ConfirmThem

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

In an April 22 speech, GOP Senator Robert Bennett of Utah said this:

[W]e find ourselves in a situation where the tradition has been changed, and the question is, will we now change the rule to reestablish the tradition?

But I wonder whether that's a correct statement. I don't think any Senate rules have to be changed in order to reestablish tradition (I assume Bennett means tradition=precedent).

Senate Rule 19 is the rule that allows unlimited debate. It says this:

No Senator shall interrupt another Senator in debate without his consent, and to obtain such consent he shall first address the Presiding Officer….

This rule says absolutely nothing about the ability of the President of the Senate (i.e. Vice President Cheney) to interrupt a filibustering Senator. By tradition and precedent, the Senate President has not been allowed to do that for many years, but no written rule says so. No rule would have to be broken or formally amended in order to allow the VP to interrupt a judicial filibuster.

So, we have duelling traditions. On the one hand, we have the tradition that a majority-supported judicial nominee whose nomination gets to the Senate floor has a right to a vote, and likewise the Senate majority has a traditional right to respond to a judicial nomination by giving advice and consent. On the other hand, we have the tradition that a Senate minority has a right to filibuster endlessly without being cut off by the President of the Senate. Neither of these two traditions is written down in a Senate rule, and both are merely matters of precedent.

The conflict here is between two colliding precedents. No rules have to be changed at all. It's entirely a question of tradition.

Incidentally, I have assumed here, for the sake of argument, that the traditional right of a nominee to a vote is not written in Senate Rule 31. That assumption is arguable, however, because Rule 31, Section 3 requires a majority vote "when a nomination is confirmed or rejected" by the full Senate. I have also assumed, for the sake of argument, that the traditional right of a Senate majority to advise and consent to judicial nominations is not implied by the Constitution.