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Thread: Miguel Estrada lets not forget: A vote for Kerry =

  1. #1
    Tom The Nader Fan™
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    Supermajority Rules?
    Why the Estrada filibuster is unconstitutional.

    BY DOUGLAS W. KMIEC
    Saturday, March 8, 2003 12:01 a.m. EST

    WASHINGTON--The plight of Miguel Estrada is a national disgrace. The confirmation to the D.C. Circuit of this highly talented lawyer is being aborted by a Democratic opposition bent on preventing the president and a majority of the Senate from staffing the federal courts as the Constitution requires. And the Democratic "spoiling" method--filibusters, as presently conducted and entrenched in Senate rules--are arguably in violation of the Constitution.

    Filibusters, which allow a minority of the Senate to obstruct action favored by a majority, have been around for a long time, despite the Senate's informal subscription to Jefferson's Manual of Parliamentary Procedure, which provides that "no one is to speak impertinently or beside the question, superfluously or tediously." Today, tedious delay plagues the Senate, but not the House, since, with a few exceptions, the Senate rules allow unlimited debate and there is no motion by which a simple majority can bring matters to a vote.

    Senate Majority Leader Bill Frist plans to bring Mr. Estrada to the floor repeatedly in the coming weeks for an up-or-down vote, but without 60 votes, which he presently lacks (he mustered 55 on the first go-round, on Thursday), the prospects for concluding the matter are dim. Sen. Frist has said that he intends to use "every tool" at his disposal to allow the full Senate an opportunity to deliberate and resolve Mr. Estrada's nomination. Unfortunately, under Senate rules, his tool bag will prove empty--except that is, for the instruction manual we know as the Constitution.





    Notwithstanding the celluloid image of the courageous Jimmy Stewart holding the floor for hours against a corrupt colleague in "Mr. Smith Goes to Washington," the modern filibuster seldom involves debate or discussion. Today, all that needs to happen to paralyze the Senate is for one senator to signal that he objects to legislative consideration. Yet this "silent" or "stealth" filibuster dates back only to the 1970s. To avoid totally shutting down the Senate in the face of opposition to civil-rights legislation, then-Majority Leader Mike Mansfield adopted the so-called two-track system, which allowed a portion of the day to be devoted to the filibustered item and the balance to be spent on other business.
    Eventually, that practice morphed into the current habit of seldom discussing an objectionable matter or appointment at all unless a majority can muster 60 votes for cloture. This modern filibuster practice, dependent as it is on little more than a threat of filibuster, explains why the general public is not more outraged by Mr. Estrada's plight, despite White House efforts to highlight the Democrats' obstructionism.

    Sen. Frist can try to shake matters up by repeatedly calling for a futile cloture vote, but that will only spread the constitutional harm of obstructing Mr. Estrada's confirmation to other important issues, such as the war on terrorism, the president's tax plan or Medicare reform. It would be far better for the Senate majority leader to insist that his colleagues address the unconstitutionality of Senate Rule XXII, which requires 60 votes for cloture and, even more troublingly, requires two-thirds of all senators present and voting to amend Senate rules.





    Why are these rules constitutionally suspect when applied to Mr. Estrada? At first glance, it might be thought to be a fairly simple corollary of the assumption of "majority rule." The Framers, after all, knew how to provide for supermajorities when they wanted them. For example, Article I, Section 7, of the Constitution provides for overriding a presidential veto by two-thirds of the House and Senate; and Article II, Section 2, provides for the ratification of treaties with two-thirds of the Senate. In all, there are seven situations in which the Constitution explicitly requires more than a majority, but arguably not otherwise.
    It is possible to argue, of course, that constitutional silence does not preclude alternative voting rules, as those who supported adding a legislative supermajority for tax increases proposed some years back. Moreover, the Senate rule doesn't actually require 60 votes to confirm; it only formally requires that vote to end debate. And finally, of course, the fact that the filibuster has been around in some form--albeit not in its pernicious stealth form--since the mid-19th century may be argued to estop members of the Senate from objecting to it now.

    No, the cleaner constitutional argument is not to attack the filibuster head-on, but to raise serious objection to its entrenchment--that is, to the Senate rule that prevents a new Senate from changing the cloture rule without a two-thirds vote. Senate Rule V provides that the rules of the Senate shall continue from one Congress to the next unless amended by two-thirds of those present and voting.

    This violates fundamental law as old as Sir William Blackstone, who observed in the mid-18th century that "Acts of Parliament derogatory from the power of subsequent parliaments bind not." Likewise, the Supreme Court has repeatedly held that the legislature does not have the power to bind itself in the future. As the Court stated in Ohio Life Ins. and Trust Co. v. Debolt (1853), for the political process to remain representative and accountable, "every succeeding Legislature possesses the same jurisdiction and power . . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."





