Gorsuch Win

We had it on the authority of that Constitutional scholar Joe Biden:

 … I’ve never seen… the Constitution stood on its head as they’ve done,…This is the first time every single solitary decision has required 60 senators. [Emphasis added.]

Biden was wrong; he ignored the Democrats’ use of the 60 vote rule when it benefited them; but he was correct on the basic point. The Constitution specifies a super-majority for only a limited list of Senate actions.  [E.g., ratification of treaties, overriding Presidential vetoes, approving constitutional amendments.]

Both Alexander Hamilton and James Madison indicated in the Federalist Papers a clear belief in majority rule, with Hamilton stating that “the fundamental maxim of republican government . . . requires that the sense of the majority should prevail.” [Emphasis added.]

In April, the Dems’ craziness over Judge Gorsuch led to the removal of the 60 vote requirement for the Supreme Court so that now all federal judicial nominations are by majority vote. Even the RINOs reluctantly found the spine to use the so called nuclear option to eliminate it. Yet one 60 vote requirement remains.
Legislative Measures
Legislation still requires 60 votes to stop a filibuster with the exception of bills passed in the reconciliation process. However, reconciliation is a complex alternative and can be used only in
limited circumstances. Basically, a bill cannot contain any subject matter other than one with direct budgetary impact.
The point is that the 60 vote requirement for legislation is no more constitutional than one for judges. One legislator [with a Master’s in American History from Oxford] summed it up:
Federalist Paper 58 explains why the Constitution rejects supermajority rule for legislative business: ‘The fundamental principle of free government would be reversed. It would be no longer the majority that would rule. The power would be transformed to the minority.‘ The Senate can’t amend the Constitution by applying a supermajority requirement to legislative business outside the supermajority categories specified in the Constitution…. it’s a perversion of our constitutional system. Do what should have been done a long time ago. Eradicate the filibuster and get on with governing the nation by simple majority rule according to the Constitution.. It’s not the nuclear option. It’s the constitutional option. [Emphasis added.]
Liberals agreed 
Salon,an ultra liberal publication, believe it or not, agreed:
We don’t need more checks and balances: The federal government was designed to be inherently inefficient in order to prevent radical swings in policy when new parties take control. That’s fine and good. But there are plenty of checks and balances with two houses in the legislature, the committee process, presidential vetoes and judicial review without a supermajority requirement in one of the chambers. As noted earlier, the founders didn’t intend for it to be this way. [First emphasis in original; others added.]
And the equally liberal Economist chimed in with an article entitled The filibuster. They should have killed it for legislation too:
It’s a horrible institution with no moral or practical legitimacy, ‘an anti-democratic monster’…
No Problem Then?
Ah, you say, wonderful, the Libs are for it so we do not have to worry about the RINOs not going along. Pass it and let’s get to work
Not so fast. Look at the dates on the Salon and Economist pieces -2012 and 2013 – the Republicans were in the minority. Given the Left’s firm belief that no one can resist their message, they could not imagine people voting the Republicans into the majority and the Democrats needing to employ the filibuster.
They were wrong and now, no surprise, they sing a different tune, the contradictory claim that the 60 vote barrier is essential for bi-partisan cooperation.
They argue the bi-cameral structure of the government was to give a “cooling” period on legislation. No argument there. Then comes the leap into illogic- “cooling”, they claim, requires a supermajority.

No, the idea of a second body, the Senate, was to stop a bill, passed in the House of Representatives, from becoming law until the Senate, a smaller group, had time to consider it; that was the “cooling.”

Think about it. The Founders knew how to require a supermajority and did so for limited issues: ratification of treaties, overriding Presidential vetoes, approving constitutional amendments. But they did not do it for legislation because it made no sense given their views:the fundamental maxim of republican government . . . requires that the sense of the majority should prevail. [See above]]

