March 8, 1917: Senate Introduces Cloture

Wednesday, March 8, AD 2017

Woodrow Wilson was no fan of Senate filibusters:

The Democrats controlled the Senate from 1913-1919 and Wilson hated the way that Republicans could bottle up his proposed legislation through the filibuster.  To mollify him, the Senate Democrats passed a rule change one hundred years ago that allowed the termination of debate on a two-thirds vote to invoke cloture.  Even after cloture each Senator could speak for an additional hour on the matter under consideration before a vote was taken.  Cloture existed more in theory than in practice.  Over the next 46 years the Senate would vote for cloture only five times.  There are several reasons why this was the case.

Filibusters added a touch of drama and comedy to otherwise dry proceedings.  The public generally enjoyed them as did more than a few Senators.  Many Senators prided themselves upon belonging to what they called the greatest deliberative body, and thought that the filibuster played an essential role in what made the Senate the Senate.  Southern Democrats, relying on the filibuster to stop civil rights legislation, were fervent supporters of the filibuster.  Many Senators realized that shifting political fortunes could turn a majority into a minority over night, and that the filibuster was the strongest tool of a minority. 

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8 Responses to March 8, 1917: Senate Introduces Cloture

  • Woodrow Wilson was a one world government advocate and a traitor to American sovereignty, with contempt for freedom and the people.

  • I loved “Mr. Smith”. It was not only so great just because of the moral example of Mr. Smith, so upstanding and so determined, but in the end of the movie the evil was revealed when the conscience of the leading bad guy began to work.
    We can still pray for consciences to prevail in our three branches and various departments.
    Somebody somewhere will start to remember that momma and daddy reared them to be good…

  • “Woodrow Wilson was a one world government advocate and a traitor to American sovereignty, with contempt for freedom and the people.”

    Wilson was a racist and a big government man, but he was not an advocate for world government nor was he a traitor to American sovereignty. His dislike of the filibuster is a fairly common belief of Presidents when their party controls the Senate.

  • Of course, Wilson was right. It’s a silly practice to have a Senator standing there reciting from the Biloxi City Directory for hours on end. Rules revisions introducing the Cadillac filibuster 40 years ago (which required saying ‘no’ at intervals and did not require marathon speaking) made the situation worse, as did the extension of ‘holds’ on nominees (initially a practice meant to delay action for a few days so that Senators would not be tied to the chamber) into a license for louts like Richard Shelby to anonymously gum up the works for months on end.

    The. U.S. Senate is an awful institution, and the sooner it’s abolished, the better.

  • It is time for faithful Catholics to coalesde as a group that clings to truths taught by orthodox teachers intheir past, and be deaf to the current Pope and his deformed henchmen,priests, bishopd and cardinals. Deliverance will come.

  • “Wilson was a racist and a big government man, but he was not an advocate for world government nor was he a traitor to American sovereignty” Wilson was the inventor of the League of Nations concept, the forerunner of the United Nations. The UN would take over the world if they could and make subjects of all American citizens, taxing us and running our government without our Constitution. Wilson had contempt for our Constitution. Doing away with our Constitution would have made Wilson happy.

  • The League of Nations had very little in common with the contemporary United Nations and blaming Wilson for the contemporary United Nations is rather akin to blaming Abraham Lincoln for a modern race riot. As for the Constitution, Wilson thought it needed to be updated through amendment, as it was while he was President. He never gave any indication that he hated the Constitution. I have very little liking for Wilson as a historical figure, but fair is fair, and Wilson has been recently savaged by some really poor historical scholarship, much of it promoted by the lunatic Glenn Beck. There is ample ground for criticizing Wilson without lying about him.

  • True. I did believe that Wilson was the father of what is going on in our colleges and universities, now. I will have to research more on what Wilson taught about our Constitution having to be replaced. SEE: Amendment Nine.

War Then

Friday, November 22, AD 2013

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

James Madison, Federalist 62

Harry Reid carried through on his threat yesterday to invoke the so-called nuclear option and take away the right of filibuster in regard to federal appointments except for the Supreme Court.  The vote was 52-48 with three Democrats voting in opposition along with all Republicans.  In effect the vote kills the filibuster since the majority may get rid of it completely at any time the majority wishes.  That this throws out some 225 years of Senate tradition meant less than nothing to Reid and his colleagues, desperate to turn attention away from the disaster called ObamaCare and eager to implement Obama’s scheme to pack the federal appellate courts, especially the DC Circuit, with judges who will uphold the actions of this administration.

The Majority in the Senate always hates the filibuster and the Minority always loves it.  There have been many threats by majorities to take away the filibuster, but until yesterday such threats were never carried out.  Why?  Majorities in the past always realized that one day they would be in the minority, fear of retaliation by the minority in obstructing  the work of the Senate and also a realization that the filibuster normally forced the majority and the minority to work together to some extent, unlike the House.  Such reasons held no weight with the Democrats yesterday, apparently the senators with Ds after their names, with three exceptions, lacking any concern with what the morrow will bring.

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25 Responses to War Then

  • “lacking any concern with what the morrow will bring”

    Exactly. It’s opportunism. Today’s power is more important than tomorrow’s anything. If you have 99% of what you want, and you can gain the rest by havoc, then let slip the dogs of war.

