ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

For anyone who has not yet read the article by Martin Gold and Dimple Gupta, it's very informative. They conclude (at page 271) that attempts to change the text of the Senate's Standing Rules---in a way that violates the supermajority requirement of the Standing Rules---have been debated since 1917, but have never been carried through (sometimes because the mere threat was enough to force action). Gold and Gupta also point out, in their conclusion, that the operation of the Standing Rules has been repeatedly altered by simple majority, without amending the actual text; and, in my opinion, that's exactly what the Senate could do here.

For example, suppose a nomination has clear majority support, and suppose that a cloture vote occurs soon before the nomination is due to expire. That cloture vote is obviously intended to decide whether or not the nomination succeeds. The cloture question can therefore be viewed as a "final question," not only in the political and practical sense, but also in the chronological sense of being the last question submitted to the Senate, and (if it fails) having been the last question voted on by the Senate. This potentially creates a conflict with Rule 31, which provides an entirely different "final question" for nominations. Therefore, the Senate rules could now be interpreted as requiring that a nomination filibuster end in time to give the Senate the option of voting on the Rule 31 final question. After all, when the Senate extended Rule 22 to all "pending matters" in 1949, the intent was to amend the right to debate under Rule 19, rather than to amend Rule 31 in any way. Rule 31 dates back to 1868, when a revised set of rules was adopted by the Senate, and it appears (e.g. from Rule 29 of 1868) that the authors of the 1868 rules would not have objected to the notion that cloture questions are potentially "final questions." Certainly Senator Schumer is in no position to object to that notion. ("To nominate judges previously rejected by the Senate is wrong"). Nor is Senator Durbin in a position to object to that notion ("nominees ... were rejected by the Senate last Congress").

If need be, it would alternatively be a good idea to amend the text of the Senate Rules, by simple majority, either as an "action-forcing mechanism" (as happened in 1917, 1959, 1975, and 1979), or for real. Such a rule change could either implement the diminishing cloture vote concept already approved by the Senate Rules Committee, or alternatively it could conform Rule 22 to the Quorum Clause of the Constitution (by requiring 3/5 of Senators "present" to terminate a filibuster instead of requiring a quorum of 60 Senators).

Another option that would be appropriate: Republicans could force an evenly divided cloture vote, and allow the Vice President to decide the outcome. After all, the language of Rule 22 does not unmistakably abrogate the presumptive constitutional power of the Vice President to decide evenly divided cloture votes. Note that nominations fall under Article II of the Constitution, and the VP is the only Article II officer in the Senate, and so the Senate's rulemaking power is at its most tenuous in this area. This option would involve interpreting Senate rules, rather than deeming any rule (or application of a rule) unconstitutional.

All of these four options have a solid basis. How politically palatable they are is another question. Hopefully, one of these options will be exercised.

UPDATE: For more about Rule 31, see here.