Patting the wrists, rolling the eyes.

[Not Bob]

Originally posted by bilmore
Wouldn't have helped. That's not what I said.

That's fine. But if I had STPed, then I would have seen that fringey was making a rhetorical point, and I wouldn't have bothered responding.

[ltl/fb]

Originally posted by Not Bob
That's fine. But if I had STPed, then I would have seen that fringey was making a rhetorical point, and I wouldn't have bothered responding.

Word.

[Gattigap]

Originally posted by Mmmm, Burger (C.J.)
I acknowledged that. I was just telling gatti his blog-provided analogy was completely inapt.

Actually, you "acknowledged that" in the course of arguing that the Constitution's inclusion of supermajority requirements in a variety of circumstances creates a presumption that elsewhere, simple majorities are ok.

As far as the applicability of the case, well, yeah -- I think the "blog" you warmly reference acknowledged that the analogy was clearly to state governments. The case revolved around the applicability of the 14th amendment which, I'll concede, doesn't talk about internal Senate rules. If you don't like reference to dicta in the absence of cases on point, just say so.

[bilmore]

So now I get to go fight traffic in hopes of getting home before the storm total hits a foot.

Wee.

[Hank Chinaski]

Originally posted by Tyrone Slothrop
It would be fun to watch you try that sort of argument in a court. "Your Honor, I don't think the Supreme Court has ever addressed that argument in the context of a case brought by a man named Melvin, like my client."

Fillbusters have been around for ever. If they haven't been used on judicial nominees, it's only because the Senate had other rules that were used to block the up-or-down vote instead.

Ummm, my argument would be "Your Honor, I don't think the Supreme Court has ever addressed that argument in the context of a case brought by a dog, like my client."

We're talking different species here, not names. I know you'd try and counter with "all species come from the same single-cell", but we already know you have gaps in that chain.

This victory over Ty's rhetoric was published as non-precedential, you need not stand in awe for awhile gazing at it

[sgtclub]

Originally posted by Tyrone Slothrop
OK. I was just keeping things going while we wait for club to finish reading through Madison and Hamilton's thoughts on the subject.

Well that's the last time I STP.

My primary objections are two fold. One is the implicit notion that had the founders wanted to provide for something other than a simple majority they would have done so. The second is that I think it's one thing to give weight to Senate rules and precedent in how its handles its internal business and another thing to permit those rules to impede on the Constitutional responsbilities of another branch of government.

But I understand your argument. You are essentially saying that how the Senate advises and consents is its own business. I just don't agree when it comes to appointments.

[Tyrone Slothrop]

Originally posted by Hank Chinaski
Ummm, my argument would be "Your Honor, I don't think the Supreme Court has ever addressed that argument in the context of a case brought by a dog, like my client."

We're talking different species here, not names. I know you'd try and counter with "all species come from the same single-cell", but we already know you have gaps in that chain.

This victory over Ty's rhetoric was published as non-precedential, you need not stand in awe for awhile gazing at it

Is a vote for cloture when what's being debated is a nomination fundamentally different (different species, phylum, etc.) than a vote for cloture when what's being debated is a piece of legislation? Give me a break.

[Tyrone Slothrop]

Originally posted by sgtclub
Well that's the last time I STP.

My primary objections are two fold. One is the implicit notion that had the founders wanted to provide for something other than a simple majority they would have done so. The second is that I think it's one thing to give weight to Senate rules and precedent in how its handles its internal business and another thing to permit those rules to impede on the Constitutional responsbilities of another branch of government.

You and the other conservatives raising holy hell on this issue would be a whole lot more believable if you had objected on constitutional grounds when Orrin Hatch let Jesse Helms use a blue slip to block the nomination of Clinton judicial nominees. I'm sure that was completely unconstitutional, too, and it's just a matter of historical accident that no one noticed until the GOP regained the presidency.

Look, if the Senate Republicans want to stick it to the minority party by changing the rules, they should just do it, and accept the consequences -- political, legislative, etc. -- instead of pretending that this has anything to do with the Constitution. What a load of crap. It's a variant of judicial activism, all in the name of installing judicial activists on the bench.

But I understand your argument. You are essentially saying that how the Senate advises and consents is its own business. I just don't agree when it comes to appointments.

Just so long as we're clear that this has more to do with wanting Bush to get his way on judicial appointments than with any principle of constitutional interpretation one might think of.

[Hank Chinaski]

Originally posted by Tyrone Slothrop
Is a vote for cloture when what's being debated is a nomination fundamentally different (different species, phylum, etc.) than a vote for cloture when what's being debated is a piece of legislation? Give me a break.

Ummm- did you have Con Law at Florida Coastal?

