Going Nuclear - Will the GOP change the filibuster rule for judicial nominees?

National Review Online ^ | 11/16/2004 | Andrew C. McCarthy

[Syco]

Of greatest interest now is: Will the GOP go nuclear?

The question is especially pertinent after Senator Bill Frist spoke at the annual Federalist Society convention in Washington last week. The Senate Majority Leader indicated that he is inclined to support the so-called "nuclear option," in which the Senate — now with a more muscular Republican margin of 55 to 45 (44 Democrats plus one independent) — would vote to change its procedural rules so that a simple majority (51 senators), rather than the current super majority (60), would be required to bring a nominee's name to the floor for a decisive vote.

Had such a rule been in effect for the last four years, it is a good bet that all of the Bush nominees would long ago have been confirmed and sitting on various federal appellate courts throughout the nation. Thus, a GOP push for such a new rule entails certain political risk: Democrats and their mainstream media allies would scream bloody murder.

Nevertheless, the new rule appears attainable right now, and here again Senator Specter is in the eye of the storm. He has been a sharp critic of the filibuster. Although the senator is sometimes wont to line up with other "moderate" Republicans to derail legislation favored by conservatives, his stated position on filibusters — coupled with the sudden need to appease conservative critics if he is to realize his desire to chair the Judiciary Committee — means Republicans probably have enough votes to secure the rule change even with expected defections from Senators Lincoln Chafee, Susan Collins, and Olympia Snowe.

....

The Democrats, furthermore, should hardly be expected to fold up their tents. Much rightly is made of the fact that President Bush received more popular votes than did Ronald Reagan, who garnered the previous historic high of 54.5 million in his 1984 reelection. But this has obscured the fact that, despite losing, the president's Democratic opponent, Senator John F. Kerry, also received more popular votes than the '84 Reagan tally.

This was no landslide. The Democrats are still a major force to be reckoned with. The thought that they will simply surrender a tactic that remains their best hope for blocking the president's nominees and pleasing their core constituencies is a pipedream. If Republicans want to make good on President Bush's commitment to staff the federal courts with jurists who believe that judicial power has real, objective limits in a democracy (see), the Senate rules will have to be changed.

Ending the filibusters would not guarantee that the president's judicial nominees were confirmed — far from it. As noted above, the current 55 to 45 margin is the GOP's partisan advantage; it is not necessarily an ideological advantage once an accounting is made for defections from each side on any particular issue. Nonetheless, at least the nominees would get an up-or-down vote, and their quality has been such that they are extremely likely to be confirmed.

[Syco]

This is essential. If the GOP can break the Dem chokehold on the judiciary the reign of leftist terror will really be over.

[Syco]

Stop Specter Ping

[StrictTime]

I am not going to hold my breath waiting for the GOP to grow some brass ones...

[Reynolds]

Whatever it takes.

[Syco]

I don't know. They didn't do it before this election because they couldn't get it passed, but I think that they'll make a run for it now. Remember, we now have 55 Senators and 51 of them aren't RINO's!

[Capitalism2003]

Who do we need to Freep?

Besides Bill Frist of course.

(numbers on left side of page)

http://frist.senate.gov/

Try emailing: senator@frist.senate.gov

[Criminal Number 18F]

...a GOP push for such a new rule entails certain political risk: Democrats and their mainstream media allies would scream bloody murder.

All the more reason to do it now; by 2006 it will be aging and 2008 forgotten, and the attempts to revive it (like the NYT's attempts to revive Abu Ghraib in every international story) will fall on barren ground.

This also has the very positive effect of taking some of the media away from Chuckie Boy Schumer, for whom TV cameras are tantamount to oxygen.

d.o.l.

Criminal Number 18F

[Doctor Stochastic]

.....change the filibuster rule...

Be careful what you wish for; your wish might be granted. It wasn't considered a victory when Nelson Rockefeller helped the Democrats reduce cloture from 67 to 60.

[Spok]

"Democrats and their mainstream media allies would scream bloody murder."

They darn sure will, and our Republican congress had better be prepared to fight this one to the death. This is the the most serious domestic issue our President and our freedom faces. If this battle can't be won, we might as well give the White House to Hillary. If a congressional minority can impose its litmus test on judicial nominees, we have no business being in charge.

[Degaston]

We've got a potential Constitution showdown on Senate Rules. Rule #5 says "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."

Anyone know a way for the Republicans to get through this?

http://rules.senate.gov/senaterules/standingrules.txt

[Joann37]

How did the "super majority" of 60 come into being in the first place. This is not a rhetorical question; does anyone know?

