The upcoming Judicial Crisis

Great Debates
41

The court issue is entirely a red herring. Chambliss, Talent, and those others who are talking about suing the Senate ought to get ready to be tossed out on their behinds. Why? Because they, as members of the Senate, have suffered no harm because of the cloture rules.

Estrada, Owens, or any other nominee could have a better shot at having their case heard, because it is arguable that the cloture rule has harmed them… But I think they know enough about the law to realize that they don’t really have a leg to stand on, and they also probably know enough about politics to understand that it would be foolish to sue the institution that is supposed to confirm them in their appointed positions.

As far as changing the rules goes, the Republicans who are pushing this are basically harkening back to Clinton’s famous quotation, “It depends on what your definition of “is,” is.” Here’s the relevant part of Rule 22: “Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, [or?] other matter pending before the Senate…”

Somehow the Republicans want to reinterpret the words, “any measure, motion, [or?] other matter pending before the Senate” to mean “except if the matter pertains to the Executive Calendar.” (The Executive Calendar is the list upon which nominations are readied for the Floor after a committee reports the nomination.) Clearly, interpreting “any measure, motion, or other matter” as to exempt nominations is just pure fiction.

The way it would probably play out is that the R’s would raise a point of order that Rule 22 does not apply to nominations. The Senate Parliamentarian, through the Chair, would rule that they’re out of their mind. Then the R’s would make a motion to appeal the ruling of the chair, and if they can round up 51 votes, overrule the chair’s ruling. There would then be created a precedent which would serve as a basis for excluding nominations from proceedings under Rule 22. (Much like case law, such a ruling would have the effect of a rule change without actually amending any rules.)

Could the Dems then sue? I can’t see how they’d win, for the same reasons that the R’s wouldn’t win. I also can’t see why a court would get involved in this issue, especially since, as has been noted, the Constitution gives the houses of Congress the sole and exclusive power to make their own rules.

42

No, the more likely point of order is that Rule 22 doesn’t apply to a motion to change the rules, because this Senate never adopted Rule 22.

This is not a new issue. In fact, the “continuing body problem” in the United States Senate has almost as storied a history as the “three body problem” in physics. At least as far back as the 1950’s, Richard Nixon was prepared to issue a parliamentary ruling that each Senate should have the opportunity to vote on the filibuster rule de novo. At that time, however, a majority of the Senate was not prepared to change the rule, so the issue remained moot.

In 1975 the question surfaced again, this time with liberal Democrats leading the anti-filibuster forces. Vice President Nelson Rockefeller ruled, and the Senate sustained him by a vote of 48-40, that the Senate could cut off cloture on a proposal to amend Rule 22 by majority vote. After this vote, pro-filibuster forces quickly compromised on the current 3/5 rule, and a confusing series of points of order and appeals followed which may or may not have reversed the original ruling.

In 1978, Vice President Walter Mondale and Democratic leader Robert Byrd again used similar tactics–preventing the filibuster of a rule change, on the grounds that each Senate can make its own rules–to cut off the infamous “post-cloture filibuster by amendment” which at that time was tying the Senate in knots.

So be prepared. It may be time for another go-round.