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Democrats threatened a "legislative strike"
if the GOP changes Rule 22 that they are
using to bludgeon GOP judicial nominees

Two weeks ago US Senate Democrats led by Minority Leader Sen. Harry Reid [D-NV] gave the GOP an "underdog-ultimatum." It was one of those stupid ultimatums that only stupid people holding a gun to their own heads would make—and then, only when they'd run completely out of any other possible option.

Union-mindset Democrats decided that if Senate Majority Leader Bill Frist [R-TN] opted to use what I would rather they had called the Drano option (instead of "nuclear" option) to unclog the pipeline of Bush judicial nominees in order to get them a simple "yea" or "nay" vote on the floor of the Senate, they would go on strike and shut down the Senate—with the exception of essential operations and national defense issues.

Reid made the threat after being advised by Frist that the GOP had the 51-votes it needed to make a procedural change in order to alter the number of votes required to stop a filibuster from 60 votes to a simple majority. GOP officials privately admit they hope the Democrats pursue this strategy, comparing it to the disastrous Republican shutdown of Congress in 1995.

Frist, however, has a problem with his nuclear option, since the liberals in the Republican camp bolted for the door when the GOP leadership started to flex its muscles. Six GOP senators—in a party that has a slim majority of only 5 votes—jumped ship. One of them, Lincoln Chafee, has even threatened to switch parties. The rogue Senators are: Susan Collins [R-ME], Chafee [R-RI], Chuck Hagel [R-NE]. John McCain [R-AZ] Olympia Snowe [R-ME] and John Warner [R-VA]. It is unclear how many moderate, rule-of-law Democrats, if any, would cross the aisle and support the modification of Rule 22.

Senior statesman Sen. Robert Byrd [D-WV], the Senate majority whip during the Reagan years, argued that under Senate Rule 22 3/5th of the Senate, or 60 votes—are needed to change the number of votes required for cloture. The Republicans argued that even though the Senate is a "continuing body" (only 1/3 of its members are elected every two years) the rules of an earlier Senate cannot be imposed on the present Senate, nor can the rules of a prior body prevent the current Senate from choosing the rules which govern its actions since each Senate is a new body and must create their own rules.

Furthermore, the Constitution does not require a super-majority vote to confirm political appointees as it does for the ratification of treaties. Nominations for ambassadors, Executive branch department heads and federal judges require only a simple majority vote for approval. By allowing Senators to filibuster political nominations and requiring a vote of either 2/3rd or 3/5th of the Senate to end the filibuster is tantamount to requiring a super-majority to approve those nominees. It denies the president his constitutional privilege by raising the de facto threshold for confirmation to a super-majority of the Senate's 100 members. Under Senate Rule 22 (put into effect in 1917), 67 votes were needed to end a filibuster. Today 60 votes are required to end a filibuster and to bring a pending judicial nomination to the Senate floor for a vote.

Instead of the simple 51 votes required to confirm a presidential nominee under the Constitution, presidents fighting adversarial Senates need ten more votes, or a total of 61, to get their judicial nominees confirmed. Bluntly speaking, It defeats the intent of the the Founding Fathers who did not give Congress the right to subject the president's choices to an ideological litmus test. The job of the Senate is simply to make sure that those nominated by the President are qualified—intellectually, not ideologically—to perform the duties the position will require. Period. When politics is left out of the equation, as it was until 1937 when Franklin D. Roosevelt decided to stack the US Supreme Court by filling it with party hacks who would protect the New Deal, the process actually worked. Nepotism was largely curtailed. The first family member elected to a president's cabinet was Robert F. Kennedy who was selected by his brother to become US Attorney General in 1961.

By 1970, the precepts of social justice began to creep into our judicial system. Liberal judges were rewriting the Constitution by judicial fiat based on what they viewed to be the evolving needs of an evolving society. In addition, the antiwar, anti-democracy left gained control of the leadership of both the House and the Senate and began pushing the federal courts even farther to the left. In 1975 the Democratically-controlled Senate changed the filibuster cloture rule from 67 votes to 60on a simple-majority vote to keep the minority Republican Party from blocking liberal judges from confirmation.

When Rule 22 was changed, a new twist was added to the Senate filibuster rules. In the House of Representatives, as long as the Congressman holds the floor and does not stop talking, he or she can literally stop the House from conducting the nation's business until he collapses or until his adversaries offers him the right enticement to stop. It was that way in the US Senate until Rule 22 was amended. When the Democrats changed the cloture rule, a gentleman's agreement was struck on what it meant to "hold the floor" during a filibuster.

