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View Diary: The Nuclear Option is Coming. Are you ready? (140 comments)

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  •  "How Low Can We Go?" (none)
    We need to put a sign on the door to the Senate with just those words.

    Frankly, if this goes through the Democrats should pack their bags and leave the Capital. They should explain that there's no reason for them to participate in a government that has no credibility.

    Then they should immediately head to the Red states and start campaigning against the people who voted for this.

    But, wait. Why, exactly, wouldn't this Constitutional question end up in front of the Supreme Court? Sure, the Constitution says that Congress gets to make their own rules, but it also says that the Supreme Court has jurisdiction in Constitutional questions. They have as much grounds to stand on as Cheney, I'd say.

    Article III, Section 2, Clause 1:

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution. . .

    Liberal Thinking

    Think, liberally.

    by Liberal Thinking on Sun Apr 03, 2005 at 01:13:44 AM PST

    •  Political Question Doctrine. (none)
      There's a good chance the courts would be uninterested in taking the case. Typically, under the Political Question Doctrine, they avoid getting involved in settling issues where a remedy can be had at the ballot box. Their theory would be that if the American people are unhappy with the arrangement, they can change the balance of power in the next election and undo it.

      There may also be questions of standing. Who sues? And by what right do they claim to be entitled to a remedy from the court?

      Judicial Watch once tried to sue to end the filibuster against judges, claiming that as a frequent litigant, they had a right to a fully functioning judiciary (meaning one in which all vacancies were filled). The court essentially said that such a claim was too tenuous, and they therefore had no standing to bring suit.

      •  Would They or Wouldn't They (none)
        I think you are right that the courts would be reluctant to take the case. But I think that anyone in Congress could get standing as being harmed by not having their Constitutional rights upheld. The case with Judicial Watch probably was too tenuous, but this has a little more meat. For example, we can't just wait for the next election cycle and set the matter straight because once Congress confirms an appointment to the judiciary it is more or less permanent. What remedy would you have if they shouldn't have been appointed but they were because Congress made a mistake in interpretting the law?

        It's theoretical, but it just makes me wonder.

        Liberal Thinking

        Think, liberally.

        by Liberal Thinking on Mon Apr 04, 2005 at 10:35:30 PM PDT

        [ Parent ]

        •  I'm not sure. (none)
          Nobody is.

          But I would say that the constitutional rights in this case may belong to the Senate, and not to individual Senators. It's the Senate (and the House) that are given the right by the Constitution to set their own rules. Individual Senators don't necessarily have the right to enforce a different interpretation of them, unless they can get 50 other votes.

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