[Syco]

If we really want pressure to build I suggest that in addition to contacting GOP Senators we get this thing burning at the grassroots level. Contact the conservative press below:

Special@foxnews.com,
rush@eibnet.com,
hannity@foxnews.com,
editor@weeklystandard.com,
beltwayboys@foxnews.com,
tblankley@washingtontimes.com,
jmccaslin@washingtontimes.com,
gpierce@washingtontimes.com,
jseper@washingtontimes.com,
Templar119@aol.com,
malkin@comcast.net,
letters@charleskrauthammer.com,
ben@cspc.org,
adams_mike@hotmail.com,
ballen@t3energy.com,
greg@therightbalance.org,
VAlpher@aol.com,
friends@atr.org,
ruddy@spectator.org,
editor@spectator.org,
rjbacak@sbcglobal.net,
online.editors@barrons.com,
me@glennbeck.com,
carol@carolbernhard.com,
jennifer.biddison@heritage.org,
kotta@foxnews.com,
briankbodine@yahoo.com,
jimbohannon@1050wevd.com,
JeffBolton@woai.com,
wackerma@bowdoin.edu,
chrisb@unt.edu,
erniebrown@americaatnight.com,
bucc@bucknellconservatives.org,
calpundit@cox.net,
chairman@cyr.org,
joshcampbell@mail.utexas.edu,
info@capitolhillblue.com,
castellanopj@earthlink.net,
charles@littlegreenfootballs.com,
bobcole@clearchannel.com,
cn@isi.org,
letters@commentarymagazine.com,
lauren.conner@bba02.bus.utexas.edu,
dj@flipsideshow.com,
copleyd@wharton.upenn.edu,
tom@anncoulter.org,
info@collegegop.org,
cugop@colorado.edu,
crider@mail.utexas.edu,
hill2@cp.chemeketa.edu,
j0annaz@yahoo.com,
rcuster@yaf.org,
pundit@dailypundit.com,
lukerval@hotmail.com,
davidson@collegegop.org,
txtau@yahoo.com,
holiday.dmitri@foxnews.com,
sara@studentsforacademicfreedom.org,
larry@larryelder.com,
tpelia@yahoo.com,
elizabeth@cspc.org,
cfennell@ucsd.edu,
mfinch@cspc.org,
sarahfloerke@mail.com,
rforest@ev1.net,
rachelzfriedman@yahoo.com,
mike@mikeonline.com,
cdganske@yahoo.com,
bubbgarcia@yahoo.com,
ggermany@austin.rr.com,
presACG@aol.com,
lynn.gibson@heritage.org,
giselarm@san.rr.com,
jglazov@rogers.com,
fgonzalez@isi.org,
opeds@gopusa.com,
redshift_7@yahoo.com,
MJGriffing@hotmail.com,
frn@freeper.org,
bac@compuserve.com,
michaelh@ductape.net,
Hannity@aol.com,
khart@crnc.org,
johnhawkins@rightwingnews.com,
roger@rogerhedgecock.com,
jchenry_628@mail.utexas.edu,
hhewitt@hughhewitt.com,
holco004@mailhost1.csusm.edu,
suggestions@lauraingraham.com,
pundit@instapundit.com,
feedback@intellectualconservative.com,
Rollye@rollye.net,
calidawl217@yahoo.com,
niucrchair@yahoo.com,
amw@judgemendozawaterhouse.com,
rdj@mail.utexas.edu,
gk3385@yahoo.com,
kfir@protestwarrior.com,
kinghorn1836@yahoo.com,
becky@becky4congress.com,
pklinkne@hamilton.edu,
dks@wava.com,
comments.kurtz@nationalreview.com,
JCL159522@yahoo.com,
lars@larslarson.com,
mark@marklarson.com,
jleo@usnews.com,
binghamtonreview@yahoo.com

[LexBaird]

Anyone know a way for the Republicans to get through this?

One of the duties of the Rules committee is:

(2) Such committee shall also-- (A) make a continuing study of the organization and operation of the Congress of the United States and shall recommend improvements in such organization and operation with a view toward strengthening the Congress, simplifying its operations, improving its relationships with other branches of the United States Government, and enabling it better to meet its responsibilities under the Constitution of the United States;

Since the Senate is Constitutionally obliged to "give advice and consent" regarding Executive appointments, it would seem to me that the Senate Rules Committee can create a rule regarding eliminating the filibuster for consideration of appointments. Simply blocking nominees without giving the Executive advice, nor either consent or rejection, is unconstitutional on the face of it.

[Syco]

I believe that this is basically a form of the filibuster rule that has been in place in Congress since the earliest days of the Republic. (If anyone knows any different please let me know.) Filibustering is nothing new. It has been used in the past to block opponents' attempts to enact legislation when the minority was trying to piece together enough fence sitters to stop legislation, or when they were simply trying to wear down the majority. It has been used by both parties in the past and will probably be used again in the future. (I believe that the number to stop a filibuster used to be two-thirds of the Senate, but was dropped to a simple 60 member "supermajority" in the 80's.)

