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SmarterThanYou
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But aren't there rules about changing the rules in the middle of the game?
Yes, there are. Senators may amend the Standing Rules of the Senate by a simple majority vote. But -- and you saw this coming, didn't you? -- proposals to change the Senate's rules are subject to filibuster, too. So if Republicans simply followed the rules about changing the rules, and if Democrats filibustered the rule change, as they surely would, then Republicans would need to cobble together enough votes to prevail on a cloture motion.
That's 60, right?
Well, no. While it takes three-fifths of the Senate, or 60 votes, to cut off debate on most things, the Senate has previously recognized that changing the rules of the game should require something more. Thus, Senate Rule XXII says that debate on a "a measure or motion to amend the Senate rules" can't be cut off without an "affirmative vote" from "two-thirds of the Senators present and voting." That means that Frist would need 67 votes to cut off debate on a change in the Senate's rules. With only 55 Republicans in the Senate, and at least two of them unequivocally opposed to the nuclear option, Frist can't possibly get 60 votes to change the Senate's rules, let alone the 67 that Rule XXII requires.
Is that the end of it, then?
Well, it would be if Frist and the Republicans who are with him on this were inclined to follow the Standing Rules of the Senate. But they're not.
So how will Frist go nuclear?
It's hard to say for sure. As the Congressional Research Service says, "Exactly because the point of a 'nuclear' or 'constitutional' option is to achieve changes in Senate procedure by using means that lie outside the Senate's normal rules of procedure, it would be impossible to list all the different permutations such maneuvers could encompass." But here's how the Congressional Research Service and interest groups on both sides say that it could work.
First, Frist brings one of the stalled judicial nominees to the Senate floor for an up-or-down vote. The Democrats filibuster. The Republicans try to cut off debate through a cloture motion brought under Rule XXII, which requires the support of 60 senators. The cloture motion fails. At that point, the Congressional Research Service says, one of at least two things could happen.
In the first variation, the man presiding over the Senate at that moment, probably Vice President Dick Cheney or Senate President Pro Tempore Ted Stevens, could declare Rule XXII unconstitutional and rule that, when it comes to judicial nominations, debate can be cut off by a simple majority vote. Democrats could appeal that ruling, which would then set off another round of filibustering. But a Republican senator could move to table the appeal -- a move that's not subject to filibuster -- and then Republicans could vote by a simple majority to do so. That would effectively dismiss the appeal, allowing the ruling from the presiding officer to stand. Rule XXII would be declared unconstitutional, and the majority could end debate on any judicial nominee with a simple majority vote.
In the second variation -- and this part is required reading only for the Robert's Rules of Order fetishists among us -- a Republican senator, fresh off the loss on the initial cloture motion, could raise a point of order arguing that the requirement of a three-fifths vote to cut off debate on judicial nominees is unconstitutional. The presiding officer could submit that question to the full Senate for a vote. Under the Standing Rules, that vote would be subject to a filibuster, too. But the presiding officer could simply declare that it wasn't. That would lead, as in the first variation, to another appeal, another tabling motion, and then another simple majority vote on the question whether Rule XXII is unconstitutional.
In either variation, the end result is that Frist -- with 50 Republican votes and a tiebreaker from Cheney -- could get the Senate to declare that the usual cloture rule is unconstitutional when it comes to judicial nominees. All nominees could henceforth be confirmed with simple majority votes -- i.e., with the support of Cheney and just 50 of the Senate's 55 Republicans.
Wait a minute. Cheney gets to declare unconstitutional -- a power usually left to the courts -- a rule of the Senate, the authority for which is vested in the Senate, to get the president's judicial nominees through Congress? What about the separation of powers?
You catch on quick. As McCain has said, "It's not called 'nuclear' for nothing."
But can they really do that? Can Frist and the Republicans who support him just change the rules of the Senate in the middle of the game?
Yes and no. Yes, they can; and no, they can't without breaking Senate precedent. As the Congressional Research Service explains, each of the variations set forth above "would require that one or more of the Senate's precedents be overturned or interpreted otherwise than in the past."
In the first variation, the presiding officer -- Cheney or Stevens -- would take it upon himself to declare Rule XXII unconstitutional. Riddick's, considered the bible of Senate procedure, has this to say about that: "Under the precedents of the Senate, the presiding officer has no authority to pass upon a constitutional question, but must submit it to the Senate for its decision." By unilaterally deeming Rule XXII unconstitutional, Cheney or Stevens would be violating that precedent.