  • Didn’t these godless liberal progressive Democrats oppose getting rid of filibusters back in 2005, including the then Senator Manasseh which is now King? Didn’t they one and all deride President Bush for asking for an up or down vote on his nominees?

    The only thing Democrats understand is what they understod in 1865 – defeat horrible, bitter and bloody. God, may it not happen, but they will not rest till they bring it on their heads and that of the nation.

  • I heard that the GOP’s Mitch McConnell has already stated, I believe, that if the GOP gets back the Senate, they will reinstate the filibuster; the Democrats have no fear of tomorrow because they have no need to fear of the GOP.

  • That sounds just like Mitch McConnell. He needs to be primaried out of a job.

    As for Harry Reid…he is a bitter, cranky man who will stop at nothing to get his own way, and the spineless GOP gives him nothing to fear.

  • The filibuster is a bad institution and architectural to Congress’ inability to accomplish much of anything. It should be eliminated completely.

    As for McConnell, the man’s net worth after 45 years in the public sector makes it a reasonable inference that he is a major crook. That is the reason to unload him, not because he lost a particular dogfight with Harry Reid.

  • Considering that things tend to go from bad to worse when the Congress finally gets around to “working” and “doing something” and “accomplishing,” grid lock looks very, very good. Wish they were still deadlocked on the first Obamacare vote.

  • “…that if the GOP gets back the Senate, they will reinstate the filibuster”

    I think that’s the right thing to do. You have to play fair, even when (especially when) the other guy is cheating. Because Republicans don’t have a natural base. People aren’t born Republican. Ethnic groups aren’t Republican. The party has to earn each convert, and you do that by being smarter, more effective, more compassionate, and more decent across the board. If you’re lucky you get masses of people joining you, like in 1980 and 1994, but most of the time it’s one by one, against the advice of their professors, grandparents, and local paper.

  • You have to play fair, even when (especially when) the other guy is cheating.

    How is requiring a supermajority for legislation ‘playing fair’?

  • That sounds just like Mitch McConnell. He needs to be primaried out of a job.

    He needs to be put out of a job period. If his primary opponent can’t do it, then his Democrat opponent will have to do.

    And frankly, that’s not a difficult leap to make. After all, he just announced he intends to let the Democrats keep running things. At least as long as there are forty of them.

    You have to play fair, even when (especially when) the other guy is cheating.

    Since all’s far in love, war and politics, you play by the rules your opponent agrees to play by, or you don’t play at all.

  • Does no one read Carl Schmitt any more?

    Schmitt argues that every realm of human endeavour is structured by an irreducible duality. Morality is concerned with good and evil, aesthetics with the beautiful and the ugly, and economics with the profitable and the unprofitable. In politics, the core distinction is between friend and enemy. That is what makes politics different from everything else.

    The political comes into being when groups are placed in a relation of enmity, where each comes to perceive the other as an irreconcilable adversary to be fought and, if possible, defeated. “Every religious, moral, economic, ethical, or other antithesis transforms itself into a political one if it is sufficiently strong to group human beings effectively, according to friends and enemy.”

    Of course, he denies the possibility of neutral rules that can mediate between conflicting positions; for Schmitt there is no such neutrality, since any rule – even an ostensibly fair one – merely represents the victory of one political faction over another and the stabilised result of past conflicts.

  • Because the Senate was viewed Art since the Founding as being different from the House. The House was where ephemeral majorities had the power to ram legislation through. The Senate was where compromises had to be worked out if legislation was to make its way through Congress. Now we have two Houses. I disagree with Pinky however that it should now be reinstated. It is impossible to have any rules in a game if only one side is intent on following them. It should be assumed by Republicans now that short of a Constitutional amendment the filibuster is dead.

  • I don’t think the GOP should reinstate the filibuster, at least not immediately, and here’s why: in the past (for over 200 years!), both parties were willing to put up with it because they knew that, eventually, they would loose the Senate, and backstabbing by the majority was likely to be punished by backstabbing when the minority party became the majority–a kind of “mutually assured destruction.” (This is actually stated in the above article, though much more eloquently there.) There needs to be partisanship, strong partisanship, to keep everyone in line.

    We don’t have that. We have a GOP that cries loud (maybe), but eventually seeks compromise, or caves altogether. The Dems know what they want and the leadership is rather patient…until they decide to strike, and then the GOP is so weak they can do nothing to stop it. A packed DC court will give the administration what it (and its fellow socialist fellows) wants, and that is to interpret Constitutional limitations on its power out of the way.

  • Because the Senate was viewed Art since the Founding as being different from the House.

    That is an explanation or an apologia for a particular convention (which emerged in the 1830s, IIRC). That is not an explanation as to why it should be considered ‘unfair’ for the Senate (which is already apportioned so as to give extra weight to states with small populations) to require only majorities and not super-majorities to pass consequential legislation.

    And we do not have ‘two Houses’. The electoral constituencies are different in nature and dimensions, the terms of office are different, and the apportionment is different.

    Personally, I would be content for the Senate to be chosen by caucuses of the House, rather like a colonial governor’s council, and to concern itself with composing administrative rules and holding inquiries. One chamber tasked with composing statutory legislation, composing budgets, and ratifying treaties will do.

  • (for over 200 years!), both parties were willing to put up with it because they knew that

    It emerged by accident during the second party system. It was not a foundational practice. Also, the Senate met in camera until around 1796 and (IIRC) the congressional committee system developed only in stages over the 1st ten Congresses.

