Proof: Judicial Filibusters Violate U.S. Constitution

CaliforniaRepublic.org ^ | 1/31/06 | Sherry and Steven Eros

[mrsmith]

"This simple majority "nuclear option" stuff is nonsense and can only occur because the senate has no oversight. (The Parlimentarian opposes it for Gods sake). "

Nonsense? LOL!

"The voice of the majority decides. For the lex majoris partis is the law of all councils, elections, etc., where not otherwise expressly provided." --Thomas Jefferson: Parliamentary Manual, 1800. ME 2:420

Jefferson compiled his Manual of Parliamentary Practice during the course of his four-year vice-presidency. He designed it to contain guidance for the Senate drawn from "the precepts of the Constitution, the regulations of the Senate, and where these are silent, the rules of Parliament." To broaden his understanding of legislative procedure, Jefferson studied noteworthy works on the British Parliament such as John Hatsell's three-volume Precedents of Proceedings in the House of Commons (1785), Anchitell Grey's ten-volume edition of Debates in the House of Commons (1769), and Richard Wooddeson's three-volume A Systematical View of the Laws of England (1792, 1794). The resulting Manual, loaded with references to these British parliamentary authorities, contained fifty-three sections devoted to such topics as privileges, petitions, motions, resolutions, bills, treaties, conferences, and impeachments.

Of course there is no provision in the Constitution for a minority to reject presidential nominees. A majority of the the Senate can allow them, or not.

[itsahoot]

Example: The Senate has 75 Democratic members, they forsee the likely loss of their majority. Sure enough they pass a Senate rule that says any rule change would require 75 votes.

Now the election comes and the Senate is now 51 Republicans, 49 Democrats. They have efectively given themselves veto power over any rule change. And I won't go into all the mischief they could have made in the rules prior to their loss of majority.

[Ken H]

Article. I.

Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 5.

Each House may determine the Rules of its Proceedings,

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To paraphrase Yogi Berra, "if the Senate won't vote, nobody's gonna to stop 'em."

[PeoplesRepublicOfWashington]

Nothing new. 'Rats are pathological revisionists. If a law stands in their way they legislate around it from the bench or, in this case, from the minority wing of the Senate.

[inquest]

If the Senate were to pass a rule at the start of its term mandating that all candidates would be rejected if they did not receive unanimous consent, I would argue that would be constitutional, but the purpose of a filibuster is not to accept or reject candidates, but rather to keep them from being acted upon one way or the other.

In reality, the purpose of a filibuster is to reject the candidate. If it drags on too long for the President's tastes, nothing's stopping him from withdrawing the nomination and nominating someone else. Operationally, it's the same as it would be if the Senate's rules mandated rejection if 60 votes weren't attained.

Filibustering of legislation generally does not pose the same problem, btw, because with very few exceptions there's no constitutional imperative to pass or even consider legislation.

If the Senate leadership refused to take up the consideration of a nominee for a position, that would not be unconstitutional. That actually happened during Clinton's presidency, when he tried to nominate William Weld as ambassador to Mexico. Jesse Helms headed the Foreign Relations Committee, and refused to schedule hearings for Weld, who eventually withdrew.

But the bottom line is that if the Constitution can require a simple majority in one case without actually saying so, then it would have to require it in all cases where Congress is given power to act. Otherwise, insisting on a simple majority for confirmations is just a contrivance for preventing delays. In that case, then, what's really being argued is that the delay itself is unconstitutional, which means it would be unconstitutional regardless of what causes it.