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July 29, 2005

No nukes!

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.

July 29, 2005 in Current Affairs | Permalink

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Comments

Hey VoR, glad you're back!

My question to you is this: What would you recommend the Republicans do? Sit back and let the Democrats filibuster every judicial nominee, like you know they will?

Or perhaps a better question is this:

Would you ever agree to use the nuclear option? And if so, how would the circumstances of that decision differ from the current set of circumstances that we face?

Posted by: Mannequin | Jul 30, 2005 3:18:00 PM

Thanks, good to be back. Still don't know how regularly I'll be able to blog -- real life, y'know -- but I'll do my best.

I can't imagine any reasonable circumstances in which I'd accept the nuclear option. I don't approve of the rules being ignored, even if it's for a good cause.

What would I recommend the Republicans do? Win the fight in the court of public opinion. Point out the stupid hypocrisy of Democrats proclaiming that the cloture rule is a sacrosanct guarantee on par with freedom of speech, when the rules for cloture have changed at least four times in our history, most recently in 1975 when the threshhold was reduced from two-thirds to three-fifths. Mention that many of the same Senators who are today bowing before the altar of the holy filibuster argued strongly against it in the past (hello, Senator Byrd*). Force the Democrats to do "real" filibusters; insist that a filibustering Senator actually speak. Do not allow the Senate to conduct any other business until a vote on the nominee is permitted.

In fact, according to my reading of the rules, the GOP could force a floor vote on each nominee. Rule XIX reads in part:

When a Senator desires to speak, he shall rise and address the Presiding Officer, and shall not proceed until he is recognized, and the Presiding Officer shall recognize the Senator who shall first address him. No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer, and no Senator shall speak more than twice upon any one question in debate on the same legislative day without leave of the Senate, which shall be determined without debate.
The "legislative day" runs from the time the Senate is called to order until the time it adjourns. It need not bear any relation to the calendar day; as long as the Senate does not adjourn, it's the same legislative day. Presumably a Senator cannot hold the floor indefinitely. At some point, he'll have to take a leak, or pass out from sheer exhaustion. So let each of the Democrats take the floor until they lose consciousness, then run through the cycle again, and after that, none of them can be recognized to speak on the issue. The filibuster is broken.

Or, if the GOP is unwilling to do that, throw in the towel and let the nominations die. It'd be a very disappointing outcome, but far better than throwing out the rules entirely.

* In fact, Senator Byrd in the past argued that a majority could vote to change the rules, that the Senate is not bound by the rules passed by prior Senates without its consent. I think he's wrong.

Posted by: Voice of Reason | Jul 30, 2005 9:35:02 PM

Force the Democrats to do "real" filibusters; insist that a filibustering Senator actually speak. Do not allow the Senate to conduct any other business until a vote on the nominee is permitted.

In fact, according to my reading of the rules, the GOP could force a floor vote on each nominee.

Then why don't they? Surely, you're not the only one reading the rules.

Posted by: Mannequin | Aug 4, 2005 6:50:11 PM

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