  • “That is an explanation or an apologia for a particular convention (which emerged in the 1830s, IIRC).”

    Untrue Art. The Founding Fathers intended the Senate to be a much more deliberative body from the House. The “filibuster” was modeled, although that term was not used initially, after the practice in some colonial and state legislative chambers. Initially “filibusters” could be conducted in both chambers, although rules changes in the House swiftly eliminated the practice there.

    “And we do not have ‘two Houses’”

    We do now Art in that majority rules is the applicable phrase in both of our Houses now. You can bet that the majority in the Senate will attempt to eliminate any features of the Senate that impede the swift passage of anything now that the majority wishes.

  • I am fairly sure there were some inadvertant rule changes around about 1830 which provided for filibusters.

    Also, you are forgetting two amendments to convention which appeared during the 1970s. One was the advent of the ‘Cadillac filibuster’, which consisted of members of Congress tracking proceedings and saying ‘no’ at appropriate times. Prior to that, a member of the Senate had to stand on his feet and read from the phone book for as long as the filibuster continued. One of the longer ones on record lasted about 26 hours. The other was the ‘hold’ on nominees. This emerged for convenience in the 1950s so that members of the Senate would not have to track floor proceedings so carefully and for two decades holds generally lasted only a few days. It turned malignant during the 1970s and by 2009 we had the absurd business of a single Senator from Alabama placing anonymous holds on dozens of nominees.

    James Madison and his contemporaries were liberally educated in a manner which is quite rare today, but I cannot help but notice they have in the minds of many starboard exponents been turned into the equivalent of Isaac Asimov’s Hari Seldon. We cannot make incremental amendments to practice because it would not comport with the reasoning elaborated upon in The Federalist. That not denies historical experience, contemporary experience, and the experience of other countries (who seem not to exist in the minds of our tricorne hats). Henry Paulson was asked to explain his course of action in 2008 and offered this, “Congress does nothing unless there’s a crisis”. That should trouble us. The catch-all continuing resolutions should trouble us. The holds on nominees should trouble us. The lobbyist driven legislation that hardly anyone has read should trouble us. The fact that individual members of the Senate might be limited to 22 minutes a piece of gassing (tradable to others) should not trouble us.

  • The first recorded use of what we would call a filibuster in the Senate was recorded by Senator William Maclay in September 1789 when he penned in his diary that the “design of the Virginians…was to talk away the time, so that we could not get the bill passed.”

    The rule of unlimited debate lasted until 1917 when the cloture rule was written. That rule required two-thirds vote, later changed to three-fifths, to break a filibuster.

  • I am somewhat ambivalent about the filibuster, but when you throw the 17th Amendment into the mix, it’s clear that the Senate is no longer operating as intended and we do indeed have, for all intents and purposes, two Houses.

  • I cannot figure what you could mean by ‘two Houses’ given the differences between the chambers. Nor can I figure what you could mean about attributing that situation to the 17th Amendment, given that that amendment was ratified nearly a century ago (unless you maintain we have had ‘two houses’ since 1919).

  • I think understand what Paul Zummo means by the 17th Amendment. The Senate was originally meant to represent a “super-majority” of the people whether urban or rural. That probably happened when senators were chosen by the state legislatures but much less so since they began to be chosen by the voters at large. Jefferson worried that when we became dominated by city dwellers, we would become less free. He was right and we are. Too much democracy is inimical to the continuation of a free republic. I am sometimes chastened for having some sympathy for southern rights but it is the better spirits thereof which attract me, not the worse. I think the passing of one hundred fifty years has witnessed a reversal of the spirits dominating the North and the South to the point where city and country are arrayed one against the other. The Seventeenth Amendment has made matters the worse. The included link seems to portray the reversal in mind. http://www.youtube.com/embed/9RABZq5IoaQ?feature=player_embedded
    Donald, there is a topic just waiting to be probed by your penetrating mind. Oh yes, the subject was the filibuster. Be patient. Take the Senate. Fight fire with fire. Hoist them with their own petard.

  • Now I am not understanding either one of you.

    My own wager is that you return the election of the Senate to the state legislatures, you get Senators with a different skill set. As of now you get people adept at raising gobs of cash and running publicity campaigns. The apotheosis of such types is the current President, who seems to have no other skill. So, perhaps we benefit. In returning it to election by the state legislatures, you get people who build relationships with small time pols. The apotheosis of that type is….Alphonse d’Amato. I remember the entire Democratic establishment willing to throw the 1986 election because d’Amato had done so many favors for them (“I got the one-penny-in-five reserved for mass transit”); and somehow he managed to avoid an indictment for acting as an enforcer for Joseph Margiotta’s shakedown schemes. Margiotta and others went to prison while d’Amato was strutting around the Senate floor and screwing tramps who will lie down for the famous no matter what.

  • “Too much democracy is inimical to the continuation of a free republic.”

    If you ever want to stir up the herds, just give ’em that observation. I also believe universal suffrage for every Federal post is poison, but I can’t conjure an equitable demographic truncation.

  • Don’t forget the reason why the 17th Amendment was passed in the first place — due to a series of scandals involving Senators who blatantly bought their seats via outright bribery or arm-twisting in addition to the usual political horse trading involved in most important legislative votes.

