Excellent info!
I am not sure that either the Dems or Frist would allow that to happen for less than a Supreme Court nominee at this point. IMHO Frist is a wuss, and the dems will have to have something to use if Ginsburg retires.
My major point is that we had the resources available to stop this ridiculous tactic (it might have taken Cheney's vote to break a tie) and McCain for vanity nixed it.
It is just a Senate rules change, so the scenario could arise again. In the meantime, I believe it colored the President's thinking when he nominated Miers, and has overshadowed the entire nomination process.
Once again cboldt, what a good post. Bookmarked for future reference!
It's up to GOP Senate leadership. They control what comes to the floor. SCOTUS nominations can't be as easily hidden from public view, as can Circuit Court nominees.
It is just a Senate rules change, so the scenario could arise again. In the meantime, I believe it colored the President's thinking when he nominated Miers, and has overshadowed the entire nomination process.
I absolutely agree that the tactic colors the President's choices, and it is why the practice chaps me so. It erects a supermajority hurdle, set by Senate whim (see history of cloture, below), instead of the simple majority envisioned by the Constitution. Given the evolution of the relationship between the Senate and the President, especially the farily rich panoply of scenarios that have played in the judicial nomination/confirmation arena, the issue is not a "mere rules change" at this point. Sure, that's where it eventually will get embodied (and I think the change belogs in Rule XXXI, mirroring Rule XXX - and not by modification of the cloture rule, Rule XXII). But until the Senate agrees that its supermajority requirement is "Constitutionally infirm," the terms of discussion don't much matter.
Senate Rules from 1789 to 1806 permitted calling the question with a simple majority. See http://rules.senate.gov/history.html, Rule IX. This rule was removed in 1806, and in its place was a requirement to obtain unanimous consent to move to the vote. One objecting Senator could stifle the vote.
The cloture rule was first implemented in 1917, on a bipartisan 76-3 vote. (p226). With the concurrence of 2/3rds of the Senators voting, debate would be limited and taking the vote would be set for a time certain. This matches common parliamentary procedure and was published in Robert's Rules of Order in 1876.
In 1949, on a 63-23 vote, the threshold for passing cloture was modified to 2/3rds of the Senators duly chosen and sworn. (p229).
In 1959, a 77-22 vote returned the margin for passing cloture to the original 2/3rds of the Senators present and voting. (p247). Rule XXII was expanded to include rules changes - this is where the "2/3rds of Senators present and voting are required to change the rules" rule comes from. The 1959 changes are referred to as the "Johnson (LBJ) Compromise."
In 1975, Senator Pearson introduced a proposal to change the threshold to 3/5ths of Senators present and voting. (p257). That proposal did not pass. In the same year, Senator Byrd's proposed revision to 3/5ths of all Senators passed on a 56-27 vote, meeting the 2/3rds of the Senators present and voting threshold for implementing a rules change. (p259).
http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf
Everyone on Fox seems to think Stevens will retire before long.