Is this idea to end the filibuster by Sentor Telent Legal/Possible?


The minority is not requiring 60 votes for judicial nominations, it’s requiring 60 votes for cloture. This is a matter of Senate rules, not the Constitution. The Senate is solely in charge of its own rules, and it’s been common parliamentary practice for centuries to throw a wrench in the works in a clever way to annoy the opposition.

I’m not a Constitutional scholar, though, so I may be wrong.

Good grief.

Article I, Section, 5, unnumbered paragraph 2, US Constitution:

The rule on limiting debate is perfectly Constitutional. If the majority were to act in the way you describe, they would be ignoring the rule. Why don’t they just beat the crap out of the filibustering Senators? It might reach the same end quicker, be of equal legality, and frankly it might earn some money on pay-per-view.

  • Rick

Not to mention that there is no chance that 51 Senators would vote to eliminiate filibusters, no matter who is in the White House. Anyone who has been in the Senate more than a few months (read: not Talent) knows which side their bread is buttered on - the filibuster gives an individual Senator a good deal of power that I believe very few would give up, especially over a 100% political issue like confirming judges.

I also find this, in the article linked above, especially revealing: “In their current mindset, many Republican Senators, and not just liberals, worry about what is written on the editorial page of the New York Times, or said on the CBS Evening News with Dan Rather.” As if Republican Senators care about the media more than the Constitution. What-everrrrr.

Not so fast, Bricker. There’s an argument to be made that the Chambers were merely upholding their own rules in Chada and the line-item veto case – indeed, in Chada that argument was explicitly invoked, IIRC – but the courts have ruled that the clause giving authority to each Chamber over its own rules does not trump other structural constiututional provisions – including in particular the mechanics of voting. Although I don’t think this has a chance in hell in succeeding (both because as Ravenman notes, you’ll never be able to find a majority of senators willing to forsake the filibuster and because I think that this case is distinguishable from the legislative veto cases like Chada), it’s not a whackjob argument – it’s a loser, but not a frivilous one.

As to the editorial content of the site as quoted by Ravenman, I am quite sure there are more than a few seanators on both sides of the aisle who care more about the editorial page of the New York Times than they do about the Constitution, and always have been. I also think there are more of the other kind than one might think.

–Cliffy, Esq.

  1. A motion for cloture loses.

  2. A (truly erroneous) appeal on grounds of ‘lack of constitutionality’ is made.

  3. Grounds for an appeal that are not based on procedure are inconsequential. The parliamentarian rules it out of order simply because you don’t usually revote simply because someone doesn’t like the rules concerning the vote.

  4. However, if the parliamentarians ruling is overruled by the assembly, then the next step is:

  5. Re-vote for cloture. The vote for cloture still loses.

IOW, the author of the ‘idea’ is a complete moron with regards to parliamentary procedure. The rules of procedure purposely give sizable minorities (obviously, minorities of just one or a handful are out of luck) certain rights which the majority can not trample.

I’m willing to bet all I own, that an overwhelming majority of Republican senators would balk at the idea of their party leaders throwing several centuries of parliamentary precedent out the window in order to railroad Bush’s choices for judgeships.


“I appeal the last vote on the grounds I didn’t like the outcome.”

Frist supports a similar scheme.
It looks like there’ll be a vote to tell us just how “mainstream” the idea is amongst republicans.

There is a somewhat more subtle point to be made on the constitutionality of the filibuster. Consider the sentence quoted above:

The problem is, this Senate has never determined anything. Rather, the Senate for 200 years has been regarding itself as a “continuing body”, because two thirds of its members carry over from one term to the next. It does not re-adopt its rules or re-elect its officers at the beginning of a new Congress. If it did, and it had to vote on the filibuster rule de novo every two years, it would probably long since have been scrapped.

The filibuster rule (Rule 22) is especially harsh because it requires a two thirds majority (rather than three fifths) to invoke cloture on a proposed rule change. This is roughly the equivalent of the old Fred Flintstone line, “The bylaws say that you can’t change the bylaws!” So the parliamentary challenge may be to Rule 22 as it concerns rule changes, and not specifically as it concerns judicial nominations. Of course, if a majority of 51 finds to their satisfaction that they can invoke cloture on a rules change, they will then use this power to carve out a further exception for judicial nominations. Over time the filibuster will probably fall in its entirety.