As many have already noted, the filibuster is the topic of vociferous polemics both on the Senate floor and in the general media. Sen. Byrd had to school Sen. Frist on the filibuster, and many Senate Democrats have noted how the filibuster is still "on the table." Alhtough many claim this is impossible given the Memorandum of Understanding signed by 7 Senate Republicans and 7 Senate Democrats, there are a few technical aspects of that document that are worth reviewing.
Join me in the extended body.
Here is the Memorandum of Understanding drafted by the Gang of 14, which I believe should be quoted in full:
MEMORANDUM OF UNDERSTANDING ON JUDICIAL NOMINATIONS
We respect the diligent, conscientious efforts, to date, rendered to the Senate by Majority Leader Frist and Democratic Leader Reid. This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.
This memorandum is in two parts. Part I relates to the currently pending judicial nominees; Part II relates to subsequent individual nominations to be made by the President and to be acted upon by the Senate's Judiciary Committee.
We have agreed to the following:
Part I: Commitments on Pending Judicial Nominations
A. Votes for Certain Nominees.
We will vote to invoke cloture on the following judicial nominees: Janice Rogers Brown (D.C. Circuit), William Pryor (11th Circuit), and Priscilla Owen (5th Circuit).
B. Status of Other Nominees.
Signatories make no commitment to vote for or against cloture on the following judicial nominees: William Myers (9th Circuit) and Henry Saad (6th Circuit).
Part II: Commitments for Future Nominations
A. Future Nominations.
Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be
filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.
B. Rules Changes.
In light of the spirit and continuing commitments made in this agreement, we commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII.
We believe that, under Article II, Section 2, of the United States Constitution, the word "Advice" speaks to consultation between the Senate and the President with regard to the use of the President's power to make nominations.
We encourage the Executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.
We firmly believe this agreement is consistent with the traditions of the United States Senate that we as Senators seek to uphold.
In the case of Alito, Senators can only be
filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist. In other words, they can only vote for cloture if extraordinary circumstances obtain.
This does not require the fourteen to vote FOR cloture, but it does require them to oppose a rule change, or the nuclear option: "[W]e understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII."
In order for cloture to be invoked, 3/5 of the Senators voting must cast a YES vote for cloture. If 100 vote, 60 must vote YES. But what if the seven Dems choose NOT TO VOTE AT ALL? This would not be in violation of the Memorandum of Understanding, as they would not technically be supporting the filibuster. If the seven Dems choose this option, then only 93 Senators would be voting.
If this were the case, then 37.2 Senators must vote NO in order to sustain the filibuster, and 56 must vote YES. So if the remaining 38 Dems (44 Dems + Jeffords - 7 Gang of 14 Dems) vote NO, and if the 55 Republicans vote YES, then the filibuster is sustained, and the Gang of 14 Dems still adhere to the rules of the document they signed.
And if Frist decided to still pursue the Nuclear Option, he would have to gain a majority. But 7 Republicans cannot vote in favor of it. In fact, they must vote NO: "[W]e commit to oppose the rules changes in the 109th Congress, which we understand to be any amendment to or interpretation of the Rules of the Senate that would force a vote on a judicial nomination by means other than unanimous consent or Rule XXII." Notice the word commit does not surface in the text explaining the Democrats's obligation: "Nominees should only be
filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist." Democrats are not "committed" to voting YES on cloture motions.
A filibuster on Alito can thus be sustained without violating the Memorandum of Understanding. And Frist, if he tries to deploy the Nuclear Option, will lose. Not only will it be an embarassment to Frist; the Dems will emerge victorious, and Bush will have to find a different nomination.
Any thoughts?