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To: AFPhys
Article One, Section Five, Clause Two.

"Each House may determine the Rules of its Proceedings"

927 posted on 05/19/2005 10:25:53 AM PDT by lugsoul
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To: lugsoul
You need to consider:

Confessing Error - Filibusters of presidential appointees violate the Constitution. - by Andrew C. McCarthy
http://www.freerepublic.com/focus/f-news/1402603/posts

"Making an unsound argument is bad. Leaving it uncorrected is worse. Since I would prefer to be bad than worse, it’s time — for me, at least — to reconsider filibusters.

"Back in November, I flatly asserted that filibustering judges did not violate the constitution
...(much text)
[However]
"Outside the constitution’s express grant of authority to the Senate to make its own rules, the legal arguments in favor of filibusters are mostly makeweight. Among the more frivolous is that filibusters are essential to preserve the First Amendment rights of dissenters, or the speech-and-debate rights of senators (art. I, sec. 6). These important principles guarantee a meaningful opportunity to be heard, not a suffocating right to be heard ad infinitum. They ensure the vital opportunity to persuade, not a minority right to win.
...
"There is a counterargument, though, for which I do not have a good answer. It lies in the structure of the Constitution:
...
[Concluding with:]
"Filibusters of judicial nominees have always been a bad idea. They are also an unconstitutional idea. I used to think otherwise, but I have not heard an argument that overcomes the structure of the constitution. No matter who is president, nominees deserve an up-or-down vote.




I'm not as studied as this man is. This, in addition to the fact that a requirement that a supermajority for confirmation was specifically considered on June 13, 1787 by the Constititional Convention and subsequently rejected (a fact this author unfortunately does not mention and one wonders if he considered that) - decides the question.

Supermajority is NOT required for the Senate's consent. Majority is sufficient.
975 posted on 05/19/2005 10:39:20 AM PDT by AFPhys ((.Praying for President Bush, our troops, their families, and all my American neighbors..))
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To: lugsoul
From that same article:

...Are those who (like myself) have found the filibuster justified by the Constitution’s express grant to the Senate of rule-making power over its own proceedings making the same analytical error for which Lincoln chastised Taney? I think the answer is "Yes."

Could the Senate, for example, make a rule that said: “the Senate will only consider presidential appointments in even-numbered years”? After all, the Senate may make its own rules and, as with the filibuster, there is nothing in the Constitution that expressly says such a rule is impermissible. But of course, such a rule would have the effect of grinding government to a halt. ...
(more)
Clearly, there must be some objective limits to the Senate’s authority despite the fact that the clause granting it rule-making power does not expressly admit of any. What should our guiding principle be in determining what those limits are? I believe they ought to be (and in fact are) those points at which the Senate’s powers intersect with the powers of the coordinate branches. That is, the Senate may make rules that control any matter over which it uniquely exercises legitimate authority. Beyond that, its rules must yield to the enumerated powers of the other branches."



This man saw the light. You really should read the whole article for his full argument, as reading it disjointedly renders it incomplete.
990 posted on 05/19/2005 10:46:29 AM PDT by AFPhys ((.Praying for President Bush, our troops, their families, and all my American neighbors..))
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