficiently as Republicans frustrated Democrats in 1994.

"Admirably, Mr. Harkin says he does not want to do that. He proposes to change the rules so that if a vote for cloture fails to attract the necessary 60 votes, the number of votes needed to close off debate would be reduced by three in each subsequent vote. By the time the measure came to a fourth vote--with votes occurring no more frequently than every second day--cloture could be invoked with only a simple majority. Under the Harkin plan, minority members who feel passionately about a given measure could still hold it up, but not indefinitely.

* * *

"The Harkin plan, along with some of Mr. Mitchell's proposals, would go a long way toward making the Senate a more productive place to conduct the nation's business. Republicans surely dread the kind of obstructionism they themselves practiced during the last Congress. Now is the perfect moment for them to unite with like-minded Democrats to get rid of an archaic rule that frustrates democracy and serves no useful purpose."

How a decade can change things. The Times now on the utility of the filibuster:

"Senator Frist and his backers want to take away the sole tool Democrats have for resisting the appointment of unqualified judges: the filibuster." Bill Frist's Religious War, April 16, 2005.

Remembering my father and Ernie Pyle

My father passed away ten years ago this week, and of course the upcoming anniversary has been on my mind for weeks. He was a World War II veteran from the Pacific theater, and one of the stories he often told was of being just up the beach from war correspondent Ernie Pyle on Ie Shima when Pyle was killed by a sniper's bullet. As it happens, Ernie Pyle was killed sixty years ago today. Reading this story about Pyle and the affection that the soldiers who he lived beside and reported on brought back fond memories of my father. It is a shame that today's soldiers will probably never have the same relationships with the journalists who cover their exploits as the WWII soldiers had with Ernie Pyle.

I miss my dad, but I rest in the knowledge that he is with our Heavenly Father and with his family who had gone on before.

Tom DeLay, Harry Reid & SCOTUS

Tom DeLay has been all over the news lately, taking slings and arrows from political opponents as well as suffering some self-inflicted wounds. A new story recounts criticism he leveled at Justice Anthony Kennedy:

"[H]e pointed to Kennedy as an example of Republican members of the Supreme Court who were activist and isolated.

"'Absolutely. We've got Justice Kennedy writing decisions based upon international law, not the Constitution of the United States? That's just outrageous,' DeLay told Fox News Radio. 'And not only that, but he said in session that he does his own research on the Internet? That is just incredibly outrageous.'"

As one who uses the Internet for research, my outrage is somewhat tempered, although the Supreme Court certainly has far more comprehensive research tools than Google or Ask Jeeves. What I found noteworthy about this story was the following quote and glaring omission: "Nevertheless, it is unusual for a congressional leader to single out a Supreme Court justice for criticism."

This may very well be true. But one recent incident of just such behavior was left out of the story. On December 5, 2004, newly-minted Minority Leader Harry Reid, Democratic senator from Nevada, said the following when asked why he could not support Clarence Thomas for chief justice: "I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice."

Reid was unable to cite a single accurate instance of a poorly written opinion when he was later pressed on the matter. Still, if it is "unusual for a congressional leader to single out a Supreme Court justice for criticism," why did this very recent, high-profile incident of the new Senate minority leader calling a specific justice "an embarrassment" not merit a mention in the AP story?

UPDATE: For the record, I am fully cognizant of internet-based legal research tools provided by Lexis-Nexis and Westlaw.

Cohen says Scalia = Activist?

In today's New York Times, Adam Cohen has an opinion piece criticizing conservatives, Scalia, Tom DeLay, John Cornyn, and every other perceived evil he can find that offends the living Constitution. On closer examination, however, his argument collapses.

He begins by criticizing Tom DeLay, who last week "called for an investigation of the federal judges in the Terri Schiavo case, saying ominously: 'We set up the courts. We can unset the courts.'" This is, conveniently or not, a Constitutional fact of life. The first sentence of Article III, Section 1 of the Constitution -- the Judicial Article -- states that, "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." From the Framers, the principle is genius; from DeLay, however, it is ominous. The thoughts of the state courts being forced to interpret the byzantine federal code is mind-boggling, but it is part of the Constitutional design.

