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

NRO ^ | 5/8/2003 | Byron York

[Torie]

Yes the constitution trumps the senate rules, but the rule is about cutting off debate. It is a procedural rule. I appreciate requiring supre majorities to cut off debate has substantive effect, but it has been around since the nation's founding. It used to be one senator could tie up the place. It didn't drop down to two thirds until the 20th century. I don't think SCOTUS will mess with a procedural rule, and indeed the Senate might ignore SCOTUS if it tried. SCOTUS isn't going there, in my opinion.

[Stay the course]

Using the filibuster to extend legitimate debate is one thing. I doubt if it was ever intended to allow permanent obstruction. I have read some persuasive arguments that the framers never intended unlimited debate to be an essential feature of the Senate. If so, the question then becomes, how do you determine where debate ends and obstruction begins? I think the Harkin-Lieberman proposal mentioned in the article would be a practical compromise. Maybe it should be revisited.

And I don't think SCOTUS wants to go there either.

[Torie]

According to Caro, at one time, the Senate practically dictated one was going to be in the President's cabinet. For many years, things were far, far worse than they are now. In short, what the Dems are doing is not new and novel.

[ladyinred]

They may not, but I am about to! The left is making me crazy already, and it is just the beginning.

[Utah Girl]

Thanks for your comments. I want to light a fire under the Senate to get them to do something, but the dems are being really stinky about all of this. Hatch is my senator, I call every 2 or 3 weeks, and push on this issue. He is very frustrated, he was supremely fair during Clinton's reign of terror.

[FirstFlaBn]

but it has been around since the nation's founding

It began in 1917 according to the Senate website.

[dvwjr]

..."the rules of the Senate shall continue from one Congress to the next Congress unless they be changed as provided in these rules."

That is an interesting opinion by LBJ when he was the Senate Majority Leader. I thought that previous Congresses could not tie the hands of future ones, since that would be the tyranny of the past over the present and future. That at least is how I understand the House to operate. Strange that the Senate would allow previous Senates to foist their rules upon their successors at the begining of each session, that is every two years.

I have read countering opinions that the Senate considers itself to be a continuing body, since only one-third of its members are elected every two years, unlike the House where a complete "new" body is elected every two years.

So if the Senate today created a rule that no legislation could be brought to the floor unless it had a 67 vote supermajority, and that this rule was binding on it, and any or all future Senates unless those future Senates mustered the 67 votes to overturn such a rule this would be OK? It would give any future minority Party with 34 disiplined members an absolute VETO over any legislation or the ability to to change the rules imposed by some long-ago Senate...

A never-ending Legislative 'Groundhog Day'.

Makes you think...


dvwjr

[Stay the course]

The Senate originally had a procedure for ending debate called "moving the previous motion" (copied from the British Parliament). It was eliminated in 1806. From 1806-1917, there was unlimited debate. In 1917, the cloture rule was added with a majority requirement of 2/3 of Senators present. The majority was raised to 2/3 of all Senators in 1949, then changed back to 2/3 of those present in 1959. In 1975, it was lowered to 3/5 of all Senators, but cloture on rule changes was left at 2/3 of those present. In 1979, in order to stop the stall tactics that became known as "post-cloture filibusters", post-cloture debate was limited to 100 hours. It was changed to 30 hours in 1987.

[cynicom]

Frist avoided military duty because of a spinal problem.

[Stay the course]

Correction: The Senate originally had a procedure for ending debate called "moving the previous question".

[familyofman]

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

On what constitutional basis? The Senate & House have the Constitutional right to set their own rules. To solve any problem you must deal with facts, even those you currently don't like, not wishfull thinking (please make it go away mommy). At this time it seems the only way to get an up/down vote is to convince the opposition to relent - this will take a lot of political persuasion, not the stamping of feet and threats of holding your breath.

[Warhead W-88]

Does the consitution specify a majority vote or supermajority vote of the senate to confirm a judge?

If the former (which it is), how can the Senate create, without going through the bother of a Constitutional amendment, its own aconstituional supermajority requirement?

Can the Senate, by its own power, repeal the Consitution's two-thirds requirement for approving treaties and say instead that treaties shall be approved by a simple majority vote?

No?

Well if they can't turn a constitutionally-specified requirement of a supermajority into a simple majority requirement, how can they turn a constitutionally-specified requriment of a majority into a requirement for a supermajority?

If they can't go from A to B, they can't go from B to A, either.

The Constitution says what it says. It requires no supermajority for confirming judges.

[Warhead W-88]

Furthermore, the Congress has been slapped down for creating unconstitutional rules regarding self-governance before.

See the Adam Clayton Powell case, for example, where the House presumed to add a new requirement for swearing in a member of the House not specified in the Constitution.