Posted on 12/17/2004 5:59:58 AM PST by Congressman Billybob
It’s been a while since I’ve inflicted a heavy dose of constitutional law on y’all. Sorry, but it’s necessary, since President Bush will likely make several Supreme Court nominations next term. Therefore, the rules of the Senate are at issue.
I can see you nodding off already. Pinch yourself, then let’s have at it.
The Constitution says, in Article II, Section 2, clause 2, that the President can establish treaties with the “advice and consent” of the Senate by a two-thirds vote. But for Senate approval of presidential appointments, no supra-majority is required. That means majority vote only.
In this term the minority Democrats in the Senate prevented a vote on several judicial nominees to various District and Circuit Courts. The Circuit Courts are important as the last appeal before the US Supreme Court. Also, the Circuit Courts are the usual (but not mandatory) breeding grounds for Supreme Court Justices.
In each instance, the Republicans plus a few Democrats were prepared to confirm the nominees. But the floor votes were prevented by the filibuster rule. The what? There is a tradition of unlimited debate in the Senate, which until 1917 could be shut off by a majority vote on the motion of four Senators. You may have read descriptions different than that in “reputable” publications including the New York Times. They are wrong. This is based on the journal of a Senator present in 1789 when unlimited debate was established.
Anyway, in 1917 the Senate established a rule that debate could be shut off by a vote of 67 Senators, later lowered to 60. You see the problem. It only takes 51 Senators to confirm a nominee, but it now takes 60 Senators to vote to end debate, in order to vote on him/her.
Supporters of this rear guard action by the Senate Democrats point to this: Article I, Section 5, clause 2, “Each house may determine the rules of its proceedings.” So the claim is, if Senate Rule XXII requires a supra-majority, well that must be constitutional.
Not so fast, Constitution-breath. When it looks like the Constitution contradicts itself, some reexamination is in order. Consider this example: The “Advice and Consent” Clause requires a two-thirds vote to approve any treaty. What if the Senate wrote a rule that 90 Senators must approve a treaty?
The answer is obvious. Senate rules are for internal application and governance of its own members. The Senate is without power to write a rule which alters the Constitution. So it cannot increase the votes to approve a treaty. Likewise, it cannot increase the votes to approve a judicial nominee.
Wadda ya mean they can’t do that? I read in the papers that the Senate has done exactly that, I hear you cry. Politics has been described as “the art of the possible.” Here’s a more basic definition. Politics is whatever you can get away with, without going to jail. In this Senate, the Democrats have gotten away with that tactic. Occasionally in the past, both Republicans and Democrats have violated the standard of majority vote for judicial nominees.
But the Constitution would be as porous as Swiss cheese if, each time it was violated, the violation became standard and the constitutional text no longer applied.
So, what is the solution? The Republicans, led by Majority Leader Bill Frist, must use “the nuclear option.” What’s that?
A Senator who supports a Bush nominee and opposes the use of the filibuster stands and says, “Point of order, Mr. President. Senate Rule XXII cannot apply to a judicial nomination because that increases the majority to approve a judicial nominee.” Vice President Dick Cheney presiding, replies, “The point is well taken. Rule XXII does not apply.” The ruling of the Chair stands, unless overturned by a majority.
Has the nuclear option ever been used? Yes, by Democrat Senator Robert Byrd, so long ago that even he may not remember it. So, why wasn’t it used in the present Congress? The Republicans had a bare majority. Some of their Senators, without naming names, were “squish.” They were unreliable..
There will be four more Republican Senators, come January. If Bill Frist can count 51 noses without the squish Republicans, the nuclear option will be applied. The filibuster will be ended for judicial nominations, but not for ordinary legislation.
If you’re still awake at this point, remember you heard it here first. And if this speaks for you, send a copy to your own Senators.
About the Author: John Armor is a First Amendment attorney and author who lives in the Blue Ridge Mountains of North Carolina. CongressmanBillybob@earthlink.net
The "nuclear" option, as you describe it, sounds less nuclear and more like common sense to me.
Good post BB.
Can you give us some links? I managed to miss it, and this is fascinating stuff.
Thanks.
I think the Democrats have promised to delay any and all legislation if this option is used. It would be a political war in the Senate and nothing would get done. Not necessarily a bad thing in my opinion.
I wonder if the Democrats would receive the same criticism as the Rupublicans did for "shutting down the government" if this happens? No need to reply, we all know the answer to that already.
Let us hope they actually do this!
Theory or not, the question is, will President Bush pull out the political "football" and push the button?
Exactly, I loath the use of the word "nuclear" to describe this option which to me is entirely "constitutional" in nature. Providing the President's judicial nominees with an up or down vote is a constitutional obligation of the U.S. Senate. The Senate does not have any authority to stipulate what type of judges the President may be allowed to appoint to the bench.
The word "nuclear" implies an attack and suggests that the Republicans are doing something wrong in insisting that the President's nominees receive a vote on the Senate floor.
Thank you sir for that erudite explanation. It bears repeating that if the Pubbies cannot muster the needed cajones (AND VOTES) to get this done, they ain't worth shootin'!!!
Also, the Filibuster is not applicable in all cases today. The Filibuster cannot be used to stop budget resolutions.
I also wonder if the President will adopt Roosevelt's thinking when the latter appointed Senator Black, and nominate a very strong agent for change that the Senate would just have to accept. For example, if the President were to nominate Janice Rogers Brown for CJ, I can't see DiFi and BaBo filibustering a very popular black woman from California.
As an aside, my daughter is taking a college-level government class and has her final today, so we talked SCOTUS appointments. She was four when Clarence Thomas was nominated, so she has no memory of the vicious battle of those days. I told her that if she thought this past election was brutal, just wait for the SCOTUS hearings -- especially if a conservative nominee is set to replace a liberal Justice or a confused mediocrity like Sandra Dee "European Law" O'Connor.
Nothing would get done ???
Bring It On..pleeeeeze!
Where exactly, in the constitution, does it say explicitly that a strict majority vote is all that is needed to approve a presidential nominee? I know it says 2/3 on treaties. Are we to simply infer from that unrelated passage that everything else is just a majority vote? Seems a bit of a leap to me.
Also, when have the Dems "filibustered" any judicial nominee from this administration? I thought a filibuster required holding the floor. In this ongoing debacle, I was under the impression that the Dims were getting away with this because the GOP refuses to actually make them endure a proper filibuster, with cots in the cloakroom and so on.
The ruling would be appealed to the Senate which stops action until they vote on it. In all likelyhood the Senate would not vote that Rule 23 applies because the premise behind the point of order is flawed in the first place. Rule 23 doesn't change the votes necessary to approve a judicial nominee, or any other nominee, or any other piece of legislation. Approval still only takes a majority.
Nuclear option good---in both politics AND power generation.
You referred to the portion of the Constitution which empowers each Congress with the authority to develop its own rules of procedure. Both the House and Senate reform every two years. Each new Congress is entitled to develop its own rules of procedure, notwithstanding any existing rule. If the new Congress could be held to account for a previous Congress rule, that would impute an additional element of power on the past Congress.
We know however, that each Congress has equally as much authority as any which preceeded it. What if a previous Congress had propagated a rule requiring that only members shorter than 5 feet could serve as a committee chair? The newer Congress would be wholly within its right to eliminate or modify that rule as it saw fit. The same holds with the filibuster rule. The Senate could disallow the use of the filibuster on judicial appointments when it determines its new rules. Any requirement that impels a super-majority to amend the rules can be ignored, as each Congress is entitled to decide for itself, its own rules of procedure.
I'll start:
1. Lincoln Chafee
2. Olympia Snowe
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