    Also, it was because of the 17th Amendment that Lincoln did NOT win the Illinois Senate seat he was campaigning for during the Lincoln-Douglas debates — Democrats managed to keep control of the state legislature during that election and thereby reelected Douglas even though the Republican party actually received more popular votes.

  • Oops, I meant to say “it was because there was no 17th Amendment that Lincoln did NOT win”.

  • “Don’t forget the reason why the 17th Amendment was passed in the first place — due to a series of scandals involving Senators who blatantly bought their seats via outright bribery or arm-twisting”. More evidence that “Bad Cases Make Bad Laws”.

Rand Paul Defends the Bill of Rights

Wednesday, March 6, AD 2013

“I have allowed the president to pick his political appointees…But I will not sit quietly and let him shred the Constitution.” — Senator Rand Paul (go here for more quotes)

Update: Senator Ted Cruz reads tweets supporting Rand Paul on the Senate floor.

Rand Paul has been filibustering the nomination of Obama’s pick to head the CIA, John Brennan. He is doing so because of a consistent refusal of Obama, Brennan, Holder and other administration higher-ups to clearly and unambiguously reject policies that violate the Constitutional rights of American citizens, including the right to due process prior to the deprivation of life, liberty or property.

I’ve been skeptical of Rand Paul for some time. I didn’t mind his endorsement of Romney, but I did mind his statements pledging unconditional defense of Israel in the event they are attacked. I don’t think this country should pledge unconditional defense of any country, least of all one with a nuclear arsenal of its own. His position on immigration isn’t quite what I would like either. I want it slowed to crawl and troop deployment on the border. He’s still playing the desperate “do anything to get Latino votes” game, a losing game for the GOP no matter what they propose. But I digress.

At this moment, there is no other prospective candidate for 2016 I would even consider supporting. Though there is still time for another acceptable candidate to emerge, today’s filibuster earns him major points in my book. It may be a largely symbolic gesture, but it is a necessary one. It lets the people of this country know that those of us who still value the Bill of Rights and view those rights as sacrosanct have an advocate at the higher levels of government. The value of this can’t be overstated.

I wish him all the best and my prayers are with him.

Oh, and read my latest post at Catholic Stand 🙂

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12 Responses to Rand Paul Defends the Bill of Rights

  • I like Rand. Am excited that he might have a strong shot at getting the nomination in 2016. And I love this filibuster. BUT … I was right there with Rand until he started talking about revisiting Lochner. What Libertarian claptrap!!!

    The notion that FEDERAL courts can strike down STATE economic legislation as “unconstitutional” based on some hidden gnostic constitutional right able to be divined only by the most freedomy free of the laissez faire Libertarian crowd is repugnant. Because “freedom of contract” certainly ain’t based on anything actually found in the text of the Constitution. The rationale that the Court used in Lochner is the same rationale that leftist judges would later use (and still use to this day) to strike down state laws on abortion (and probably, in the near future, marriage) that they don’t like based on “rights” nowhere found in the Constitution.

  • Jay,

    This issue isn’t as cut-and-dried as you’d like it to be. I might disagree with Rand and others on the use of Lochner, but I do think it is important to argue that without freedom of contract, private property rights are severely impaired. In fact a regime of private property without freedom of contract could easily be defined as fascism.

    With that said, I firmly believe in the 10th amendment. If an individual state wishes to adopt a fascist economy, as we arguably have in California, the Constitution protects this right. My hope is that the economic meltdown of California, as well as the economic meltdown of socialist stinkholes such as Venezuela, will demonstrate and even establish by default the superiority of economies that are more laissez-faire.

    We don’t need to revisit Lochner to do what Rand wants to do. The 5th amendment is more relevant to me than the 14th.

  • Agreed with Jay on Lochner as it birthed the notion of substantive due process, which would be used by later Courts to justify all sorts of federal nullification of state laws, the most notable being Roe and Griswold. Of course Lochner was a much more justifiable decision than either of those, though still wrong.

    All that being said, bravo to Senator Paul on several fronts. First and foremost for the substance of the issue, but also for the useful reminder that Congress should actually try to check Executive now and again.

  • The problem is how “freedom of contract” is to be defined in any constitutionally coherent sense. Besides the fact that the “right” doesn’t explicitly exist anywhere in the Constitution and can’t be bootstrapped onto any other provision outside of, arguably, due process property rights, what parameters are to exist on such a “right”?

    The Constitution guarantees due process of law for property rights – property owners have as much opportunity to engage in the process of lobbying their government on their own behalf as those who would restrict the laissez faire use of that property. That’s the right that’s constitutionally guaranteed, outside of some other constitutional right being infringed (such as an inappropriate use of eminent domain or a violation of the 1st Amendment in an HHS Mandate type of scenario – I know we’re talking about the states, but just using that as an example). Otherwise, there is no substantive constitutional protection of how one exercises their property rights – “substantive due process” is an oxymoron.

    But to get back to the nebulousness of the “right” of freedom of contract, it’s too dependent on the subjective opinions of unelected judges, just like the so-called “right to privacy”.

    I, too, am a strong believer in the 10th Amendment, and like you, I’m perfectly satisfied with each state deciding for itself whether it will provide a climate conducive to prosperity and freedom or whether it will be a socialist hell-hole.