Cohen next sets his sights on Justice Scalia for his "mythical" adherence to originalism in the face of a "living" Constitution. Criticizing Scalia for his opinion in an 11th Amendment case, Cohen writes,

"The 11th Amendment says federal courts cannot hear lawsuits against a state brought by 'Citizens of another State, or by Citizens or Subjects of any Foreign State.' But it's been interpreted to block suits by a state's own citizens - something it clearly does not say. How to get around the Constitution's express words? In a 1991 decision, Justice Scalia wrote that 'despite the narrowness of its terms,' the 11th Amendment has been understood by the court 'to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms.'"

In his piece, Cohen conveniently omits key sections of the opinion, and wholly omits context, leaving the casual reader with the impression that Scalia invented this 11th Amendment doctrine fourteen years ago. Scalia actually wrote, in Blatchford v. Native Village of Noatak,

"Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty, and that a State will therefore not be subject to suit in federal court unless it has consented to suit, either expressly or in the 'plan of the convention.'" [Citations omitted.]

Scalia was actually adhering to a constitutional doctrine that had been in place for more than a century, that essentially says that states, as sovereigns, did not waive their immunity from lawsuits by citizens of their own states simply by entering into the Constitutional covenant. States cannot be sued in state courts by their own citizens without consent, and the Court has long held that the same principle applies in the federal courts. Besides, Scalia, unlike Justice Thomas, is loath to depart from the doctrine of stare decisis, or respecting long-standing judicial opinions, and has made that clear on a number of occasions. This criticism by Cohen, upon closer examination, deflates.

But he presses on, this time aiming at "The Supreme Court's conservative majority [which] regularly overturns laws passed by Congress, like the Violence Against Women Act and the Gun-Free School Zones Act." These laws were declared unconstitutional by the Supreme Court because Congress passed them under the Commerce Clause, which gives Congress the authority "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This power relates solely to interstate commerce, not intrastate commerce.

In United States v. Morrison, the Court struck down a portion of VAWA that allowed victims of domestic violence to sue for civil damages in federal court under the Commerce Clause. Chief Justice Rehnquist wrote that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." In United States v. Lopez, Chief Justice Rehnquist wrote, "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce." Nothing in this opinion prevents state and local officials from making possession of a gun in a school zone a criminal act, but nothing in the Constitution empowers the Congress to do so. Cohen's cited examples of Scalia's "activism" are, rather, instances in which the Court has stated that the legislative branch of the federal government went beyond its specifically enumerated powers in the Constitution, striking the law as an improper exercise of power.

Cohen concludes with the thorn in the side of liberals, Bush v. Gore. He charges that "the court's conservative bloc trample[d] on the Florida state courts and stop[ped] the vote counting," a shockingly "activist" position. He conveniently omits that Scalia joined an opinion with Rehnquist and Thomas that would have based the ruling on Article II, Section 1, clause 2 of the Constitution, which states, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." Rehnquist noted that, "A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question," and, concluded that the Florida Supreme Court "significantly departed from the statutory framework in place" prior to Election Day, in violation of the U.S. Constitution. Cohen also does not state that O'Connor and Kennedy, the latter of whom he has referred to as a "mainstream conservative," declined to join this opinion based on the text, opting instead for an equal protection violation argument.

Cohen is simply off the mark with today's diatribe, but it must have felt good getting the frustration out.

Speed bump for Sen. Straight Talk Express

When John McCain ran for president in 2000, his "straight talk" and "quaint habit of saying what he believes, regardless of partisan ideology" convictions were touted as reasons to support his candidacy, or at least were listed as reasons that he was a media darling. In this appearance before the Concord Coalition last November, he was praised as a man who "is simply inflexible when it comes to a matter of principle," and that "John McCain not only agrees with his convictions but most certainly has the courage of his convictions. He has that courage in all of its dimensions: political, moral, and obviously physical courage." Warren Rudman went on to laud McCain as a man who "believes in doing what is right for the American people and he doesn’t care what power interest, political or private, that he goes up against if he believes that he’s right."