If the presiding officer chose the second variation instead -- that is, if he submitted the question of the constitutionality of Rule XXII to the full Senate for a vote -- the Congressional Research Service says he'd still have to break with Senate precedent by declaring that the question isn't subject to debate and therefore isn't subject to a filibuster by the Democrats.
But forget the procedural stuff for a minute. Is Rule XXII -- or what the Democrats are doing with it -- really unconstitutional?
That's a hard case to make -- and one that no federal court is likely to touch. Frist argues that the Framers "concluded that the president should have the power" to appoint judges "and the Senate should confirm or reject appointments by a simple majority vote." But the Constitution doesn't say that exactly. Article II, Section 2, Clause 2 says only that the president shall nominate judges "by and with the advice and consent of the Senate."
The right argues that the "simple majority" requirement should be read into that provision of the Constitution by reverse implication: The Constitution explicitly requires super-majority votes in only a few situations, including the ratification of treaties, the overriding of vetoes, the approval of constitutional amendments and the expulsion of a member of Congress; because the Constitution doesn't say anything about a two-thirds majority when it comes to judges, the right argues, it must require that judges be confirmed by a simple majority vote.
Democrats, on the other hand, cite Article I, Section 5, Clause 2 of the Constitution, which grants each house of Congress the right to "determine the rules of its proceedings." Under that provision, the Senate could make decisions on judges by rochambeau if 50 senators voted to make that the rule and 67 senators were around to kill off the filibuster that would follow.
In the end, however, the question of the filibuster's constitutionality is pretty academic. A federal court is unlikely to rule on the legality of the Senate's procedural rules, both because courts generally refrain from making such decisions under what's called the "political question doctrine" and because the Constitution expressly leaves the right to "determine the rules" of Congress to Congress -- which is to say, not to the federal courts.
But even if it's not unconstitutional, isn't the filibuster a little undemocratic?
Fair point. If democracy is all about the will of the majority, then the filibuster is undemocratic because it thwarts the majority's will. But the Senate isn't the most democratic of institutions, and it wasn't meant to be. Senators are like eyeballs; everybody gets two, no matter how big or small you are. New York gets two senators, but so does Wyoming. Thus, as E.J. Dionne Jr. has noted, the 52 senators from the 26 least populous states "could command a Senate majority even though they represent only 18 percent of the American population." If "democratic" vs. "undemocratic" is the test in the Senate, we'll be waiting for Kansas to cough up its seats to California.
And aren't the Democrats being just a little hypocritical now? They sure screamed when Republicans were holding up Clinton's judges.
Fair Point No. 2. As the Christian Science Monitor recently put it, there isn't much "partisan consistency in how the filibuster has come to be viewed." You hate the filibuster when you're in the majority; you love it when you're not. Nineteen Democrats tried to kill the filibuster in the mid-1990s, and fact sheets from Republican opposition researchers are overflowing with quotations from this Democrat or that expounding on the evil of the filibuster when it was a tool in the other side's hands. But the hypocrisy game can be played both ways: When Bill Clinton was president, Orrin Hatch and Bill Frist weren't exactly jumping up and down about each nominee's right to an up-or-down vote on the Senate floor.
So how is this going to play out?
No one knows yet. A group of senators in the middle are trying to work out a compromise: A handful of Democrats would agree to allow four of the seven stalled nominees to come to an up-or-down vote on the Senate floor and promise not to filibuster future nominees except in "extremely controversial" cases; in exchange, a handful of Republicans would promise to vote against the nuclear option. But the deal isn't done yet, and Frist appears to be unyielding: There has to be an up-or-down vote on every single Bush nominee or he's going nuclear.
Meanwhile, Senate Minority Leader Harry Reid on Tuesday seemed to be calling Frist's bluff. While Reid urged Frist to find a way around a nuclear showdown, he said: "I want to be clear: We are prepared for a vote on the nuclear option. Democrats will join responsible Republicans in a vote to uphold the constitutional principles of checks and balances."
It sounds like Reid thinks Frist doesn't have the votes.
Right. But that doesn't mean that Frist won't proceed anyway. He wants to run for president in 2008, and he wants the religious right at his side. People like Rush Limbaugh are now declaring that whether Republicans force a vote on the nuclear option -- not whether they get more judges confirmed -- should be a litmus test for the party faithful. So with the stars lined up like this, maybe Frist wins either way. If he calls for a vote on the nuclear option and wins, he will have brought home a victory for the religious right. If he calls for a vote and loses, he will have gone down fighting. And God knows, the religious right loves a martyr.
http://www.salon.com/news/feature/2005/05/12/nuclear_option_primer/index2.html (requires registration)
Yes, there are. Senators may amend the Standing Rules of the Senate by a simple majority vote. But -- and you saw this coming, didn't you? -- proposals to change the Senate's rules are subject to filibuster, too. So if Republicans simply followed the rules about changing the rules, and if Democrats filibustered the rule change, as they surely would, then Republicans would need to cobble together enough votes to prevail on a cloture motion.