The longest physical filibuster in the United States was not Strom Thurmond's marathon 24 hour, 18 minute talkathon in 1957. His was the longest individual filibuster. The longest continuous filibuster in the history of the US Senate began on Feb. 18, 1841. It continued for 21 days until March 11, 1841.

If a member decides to filibuster a piece of legislation in the House of Representatives, he or she must get control of the floor—and hold it. He or she can't sit down, take a toilet break, or leave the House floor for any reason (even though there are procedural ploys that are used in the House to get around that rule since there few people who can "hold it" for more than a few hours, let alone one or more days).

Thurmond filibustered the Civil Rights Act of 1957. Instead of the New York City phone book or the Bible (which many Senators read), Thurmond chose instead to read each State's election laws. Single-handedly Thurmond, a Democrat until he became a Dixiecrat in 1960, defeated the civil rights legislation that would have been the centerpiece of Dwight D. Eisenhower's administration. It would be 1964 before a comprehensive civil rights law would finally be signed into law—by Lyndon B. Johnson and the Democratic Party.

The modern Senate filibuster is invisible. The new rules do not require the Senator who is engaged in a filibuster to actually hold the Senate floor like Jimmy Stewart did in Mr. Smith Goes To Washington. Instead, the Senator needs only to get the signatures of 40 other Senators and notify the President Pro Tem of the Senate—today that is Sen. Ted Stevens [R-AK]—that he or she is filibustering a particular piece of legislation or a judicial nominee. The Senate continues to go about its daily business, voting on bills and arranging confirmation hearings for Presidential appointees. It just can't vote on any measure or political nominee being filibustered. The Senator can actually be out on the golf course and still be filibustering a judicial nominee.

Prior to the simple-majority vote in 1975 to change the cloture rules, the Senator—just like his or her counterpart in the House—would have to do the tedious work himself. He would have to steel himself for laryngitis by having a jug of water handy as he read every name, address and phone number the New York City phone book, or reads the Bible, or educated his colleges by reading Collier's Encyclopedia.

In 1975 Senate majority Leader Mike Mansfield [D-MT] realized that if a super-majority was needed to change the procedures for filibustering, the Democrats would never be able to change Rule 22 since they would need the votes of the same Republicans they were attempting to control to change the rule. After consulting with Senators Patrick Leahy [D-VT] , Edward Kennedy [D-MA], Robert Byrd [D-WV], Joseph Biden [D-DE], and Senate counsel Lloyd Cutler (who would become White House counsel for both Jimmy Carter and Bill Clinton) Mansfield agreed with Byrd and Kennedy that "...[w]e cannot allow a minority of Senators to grab the Senate by the throat and hold it there." Cutler concluded that requiring a super-majority vote to change the rule was, in and of itself, "...plainly unconstitutional."

Based on the legal opinion of Cutler (which was agreed upon by Kennedy, Byrd, Biden and Leahy, Rule 22 was changed by a simple majority vote. Thus, the precedent also supports Frist. The Democratic minority sees their use of the filibuster to prevent the nomination of conservative judicial appointees going the way of the dinosaur. The downside for the GOP is that when fickle America hands control of the Senate back to the Democrats, they will discover they have lost the only leverage they possess to impact legislation since any filibuster they attempt can be snipped at the bud by a simple majority vote. The minority party—whether Democrat or Republican—will become a voiceless minority in the Senate.

Senate Rule 22 was written in 1917 to end a filibuster of antiwar doves who wanted to keep the United States out of World War I. Prior to Rule 22 which created the super-majority vote needed to end a filibuster, there was no mechanism in place in the US Senate to stop one. Any rogue Senator who could grab the floor could hold it as long as he could speak. Isolationist conservatives used the filibuster to block the Senate from rubber-stamping Wilson's war plans. The Democratically-controlled Senate in 1917 wanted to block conservative efforts to prevent Woodrow Wilson from declaring war on Germany and involving the United States in a conflict the American people did not support. The Wilson Senate argued that with a simple-majority vote, the Democrats could change the Senate procedures and limit a heretofore unlimited right—the right of any Senator to hold the most powerful legislative body in the world at bay with a filibuster that gave the most junior freshman the right to talk until he dropped.

What is most interesting about the filibuster procedures is that three times in the Senate's past that august body has changed Rule 22. Each time it was done, it was done with a simple-majority vote. And, each time it was done, it was done by Democrats trying to hamstring the GOP. Now that the cloture rule is going to be used by the GOP against the Democrats, the Senate Democrat's old dog liberal leadership (most of whom were part of the liberal establishment that justified the cloture rule change in 1975) are up-in-arms at Republicans for threatening to do what they did—three times.