  • But I will agree with Paul – apart from his reference to Lochner (which I HOPE doesn’t come back to bite him in 2016), KUDOS to Rand for this effort to reel in the executive and to bring some semblance of sanity to this never-ending “War on Terror”.

  • Mary Ann Glendon on freedom of contract:

    Consider first that when Holmes was a young lawyer in the 1870s, legislatures had begun producing a new type of statute—primitive regulatory legislation, much of it addressed to conditions in factories. Those whose interests were adversely affected by these laws took their complaints to the courts, with the result that the Supreme Court embarked on its first sustained adventure with the power of judicial review, a power that it had possessed for nearly a century, but which it had exercised sparingly. The behavior of the Supreme Court and other courts in that period (striking down much early social legislation as infringing on economic rights) is now frequently treated in law school classes as showing that the judiciary was in the service of the dominant classes. But there was another dimension to the story. When late-nineteenth-century judges entered the still relatively uncharted areas of statutory interpretation and constitutional review, they really did not know quite how to handle the new situation. It is helpful to keep in mind that as late as 1875, nearly half of the United States Supreme Court’s case load was still pure common law litigation. By 1925, however, statutes figured importantly in all but about 5 percent of the cases. Most judges during those years of transition tended to proceed in the way they knew best—by falling back on their habitual practice of construing enacted law (including the Constitution) in such a way as to blend in with, rather than displace, the common law background where, as it happened, freedom of contract was ensconced as a leading principle. In a series of famous dissents, Holmes, to his credit, tried to point out to his fellow judges that the rules of the game had changed in 1787. But that point seldom got across until the 1930s, and even then it was not fully absorbed.

  • Here, here, Bonchamps! Rand Paul is to be heartily commended, and I hope he emerges as the leader of the GOP in a few years’ time.

    Although I’m not sure I agree with what you’re getting at when you say courting Latino voters is a “losing game” for the GOP.

  • JL,

    I simply mean that there is little, if anything, the GOP can do to win Latinos away from the Democrats. Oh, they might increase their margins a bit, five, ten percentage point by promising open borders, amnesty, and unlimited benefits. But they’ll never out-social democrat the social democrats. If they try they will not only fail to get sufficient Latino votes, they will disgust much of their base in the process.

    Romney didn’t lose because not enough Hispanics voted for him. He lost because not enough whites voted for him. That is a cold, sober fact. I happen to think that second generation and onward Latino immigrants as well as the black middle class have common interests with the white working and middle classes, and so I don’t believe that a specific appeal to “white” interests needs to be made. But an appeal to the middle class that still believes in the rule of law, private property, states rights, most of which is white at the moment, is absolutely necessary for the GOP to survive as a national party.

    Rand, so far, is playing the “how can I out-Rubio Rubio” game. He should forge his own path and stand up for national sovereignty and national interests.

  • Wait… Am I hearing rightly that a Senator thinks Congress has authority to resist a President? What novel legal reasoning gets him to that conclusion? What would be point to electing Ceasar if he can’t do whatever he wants. No, Sen. Paul, that kind of novel, extra-constitutional reasoning won’t wash in this age of enlightenment.

    Hail Obama, King of the Americas! Hail, I say! Hail!

  • I think all he wants is for obama to state that he doesn’t have executive authority to assassinate US citizens on US soil. Due process.

    Why are not the other 99 useless political trash lined up to add their voices?

    That’ a rhetorical question, I think.

  • T. Shaw,
    Good question for we the people to ask of the legislative representatives.

    They spoke an oath of office to uphold the Constitution at least, then celebrated their worldly reward with others falling under the influence of the tempter’s power. The tempter has people fooled into liking being ignorant and trashy.

    Dignity and goodness – at least fairness and order – need more like Rand Paul to defend the Bill of Rights, even, if selfishly, for their own families if the legislators love them. Would be a good addition to their reading list or a work project.

    For the time being, it seems that the contagion needs a name.

  • The Lochner quote will be used against him, count on it, even though he wasn’t saying “restore it.”

    I think the main problem with Lochner is that it was a legal fiction: American employees rarely have actual contracts of employment (though collectively-bargained ones are).

    Instead, they have a status: at-will employment, which can be ended for any reason by the employer without notice. Of course, nowadays there are statutory and occasional common-law exceptions to at-will employment, but I’m going to bracket those for a moment.

    Such a status is that–a status, not a contract. Thus, the idea that state employment regulation interfered with contracts was risible. Not to mention it was invoked to protect some grisly employment practices.

Stevens to Retire

Friday, April 9, AD 2010

Get ready for Obama appointment, Round 2.

Supreme Court Justice Stevens announces he will retire in the summer.

Not sure how the timing will work on this, especially as Obama and the Democrats try to avoid being too contentious right before the November elections. That might play in our favor as far as getting a more moderate nominee. It will also be interesting to see if the GOP can or will delay the nominee as they have the 41 votes to filibuster.

The names being thrown around are the same ones being thrown around before; we’ll see where he goes with this pick. Time to start praying again.

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39 Responses to Stevens to Retire

  • Jerry Ford’s gift to liberal Democrats everywhere finally decides to call it quits during a Democrat administation, which shocks me as much the sky being blue and water being wet.