That's not really the problem. The GOP does not want to take away the filibuster as a legitimate parliamentary tool. Instead, they want to limit it to what it was originally for.

After Bush took office in 2000 the Dems used the filibuster for the first time ever to block judicial nominees. That was really unprecedented and was considered a nuclear option when it was first used. The press would have gone NUTS if the GOP had done this - calling them obstructionists, mean-spirited, et al. - but they uttered nary a peep when the Dems actually started doing it.

In 2003, after the GOP won back the majority in the 2002 mid term elections, the idea of using this new nuclear option was discussed among GOP leaders. Frist threatened it a few times, but I believe that he failed to use it because he knew that it was unlikely to pass muster. Too many of the GOP Senators were RINO's and wouldn't go along with it, which would have meant that it would have gone down to defeat and the Republicans would have looked like small-minded losers in even trying to change the rules. (There was also the fear that it might backfire on them in the future if the GOP ever found itself in the minority again - something that seemed possible on November 1, 2004.)

Today things have changed. There are now 55 Republican Senators and 51 of them are pretty loyal partisans and would almost certainly vote for the change. Also, my understanding is that the rules change would only affect votes concerning Presidential nominees. Legislative action would still be governed under the same Senate rules as before.

[Pharlap]

The Rules are adopted by the Senate for the purpose of self-governance. The basis for the Senate's adopting of Rules is the Constitution. See Article I, Section 5. A prior Senate cannot limit, restrict or in anyway diminish the right of a subsequent Senate to "determine the Rules of its Proceedings." Ibid. Therefore, a prior Senate cannot, by its action, preclude a subsequent Senate from adopting its own Rules, including a modified Rule XXII (filibuster and cloture). Thus, the incoming Senate can change the Rule by a simple majority vote, and any attempt to filibuster the change would be a violation of the Constitution. If you would like a more detailed explanation, please send me a private email.

[mrsmith]

Good brief summary of it's history here: http://www.nationalreview.com/comment/comment-eastman051503.asp

" ...Sen. Frist's proposal would effectively return to rules that prevailed in the Senate from its establishment in 1789 until 1806, by which a simply majority could end debate on a motion for the previous question and under which no one was "to speak impertinently or beside the question, superfluously or tediously." Nor is this the first time that the Senate rules have been changed to address an abusive use of the filibuster. Between 1841, when the filibuster was first utilized by Sen. John C. Calhoun to protect slaveholding interests, and 1916, when Sen. Robert LaFollette used it to block legislation that would have authorized merchant ships to arm themselves against unlawful attacks by German U-boats before the United States entered World War I, unanimous consent was required to end a filibuster. During that time, there were nearly a dozen proposals to restore the "motion for the previous question" rule or a cloture rule, but Sen. LaFollette's filibuster was the last straw: In 1917, the Senate adopted the first cloture rule, providing that debate could be ended by a vote of 2/3 of the senators present and voting.

When that rule began to be abused by the use of a filibuster to block procedural motions not subject to the 2/3 cloture vote (a practice that rendered the cloture option meaningless), the Senate amended its cloture rule in 1949 to extend to procedural motions, but in a compromise increased the vote required to 2/3 of the full Senate rather than 2/3 of the senators present and voting. During the 1950s, there were several attempts to reduce the number necessary to invoke cloture from 2/3 to a simply majority, and several others to provide a two-tiered cloture rule, whereby a 2/3 vote was required initially but a simply majority vote would suffice after a reasonable period for debate, between 12 and 15 days. Additional amendments were proposed during the 1960s until, in 1975, the cloture rule was amended to allow cloture by a vote of 3/5 of the Senate (today's 60-vote requirement). Finally, in 1995, Sen. Harkin proposed to establish a declining vote requirement for cloture, so that by the 4th cloture vote, a simple majority of the Senate would suffice to end debate and allow the Senate to proceed to a vote on the merits of the matter at hand."

From the notes of one of the first Senators:
" In case of a debate becoming tedious, four Senators may call for the question; or the same number may at any time move for the previous question, viz, "Shall the main question now be put?" "
This is the method still used to end debate in the House today.

[Brett66]

This would be a good strategy, a back-of-the-hand slap to dems in the senate to remind them who's in charge. Unfortunately, I don't think the repubs have the cojones to do it.

[John R. (Bob) Locke]

Maybe they could actually make the Dems go down to the floor and perform a filibuster rather than just threaten one. That's all that has happened in recent years, after all. No one has taken the floor of the Senate and rambled for 16 hours straight recently that I am aware of. The mere raising of the possibility has been enough. to call a halt to a bill or a nomination.

I'd LOVE to see ol' Teddy down there reading from the Betty Crocker Cookbook for a day-and-a-half!