The most hotly contested function performed by the US Senate today is that of offering "advise and consent" on political appointments—particularly judges. That is due to the judicial revolution which has occurred in this nation over the past 35 years (since the Roe v Wade and Doe v Bolton ruling). The "revolution" actually began 1937. Franklin D. Roosevelt politicized the federal judiciary to protect the democratic socialism of the New Deal. Since that time, judges have pretty much been an ideological extension of the presidents who appoint them, particularly the justices who are placed on the appellate courts and the US Supreme Court. Tragically, liberal, social justice federal judges now inject their personal ideologies into their jurisprudence regardless of the law's actual content, intent, or historic precedent, to mitigate the behavior of criminals because they led economically disadvantaged lives, or because they were raised in a bad social environment, or because a magistrate felt they needed to create an artificially-level playing field to protect those who possess what they perceive to be physical, gender, racial or ethnic handicaps. The function of judges—at whatever level in the court system—is to adjudicate the law based on the law and not on whimsical fantasies of what might have been in a pristine utopian world where the lion sleeps with the lamb.

Social activism has no place in a nonpartisan legal system instituted on the rule of law. Social activism is a tool that is used by partisan politicians and ideologically-aligned party hack judges who come to the bench with a political agenda and a willingness to corrupt the rule of law by creating new laws through judicial activism that could never be legislated by the Congress. Now, as liberal judges draw us closer to a binding world government by coupling international case law with US law in whatever issue is before them, liberal activists seem to have little problem abandoning the rule of law by claiming that, as a living document, the Constitution must evolve with the evolving needs of an evolving society. For that reason, the ideological pedigree of the jurists selected for the federal bench determines, to a large degree, how fast that legal osmosis occurs.

While Roe v Wade remains the "public" litmus test for those nominated to the federal bench, jurists nominated as federal magistrates are not privately judged on whether or not they favor or oppose Roe v Wade but whether nor not they are "rule of law" judges or those who favor the right of judges to reinterpret the laws in order to apply social justice. "Rule of law" judges believe jurists are obligated to make their rulings based on the laws as they were legislated—fairly and without bias—without bending them to accommodate the whims of politicians or the sociological agendas of the bureaucrats within the governments of the world.

This is the battle that has been taking place in the US Senate in a very serious way since 1980. The transnational industrialists, bankers and businessmen who have been struggling since 1920 to create world government have succeeded in putting into place the economic apparatus needed to steer the ships of state to the gateway of Utopia. The fledgling world economy, created by the stolen sweat equity of the American worker now exists. The rudimentary structure of the soon-coming world government now exists. A global judiciary is the mortar that will cement together the nations of the world, and the judicial decrees of these agendized judges throughout the balance of this decade will deconstruct the underpinnings of national sovereignty and without firing a shot, the enemies of the nation-side will have won a global victory that the Soviets could not achieve in 74 years of intrigue and saber rattling.

Obviously, the Second Amendment will be abrogated in precisely the same manner—by the World Court in the Hague—since any Congressman or Senator who proffers either a Constitutional amendment to outlaw the private ownership of guns in the United States, or attempts an outright legislative ban, will not get reelected (not even in the most liberal States in the Union). Which is why, since Franklin D. Roosevelt tried to outlaw the private ownership of guns in 1935, Congress has carefully nibbled at the edges of the Second Amendment, abrogating it one bite at a time. No Congressman or Senator has been crazy enough to try to take a giant bite out of the core right of the American citizen to own a gun by actually enrolling a bill to universally outlaw the private ownership of firearms in the United States. That's a bill that even gun control liberals like Senators Chuck Schumer [D-NY], Frank Lautenberg [D-NJ], Carl Levin [D-MI], or Teddy Kennedy will save for the end of his career on Capitol Hill—since it will be a career-ender for whomever does it.

The politicians have wisely decided to leave the task of outlawing guns—and the final abrogation of national sovereignty—to the men in black since federal judges are appointed for life and do not answer to the electorate for their capricious rulings. Since the World Court is now viewed as the global court of last resort, it's a safe bet that when the international tribunal in the Hague decides to rule that the Second Amendment of the US Constitution has been superseded by the UN Global Gun Ban Treaty, that the US Supreme Court will follow suit. This will likely not happen until the globalists are sure there are enough liberal votes on the high court to assure when it comes before them, that the Supremes rule that UN Global Gun Ban Treaty trumps the Second Amendment. The US Supreme Court is just two heartbeats away from that ideological mix now—providing the liberals in the US Senate can keep George W. Bush's conservative judicial nominees off the bench. It is clear that conservative Chief Justice William Rehnquist will either retire or die by the end of this year. Moderate Associate Justice Sandra Day O'Connor plans to retire to care for her ailing husband. She has been trying to retire since 2001 but is afraid the president will not be able to replace her with a moderate jurist. If Bush is forced to compromise on the conservatism of his nominees, and Rehnquist and O'Connor are replaced with black sheep liberal like a David Souter, gun rights and national sovereignty are doomed—and the liberals in the US Senate know it.

