If the vast, right-wing media corporate shills are to be believed, then this week is the beginning of the script for changing the Senate’s practice of confirming judicial nominees to remove the filibuster option and force a vote with a simple majority. According to various sources, one of the contentious nominees will be placed in debate today. After a few days of debate, the Majority Leader will call for a cloture vote, which he will lose - but which will show that the nominee has majority support; he will then ask the chair to rule that for judicial nominations, only a simply majority are required to invoke cloture. The chair will so rule, the Democrats will appeal, and the appeal motion will be tabled. Fait accompli.
The wisdom of this practice, in and of itself, I leave for another GD thread. My proposition in this thread arises from the BBQ Pit thread about federal judges, which evolved into an interesting debate on the limits of the judiciary. Simply put: can/should the Democrats appeal this action of the Senate to the Supreme Court? Does the Court have jurisdiction over this question? Can the federal courts overrule the Senate’s maneuver described above?
Doesn’t Frist need 50 votes to change that rule? The fact that he didn’t do this long ago led me to believe that he didn’t have the votes to do it. Several traditionalist Republican senators would stand in his way.
God knows it wasn’t any sense of decency or respect for his collegues that kept him from doing it before now.
I think it would be getting into very uncertain waters. I remember that in early-mid 1974, the House Judiciary Committee chose not to take Nixon to court when his compliance with their subpoenas was less than satisfactory, because the judiciary might not have the authority to resolve such a dispute between the Executive and Legislative branches. (Fortunately, the Special Prosecutor could take Nixon to court, and then convey the appropriate tape transcripts to the Judiciary Committee.)
ISTM that the authority of the courts to resolve an intra-Congressional dispute would be even more iffy. If I were in the Democratic minority, I wouldn’t take it to court if the nuclear option passed. The remedies are twofold: (1) use of other Senate rules to gum up the works; and (2) the ballot box.
A filibuster is the continuation of debate to prevent a given motion from coming to a vote.
Under the rules, it is only possible against a debatable motion. If the procedure described above is followed, then the motion to table the appeal of the decision of the chair is a preferential, non-debatable motion. There being no debate, there can be no filibuster.
So why don’t you want to discuss the wisdom of using the Nuclear Option, and for that matter why do you refuse even to call it by its full name? An academic point of parliamentary procedure, especially one which already has a settled answer known to you, is meaningless without considering the context that brings it forward, after all.
The technicalities of the Nuclear Option, or whatever the GOPpers and their loyalists are trying to call it instead these days, aren’t subject to debate and shouldn’t even be in General Questions, much less Great Debates, but the wisdom of using it most certainly is debatable.
I’m open to a debate on the wisdom of the procedure. Start a thread; I’m there.
But this thread arose in the context of the “what limits exist on the judiciary” question explored in the Pit. I certainly have an opinion on the answer to the question I pose here, but I’m far from convinced it’s universally accepted. In fact, since you seem sure that there is a settled answer… why? If we have a Living, Breathing, Pulsating, Walking, Talking, Dancing, Surgery-Peforming Animatronic Constitution, then why can’t the Supreme Court constitutionally rule on this obvious circumvention of the spirit of the Senate Rules?
Bricker I am not sure what you are trying to do with this. (actually i am pretty sure) You ask a question that you already know the answer to. You do not think the court has this power you are just trying to bait somebody into makeing an argument so you can do the neo con hussle all over it. Nobody has made the assertion that the court has the authority, except you. And you did it disengenuously.
Bricker: Why don’t you outline a SCOTUS decision that you think is based on an argument that could just as easily be used to interfere with the “N” option? At least that would be a starting point, and address the claims that you have just put up a strawman.
The Supreme Court has no business whatsoever injecting itself into the parliamentary procedures of either House of Congress. From a legal perspective, I think it’d be a tremendous upset of the balance of powers to allow the courts to decide what is acceptable parliamentary procedure.
From a political perspective, too, I think it would be a mistake to involve the courts. Whether the nuclear option passes or not, there’s a lot of people on either side of the political fence who have problems with various judges. The Right may complain about Justice Kennedy, but the Left has equal fury for Justice Thomas. I think it would be a political loser to try to get the courts to take an even greater role in political questions that belong in one of the other branches of government. It’d be a political disaster that would put Bush v. Gore to shame.
Actually, Senator Lindsey Graham and Saxby Chambliss had given consideration to suing Senate Democrats in order to seek a ruling that judicial filibusters were unconstitutional. They didn’t go through with it, perhaps because they thought they’d lose, but clearly there ARE people who have considered taking recourse to the courts on the whole nuclear option thing. I say it’s unfair to call Bricker disingenuous when people in positions of authority have posed exactly the same question that Bricker posed today.
It’s not a strawman. I’m not claiming anyone has said, specifcally, that the Supreme Court has a role here.
I AM claiming that posters have said things like:
If THAT is the analytical principle at play in determining the role of the judiciary, then under that rubric, why couldn’t the Supreme Court find that minority party sentators had a RIGHT to filibuster under the Constitution?
If anything, that’s the logical flaw of slippery slope, not strawman.
Bricker most certainly does not believe the court has the power, asking the question was seeking a responce he could shoot down. Because he is a smart guy and he knows the legal system and he knows the constitution (I quoted it in post two BTW).
I find all of this fascinating, really. It’s like watching our government evolve right before our eyes.
I bet most of you aren’t aware that the House of Representatives had a filibuster once as well. It was abolished when Speaker Reed (a Republican) insisted that filibustering Democratic members be counted as present in the chamber and counted toward the quorum. The House is today still run by Reed’s Rules.
Is this undemocratic? Was it so during the decades when the Democrats held the gavel? Was Tip O’Neill some sort of unaccountable tyrant?
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