I originally set out to read up on the "scholarly" writing on the subject of the Senate filibuster, the history of cloture reform, and the "nuclear option" -- which apologists have taken to calling the "constitutional option." But I quickly came to the conclusion that a full explanation of the background might be a waste of everyone's time.
While I'm more than happy to save anyone with specific questions the time it took me to sift through the writing, organizing a comprehensive primer doesn't advance the ball much. Especially when it finally hits you that the "nuclear option" moniker isn't just appropriate because of its threatened effects on Senate comity, as so many current media accounts would have it. Rather, I think the name is appropriate because it captures just how raw a power play Frist's intended maneuver really is.
Back in 1998, we learned to our collective dismay that Gerald Ford was right all along: an impeachable offense really is whatever the House says it is.
Similarly, we now find that Senate rules, long thought to have been in continuous operation from Congress to Congress, and to have required a 2/3 vote to amend, are in fact... whatever the Senate says they are.
Or at least, that's the current argument of... conservatives.
Of the many nuclear variants allegedly available, the most likely path for Frist goes something like this: Facing a filibuster on the nomination of former Interior Department counsel William G. Myers to the U.S. Court of Appeals for the 9th Circuit (or on the motion to take up the nomination), Frist will posit a point of order to the Senate's presiding officer. In all likelihood, Vice President Cheney will have taken the chair for this purpose.
Frist's point of order will posit: 1) that debate has gone on long enough, and; 2) that because the Constitution requires the Senate's advice and consent on judicial appointments, preventing a vote on that consent is unconstitutional.
If he wants to make a further point, he might also posit: 3) that Article I, Section 5 of the Constitution gives each house of Congress the right to determine its own rules of procedure, and; 4) that therefore the Senate may, under Art. I, Sec. 5, vote by a simple majority to change the rules, henceforth to permit ending debate on judicial nominations (and/or motions to consider such nominations) by majority vote.
Strictly speaking, though, all the situation requires is a point of order raising issues #1 and #2. Raising numbers 3 and 4 might help save time on the next nominations brought under consideration, but that's it. In other words, the "nuclear option" doesn't even require an actual change to Senate rules. It depends only on getting a favorable ruling from the presiding officer.
By tradition and according to Senate precedents, however, the presiding officer cannot decide constitutional questions. Rather, they must be submitted to the Senate itself for decision. Here's how then-Vice President Nixon put it (PDF) in a battle over cloture reform in 1953 (see also: Congressional Record, 1/4/57, p.178)
Any provision of Senate rules adopted in a previous Congress which has the expressed or practical effect of denying the majority of the Senate in a new Congress the right to adopt the rules under which it desires to proceed is, in the opinion of the Chair, unconstitutional. It is also the opinion of the Chair that Section3 of Rule 22 in practice has such an effect.
The Chair emphasizes that this is only his own opinion, because under Senate precedents, a question of constitutionality can only be decided by the Senate itself, and not by the Chair.
So if the precedents say that the Chair cannot rule directly on a constitutional question such as that Frist will have to pose, why will Cheney do it?
Because a constitutional question submitted to the Senate is itself debatable, and therefore, subject to filibuster. So that leaves Frist back at square one: a filibuster on the question of whether or not his point of order should be sustained and the filibuster forbidden.
Clearly, then, it's much preferable for Cheney to simply ignore precedent and rule directly on Frist's point of order, and express the opinion that filibusters of judicial nominations (or indeed any filibusters at all) are unconstitutional. Such a ruling would be immediately appealable, but that appeal itself would be subject to a motion to table -- a motion which could carry by a simple majority, and would have the effect of killing the appeal and letting the ruling stand. Net effect: a majority vote ends debate on the Myers nomination.
But under what authority will Cheney do it? Answer: none. And that's where Gerald Ford comes in. The Senate rules -- notwithstanding provisions for their continuation from one Congress to the next, or their requirement that changes be approved by 2/3 vote -- are now... what Dick Cheney says they are.
Once again, "conservatives" will throw us into a Constitutional free-for-all in the hopes of scoring quick political points. Haven't we had enough of this? And haven't genuine conservatives?
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