Which is why the Democrats are using the filibuster to make sure that rule-of-law judges do not make it through the constitutional advise-and-consent process. Some of George W. Bush's minority judicial nominations—such as Janice Brown or Claude Allen—have been filibustered for two years (the maximum length of time a nominee can be considered, since each Congress lasts two years). The Democrats have made certain that no Article 3 minority nominee has made it through the gauntlet. Bush, like Ronald Reagan, George H.W. Bush and Bill Clinton before him, used his constitutional prerogative to make recess appointments. Bush-43 has made 23 recess appointments thus far. Clinton made 140. Bush-41 made 77. Reagan made 240. Of the four, only Clinton and Bush made Article 3 judicial appointments. Most presidents used their prerogative to make administrative recess appointments even though several of them throughout history made a few Article 3 (federal judge) appointments. It was rare when it occurred, but it usually happened because the death of the sitting judge happened when Congress was not in session. The only Article 3 recess appointment not to be confirmed for a lifetime appointment was Judge Wallace McCamant, who was appointed to the 9th Circuit Court of Appeals by Calvin Coolidge on May 25, 1925. McCamant served until May 2, 1926*. (See footnote, below.)

Urged to do so by the GOP leadership, Bush made two Article 3 recess appointments in 2004. In January, 2004, Bush placed Judge Charles W. Pickering—whom the Democratically-controlled Judiciary Committee rejected in 2002—on the 5th US Circuit Court of Appeals. He then placed former Arkansas Attorney General William Pryor, Jr. on the 11th US Circuit Court of Appeals. The Democrats complained, arguing that Bush's move was unconstitutional. Of course, they ignored the fact that their guy—Bill Clinton—used the same tactics to place liberals, some of them so radical they could never be confirmed, in slots in his administration and on the federal bench. In a compromise agreement with Senate Minority Leader Tom Daschle on May 21, 2004 to end the obstructionism, Bush agreed not to use recess appointments if the Democrats stopped blocking his nominations with filibusters. Bush has not made a recess appointment since shaking hands with Daschle, but the liberals have not stopped filibustering Bush's rule-of-law nominees. Two key nominees that were filibustered throughout the 107th and 108th Congresses were Texas Supreme Court Associate Justice Priscilla Owen whom Bush nominated for an open slot on the 5th US Court of Appeals and California Supreme Court Justice Janice Rogers Brown, who has been nominated for the Circuit Court of Appeals for DC. Every minority candidate nominated to the federal bench by George W. Bush has been filibustered by the Democrats. Among them were Brett M. Kavanaugh (for the DC Circuit Court), Claude A. Allen, Sr. (for the 4th US Circuit Court of Appeals), Michael Fisher (for the 3rd US Circuit Court of Appeals, and Carolyn Kuhn (for the 9th US Circuit Court of Appeals). In all, approximately two dozen minority judges have been nominated for federal judgeships. All of them were blocked by Daschle and Ted Kennedy.

When the Democrats complained about Bush's recess appointments, Sen. John Coryn [R-TX] said that "...President Bush was compelled to take the recess appointment route. It was a constitutional response to an unconstitutional filibuster." If Frist and the Republicans cannot muster the votes needed to exercise the GOP's "nuclear option," recess appointments may be the only recourse Bush has left until the American people wake up and realize precisely what is at stake. Then maybe the voters will dump a few more Democrats from the Senate in 2006 so that the GOP has the 60 votes it needs to stop the filibuster of rule-of-law jurists.

