Centerfield

Are we talking about rules changes that would foreclose all possibilities of any fillibuster, or only in the cases of presidential nominations?

I agree that Democrats are already in a spot where they can only oppose the worst of the worst. I don't think the GOP would pass up such a chance to tar the democrats as obstructionists. Isn''t it likely the the GOP would at least wait until there was a fillibuster or two before changing the rules, so that they could cast themselves in a favorable "we have no choice but to do this so that we can get on with the nation's business" light?

I'd hate to see an ultraconservative appointed to the SC. But even so, I think the politicization of prez noms, contra tradition, has been destructive.

There are really two nuclear options, and I suppose one could call them ICBM and dirty-bomb. Dirty-bomb can only be used at the beginning of the next Congress. Under parliamentary procedural theory, before the body adopts its rules, it only has standard rules of parliamentary procedure: Under Senate rules, it takes a two-thirds vote to amend; under parliamentary procedure, only a majority. Thus, dirty-bomb is change the Senate rules with a majority at the beginning of the session.

As I described here, ICBM can be described as having one GOP senator, likely the Majority Leader, raise a point of order when a cloture motion on the judicial nominee fails. The point of order would be that the 60 votes required for cloture violated Art. II, Sec. 2's Advice and Consent Clause. (That the Advice and Consent Clause doesn't require a bare majority, and that Art. 1, Sec. 5 allows the Senate to adopt its own rules are both irrelevant: the President of the Senate is the officer charged with interpreting Senate rules.) The President of the Senate would declare the rule unconstitutional. The only appeal is to the Senate itself on majority vote. (It's very likely that every federal court would hold the interpretation to be a political question, and therefore non-justiciable.)

It is my present impression that both options are being considered only in the context of judicial nominees.

Jaded JD,

I don't know about that. Advocating filibustering isn't just immoderate, it's anti-democratic, a dirty tactic that was used by southerners to bury civil rights legislation. I understand that the filibuster has been a standard parliamentary procedure over the years, but that doesn't make it right. I understand the concern with potential right-wing judicial nominees, but what price do you pay stopping them like this? The Democrats have already shown some hypocrisy and disregard for democracy by trying to keep Nader off the ballot. I have no problem with Democrats strongly opposing judicial nominees that they consider bad, but filibustering is a bad option that can only lead to more bad blood. At some point, someone has to stand up for democracy even if you don't like the results. Frankly, I think liberals have hurt themselves by attempting to bypass the democratic process and get desired changes through courts. This is likely to make things worse. If you keep saying the ends justify the means, where does it stop? The Patriot Act? What's good for the goose has to be good for the gander.

The filibuster is a tried and true political/legislative manuever used by both sides. Yes, using it for judicial nominees is a new use but...

I believe the real fall-out would be a very public use of the filibuster (i.e. Supreme Court nominee) and the Democrats viewed by the public as obstructionist. There will be many upcoming opportunities for both "sides" to widen the gulf between the parties. In the end neither party will look good.

Hopefully (for the Republicans), no Clarence Thomases; Hopefully (for the Democrats), no Robert Borks.

MWS,

I believe that there is a difference between classical democracy, wherein a concurrent majority may form, act on an issue, and dissolve, and modern, two-party democracy wherein a majority is created on a partisan basis and then party discipline stiffles the independent and individualized consideration of each elected representative.

In the latter, where the party achieves a majority based on the varied, shifting views of many disparate and different constituencies, and then the majority within that majority uses the tools of institutional power to wield its will, there must be some tool available to the minority to protect itself.

I don't have a problem with the modern filibuster. We're not talking about Strom Thurmond standing on the Senate floor for forty-plus hours, a one-man veto on an entire agenda. We're talking about the added burden of acquiring 60 votes, rather than 50, for a vote to take place. Supermajority requirements are not inherently undemocratic.

It takes two-thirds of both chambers to submit a constitutional amendment to the states; it does not strike me as unseemly to require three-fifths of the Senate to confirm a nominee to the Supreme Court of the United States, who, together with any four of his colleagues, can essentially effect the same shift in constitutional law.

I have no problem with the 60-vote procedural filibuster. I have long refused to join the Condemnatory Chorus on Dem Senate obstructionism--I think it's a totally legitimate use of their political perogatives, even when I disagree on the specifics, and self-correcting in the long run if overdone. It's also something the GOP has never had the guts to do in modern times, except briefly in the House under Gingrich. I'm actually a big fan of gov't gridlock--when Clinton was using it as an anti-GOP talking point I was cheering it on for its own sake.

If Congress isn't doing anything, then they're not screwing things up more. The possibility that they would be screwing them up less is usually quite remote. Huzzah for King Log!