Why Democrats should stop worrying about the "nuclear option" and love the filibuster, in four easy steps:
- The filibuster is constitutional.
- The "nuclear option" would require a majority of Senators to vote that the filibuster is unconstitutional.
- Bill Frist, on the hallowed floor of the Senate, admitted that the filibuster is constitutional.
- Samuel Alito endorses and acts upon legal theories that are unconstitutional, which makes him unfit for the Supreme Court.
On to the meat of the proof, along with a story of Fristian mendacity and Byrdic righteousness...
Article I, Section 5, regarding the rules of the House and Senate:
Each House may determine the Rules of its Proceedings, [...]
Article II, Section 2, regarding presidential appointments:
[... H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint [...] Judges of the supreme Court, [...]
According to the existing rules of the Senate, it takes a 3/5 majority of all senators to formally end debate (cloture).
"Advice and Consent" means whatever the Senate rules define it to be. The Constitution contains no requirement that it be a majority vote. For example, when the Senate passed its rules, it could have required a 2/3 majority for "consent" to Supreme Court appointments, if it saw fit to do so.
3/5 majority for cloture falls within a reasoned interpretation of "advice and consent." Therefore, the filibuster is absolutely constitutional.
(Note that there's a counter-argument to be made that rules-mandated supermajorities are unconstitutional because they make prior sessions of the Senate more powerful than the current session, but I think that's a load of crap. If the rules are the same Senate to Senate, then the relative power is constant too. Plus, can you imagine the pandemonium if a rules change only required a simple majority?)
2. The "nuclear option" would require a majority of Senators to vote that the filibuster is unconstitutional.
It takes a 2/3 majority to change Senate rules.
It takes a simple majority to sustain a point of order. In this case the point of order would be that the cloture rule is unconstitutional.
Because the Republicans may not have the 3/5 majority necessary for cloture in the event of a serious Democratic filibuster, and because they certainly don't have the 2/3 majority necessary for a rules change, there is only one other way to preclude a filibuster. They would have to vote that the cloture rule is unconstitutional, which is a lie per #1.
3. Bill Frist, on the hallowed floor of the Senate, admitted that the filibuster is constitutional.
Here's the entertaining part. Constitutional orator extraordinaire Robert Byrd had a knock-down, drag-out debate with Bill Frist in the Senate on December 12th (link to search, emphasis mine):
Mr. BYRD. I see nothing in the Constitution that requires an up-or-down vote on any nominee. The Constitution just says that the Senate shall have the power, and the Senate uses that power. It is in the Constitution.
Mr. FRIST. And my response would simply be that the Constitution says advice and consent.
Mr. BYRD. Yes.
Mr. FRIST. And I think advice and consent for somebody who has gone through the nomination process, the recommendations, through the Judiciary Committee, hearings, recommended to this floor, I would argue, not written in the Constitution, but under advice and consent, you can't vote with your hands in your pocket. You can't say yes or no.
Mr. BYRD. The Constitution doesn't say that.
Mr. FRIST. I would argue that the dignity of this institution has worked for 214 years. So why deny it? Especially why deny it with a qualified nominee like Alito.
Mr. BYRD. Will the Senator yield?
Mr. FRIST. I would be happy to.
Mr. BYRD. All this business about us working for 214 years, there have been a lot of misquotations of history when people talk like that. I say that a Senator has a right under the Constitution to object for whatever reasons--they may not be plausible reasons--to object to any nominee he wishes. The Constitution says the Senate has the power of advice and consent. So it doesn't say how that consent will be measured. It doesn't say it has to be an up-or-down vote. Nothing in the history, nothing in the Constitution says that. If you can point that out in the Constitution to me, where it says that a nominee shall have the right to an up-or-down vote--can the Senator point that out in the Constitution to me? Can the Senator point that out in the Constitution to me?
Mr. FRIST. Mr. President, if the distinguished Senator from West Virginia would let me answer, I would be happy to.
Mr. BYRD. Yes.
Mr. FRIST. It is not in the Constitution that a Senator specifically has the right for an up-or-down vote. I am saying the dignity of the institution to give advice and consent deserves an up-or-down vote on the floor of the Senate. What the Constitution does say--which is why it is called the constitutional option, not because it is written in the Constitution--is that this body makes its own rules. The constitutional option is basically just that. You take it to this body and you say: Do these Senators deserve an up-or-down vote on the floor of the U.S. Senate? Let's vote on that.
Mr. BYRD. No.
Mr. FRIST. Mr. President, it doesn't say in the Constitution that you can vote; it says you can give advice and consent and that the Senate makes the rules as to whether you vote or not. We just disagree. Obviously, this goes back to the whole filibuster argument for judicial nominees. I simply believe in the principle that once someone comes to the floor, they deserve, in order to give advice and consent, an up-or-down vote.
So, there it is. It's merely Frist's predilection that judicial nominees be guaranteed a simple majority vote. As Frist explicitly admitted, nowhere is it mandated in the Constitution, and the Senate rules don't require it, so there is no statutory guarantee. Somehow I don't remember reading the part in the Constitution that said "Frist no likey" was a basis for deeming something unconstitutional.
4. Samuel Alito endorses and acts upon legal theories that are unconstitutional, which makes him unfit for the Supreme Court.
Alito believes that the executive branch's interpretation of a law should carry equal weight as the legislative branch that drafted, debated, and passed that law (to the point that Bush has been issuing "signing statements" as he signs laws which directly contradict the intent of said laws). This is utter bullshit--the legislative branch makes the law, and the executive carries it out. Can you imagine how this would work in the case of a law that was passed over a presidential veto?
Alito believes in the supremacy of executive power. Most anything is justified in the name of "protecting" the country. This is precisely the recipe for tyranny trending toward totalitarianism.
Democrats must filibuster the Alito nomination in order to preserve the reign of the Constitution and the rule of law. Should the Senate Republicans proceed with the "nuclear option," then they will have revealed to all that the rule of law truly holds no longer, and that this government is one of men and power rather than laws and justice. Democrats can lead public opinion rather than follow it and throw a barrel of cold water on a Republican leadership drunk with power.