On the other hand, they would only have to fire four Democrats if the voters in Rhode Island and Maine dump Lincoln Chafee and Olympia Snowe during the primaries in 2006 and replace them with constitutional rule-of-law candidates that can win. (Of course, the Republican Senatorial Campaign Committee would actually have to fund their campaigns instead of secretly throwing their support behind the incumbents who vote with the liberal Democrats.) If more sacrificial Republicans are needed in 2008, Susan Collins, Chuck Hagel and John Warner will be available. B-1 Bob Dornan told me a year or so ago that he wouldn't mind going after Warner's seat. B-1 Bob would make a good, experienced candidate since the former California congressman lives just outside the beltway in Virginia. I think we need to set up a DORNAN FOR SENATE campaign war chest and drag Bob out of retirement because, believe me, it doesn't make any difference what type of deal the Democrats cut with Bush to keep him from making any more recess appointments—they won't keep their word. Senator Byrd made that clear on March 10, 2005 when he said: "Appointees to the Federal Bench should be scrutinized for traces of ideological rigidity, or allegiance to political movements which could cloud impartial judgment...Judicial appointments," Byrd continued, "must never be a sure thing for the bench...Federal judges enjoy life tenure, making decisions of huge importance to the lives and livelihoods of our citizens. They are accountable to no one and no President can fire them. It is ridiculous to suggest that mere superiority of numbers in the Senate should guarantee confirmation...There is no God-given right to a seat on the Federal bench. Should a minority have only the recourse of delay to defeat a judicial candidate of concern, that minority is well within its rights to filibuster. In fact, they would be derelict in their duty if they did not."

If the GOP leadership in the Senate believes they can take the Democrats at their word, they deserve to lose control of Congress. They need to call the Democrat's bluff. If Senate Minority Leader Harry Reid makes good on his threat and slows down or stops the business of the Senate, the voters will ultimately call him to task. Of course, since Reid just won reelection last November, he knows it will take the voters of Nevada six years. By that time, he'll be ready to retire anyway.

The voters are getting longer memories about the political shenanigans of those they entrust with their nation —and with 18 Democratic or liberal-voting Independent Senators running for reelection in 2006, the voters have a large selection to choose from: Daniel Akaka [HI], Jeff Bingaman [NM], Robert Byrd [WV], Maria Cantwell [WA], Thomas Carper [DE], Hillary Clinton [NY], Kent Conrad [ND], Jon Corzine [NJ], Mark Dayton [MN], Dianne Feinstein [CA], Jim Jeffords [I-VT], Edward Kennedy [MA], Herbert Kohl [WI], Ben Nelson [NE] (Nelson is viewed as the most vulnerable Democrat in the upcoming congressional election at the moment), Bill Nelson [FL] Mark Pryor [AR], Paul Sarbanes [MD] and Debbie Stabenow [MI]. Most of the Democrats running are liberal extremists, and several of them—Bingaman, Corzine, Clinton, Dayton, Feinstein, Jeffords, and Kennedy are part of the problem in the Senate and need to be replaced.

But we will find out if the Democrats are convinced Frist's nuclear option has been defused by whether or not they continue to play hardball next month when the showdown at Boot Hill...er, Capitol Hill...starts anew after the Easter recess when Senate Judiciary Chairman Arlen Specter [R-PA] calls for a vote on four of Bush's judicial nominees: Priscilla Owen, Janice Roger Brown, William Pryor and William G. Myers III. Myers was first nominated for a seat on the 9th US Circuit Court of Appeals during Bush's first term. Like all of Bush's rule-of-law nominations, he was filibustered by the liberals during previous Congresses. The Senate Judiciary Committee grudgingly approved his nomination by a party-line 10 to 8 vote on March 17, 2005. Specter has indicated he will ask for a vote on Myers first since Specter believes he will be the easiest of the four to confirm. Senate Majority Leader Frist would prefer that Specter offer rule-of-law judges Owen or Brown first since it would prove more embarrassing for the Democrats if the expected showdown occurs over one of the female candidates—moreso for Brown, who is also an African-American.

In any event, its time the Republicans learn how to be the majority party before they lose control of the House and Senate. If the roles of the Democrats and Republicans was reversed, and the GOP had been as successful in blocking social justice judicial nominations as the Democrats have been in blocking rule-of-law nominees, Harry Reid would not have threatened to use a nuclear option, he would have surprised the Republicans by scheduling a vote on cloture, and a simple majority vote would then allow the majority party to end any filibuster, and the New World Order would quickly be a realty through the federal court system.

Well, whatever its merit, once again you have my two cents worth.

McCamant was the perfect example of nepotism. Oregon Circuit Court Judge Wallace McCamant nominated Coolidge as Warren G. Harding's vice president. When he ascended to the White House, Coolidge returned the favor by nominating him for the 9th Circuit. The Senate saw the appointment for what it was—a political payback. They refused to confirm McCamant twice. He was replaced by Judge Frank Sigel. McCamant was the only jurist placed on an Article 3 court by a recess appointment who did not win a permanent berth on the federal court.





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