Congress- main duty----- Legislate

Senate- secondary duty----- call bullshit on the Prez' nominations for judge IF necessary.

give you a break? I'd say you got your break when Sidd hired you.

[sgtclub]

Originally posted by Tyrone Slothrop
You and the other conservatives raising holy hell on this issue would be a whole lot more believable if you had objected on constitutional grounds when Orrin Hatch let Jesse Helms use a blue slip to block the nomination of Clinton judicial nominees. I'm sure that was completely unconstitutional, too, and it's just a matter of historical accident that no one noticed until the GOP regained the presidency.

Look, if the Senate Republicans want to stick it to the minority party by changing the rules, they should just do it, and accept the consequences -- political, legislative, etc. -- instead of pretending that this has anything to do with the Constitution. What a load of crap. It's a variant of judicial activism, all in the name of installing judicial activists on the bench.

1. I am not a conservative
2. I already acknowledged that I thought Hatch was equally wrong.
3. How is this judicial activism?

[Tyrone Slothrop]

Originally posted by Hank Chinaski
Ummm- did you have Con Law at Florida Coastal?

Congress- main duty----- Legislate

Senate- secondary duty----- call bullshit on the Prez' nominations for judge IF necessary.

give you a break? I'd say you got your break when Sidd hired you.

If your argument sounds like a dog and smells like a dog, it's a dog.

[Mmmm, Burger (C.J.)]

Originally posted by Hank Chinaski
Ummm- did you have Con Law at Florida Coastal?

Congress- main duty----- Legislate

Senate- secondary duty----- call bullshit on the Prez' nominations for judge IF necessary.

give you a break? I'd say you got your break when Sidd hired you.

so they should have an entirely different set of rules for nominations?

[Mmmm, Burger (C.J.)]

Originally posted by sgtclub

3. How is this judicial activism?

change the rules to get the desired result.

[Tyrone Slothrop]

Originally posted by sgtclub
1. I am not a conservative
2. I already acknowledged that I thought Hatch was equally wrong.
3. How is this judicial activism?

1. No -- you're proposing something profoundly unconservative.

2. That's why I asked about stare decisis. Because in our legal tradition, people who interpret the law -- constitutional or otherwise -- are supposed to at least pretend to heed how others before them have construed the law. But just saying "Hatch was equally wrong" doesn't do that. The fact that Hatch acted that way years ago -- as, indeed, has the Senate for all the years that it existed up to now -- demonstrates, in our system, that they the Constitution has been interpreted in a certain way. Living with the rule of law means that ordinarily, you don't just toss out the way a provision or principle has been interpreted and start from scratch again. Let me put it in terms you would understand: Suppose that property rights were up for reconsideration, soup to nuts, every time the government wanted to do something that might be a taking. Suppose you just ignore how those property rights have always been understand, and start from first principles again. Doesn't sound like the rule of law now, does it? (If you're the property owner, do you feel better when the judge says, "Oh, and I'll admit that those other judges were wrong"?)

3. I said a "variant" because the people interpreting the Constitution here are Republican Senators, not judges. But they are at pretending to be construing the law, not just making it up, although I think we all know better. Republicans usually at least profess to be bent out of shape when judges locate new meanings in constitutional principles that hitherto have never been understand that way before. Unless you found something from Madison or Hamilton that you haven't been telling us about, that's what's happening here.

[Tyrone Slothrop]

Since club, mentioned Abe Fortas, here's something from today's WaPo, via The Carpetbagger's Report:

• Judiciary Committee Chairman Arlen Specter (R-Pa.) told his panel this month that the judicial battles have escalated, "with the filibuster being employed for the first time in the history of the Republic." Sen. Orrin G. Hatch (R-Utah) said in a Senate speech last week, "The crisis created by the unprecedented use of filibusters to defeat judicial nominations must be solved."
  
  Such claims, however, are at odds with the record of the successful 1968 GOP-led filibuster against President Lyndon B. Johnson's nomination of Abe Fortas to be chief justice of the United States. "Fortas Debate Opens with a Filibuster," a Page One Washington Post story declared on Sept. 26, 1968. It said, "A full-dress Republican-led filibuster broke out in the Senate yesterday against a motion to call up the nomination of Justice Abe Fortas for Chief Justice."
  
  A New York Times story that day said Fortas's opponents "began a historic filibuster today." As the debate dragged on for four days, news accounts consistently described it as a full-blown filibuster intended to prevent Fortas's confirmation from reaching the floor, where a simple-majority vote would have decided the question.

That site also has the details about how Frist participated in a fillibuster of a Clinton nominee, Richard Paez, a few years ago.