Centerfield

Having GFW public oppose the nuclear option is a pleasant surprise--he'd earlier supported forcefully breaking filibusters. It may be that he's had a genuine change of heart, or it may be that he's done a head count and knows the rule change doesn't have the requisite numerical support in the GOP caucus. Either way, it's a ray of sunshine for nuclear-option-nonproliferationists.

I'm with Will and Gandleman. I like the Senate 41-vote filibuster, even if I don't always care for how it's being used. It serves an important purpose in the overall scheme of "checks and balances" and I don't want to see it tossed overboard for some temporary political gain. As Will puts it:

The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the governmental juggernaut.

Any intense Senate opposition that can raise 41 votes is not an insignificant minority, and frequent overuse of the tactic is probably self-correcting at the ballot box (as I suspect we've already seen to some extent). If an issue is so vital to the nation, it can make it past a filibuster. And if it's not that vital, holding it up is unlikely to hurt us much, and could help us lots in the long run.

Will's points about the validity of the filibuster are right on, but I think he leaves the misleading impression that Dick Cheney can simply do away with it with a ruling from the chair. Senate rules allow for debating the merits of such a ruling, which means that it is simply another venue for continuing the original filibuster.

Stygius,

Sadly, the question on the constitutionality of the filibuster would be raised as a point of order. Points of order, and appeals of the chair's resolution of them, are not debateable as a matter of Senate procedure under Clause 1 of Rule XX. Since cloture--the motion that ends a filibuster--is only available to end debate (indeed, a filibuster is the ability to hold debate open in the absence of cloture) under Clause 2 of Rule XXII, cloture and filibusters are by definition inapplicable to points of order and appeals. In short, you can't filibuster a point of order that filibusters are unconstitutional, and you can't filibuster the motion to appeal from the ruling of the chair.

I agree that the filibuster is an important tool that can be used to prevent action in absence of a consensus.

That said, I strongly suspect that the ruling party will end the ability to filibuster presidential appointees -- at least those to the Supreme Court. Such an action would be consistant with a number of other actions that strengthen the power of the majority.

I would really, really like to be wrong.

I agree that doing away with the Filibuster is a bad thing. However, I will qualify by saying that in recent years I believe use of it (by either party) has been far too injudicious and frequent.
In a representative government the right thing to do (IMO) in all but the most egrigious circumstances, is to let issues come to a vote....even when the issue is important and you know you are going to loose.

From what I've seen, very few of the times I've seen it used recently qualified as egregious enough to have warranted it.

I agree with Cengel. I haven't heard of any good reason to filibuster Bush's appointees (although, honestly, I haven't studied them too closely). If the Democrats misuse the filibuster, the Republicans will be able to get rid of it without upsetting the public. The Democrats should only use it as a last resort to bring public attention to something unpopular the bloated Republican majority is trying to do. It should be the Dems' nuclear option.

JD,

Thank you for the clarification, but I think that--from Rule 19(4)--appeals are open to debate (hence can be used to filibuster further).

My reading of Rule 20(1) is that points of order made during the debate of the appeal of the ruling, and subsequent decision/appeals on such points of order are not open to debate. However, that does not extend to the original appeal of the original point of order, which--by Rule 20(4) are open to debate in the Senate.

However, it would seem possible that in one of these second-order points of order (during the appeal debate) the same ruling could be issued and would thus not be open to debate. However, could the same point of order ruling (regarding nominations) be made during the appeal (and thus not be subject to debate) if it wasn't pertinent?

Even if so, it would demand an enormous amount of discipline from Republican senators to go along with it; discipline which I highly doubt Bill Frist would ever be able to employ.

Clause 4 of Rule XIX is a bit different from Clause 1 of Rule XX in that there's a subtle difference between the privileges of the house and the privileges of the member. And when a member breaches regular order by saying something prohibited during the course of debate (e.g., expressing an opinion about another senator personally, referring to action in the other chamber, &c.) he commits a parliamentary offense. But that offense, while still objected to via a point of order, is a different sort of point of order than the purely procedural violation encompassed by Rule XX. A Rule XIX point of order must allow debate, because the member against whom it's made is allowed to defend himself.

My understanding is that the Democrats have not filibustered on the vast majority of Bush's appointments, but just on those they deem the most egregious. And it seems that at least some of his appointments have been fairly egregioius. Although I'm not a big fan of filibustering, it seems to me that placing the blame for misuse on the Democrats is a little unfair.

Marc, if "vast majority" means 69% confirmed...of course, that's not a fair figure according to some, as it's the appeals court confirmation rate. Circuit court judges have been routinely approved for all presidents, and the Democrats point at the confirmation rate for them to minimize the stats, just as the Republicans pointed at that same stat in the Clinton years.

John Lott and Sonya Jones recently compiled the stats on federal appeals court nominations going back through Carter. The "blocking" trend began with Bork, but didn't really begin to accelerate to the current sorry mess until Bush 41. The real blockage explosion began under Clinton.

Consider the following: The confirmation rate for presidential nominees to federal appeals courts has fallen steadily over the last 30 years, from 93% under President Carter to 89% under President Reagan, 78% under George H.W. Bush, 74% under Clinton and 69% under President Bush. And the length of time it takes to confirm has gotten longer too. During the Carter and Reagan administrations, it took fewer than 70 days to confirm an appeals court judge. (About 33% of Reagan's nominees were confirmed within a month.) Under Bush's father, the length rose to 92 days, but Clinton saw the total soar to 230 days. Now, under Bush, it has risen again, to 263 days.

Sounds like there's a sizable element of tit-for-tat going on here. The argument could be made that it's a reaction to more ideological appointees being proposed, but I don't know (and am not sure how one would quantify) exactly how ideological all those prospective appointees were as compared to past appointees.

The concentration on obstruction at the appeals level implies to me that there would be even greater resistance at the SCOTUS level, but the higher visibility and more in-depth vetting of such an appointment would offset that. As would the potential damage to the Dems from opposing reasonably moderate appointees.

I agree with Tully. While I suspect the president will not appoint a reasonably modereate nominee--although I hope he does--if he were to do so, the Democrats could do few things to more devastatingly destroy their credibility than to go all out just for the sake of going all out.

If we get a real moderately (unlikely) or even a marginal moderate--someone who's procedurally moderate if substantively conservative in the sense that he (or she) at least has some credible, open-minded, deliberative process underpinning his (or her) conservative position on the issues--Democrats should let him (or her) go through.