    President Bush is clearly frustrated by the Democratic intransigence over Mr. Estrada: "They're blocking the vote on this good man for purely political reasons." He's right. And the Senate is doing it by unconstitutional means that have effectively denied the president and the American people the fruits of the last election, which gave Republicans the Senate majority.
    Denying Mr. Estrada his confirmation vote by the full Senate is no more legitimate than if the outgoing Democratic majority had attempted by rule to prevent repeal or modification of any Democrat-sponsored enactment except by supermajority. And it is not just Mr. Estrada who is being injured; it is the right of Senate members not to have their representation diluted or nullified. Ultimately, what is being filibustered here is the right of all of us who voted.

    Mr. Kmiec, former head of the Office of Legal Counsel in the Reagan and first Bush administrations, is dean of The Catholic University Law School and a senior policy fellow at Pepperdine University.

  2. #2
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    I found this at People for the American Way

    "Estrada has expressed the disturbing view that Americans should not be permitted to turn to the judicial branch when legislative decisions harm fundamental constitutional freedoms. In fact, it is precisely when a legislature has used its power to violate the freedoms of the less powerful that judicial review becomes crucial. Estrada’s argument would mean that religious and racial minorities and others whose constitutional rights are threatened would have no recourse but to submit to the will of the majority.


    As a lawyer in private practice, Estrada has sought to defend so-called anti-loitering statutes and ordinances, which have been demonstrated to disproportionately harm African-Americans and Latinos in much the same manner as racial profiling. Federal and state courts, including the Supreme Court, have invalidated a number of these provisions as violating the First Amendment freedom to assembly and the due process clause of the Fourteenth Amendment. Estrada has even tried to argue that the NAACP should not be allowed to challenge such ordinances.


    Estrada has sought to use the First Amendment as a shield for a large company that had been found guilty of deceptive advertising by the Federal Trade Commission. The D.C. Circuit Court of Appeals, including several judges appointed by Republican presidents, unanimously rejected his line of reasoning.


    Despite his troubling record, Estrada refused to answer key questions at his Senate Judiciary Committee hearing about his judicial philosophy, such as his views about important Supreme Court decisions. For example, he refused to name a single Supreme Court decision in the last 50 years that he thought was wrong. In light of the Senate’s co-equal role in judicial appointments, the Senate should not confirm a nominee who refuses even to answer such critical questions."



    Tom, why do you want this tyrant to be on our supreme court?
    Why do you wonder why we call you Nazis?
    Why are you moving to Brazil when you graduate?
    Why do you hate America?

  3. #3
    Tom The Nader Fan™
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    [quote][i]Originally posted by gobbles[/i]@Jul 27 2004, 06:57 PM
    [b] I found this at People for the American Way



    As a lawyer in private practice, Estrada has sought to defend so-called anti-loitering statutes and ordinances, which have been demonstrated to disproportionately harm African-Americans and Latinos in much the same manner as racial profiling. Federal and state courts, including the Supreme Court, have invalidated a number of these provisions as violating the First Amendment freedom to assembly and the due process clause of the Fourteenth Amendment. Estrada has even tried to argue that the NAACP should not be allowed to challenge such ordinances.


    Estrada has sought to use the First Amendment as a shield for a large company that had been found guilty of deceptive advertising by the Federal Trade Commission. The D.C. Circuit Court of Appeals, including several judges appointed by Republican presidents, unanimously rejected his line of reasoning.


    Despite his troubling record, Estrada refused to answer key questions at his Senate Judiciary Committee hearing about his judicial philosophy, such as his views about important Supreme Court decisions. For example, he refused to name a single Supreme Court decision in the last 50 years that he thought was wrong. In light of the Senate’s co-equal role in judicial appointments, the Senate should not confirm a nominee who refuses even to answer such critical questions."



    Tom, why do you want this tyrant to be on our supreme court?
    Why do you wonder why we call you Nazis?
    Why are you moving to Brazil when you graduate?
    Why do you hate America? [/b][/quote]
    PEOPLE FOR THE AMERICAN WAY!!!!

    Stop jerking my chain. You can't be serious.

    Why'd you leave California, Kurt?

    [b]"Estrada has expressed the disturbing view that Americans should not be permitted to turn to the judicial branch when legislative decisions harm fundamental constitutional freedoms. In fact, it is precisely when a legislature has used its power to violate the freedoms of the less powerful that judicial review becomes crucial. Estrada’s argument would mean that religious and racial minorities and others whose constitutional rights are threatened would have no recourse but to submit to the will of the majority.[/b]

    The people of that state overwhelmingly supported two propositions; one was to abolish affirmative action quota's in the state universities,and the other had something to do with supply illegals with free health care, or something to that effect.

    Kurt, I never heard you complaining about "wetbacks"? That they are bankrupting the state of California?

    Kurt, it's ok to discriminate against Asians, who score too high on entrance exams?

    The will of the majority (and the legislators who represent them) should be usurped by the will of a half dozen left wing judges?

    You're a phoney. Take a hike.