That's 60, right?
Well, no. While it takes three-fifths of the Senate, or 60 votes, to cut off debate on most things, the Senate has previously recognized that changing the rules of the game should require something more. Thus, Senate Rule XXII says that debate on a "a measure or motion to amend the Senate rules" can't be cut off without an "affirmative vote" from "two-thirds of the Senators present and voting." That means that Frist would need 67 votes to cut off debate on a change in the Senate's rules. With only 55 Republicans in the Senate, and at least two of them unequivocally opposed to the nuclear option, Frist can't possibly get 60 votes to change the Senate's rules, let alone the 67 that Rule XXII requires.
Is that the end of it, then?
Well, it would be if Frist and the Republicans who are with him on this were inclined to follow the Standing Rules of the Senate. But they're not.
So how will Frist go nuclear?
It's hard to say for sure. As the Congressional Research Service says, "Exactly because the point of a 'nuclear' or 'constitutional' option is to achieve changes in Senate procedure by using means that lie outside the Senate's normal rules of procedure, it would be impossible to list all the different permutations such maneuvers could encompass." But here's how the Congressional Research Service and interest groups on both sides say that it could work.
First, Frist brings one of the stalled judicial nominees to the Senate floor for an up-or-down vote. The Democrats filibuster. The Republicans try to cut off debate through a cloture motion brought under Rule XXII, which requires the support of 60 senators. The cloture motion fails. At that point, the Congressional Research Service says, one of at least two things could happen.
In the first variation, the man presiding over the Senate at that moment, probably Vice President Dick Cheney or Senate President Pro Tempore Ted Stevens, could declare Rule XXII unconstitutional and rule that, when it comes to judicial nominations, debate can be cut off by a simple majority vote. Democrats could appeal that ruling, which would then set off another round of filibustering. But a Republican senator could move to table the appeal -- a move that's not subject to filibuster -- and then Republicans could vote by a simple majority to do so. That would effectively dismiss the appeal, allowing the ruling from the presiding officer to stand. Rule XXII would be declared unconstitutional, and the majority could end debate on any judicial nominee with a simple majority vote.
In the second variation -- and this part is required reading only for the Robert's Rules of Order fetishists among us -- a Republican senator, fresh off the loss on the initial cloture motion, could raise a point of order arguing that the requirement of a three-fifths vote to cut off debate on judicial nominees is unconstitutional. The presiding officer could submit that question to the full Senate for a vote. Under the Standing Rules, that vote would be subject to a filibuster, too. But the presiding officer could simply declare that it wasn't. That would lead, as in the first variation, to another appeal, another tabling motion, and then another simple majority vote on the question whether Rule XXII is unconstitutional.
In either variation, the end result is that Frist -- with 50 Republican votes and a tiebreaker from Cheney -- could get the Senate to declare that the usual cloture rule is unconstitutional when it comes to judicial nominees. All nominees could henceforth be confirmed with simple majority votes -- i.e., with the support of Cheney and just 50 of the Senate's 55 Republicans.
Wait a minute. Cheney gets to declare unconstitutional -- a power usually left to the courts -- a rule of the Senate, the authority for which is vested in the Senate, to get the president's judicial nominees through Congress? What about the separation of powers?
You catch on quick. As McCain has said, "It's not called 'nuclear' for nothing."
But can they really do that? Can Frist and the Republicans who support him just change the rules of the Senate in the middle of the game?
Yes and no. Yes, they can; and no, they can't without breaking Senate precedent. As the Congressional Research Service explains, each of the variations set forth above "would require that one or more of the Senate's precedents be overturned or interpreted otherwise than in the past."
In the first variation, the presiding officer -- Cheney or Stevens -- would take it upon himself to declare Rule XXII unconstitutional. Riddick's, considered the bible of Senate procedure, has this to say about that: "Under the precedents of the Senate, the presiding officer has no authority to pass upon a constitutional question, but must submit it to the Senate for its decision." By unilaterally deeming Rule XXII unconstitutional, Cheney or Stevens would be violating that precedent.
