[wimpycat]

I don't think the Dems can use the same tactic if the Republicans block their legislation. Graham's legal argument rises out of the "advice and consent" portion of the Constitution, specifically. Regular legislation doesn't fall under that clause.

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The Dems could perhaps use the same legal tactic if the Republicans tried to block the nomination of an Ambassador or Cabinet Member, or perhaps block a treaty, but the Supreme Court would laugh in their faces if they tried to use it for other things.

What I think would happen, though, if Graham won his case, is that the actual procedural rule might be ruled un-Constitutional (60 votes to invoke cloture)--either all together, or maybe only with respect to the nominations mentioned in the "advice and consent" clause.

[Political Junkie Too]

I think the advice and consent point is strongest with the disenfranchisement argument.

With legislation, it is reasonable to extend debate if enough of a minority feel that they didn't have sufficient time to make their case. With advice and consent, the President is asking the Senate for their advice and consent. It is unconstitutional for a Senator from New York to prevent a Senator from Texas from advising the President, and then consenting or withholding consent.

That is the crux of the unconstitutional filibuster -- a minority of Senators is preventing other Senators from advising the President.

-PJ

[Terpfen]

Much like the "right to homosexual sodomy" ruling, if this goes to the Supreme Court, the Dems WILL try to take advantage of it when it's opportune for them. What the ruling actually says is meaningless to them: they'll go on the precedent that the judiciary can dicatate the procedures of the legislative and get their liberal judges to make rulings in their favor.