  • I don’t foresee a filibuster. There are only 41 Republicans, and it will just take one R to break a filibuster, and in this case I highly doubt Snowe, or Collins, or even Brown would join in one.

    Anyway thus passes Gerald Ford’s great gift to the country.

  • Heh, Donald beat me to the punch by seconds on the gift remark.

  • Stevens being from Chicago Paul I was in a hurry to give him a proper “the Chicago Way” send-off. 🙂

  • I have to admit, going to 90 to make sure his replacement shares his views is pretty stout.

    I agree that the filibuster seems unlikely, but there is a chance and that might affect the choice of nominee.

  • Pray for what?

    I don’t say that to doubt the efficacy of prayer, or to discourage anyone from praying for the souls of the Supreme Court members. But the way this game is played, 100% of nominees from Democratic presidents are activist pro-choicers, and 50% of Republicans’ nominees are originalist pro-lifers.

    The only way loyal Catholics get someone palatable is if the paperwork gets mixed up in the mail, and Bishop Gomez gets on the Court and some liberal judge takes over the Diocese of LA.

  • Pinky:

    Well, one could always hope the Democrats make their first mistake.

    But if that’s not a hope, then I think we should pray that he picks someone more moderate on the issue rather than the absolute “abortion is a right and ought to be fully funded by the federal government” crowd. There are various shades of being pro-choice, and we can pray that we get a lighter shade than Stevens.

  • I for one am going to start praying that Scalia does not fall over with a Heart attack

  • I for one am going to start praying that Scalia does not fall over with a Heart attack

    Yeah. . . where will we find another judge as dependably pro-torture as he is!

  • Through Obama.

  • “Yeah. . . where will we find another judge as dependably pro-torture as he is!”

    Why the entire liberal wing of the court unless you do not consider partial birth abortion to be torture, in addition to infanticide.

    From the Ginsburg dissent in Carhart, the Supreme Court decision upholding a law against partial birth abortion joined in by Stevens, Souter and Breyer.

    “Today, the Court blurs that line, maintaining that “[t]he Act [legitimately] appl[ies] both previability and postviability because … a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” Ante, at 17. Instead of drawing the line at viability, the Court refers to Congress’ purpose to differentiate “abortion and infanticide” based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769).

    One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences”motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846”

    http://www.law.cornell.edu/supct/html/05-380.ZD.html

    Scalia’s dissent in the earlier Carhart decision which overturned a law banning partial birth abortion:

    “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”–which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)–is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

    Even so, I had not intended to write separately here until the focus of the other separate writings (including the one I have joined) gave me cause to fear that this case might be taken to stand for an error different from the one that it actually exemplifies. Because of the Court’s practice of publishing dissents in the order of the seniority of their authors, this writing will appear in the reports before those others, but the reader will not comprehend what follows unless he reads them first.

    * * *

    The two lengthy dissents in this case have, appropriately enough, set out to establish that today’s result does not follow from this Court’s most recent pronouncement on the matter of abortion, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). It would be unfortunate, however, if those who disagree with the result were induced to regard it as merely a regrettable misapplication of Casey. It is not that, but is Casey’s logical and entirely predictable consequence. To be sure, the Court’s construction of this statute so as to make it include procedures other than live-birth abortion involves not only a disregard of fair meaning, but an abandonment of the principle that even ambiguous statutes should be interpreted in such fashion as to render them valid rather than void. Casey does not permit that jurisprudential novelty–which must be chalked up to the Court’s inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue. It is of a piece, in other words, with Hill v. Colorado, ante, p. ___, also decided today.

    But the Court gives a second and independent reason for invalidating this humane (not to say anti-barbarian) law: That it fails to allow an exception for the situation in which the abortionist believes that this live-birth method of destroying the child might be safer for the woman. (As pointed out by Justice Thomas, and elaborated upon by Justice Kennedy, there is no good reason to believe this is ever the case, but–who knows?–it sometime might be.)

    I have joined Justice Thomas’s dissent because I agree that today’s decision is an “unprecedented expansio[n]” of our prior cases, post, at 35, “is not mandated” by Casey’s “undue burden” test, post, at 33, and can even be called (though this pushes me to the limit of my belief) “obviously irreconcilable with Casey’s explication of what its undue-burden standard requires,” post, at 4. But I never put much stock in Casey’s explication of the inexplicable. In the last analysis, my judgment that Casey does not support today’s tragic result can be traced to the fact that what I consider to be an “undue burden” is different from what the majority considers to be an “undue burden”–a conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it. Evidently, the five Justices in today’s majority value the former less, or the latter more, (or both), than the four of us in dissent. Case closed. There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised–a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is “undue”–i.e., goes too far.

    In my dissent in Casey, I wrote that the “undue burden” test made law by the joint opinion created a standard that was “as doubtful in application as it is unprincipled in origin,” Casey, 505 U.S., at 985; “hopelessly unworkable in practice,” id., at 986; “ultimately standardless,” id., at 987. Today’s decision is the proof. As long as we are debating this issue of necessity for a health-of-the-mother exception on the basis of Casey, it is really quite impossible for us dissenters to contend that the majority is wrong on the law–any more than it could be said that one is wrong in law to support or oppose the death penalty, or to support or oppose mandatory minimum sentences. The most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.

