RUSH: We are getting closer. “Republicans sent a Texas judge’s name to the full Senate for confirmation for a third time Thursday, moving closer to a confrontation over Democratic filibustering of President Bush’s judicial nominees. The Senate Judiciary Committee on a 10-8 party-line vote gave its approval to judge Priscilla Owen, who was nominated by Bush for a seat on the 5th U.S. Circuit Court of Appeals in New Orleans. The committee was scheduled to do the same for California judge Janice Rogers Brown, who is seeking a lifetime slot on the U.S. Circuit Court of Appeals in the District of Columbia. Owen and Brown were blocked from confirmation by Democratic filibuster threats during Bush’s first term, but were renominated by the president after he won a second term in November. Democrats consider the nominees too conservative.”
This is an Associated Press story, by the way, they consider them too conservative and too activist, uh, uh, ladies and gentlemen. “Republicans said Democratic complaints were unfounded and that Owen should be confirmed since the Senate’s GOP majority has the 51 votes necessary. ‘She deserves to be confirmed and she deserves the professional courtesy of an up or down vote,’ said Sen. John Cornyn, R-Texas, who served on the Texas Supreme Court with Owen. But Democrats made clear they would attempt to filibuster Owen again. ‘Since we last considered this nomination, nothing has changed to make us think she should be confirmed,’ said Sen. Edward Kennedy, D-Mass. Owen’s nomination is not worth the confrontation it will cause, said Sen. Dick Durbin of Illinois, the Senate’s no. 2 Democrat. ‘This nomination is going to be precipitate a confrontation that we do not need,’ Durbin said.”
Okay, so getting ever closer to this, where are we on all of this? Where are we on the filibuster business? Well, sit tight, folks. I hate to start the program off here with depressing news. I hate to start the program with news that’s going to make you angry, but from The Hill newspaper today: “Sen. Rick Santorum (R-Pa.), a leading advocate of the ‘nuclear option’ to end the Democrats? filibuster of judicial nominees, is privately arguing for a delay in the face of adverse internal party polls. Details of the polling numbers remain under wraps, 
but Santorum and other Senate sources concede that, while a majority of Americans oppose the filibuster, the figures show that most also accept the Democratic message that Republicans are trying to destroy the tradition of debate in the Senate. The Republicans are keeping the ‘nuclear’ poll numbers secret, whereas they have often in the past been keen to release internal survey results that favor the party. David Winston, head of the Winston Group, which conducts Senate GOP polls, did return phone calls seeking comment. Confirming public disquiet over the ‘nuclear’ or ‘constitutional’ option, Santorum said, ‘Our polling shows that.’ But, he added, public thinking had been muddied by what he called false Democratic arguments that checks and balances were being eroded. ‘People see checks and balances as Democrats checking Republicans, not the legislative checking the executive or the judiciary checking the legislative,’ Santorum said.”
You know, I don’t know what to say. This is utter incompetence. This has been a PR battle all along. What this internal poll seemingly indicates is that the public totally misunderstands this, that they think there’s a tradition of filibustering judicial nominees and the Republicans are going to throw Senate tradition out the window, when the fact is that this has never been done before. In 200-plus years, judicial nominees were never filibustered. I’m getting blue in the face. I’m getting blue in the face talking about it. I’m getting blue in the face repeating myself over and over and over, and yet how many Americans care about the precious traditions of the Senate anyway and these stupid polls? How many people walk around on a day-to-day basis worrying about the precious traditions of the Senate?
You know, I think this is all just a crock. It’s disheartening, and it all boils down to the fact that our side just simply cannot act like it’s in the majority, they just for some reason do not have that psychological ability to act like they are in the majority. And to now be, you know, we had a story earlier this week that the Republicans have just now realized they’re losing the PR battle. That must have been a story that’s related to this polling data that they just got. Now, the Senate Democrats are planning a press event at Georgetown University today to try to defend their unprecedented use of supermajority requirements for judicial nominees, and at this press event they’re going to attack Republican efforts to restore Senate tradition. That’s what’s happening here. Senate tradition will be restored if the nuclear or constitutional option is triggered. What has been destroyed, if anybody cares about it, is this precious Senate tradition. The tradition has always been all you need is 51 votes to confirm judges, pure and simple. It now requires 60 because of this asinine filibuster. And so if anybody is worried about the tradition of the Senate, it is being restored, or it would be restored if the Republicans were successful in implementing the nuclear option. Anyway, we have some quotes here, uh, ladies and gentlemen, from some actual Georgetown law professors which might provide some useful input because the Democrats are having their press event at Georgetown University today to try to continue to defend their unprecedented use of the supermajority requirements. It’s not clear whether these law professors will be invited to attend based on what they said. Liberal Georgetown law professor Susan Low Bloch wrote on March 14th of this year, barely a month ago, “Everyone agrees, senate confirmation requires simple majority. No one in the Senate or elsewhere disputes that.” These remarks were made in a letter to Senator John Cornyn, in a memo or a letter or whatever. Cornyn responded to her by pointing out that unfortunately several Democrats do disagree. But everyone agrees Senate confirmation requires a simple majority. No one in the Senate or elsewhere disputes that. Liberal law professor Georgetown Susan Low Bloch.
Professor Bloch has also condemned supermajority voting requirements for confirmation arguing that they would allow the Senate to, “upset the carefully crafted rules concerning appointment of both executive officials and judges and to unilaterally limit the power the Constitution gives to the president in the appointment process. ‘This I believe would allow the Senate to aggrandize its own role and would unconstitutionally distort the balance of powers established by the Constitution.'” Liberal law professor Susan Low Bloch, I don’t mind quoting her. She’s right. I don’t mind giving her credit. She’s right. I hope I’m not destroying her career or her reputation by citing her on my program, but nevertheless when somebody says the right thing about whatever we’re discussing, you pass it on, and she certainly has. And that’s exactly right. This goes beyond check and balance, this goes beyond advise and consent, this takes the power of the president to make appointments — and he’s duly elected by the people — a little bit out of his hand. There’s another liberal law professor at Georgetown, Mark Tushnet, and he has written, “The Democrats’ filibuster is a repudiation of 
a settled preconstitutional understanding.” He has also written, “There’s a difference between the use of the filibuster to derail a nomination and the use of other Senate rules, on scheduling, on not having a floor vote without prior committee action, et cetera, to do so. All of those other rules can be overridden by a majority vote of the Senate whereas the filibuster can’t be overridden in that way. A majority of the Senate could ride herd on the rogue judiciary committee chair who refused to hold a hearing on some nominee. It can’t do so with respect to a filibuster.” So I mention this to you just to illustrate that even with some ammo being provided by liberal law professors, the Republicans in the Senate just can’t seem to figure out a way to get their message out here, beyond this program and Mark Levin, or whoever else is talking about it. Now we read that they got internal polling data that shows a little fear out there because the public is concerned about destroying precious Senate tradition. So that’s the latest, two more judges have been sent up there, and this is getting us ever closer to the moment of truth on this. I’m going to make no predictions. I have absolutely no clue what the final action here will be. The indications are that if this is triggered, it will not be in this term, it will not be in this session, rather. But I don’t want to say any more than that. This could all be a big feint, too. Who knows? We’ll just have to wait and see.
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