July 29, 2005
Okay, so my absence lasted a bit longer than anticipated. Do I still have any readers? Probably not, but here goes anyway.
Although I tend to favor the Republican Party over the Democratic Party, I do not march in lockstep with either, and from time to time I like to point out my differences with the former. So here we go: I vehemently oppose the so-called "nuclear option" to sidestep filibusters of judicial nominees.
This does not mean I support the filibusters themselves. Indeed, both sides have been hypocrites on the matter, with Democrats who self-righteously demanded up-or-down votes for Clinton nominees now enthusiastic supporters of the filibuster, while Republicans who enthusiastically blocked Clinton nominees from receiving up-or-down votes now self-righteously demanding an end to Democratic filibusters. While I don't have a particular problem with the filibuster itself as a tool for blocking nominees, I do believe that current filibusters are being used out of naked partisanship. I think it's slimy and repulsive, and it's keeping good men and women off the bench... but then, I also think it's slimy and repulsive to burn the U.S. flag, and this does not stop me from recognizing that burning the flag is protected speech. Flag burners have the right to be slimy and repulsive, and so do filibustering Democrats.
The proposed "nuclear option" is the legislative equivalent of judicial activism. Let's review the law.
The Senate has the right to make its own rules (U.S. Const. Art. I, Sec. 5, Clause 2: "Each House [of Congress] may determine the Rules of its Proceedings") Those rules plainly allow the filibuster:
[A]t any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate ... the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: "Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn ... then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of. ... After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof.
(Standing Rules of the Senate, rule XXII)
Seems pretty cut-and-dried, does it not? Well, the Republicans want to change that rule... which again, is fine. Amendment to the rules is permitted by the rules. Except for one small problem: to amend the rules requires a motion, and just like any other motion such a motion is subject to filibuster. And, in fact, the requirements to invoke cloture on a motion to amend the rules are even more stringent than the three-fifths requirement, as one of the ellipses above hides:
And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.
So if the Republicans can't get sixty Senators to agree to end debate on a judicial nominee, how will they ever get sixty-seven to agree to end debate on a motion to remove the option to debate judicial nominees?
The answer: they won't. Instead, they plan to do an end-run around the rules, by seeking a ruling from the Chair that the cloture rule doesn't really apply to judicial nominees. This is indeed the prerogative of the Chair, as spelled out in Rule 20:
A question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum, and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate. When an appeal is taken, any subsequent question of order which may arise before the decision of such appeal shall be decided by the Presiding Officer without debate; and every appeal therefrom shall be decided at once, and without debate; and any appeal may be laid on the table without prejudice to the pending proposition, and thereupon shall be held as affirming the decision of the Presiding Officer.
So the plan goes: member appeals to the Chair for cloture, Chair rules that judicial nominees may not be filibustered, another member presumably appeals the ruling of the Chair, and the Senate immediately votes to uphold the ruling. A simple majority is all that is required, and since no debate is permitted, no filibuster is possible. Nice and legal. Well, sort of.
The problem is that the ruling of the Chair in this case would be plainly erroneous. Rule XXII is quite clear, and there is no exception for judicial nominees. There is no reason, either upon plain reading of the text or consideration of precedent, to suppose that cloture would not apply to nominations. The Chair would be ruling in a manner completely contrary to the rules he is sworn to uphold, and the Senate majority would be complicit in the crime. I see it as exactly analogous to the following: it takes two-thirds concurrence of both Houses (and the acquiescence of three-quarters of the states) to amend the Constitution, but a bare majority of the Supreme Court can "interpret" the Constitution in such a way as to be indistinguishable from an amendment, in such a way that's flagrantly opposed to the meaning of the text and the intentions of the drafters. I oppose such judicial flouting of the law, and I oppose legislative flouting of the law as well.
Frankly, I'm surprised the Democrats didn't make more of an issue of this. The GOP isn't threatening to change the rules, it's threatening to ignore the rules in exactly the same way the Kelo majority ignored the Fifth Amendment's Takings Clause. No true conservative could support this.