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More on the Filibuster

April 25th, 2005

As a procedural scholar, this is some of the most interesting stuff that has ever happened in my lifetime. Today I had something of a flash of personal insight that makes this situation even more clear on the side of the Democrats.

Consider the following two rules of the Senate: One, debate is unlimited absent a cloture vote; Two, there is no floor debate unless a Senate Committee favorably recommends the legislation or appointee. During Clinton’s term the Republicans held a majority in the Senate and thus controlled the Judiciary Committee. The Judiciary Committee sat on a many of Clinton’s judicial nominees.

The Republican Leadership’s legal argument is that the filibuster contravenes the Constitutional mandate that the Senate provide advice and consent to presidential appointments. By allowing for unlimited debate, the rule violates that constitutional directive that the Senate provide that advice and consent through an “up or down vote.” If we grant that, how do you distinguish the rule from the one that allows committees to stop appointees from ever getting a vote? The Committee represent a minority of the Senate (even smaller than the 45 filibustering Democrats). If the Republicans are academically honest, how can one distinguish the filibuster rule from the committee rule?

Of course, that’s the whole damn problem. Only the majority can pull off the “rule change” stunt currently proposed, so the minority cannot strike against the Committee rule. And since the majority already controlls the committee, there is no reason for them to bring it up.

probonogeek Uncategorized

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