So are we back to our usual problem, getting the RINOs to go along with eliminating the remaining 60 vote barrier? Sad to say: No.
They, and a number of other “establishment” Republicans, have joined with the Left to swear allegiance to the unconstitutional requirement. 61 Senators sent a letter Senate leaders McConnell and Schumer, urging them to preserve it. No urging is necessary; both are on record to keep it. So the total is actually 63 Senators bent on violating our Constitution.
Incredibly, with no sense of shame, they claim that their actions are in the best tradition of bipartisanship. Chuck Schumer had the chutzpah to point to the recent omnibus bill as an example.
That was the bill where the GOP rolled over, actually citing the filibuster as a reason for the capitulation.
…passing a proper bill would be impossible with the Senate’s 60 vote requirement
Politicians Being Politicians
What drives this newly discovered “bipartisanship” of 63 Senators?  Self interest.
Whether Republican or Democrat, when circumstances arise, they want to be able to tell their constituents, that, by courageously filibustering, they stopped the bad guys on the other side. So much for the Constitution!
Time to remember economist Thomas Sowell’s words of wisdom:
No one will really understand politics until they understand that politicians are not trying to solve our problems.  They are trying to solve their own problems — of which getting elected and re-elected are No. 1 and No. 2. Whatever is No. 3 is far behind. [Emphasis added]
And they get elected and re-elected using taxpayer money to give “benefits” [a/k/a “free stuff”] to their constituents. The Constitution does not authorize buying votes.
These 63 are political parasites who care not a whit about the gift we received from our Founders – our Constitution – a brilliant conception of effective limited government never before seen on the planet. The British statesman, William Gladstone correctly described it as “the most wonderful work ever struck off at a given time by the brain and purpose of man.
The politicians tell us they are violating our Constitution for our benefit . See Ronald Reagan’ s comments below for a more accurate assessment of the 63.
And here is a take on the subject by the brilliant Michael Ramirez-
Losing The Blues Barrier
A “Blue Slip” is a paper sent to both Senators in the state which would be in the jurisdiction of the nominated judge.  If the paper is not returned or returned with disapproval, the judge might not be confirmed. Consequently, it is possible that the Democrats could block the President’s nominations regarding those states, depending on the Judiciary Committee Chair, GOP Senator Charles Grassley.
Problem: a Grassley spokesperson told The Wall Street Journal in November 2016 that Grassley would honor the blue slip process.
Once again, our Constitution does not provide for such a Senatorial veto:
…this tradition has no given right stemming from the Constitution. None. And for that reason alone, it should be abandoned. [Emphasis added.]
We need to let our representatives know that the Left cannot be allowed arbitrarily to block our President’s appointments.
It Makes A Difference
Recently a Trump appointment to a federal appellate court was confirmed,  leaving 19 open seats.
Judges should not be political operatives. The Democrats feel otherwise.
Here’s a test. Should you read of a federal court decision that seems a strange result, google the name of the judge. My bet is 9 times out of 10 you will find him or her to be an appointee of Presidents Clinton or Obama.
Case in point: President Trump’s travel ban.
President Trump’s Travel Ban
The travel ban order was and is legal.  Similar presidential orders bans have been routinely upheld, including orders by President Obama.
President Barack Obama has used the authority this statute provides six times in his tenure. In July 2011, Obama barred the entry of ‘anyone under a UN travel ban; anyone who violates any of 29 executive orders regarding transactions with terrorists, those who undermine the democratic process in specific countries, or transnational criminal organizations.’
In April of 2012, he barred the entry of anyone ‘facilitating computer or network disruption that could assist in or enable serious human rights abuses by or on behalf of the government of Iran and Syria; anyone who have sold or provided goods, services, or technology to Iran or Syria likely to be used for such purposes; or to have materially assisted anyone whose property or interests are described.’
To strike President Trump’s orders, courts have relied upon statements made during the presidential campaign.
In examining an order or statute before it, a court is obligated to measure it against the Constitution and precedents. It is not a function of the court, and it is improper, to speculate on motivation based on campaign statements or otherwise. This and other reasons why the order is valid are explained in detailin a dissent in a 9th Circuit case striking an earlier travel ban. Those judges correctly concluded:
We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress.
The tip-off: the 4th Circuit ordered the appeal to be heard en banc, i.e., heard before all 15 judges rather than the standard randomly selected 3 judge panel.
Monday’s arguments …will be heard by an unusual en banc panel of the court’s judges, rather than the usual three-judge panel. [Emphasis added.]
Care to hazard a guess why the “unusual” was ordered ?  Right the first time –  10 of the 15 are Clinton/Obama appointees.
At the oral argument, after several attempts at evasion, a lawyer arguing against the travel ban responded that the order could be constitutional if some candidate other than Trump had won the presidency!
Constitutional scholar, and no Trump fan, Alan Dershowitz:
Under that reasoning, had the identical executive order been issued by President Obama, it would have been constitutional. But because it was issued by President Trump, it is unconstitutional. Indeed any executive order issued by President Trump dealing with travel from Muslim countries would be constitutionally suspect because of what candidate Trump said. In my view, that is a bridge too far. It turns constitutional analysis into psychoanalysis, requiring that the motives of the president be probed. [Emphasis added.]
Then came the decision. Surprise, surprise: the travel ban was struck down – 10 Clinton/Obama judges voting for that decision!
The Left were happy; the mass media cheered; and it was wrong –  procedurally wrong, substantively wrong, and, what is most important, morally wrong.
At least 63 Senators appear willing to put self interest ahead of their sworn duty to “support and defend the Constitution.” If  “the heat” cannot make them see “the light“, it is past time to remove them.
It has been said that politics is the second oldest profession.
I have learned that it bears a striking resemblance to the first….
The one thing our Founding Fathers could not foresee … was a nation governed by professional politicians who had an interest in getting re-elected.
– Ronald Reagan


Dick Coleman

Richard M. Coleman served as National Co-Chair, Lawyers for Reagan-Bush ’84 and really does miss RR. A graduate of Georgetown University and Harvard Law School, Dick is a Fellow of the American College of Trial Lawyers, and a past president of the Los Angeles County Bar Association and of the National Caucus of Metropolitan Bar Leaders. A professor on the faculty of Pepperdine University’s Straus Institute for Dispute Resolution for 17 years, he received Pepperdine’s Excellence in Teaching Award. He has hosted TV forums on legal and financial topics and written and spoken extensively on political issues.

© Richard M. Coleman 2018