  4. #4
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    [/Kurt, I never heard you complaining about "wetbacks"? That they are bankrupting the state of California? ]

    It's been over ten years, so bear with me. I think that what I said was, "white men aren't exactly lining up at the door to pick grapes for fifty dollars a day." If it wasn't for illegal alien labor, the produce industry would go bankrupt, just like your soul." I think that's what I said. As for the rest of your little talking points, you're moving to Brazil anyway. WTF do you care?

    If you read the following with HAL's voice it's cool, I think.

    Tom, why do you hate America?

  5. #5
    Tom The Nader Fan™
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    [quote][i]Originally posted by gobbles[/i]@Jul 27 2004, 10:07 PM
    [b] [/Kurt, I never heard you complaining about "wetbacks"? That they are bankrupting the state of California? ]

    It's been over ten years, so bear with me. I think that what I said was, "white men aren't exactly lining up at the door to pick grapes for fifty dollars a day." If it wasn't for illegal alien labor, the produce industry would go bankrupt, just like your soul." I think that's what I said. As for the rest of your little talking points, you're moving to Brazil anyway. WTF do you care?

    If you read the following with HAL's voice it's cool, I think.

    Tom, why do you hate America? [/b][/quote]
    You're full of crap, you know that?

    I'll move to Brazil when I learn to speak Portuguese, and not a moment sooner.

    "If someone is really attacking your honor... I think most Americans, most people, would say, you know, defend yourself. And that's what I did." -Tereza Heinz

  6. #6
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    Miquel Estrada is not a good man. He's a liar and a sellout of his own people.

    Why is it that nearly every major Hispanic group in America disowns this guy?

    he's about as hispanic as Condolezza Rice is black... which is to say not at all.

  7. #7
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    [he's about as hispanic as Condolezza Rice is black... which is to say not at all. ]

    That's why Tom loves him so. As long as the hispanics pick his lettuce and keep their mouths shut, Jetmoses has nothing against them. They make convenient scapegoats. Forget Enron and California's energy problems, let's blame the Mexicans.

    Tom what do you think of your hero and his courting of the Latino vote? He wants to give illegals amnesty and the opportunity to pay into the MEXICAN social security system.

  8. #8
    Tom The Nader Fan™
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    Oh brother. You two are starting to sound like a parody.

    What was it Archie Bunker called Michael...?

    Meathead?

  9. #9
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    [quote][i]Originally posted by bitonti[/i]@Jul 28 2004, 12:48 AM
    [b] Miquel Estrada is not a good man. He's a liar and a sellout of his own people.

    Why is it that nearly every major Hispanic group in America disowns this guy?

    he's about as hispanic as Condolezza Rice is black... which is to say not at all. [/b][/quote]
    I thought the Republican Congress could do anything they want because of their clear majority?

    How does a judge sell out his "own people" when interpreting US Law?

    And which 'hispanic' groups? Most of the ones I see getting press have to do with immigration law. Are those the ones disowning him?

    And I love how any black who isn't liberal isn't black enough. Now hispanics too?

    Is Tiger Woods black enough?

  10. #10
    Tom The Nader Fan™
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    [quote][i]Originally posted by gobbles[/i]@Jul 27 2004, 06:57 PM
    [b] "Estrada has expressed the disturbing view that Americans should not be permitted to turn to the judicial branch when legislative decisions harm fundamental constitutional freedoms. In fact, it is precisely when a legislature has used its power to violate the freedoms of the less powerful that judicial review becomes crucial. Estrada’s argument would mean that religious and racial minorities and others whose constitutional rights are threatened would have no recourse but to submit to the will of the majority.

    [/b][/quote]
    "disturbing view"?

    Left wing radicals in robes love to point to the U.S. Supreme Court's decision on Brown vs. Board of Education in May 1954 and the integration of Little Rock, Arkansas Central High in 1957, as if this set a precedent for every kook left wing group in America, however marginal their numbers may be, to have the legislative branch and the wishes of the majority of the constituents they represent, to be squashed and over-ruled by judges.

    Hogwash. The fact of the matter is, the constitutional rights of Blacks in the south in 1957 [i]were[/i] being violated by the legislature.

    When constitutional rights are violated, then yes, the Supreme court has to step in and correct this flaw in the system.

    But constitutional rights are [b]NOT[/b] being violated when people vote on whether or not to continue to give free health care to illegal aliens or continue the institution of affirmative action in college admissions.

    And people shouldn't be publicly slandered and smeared as "bigots" and "racists" for voting in favor of those propositions, which is what the left wing judges, and their media arm does to somehow give them the illusion of a moral upperhand, and that, sometimes, by golly, you have to circumnavigate the constitution and our system of government to do whats "right". These elitist judges basically are telling us that "you are too dumb and too hateful, and you can't be trusted to vote on things like how your tax dollars should be spent".

    They make me sick.

    [b]And I love how any black who isn't liberal isn't black enough. Now hispanics too?[/b]

    Piper, I think we are all too aware of the dynamics that led to this pathological mind set, that has polarized americans along racial lines, specifically causing the greatest damage to Black Americans.


    But what is so gross, and wreckless, is that liberals still continue to reinforce these ideas.

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