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

Mort Kondracke, the Executive Editor of Roll Call, has some sage observations about the current predicament. Here's a long excerpt:

If "nuclear war" befalls the Senate, the blame falls first on Democrats for abandoning normal procedure - full debate - and resorting to the filibuster to block Bush's nominations.

Republicans say that judicial filibusters are unprecedented in American history.Democrats respond that there have been several in the past, notably by Republicans in 1968 over the nomination of Abe Fortas to be chief justice. The dispute gets murky over whether this or that nominee was really filibustered, but this much is certainly true: It's unprecedented for any party to filibuster judicial nominations routinely.

In the previous Congress, Democrats could plausibly argue that breaking precedent was justified to prevent Bush from "packing the courts" when he was a "minority president" who took office only due to Supreme Court intervention. That justification was upended in 2004. Bush is now a majority president and deserves to have his judicial nominations given an up-or-down vote in the Senate. Democrats are obstructing that process.

So, are Republicans justified in changing the Senate rules to trump the Democrats? Technically, the "nuclear option" is parliamentary sleight of hand - substitution of a majority vote on a ruling from the chair to effect a rules change that would normally require a two-thirds vote.

But which is worse: altering Senate rules by parliamentary maneuver, or inducing the Senate (by filibuster) to abandon its constitutional duty to "advise and consent" on presidential nominations?

The filibuster is a Senate tradition, not a constitutional mandate. The Constitution provides that each Congressional chamber should write its own rules. It doesn't say what they should be or how they should be established.

The rules on filibusters have been changed several times in the past. In 1995, Democrats tried (and failed) to eliminate the filibuster entirely, with nine currently serving Senators voting for that proposition.

Democrats argue that if the Senate rules are changed with respect to judicial nominations, the chamber will come to resemble the House, where the majority rules ruthlessly, and the founders' design for the Senate to be the government's "cooling saucer" will be undermined.

The "nuclear option" would be a step toward strict majority rule, but it's up to the Senate itself whether it goes any further, and there seems no impulse so far to do so for legislation.

....

[I]f Frist succeeds in changing the rules and Democrats "go nuclear" by halting Senate business, fallout will rain on them, as well. Shutting down the government is unlikely to be popular.

Thanks to How Appealing for the link to Kondracke's piece.