If the presiding officer chose the second variation instead -- that is, if he submitted the question of the constitutionality of Rule XXII to the full Senate for a vote -- the Congressional Research Service says he'd still have to break with Senate precedent by declaring that the question isn't subject to debate and therefore isn't subject to a filibuster by the Democrats.
But forget the procedural stuff for a minute. Is Rule XXII -- or what the Democrats are doing with it -- really unconstitutional?
That's a hard case to make -- and one that no federal court is likely to touch. Frist argues that the Framers "concluded that the president should have the power" to appoint judges "and the Senate should confirm or reject appointments by a simple majority vote." But the Constitution doesn't say that exactly. Article II, Section 2, Clause 2 says only that the president shall nominate judges "by and with the advice and consent of the Senate."
The right argues that the "simple majority" requirement should be read into that provision of the Constitution by reverse implication: The Constitution explicitly requires super-majority votes in only a few situations, including the ratification of treaties, the overriding of vetoes, the approval of constitutional amendments and the expulsion of a member of Congress; because the Constitution doesn't say anything about a two-thirds majority when it comes to judges, the right argues, it must require that judges be confirmed by a simple majority vote.
Democrats, on the other hand, cite Article I, Section 5, Clause 2 of the Constitution, which grants each house of Congress the right to "determine the rules of its proceedings." Under that provision, the Senate could make decisions on judges by rochambeau if 50 senators voted to make that the rule and 67 senators were around to kill off the filibuster that would follow.
In the end, however, the question of the filibuster's constitutionality is pretty academic. A federal court is unlikely to rule on the legality of the Senate's procedural rules, both because courts generally refrain from making such decisions under what's called the "political question doctrine" and because the Constitution expressly leaves the right to "determine the rules" of Congress to Congress -- which is to say, not to the federal courts.
But even if it's not unconstitutional, isn't the filibuster a little undemocratic?
Fair point. If democracy is all about the will of the majority, then the filibuster is undemocratic because it thwarts the majority's will. But the Senate isn't the most democratic of institutions, and it wasn't meant to be. Senators are like eyeballs; everybody gets two, no matter how big or small you are. New York gets two senators, but so does Wyoming. Thus, as E.J. Dionne Jr. has noted, the 52 senators from the 26 least populous states "could command a Senate majority even though they represent only 18 percent of the American population." If "democratic" vs. "undemocratic" is the test in the Senate, we'll be waiting for Kansas to cough up its seats to California.
And aren't the Democrats being just a little hypocritical now? They sure screamed when Republicans were holding up Clinton's judges.
Fair Point No. 2. As the Christian Science Monitor recently put it, there isn't much "partisan consistency in how the filibuster has come to be viewed." You hate the filibuster when you're in the majority; you love it when you're not. Nineteen Democrats tried to kill the filibuster in the mid-1990s, and fact sheets from Republican opposition researchers are overflowing with quotations from this Democrat or that expounding on the evil of the filibuster when it was a tool in the other side's hands. But the hypocrisy game can be played both ways: When Bill Clinton was president, Orrin Hatch and Bill Frist weren't exactly jumping up and down about each nominee's right to an up-or-down vote on the Senate floor.
So how is this going to play out?
No one knows yet. A group of senators in the middle are trying to work out a compromise: A handful of Democrats would agree to allow four of the seven stalled nominees to come to an up-or-down vote on the Senate floor and promise not to filibuster future nominees except in "extremely controversial" cases; in exchange, a handful of Republicans would promise to vote against the nuclear option. But the deal isn't done yet, and Frist appears to be unyielding: There has to be an up-or-down vote on every single Bush nominee or he's going nuclear.
Meanwhile, Senate Minority Leader Harry Reid on Tuesday seemed to be calling Frist's bluff. While Reid urged Frist to find a way around a nuclear showdown, he said: "I want to be clear: We are prepared for a vote on the nuclear option. Democrats will join responsible Republicans in a vote to uphold the constitutional principles of checks and balances."
It sounds like Reid thinks Frist doesn't have the votes.
Right. But that doesn't mean that Frist won't proceed anyway. He wants to run for president in 2008, and he wants the religious right at his side. People like Rush Limbaugh are now declaring that whether Republicans force a vote on the nuclear option -- not whether they get more judges confirmed -- should be a litmus test for the party faithful. So with the stars lined up like this, maybe Frist wins either way. If he calls for a vote on the nuclear option and wins, he will have brought home a victory for the religious right. If he calls for a vote and loses, he will have gone down fighting. And God knows, the religious right loves a martyr.
http://www.salon.com/news/feature/2005/05/12/nuclear_option_primer/index2.html (requires registration)
