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Fun With Rules and Procedures

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I read OpinionJournal‘s opinion on Why Republicans can’t let the judicial filibuster succeed.

Barring a surprise last-minute deal, this week Senate Majority Leader Bill Frist will ask for a ruling from the chair–Vice President Dick Cheney presiding–that ending debate on a judicial nominee requires a vote of a simple majority of 51 Senators, not a super-majority of 60. The nuclear option–aka the "constitutional option"–will have been detonated. Judicial filibusters, R.I.P.

Okay, first of all, "judicial filibusters” are not a special case. If there is debate taking place on the floor of the Senate, each Senator is entitled to speak to the issue without interruption until done. That the topic is whether to consent to an appointment is beside the point.

Senator Frist will be asking the Vice President to change the cloture rule by fiat. This plainly cannot be done under the standing rules of the Senate. To describe this as a coup would not be an overstatement (so phrased to maintain deniability in case they get away with it).

The judicial filibuster of the last two years marks another political escalation–this time twisting a procedure used historically for the most important legislative debates into an abuse of the Senate’s advise-and-consent responsibility.

Fiery rhetoric.

You know, the whole "it’s never been done before" thing is just wimpy. I mean, suppose we never did anything that hasn’t been done before? The rules of the House of Representatives had never been manipulated to exclude the minority party as entirely as possible before. States never redrew their congressional district boundaries between censuses…explicitly for political gain, by the way.

And how many times has a rejected judicial nominee been resubmitted?

It isn’t just one nominee they object to; it’s 10, and counting. It isn’t just abortion they’re worried about but the entire range of constitutional law.

Yes, ten out of 229. Less than five percent.

And it’s only ever been a religious reactionary hallucination that this is all exclusively about abortion rights. Of course it’s about the entire range of constitutional law, as it should be. And thank you for admitting it at last.

With the filibuster, Democrats are denying an elected President the ability to fill out even the lower courts.

Simply not true.

The two parties having different approaches, there will obviously be candidates that each would accept that the other would reject. But being typical mainstream Americans, the overlap in their respective pools of acceptable candidates is so great that this claim sounds more facetious than disingenuous. There are any number of staunchly conservative judges that would be acceptable and Democratic Senators are elected to represent their constituency too. They must hold out…out of the hundreds of conservative justices, Republicans could easily find ten in the overlap.

As a side note, I find it interesting they feel the need to remind Dubya he was elected. I, for one, will never forget.

Perhaps the coming showdown will lead to more political bitterness, but we doubt Democrats will be able to follow through on their pledge to shut down the Senate; the public wants other things done.

Of course there’ll be no shutdown.

But when one side refuses to negotiate, the other side would be foolish to consent (unanimously, no less) to their own irrelevance. Especially when it is in their power to change conditions such that compromise is necessary.


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