All of these are wonderful characteristics. Few of us can live up to such lofty praise. Apparently, Sen. McCain can not. Now that he has announced that he will not vote to end Democratic filibusters against judicial nominees, one would expect to find some noble reason behind his decision, right? How's this for principled? "Sen. John McCain (R-Ariz.) told MSNBC, 'I will vote against the nuclear option . . . because we won't always be in the majority.'"

That's it? From a man who doesn't care about political interests if he believes he is right? He doesn't have any basis other than, "Well, we might be in the minority someday and want to use it, so I want to preserve it"? Many of those who support the move to end filibusters against judicial nominees argue that the Constitution doesn't state that a supermajority of the Senate is required to give advice and consent on a nominee, that it is a power shared with the executive, and that consequently, it should not be subject to Senate rules on debate, but that nominees are entitled to a simple up-or-down, majority vote in the Senate. I detailed these arguments here. Surely the senator famous for his straight talk would have more than a cold political calculation to support his decision on a vote. Apparently not, and we are all the poorer for the lack of conviction in this politician.

Balance is restored . . .

. . . as the ACLU returns to form in Louisiana. That chapter has filed a federal complaint seeking to have school board officials held in criminal contempt because a substitute public address announcer said a two-sentence prayer before a high school baseball game. Joe Cook, executive director of the Louisiana ACLU, claims that the school officials "should be fined or go to jail 'for their calculated un-American and immoral conduct. . . ." The ACLU says that the school board's actions send "a message of religious intolerance," and that it is "protect[ing] religious liberty" by seeking to have the officials held in criminal contempt.

Tony Perkins of the Family Research Council stated that, "While our high school campuses have become virtual battle grounds, the ACLU has fixed its sights not on the perpetrators of violence but on those who would allow prayer. When the latest school shooting took place yesterday in Texas the students and dazed administrators didn't turn to the ACLU or the courts to be consoled but to local ministers who were summoned to the school to pray and counsel with the students."

We live in a topsy-turvy world if prayer can be called "immoral," and permitting prayer can be named a criminal action -- in the name of religious freedom.

Even a broken clock is right twice a day

You might want to bookmark this, because it won't happen often -- the ACLU has done something sensible and reasonable. Following the death of Pope John Paul II, President Bush ordered flags to be flown at half-staff at public buildings until after the funeral. President Bush has issued similar orders following the attacks of September 11, the explosion of the space shuttle Columbia, the death of former President Reagan, and the tsunami disaster in southeast Asia. Former presidents have ordered the flag to be flown at half-staff following the death of other world leaders. The ACLU has indicated that the order is appropriate in this instance because the pope is a world leader. That is a sensible, common-sense reaction for which the ACLU should be commended.

One would think that a group known as the Interfaith Alliance would be similarly appreciative of a gesture to honor one of the world's great religious and political leaders. Unfortunately, that would be wrong. Rabbi Jack Moline, vice-chair of that organization in Washington, D.C., claims that the move makes him "uncomfortable." He stated, "It strikes me as being a little too close to putting a religious leader on a par with government officials." This seems odd from an organization that claims to "stand for participation in the political process by people of faith . . . stand for the view that all the different faith traditions should have a voice in our nation's public life . . . stand for inclusion and diversity in American society . . . [and] stand for healthy interaction between religion and government."

And as for putting the pope "on a par with government officials"? The pope, uniquely in the world, is both a religious leader and a government official. The United States already has an embassy to The Vatican. The Holy See has a permanent observer mission to the United Nations. The ACLU has displayed more tolerance for religion than the Interfaith Alliance in this case. There is a God, and miracles still happen.