    While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that “Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”; and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.” Id., at 995—996. Today’s decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism–as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O’Connor’s concurrence, “[t]he issue of abortion is one of the most contentious and controversial in contemporary American society,” ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people–where the Constitution, by its silence on the subject, left it–and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.”

    http://www.law.cornell.edu/supct/html/99-830.ZD1.html

  • Why the entire liberal wing of the court unless you do not consider partial birth abortion to be torture, in addition to infanticide.

    Wel then, I am confused. . . after all, since torture isn’t wrong, then how can partial birth abortion be. . .

    Unless. . .

    Of course! It makes sense now: abortion means no children. No children means no children’s testicles. And if there are no children’s testicles to crush. . . the terrorists win!

    Ex Conservatatione Quod Libet

  • I am sure phosphorious that you will be able to cite a text where Scalia ever indicated that he was in favor of someone’s testicles being crushed. On the other hand I have just provided you with chapter and verse where the liberal wing of the court views as a constitutional right the ability of an abortionist to stick scissors into the base of an unborn infant’s skull. However, I suppose in your view that since it is abortion it cannot be torture. Res Ipsa Loquitur

  • Don,

    phosphorius is right. Obama prefers murder to torture.

  • Bush’s legal advisors has defended Bush’s right (I don’t know if a “lib” president is invested with a similar “right”) to crush a child’s testicles to extract information from his parent. Scalia is known to have defended Bush’s torture policies in toto.

    Bush ordered torture to be performed. Did Obama ever order an abortion to be performed, partial-birth or otherwise? A distinction a “conservative” should take seriously.

  • phosphorius is right. Obama prefers murder to torture.

    Whereas I can’t think of anything that conservatives prefer to torture. they defend it every chance they get.

  • Actually many conservatives oppose torture. Many liberals (such as Pelosi)supported the CIA interrogation techniques (though she lies about it.) Obama, given his penchant for murder would likely not oppose past interrogation techniques if the right situation arose. Did he order any murders? See discussion on assasinations below.

  • Phosphorious raises some very good points, and I would like to follow up with a post of my own. I would just ask phosporious if he could kindly supply some of the links or other supporting literature that shows that Bush’s legal advisors defended his right to crush a child’s testicles, where Bush so ordered such an action to be taken, and the opinions offered by Scalia demonstrating his approval of such. I look forward with great anticipation the roundup of this information.

  • Google “Yoo testicles” and you will see the defense. As for proof that Bush actually ordered the crushing of testicles, child’s or not, I assume that’s a matter of State security that only a traitor would pry too closely in. If the terrorists knew about it, they would train their children to withstand testicle crushing, after all.

    But Bush did order the torture of prisoners. And Scalia supports it. . . citing I believe “24” as proof that law enforcement needs “lattitude” in the fighting of terrorism.

    But gentlemen, we digress. The point is that abortion is the litmus test, and nothing else.

    On that, conservatives can agree, no?

  • “Did Obama ever order an abortion to be performed, partial-birth or otherwise? A distinction a “conservative” should take seriously.”

    Nah, he merely defends it as a constitutional right and raises campaign funds trumpeting his opposition to laws banning partial birth abortion, what the late pro-abort Senator from New York Daniel Patrick Moynihan referred to as “barely disguised infanticide”.

    http://www.jillstanek.com/partial-birth-abortion/michelle-obamas.html

  • I assume that this interview on 60 minutes is what elicts phosphorious’ attempts to defend Obama on abortion by attacking Scalia on torture:

    Viewing Leslie Stahl attempting to question Scalia is rather like watching Bill Clinton attempting to teach a course on legal ethics. She didn’t have even the foggiest notion of what he was talking about.

  • “The point is that abortion is the litmus test, and nothing else.”

    The point is phosphorious almost a million dead unborn children a year and your desperate attempts on a Catholic blog to supply political cover to a President who is dedicated to this continuing forever.

  • Stevens’ retirement troubles me because, every time a justice retires many people speak in terms of litmus tests related to societal issues such as abortion and freedom religion. In discussing such tests for prospective nominees most individuals focus solely on the subject of abortion.

    The use of abortion as the sole litmus test that nominees must be subjected to is akin to tunnel vision because, most social conservatives fail to realize that the adoption of such a position is tantamount to heresy in many circles and no politician would risk their careers by taking such a position openly and publicly because, it would alienate an extremely large bloc of voters who see overturning Roe v Wade and it descendants as potentially causing even more harm than good because, attempting in their eyes restoring the status quo as it existed before 1973 could engender the return and resurgence of backroom abortionists who are not medically trained.

    I would advocate the development of additional tests. For example, how would the nominee defend the rights of the disabled, minorities and women?

  • “I would advocate the development of additional tests. For example, how would the nominee defend the rights of the disabled, minorities and women?”

    In other words, shut up about the right to life of the unborn. Additionally, what attempts are there on the scale of abortion in reference to unborn children to deny rights to minorities or women? Unborn disabled children are of course often targeted for abortion because of their disability.

  • I assume that this interview on 60 minutes is what elicts phosphorious’ attempts to defend Obama on abortion by attacking Scalia on torture

    I am attacking the smug, self-righteous Catholics who only object to the sins that political liberals commit.

    Which is every poster here, far as I can tell.

  • In other words, shut up about the right to life of the unborn.

    Because, of course, if abortion is not the only issue, then it is no issue at all.

