ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

A new policy paper, titled The Constitutional Option: The Senate's Power to Make Procedural Rules by Majority Vote, is hot off the presses, and is also now listed on the upper right of the confirmthem page, as "rpc report."

This report examines the basis for the Senate's power to define its procedures, and examines how this power relates to filibusters.

* The filibusters of judicial nominations that arose during the 108th Congress have created an institutional crisis for the Senate.

* Until 2003, Democrats and Republicans had worked together to guarantee that nominations considered on the Senate floor received up-or-down votes.

* The filibustering Senators are trying to create a new Senate precedent --- a 60-vote requirement for the confirmation of judges --- contrary to the simple-majority standard presumed in the Constitution.

* If the Senate allows these filibusters to continue, it will be acquiescing in Democrats' unilateral change to Senate practices and procedures.

* The Senate has the power to remedy this situation through the "constitutional option" --- the exercise of a Senate majority's constitutional power to define Senate practices and procedures.

* The Senate has always had, and repeatedly has exercised, this constitutional option. The majority's authority is grounded in the Constitution, Supreme Court case law, and the Senate's past practices.

* For example, Majority Leader Robert C. Byrd used the constitutional option in 1977, 1979, 1980, and 1987 to establish precedents that changed Senate procedures during the middle of a Congress.

* An exercise of the constitutional option under the current circumstances would be an act of restoration --- a return to the historic and constitutional confirmation standard of simple-majority support for all judicial nominations.

* Employing the constitutional option here would not affect the legislative filibuster because virtually every Senator supports its preservation. In contrast, only a minority of Senators believes in blocking judicial nominations by filibuster.

* The Senate would, therefore, be well within its rights to exercise the constitutional option in order to restore up-or-down votes for judicial nominations on the Senate floor.