The gang that couldn't get the Constitution straight

Democrats are falling all over themselves in anxiety over the (seemingly more remote) possibility that Republicans in the Senate will ask the presiding officer of that chamber, the vice-president, to rule on whether federal judges require fifty-one votes (a majority) or sixty votes (the amount required to break a filibuster) in order to be confirmed. This has gained the shorthand title of the "nuclear option." Harry Reid, Senate Minority Leader, recently sent a letter to Majority Leader Bill Frist, threatening to shut down all non-vital Senate business if the Republicans exercised this option.

In this "blackmail" letter, Reid claims that removing the filibuster for judicial nominees "would remove one of the constitutional checks and balances that has served our country so well for over two centuries." Sen. Reid must be reading from a different copy of the Constitution than the one I have, which says nothing about filibusters in relation to confirmation of judicial nominees. Article II, Section 2, simply says that the president, "by and with the Advice and Consent of the Senate," shall appoint federal judges.

He apparently is not reading the same Constitution as Sen. Robert Byrd either. Byrd, in a sentence largely overlooked in his disgusting floor speech comparing Republican tactics to those of Nazis, stated, "Note that nowhere in the Constitution is a vote on appointments mandated." That's true. The Wall Street Journal picked up on this theme when Sen. Byrd repeated the claim. It editorialized, "now that Senator Byrd has expressed the view that the Senate doesn't have to vote at all, here's a better idea for ending the impasse over judicial nominations: Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates. Under Mr. Byrd's Constitutional analysis, the Senate will have exercised "advice and consent" and the judges will be confirmed."

A second point about Reid's letter: He claims that "[t]he Framers of the Constitution created a system of checks and balances to limit the power of each branch of government, and in that way to protect the rights of the American people. The Senate's review of judicial nominees is especially important because federal judges are the only government officials to receive lifetime appointments. These men and women will serve on the federal bench for decades, making far-reaching decisions that affect all Americans." True enough. And since that is the case, it seems all the more crucial that Congress hold on to every arrow in its constitutional quiver to ensure that these lifetime appointees are held to some standard of accountability. I'm speaking primarily, but not exclusively, about the impeachment power of Congress. It was, and is, intended to be an additional check and balance on the judiciary. As Alexander Hamilton wrote in Federalist No. 81,

"Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments."

An excellent article on the appropriate use of the impeachment power against federal judges can be found here. On consecutive days, the New York Times has editorialized about the judiciary. Yesterday it hyperventilated that "public attacks, proposed legislation, and even the threat of impeachment" were a danger to the independence of the judiciary. Today it intentionally takes remarks fron Sen. John Cornyn -- a former judge -- out of context to nobly claim that "[t]he need to shield judges from outside threats - including those from elected officials like Senator Cornyn - is a priceless principle of our democracy," and to attempt to shame Sen. Frist into abandoning the "nuclear" option. God forbid the editors at the Times ever read The Federalist Papers and understand that impeachment, used properly, is a check on the judiciary, not a threat to its independence, and that the judges, once confirmed, remain subject to scrutiny.

Home at last

AP writer Chet Brokaw provides some insight (perhaps unwittingly) into why forrmer Senate Minority leader Tom Daschle lost his bid for re-election last year with this opening sentence:

"Former Senate Minority Leader Tom Daschle, in his first visit to his home state since losing the November election, served notice Tuesday that he will continue to debate President Bush and the Republican Party on policy issues."

Tuesday would have marked approximately five months since the election, and three months since Daschle would have vacated his office on Capitol Hill. Yet he still had not managed a trip "home" to South Dakota to see the folks he purported to represent. Representative government, anyone?

The Schiavo aftermath

Lance at Ragged Edges has some thoughtful analysis on the Terri Schiavo matter, as well as an excellent critique of Anna Quindlen. Read it here.

