Will the GOP “Go Nuclear” Over Judges? Don’t bet on it

NRO ^ | 5/8/2003 | Byron York

[Frohickey]

"Going nuclear" would require backbones.

Sadly, the spinal x-rays of GOP senators are still being processed.

[Texas Eagle]

I'd be happy if they just went electric.

[spokeshave]

Wait untill the tax reduction and economic stumulus package is passed then nuke-em

[blanknoone]

I just can't believe that Senate Rules trump the Constitution. Where the Constitution calls for a super-majority...it specifies that.

[hoosiermama]

It seems to me that the Senate Rules should be ruled unconstitutional.

[Stay the course]

At least on its face, Rule 22 is an immovable obstruction to the "nuclear option" solution to the Estrada and Owen filibusters. In addition, Article I, Section 5 of the Constitution plainly states that the Senate "may determine the rules of its proceedings."

Why is it immovable if it's unconstitutional when applied to nominations? It's just a rule. Or to put it another way, why does he think Article I, Section 5 trumps Article II, Section 2? The intention of Article I, Section 5 was obviously not to allow the Senate to make unconstitutional rules.

The last two times that something like the nuclear option was tried (in 1975 and 1957), it didn't succeed directly, but it sent such a shock wave through the Senate that the two parties reached a compromise solution. The same thing might happen this time. It's worth a try, at least as a last resort.

[Torie]

According to Caro in his most estimable book "Master of the Senate; The Years of Lyndon Johnson," the trick is to propose rule changes at the beginning of a session when there technically are arguably no rules other than ordinary rules which require only a majority vote. After that,the door is closed. There cannot be a change of rules in mid-session without going through the filibuster process, and a filbuster over the number of votes required for cloture requires 67 votes. So unless the GOP pulls a rabbit out of the hat, all of this plotting is going to be still born.

[ChinaGotTheGoodsOnClinton]

Is there any way to use real nukes?

Or maybe just a Cobalt salted bomb to keep the historic Senate Rotunda intact.

If not, it's time to call the Delta force with some piano wire, time for heads to roll....

[Torie]

According to Caro in his most estimable book "Master of the Senate; The Years of Lyndon Johnson," the trick is to propose rule changes at the beginning of a session when there technically are arguably no rules other than ordinary rules which require only a majority vote. After that,the door is closed. There cannot be a change of rules in mid-session without going through the filibuster process, and a filbuster over the number of votes required for cloture requires 67 votes. So unless the GOP pulls a rabbit out of the hat, all of this plotting is going to be still born.

[Torie]

According to Caro in his most estimable book "Master of the Senate; The Years of Lyndon Johnson," the trick is to propose rule changes at the beginning of a session when there technically are arguably no rules other than ordinary rules which require only a majority vote. After that,the door is closed. There cannot be a change of rules in mid-session without going through the filibuster process, and a filbuster over the number of votes required for cloture requires 67 votes. So unless the GOP pulls a rabbit out of the hat, all of this plotting is going to be still born.

[ChinaGotTheGoodsOnClinton]

Is there any way to use real nukes?

Or maybe just a Cobalt salted bomb to keep the historic Senate Rotunda intact.

If not, it's time to call the Delta force with some piano wire, time for heads to roll....

[ChinaGotTheGoodsOnClinton]

Is there any way to use real nukes?

Or maybe just a Cobalt salted bomb to keep the historic Senate Rotunda intact.

If not, it's time to call the Delta force with some piano wire, time for heads to roll....

[ModernDayCato]

Sounds like a great plan. Then by 2017 we'll get the judges we need. Get a freakin' spine you cuttlefish!

[Stay the course]

the trick is to propose rule changes at the beginning of a session when there technically are arguably no rules other than ordinary rules which require only a majority vote

That's what Nixon tried to rule when he attempted the original "nuclear option" in 1957. The ultimate result was a compromise (devised by LBJ as majority leader) that added Senate Rule V, paragraph 2: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."

[Torie]

If you are right, then the party is totally over. Caro didn't mention that, or I missed it, but I suspect that you are right, since you are aware of the episode to which I was referring.

[TLBSHOW]

more like a joke

[Stay the course]

The vice president did try to take a more active role in the Senate's deliberations on one occasion, but his effort failed. In 1957, the Eisenhower administration decided to push for a civil rights bill and anticipated that opponents of the bill would use a filibuster to kill it if necessary. Senate Rule XXII provided that cloture could not be invoked on a rules change, making it impossible to stop such a filibuster. At the opening of the first session of the Eighty-fifth Congress in 1957, Senator Clinton Anderson (D-NM), in a strategy intended to make cloture easier to obtain, moved that the Senate consider new rules. Nixon - over the objections of the Republican leadership, which supported the existing cloture provisions - stated that "in the opinion of the Chair," the membership after each election composed a new Senate rather than a continuing body. As a result, he ruled, the Senate could change the rules at the beginning of each Congress by vote of a simple majority. The Senate, however, tabled Anderson's motion the next day by a vote of 55 to 38. Later that year, after repeated attempts to change the cloture rule in order to pass the Civil Rights Act of 1957, Senate Majority Leader Lyndon Johnson engineered a compromise that applied cloture to debate on motions for changes in rules, but declared that "the rules of the Senate shall continue from one Congress to the next Congress unless they be changed as provided in these rules."

Mark O. Hatfield. Vice Presidents of the United States, 1789-1993

[Torie]

Hatfield is wrong about the GOP leadership opposing Nixon. They were in on the scheme, and supported it. I suppose one could argue that if the Senate is in fact not a continuing body per the Nixon ruling, than any rules that purport to bind a new body would be a nullity, because they could not bind the new body. I am beginning to see some daylight here.

[Stay the course]

If the argument that filibusters are unconstitutional when applied to the executive calendar is correct, then I don't think the rules matter. Suppose the Senate passed a rule that said that the President's nominees must be unanimously approved. Nobody would dispute that it was an unconstitutional infringement on the executive branch. Nobody would argue that it was legitimate simply because the Senate had instituted the rule within the bounds of existing rules and parliamentary procedure. What the Democrats are doing now is arguably the same thing. They are effectively imposing a 60-vote super-majority on the President's nominees. The Constitution trumps the Senate's rules.