    Heresy is not necessarily the abandoning of Church doctrine. Focusing on one bit of doctrine to the exclusion of all else will do quite nicely.

  • The point is phosphorious almost a million dead unborn children a year and your desperate attempts on a Catholic blog to supply political cover to a President who is dedicated to this continuing forever.

    Obama has dedicated his life. . . and beyond. . . the making sure that mothers kill their children?

    Wow. . . I had no idea. . .

  • What are the penalties for refusing to abort your child?

  • Phosphorious it would be much more concise if you simply said: “I’m a liberal and I don’t give a damn about abortion. Go Obama!” That is, after all, what your position boils down to.

  • The Cajun is right, how much damage does President Obama want to incur in order to nominate another pro-abortion advocate.

    I think he will, he seems to believe he is invincible and 2012 is far away enough to recuperate lost prestige.

    He apparently doesn’t really care about the Dems this election cycle, so why not write this election off. Besides, what’s the worse that can happen? The Democrats will have a small majority in the House and in the Senate he’ll have veto powers that can’t be overcome.

  • At no time did I argue that anyone needed to be silent about the rights or lack thereof accorded to the unborn. I merely assert that a multitude of sociopolitical issues must be considered in addition to when nominating a successor to Justice Stevens.

    As for my assertions regarding the nature of politicians and their desire to maintain their positions at the expense of their morals, such a school of thought has existed in some form or other since, the foundation of the Roman Empire. Indeed both Machiavelli and Gracian discussed this tendency at length.

  • Mr. McClarey, I know very well how many fetuses are subjected to abortion because of their disabilities. I myself am possessed of cerebral palsy characterized by ataxic presentation.

    I merely sought to point out that in my opinion if an individual chooses to focus on the issue of abortion alone, while failing to review the positions taken by a prospective nominee on other sociopolitical issues is possessed of a focus so narrow that it fails to meet the standard set by Saint Basil Saint Thomas Aquinas and Saint Bonaventure, and Saint Aloysius Gonzaga

  • Nathan, I rather think all of the Saints you name would be protesting outside of abortion clinics constantly if they were alive today. Abortion is the human rights issue of our day, and to sit on our hands because of opposition from pro-aborts is not an option.

    I think Cardinal Ratzinger put it well in a letter:

    “2. The Church teaches that abortion or euthanasia is a grave sin. The Encyclical Letter Evangelium vitae, with reference to judicial decisions or civil laws that authorize or promote abortion or euthanasia, states that there is a “grave and clear obligation to oppose them by conscientious objection. […] In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to ‘take part in a propaganda campaign in favour of such a law or vote for it’” (no. 73). Christians have a “grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God’s law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. […] This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it” (no. 74).

    3. Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.”

    http://www.priestsforlife.org/magisterium/bishops/04-07ratzingerommunion.htm

    Catholics and all who cherish innocent human life must be untiring in their battle against the crime of abortion.

    In regard to your disability, my prayers. One of my sons is autistic. I have no doubt that if there were a test to determine autism in utero, many of his autistic peers would not be alive today, just as has occurred with 90% of Down Syndrome children where such a test does exist. This slaughter of the innocents must stop and I will never cease working against abortion until I take my final breath.

  • Phosphorious it would be much more concise if you simply said: “I’m a liberal and I don’t give a damn about abortion. Go Obama!” That is, after all, what your position boils down to.

    As opposed to saying that the mere mention of torture distracts from abortion, which is the only sin.

  • I agree they would be protesting, and they would be examining the positions held by candidates in regards to other issues as well so that could more fully ascertain the candidates in order to have a fuller understanding of their character, so that they could more effectively battle them.

  • Phosphorious your laborious dragging of red herrings through this thread merely demonstrates that my concise version of your position is totally accurate. Such tactics may work at Vox Nova, they are absolutely of no use on this blog.

  • I merely sought to point out that in my opinion if an individual chooses to focus on the issue of abortion alone, while failing to review the positions taken by a prospective nominee on other sociopolitical issues is possessed of a focus so narrow that it fails to meet the standard set by Saint Basil Saint Thomas Aquinas and Saint Bonaventure, and Saint Aloysius Gonzaga

    An aspirant for a seat on an appellate court of last resort who proposes to uphold Roe v. Wade and Doe v. Bolton is in doing so subscribing to a particular conception of judicial review favored by Laurence Tribe. A judge engaging in authentic judicial review declines to apply administrative rules which conflict with statutes and statutes which conflict with constitutions. A judge engaging in Tribean judicial review assumes plenary authority to annul any statute or administrative rule incongruent with the policy preferences of law professors, so long as his shallow and smart-assed clerks can gin up a salable excuse. An adherent to Tribean judicial review is unfit for any office or public trust, period.

    Judge Stevens was one of four members of the federal Supreme Court who contended (in a dissenting opinion issued in 1977) that the federal and state governments were required by constitutional provisions to appropriate public funds to provide abortions on demand. Congress should have stuck a fork in this bastard a long long time ago.

  • In this country, ‘sociopolitical issues’ are the business of legislators, not judges.

  • The reason it appears that Roe v. Wade is all that matters is because, in addition to being about the civil rights issue of our time, it also has become a proxy for two opposing views of constitutional jurisprudence. How a judge is likely to vote on Roe tells me almost all I need to know about that judge.