"Christ opens the door to the pope"

Those were the words spoken yesterday by Angelo Comastri, the pope's vicar general for Vatican City. Pope John Paul II lasted about one day longer than expected, but he has now joined the host of heaven. A remarkable man who stared down the evils of Nazism and totalitarianism, exemplified by communism, in the twentieth century, he may very well come to be remembered by history as John Paul the Great. As a non-Catholic, I can nevertheless appreciate the passing of a man who was a great spiritual leader, who was led by the Holy Spirit, and who never wavered from the courage of his convictions, even in the face of popular opposition to some of his teachings. May the pope enjoy eternity with our Lord. Karol Wojtyla, RIP.

All the news that fits the Times' template

I have not read the new report from the latest blue-ribbon panel about the way intelligence has been gathered by the United States, nor do I plan to. Eugene Volokh set out his outline of the questions he asks before blogging on a particular topic here, and by and large they are good questions to ask. I don't plan to discuss the contents of the report, but rather the manner in which the New York Times has reacted to it.

In its editorial today, the Times criticizes the panel for timidity. It first bows its knee at the altar of bipartisanship, only to immediately criticize the panel for lacking "stature or independence." The Times then cuts to the heart of its complaint: "Sadly, there is nothing [in the report] about the central issue -- how the Bush administration handled the intelligence reports on Iraq's weapons programs and presented them to the public to win support for the invasion of Iraq."

After making this statement, however, the editorial goes on to state just precisely how the intelligence was handled: "The panel . . . utterly ignored the way President Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld and his team, and Condoleezza Rice, as national security adviser, created that environment [that did not encourage skepticism about the conventional wisdom] by deciding what the facts were and saying so, repeatedly.

"It does not say that these powerful people knew or should have known that there was no new intelligence on Iraq, and that as the intelligence reports were sanitized for the public, the caveats were stripped out. Instead, it loyally maintains the fiction that Mr. Bush was just given bum information by incompetent intelligence agents."

The fiction that the president was given bad information by incompetent intelligence agents? What is the basis for that conclusion? Leaving aside the Times' swipe at hard-working agents, it is a fact -- not fiction -- that every major intelligence agency in the world, not just the United States, believed that Saddam had weapons of mass destruction. This article from the RUSI Journal in Great Britain notes that:

"The first issue - Saddam Hussein's possession of nuclear, biological or chemical weapons - was almost certainly an intelligence blunder by the various intelligence staffs in the UK, US and elsewhere. That Saddam once possessed chemical weapons (CW) was never in question. . . . The international Intelligence Community was prudent in assuming that he still retained that capability. That Saddam had been experimenting with Biological Weapons (BW) was never in any doubt either. . . . Finally, the idea of an Iraqi nuclear bomb was no great mystery: the UN established in the 1990s that Saddam had sought to develop nuclear weapons. The Israeli bombing of Iraq's nuclear plant at Osirak in 1981 demonstrated how serious one neighbouring country took the threat. In sum, the existence of, or the intention to develop, these weapons of mass destruction were either clear capabilities or on the Iraqi dictator's wish list.

"So where are they? The answer is, no one knows. Neither David Kay of the Iraq Survey Croup or the combined inspection and intelligence resources of the international community could find them. Saddam's alleged WMDs - the casus belli of Britain's attack on a sovereign nation in the Middle East - have become invisible. There are two possible explanations: either Saddam got rid of them long before the war (as the UNSCOM inspectors and Kay maintain) or he hid them and they are still to be discovered. There is however a possible third explanation: Iraq's Rais may no longer have had WMD but was playing a fatal game of bluff to pretend that he was more powerful than he really was. It would not be the first time that a bull-frog from the Iraqi marshes had over-inflated himself to frighten and impress his Arab neighbours. It really doesn't matter. The point is that if the intelligence communities of France, Germany, Britain and the United States all assessed that Saddam still had WMDs, then it seems that serious mistakes were made."

The final conclusion (that serious mistakes were made by the intelligence agencies of various nations) belies the notion that it is a "fiction" that the president received inaccurate intelligence information. Moreover, the Times cannot explain how the administration officials "created the environment" that resulted in other nations' intelligence agencies reaching the same wrong conclusion. But the Times has a preconceived idea of what happened, and will use any opportunity to ignore evidence that does not fit within that template.