ConfirmThem

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

Hugh Hewitt writes (Feb. 18, in "World Magazine") that a few GOP Senators are uncomfortable with the goal of ending nomination filibusters, or with the strategy for achieving that goal. Of course, that doesn't mean a rule change or parliamentary ruling won't happen. Hewitt says it just means the vote would be close. Clearly, the GOP has power to change the rules, especially when the rules are unconstitutional, as Robert Sargent explains (Feb. 21, in "Enter Stage Right"). I hope that happens soon.

There may also be other ways to restore the traditional role of the majority in the nomination process --- ways that would be attractive to wavering Senators, that would follow the existing Senate Rules, and that would not pose any risk to legislative filibusters.

For instance, a parliamentary ruling could acknowledge that filibustering a nomination can sometimes amount to "rejection" of the nomination. Such a ruling could explain precisely when filibustering improperly crosses the line and becomes rejection.

It is a myth that a filibuster cannot conceivably amount to "rejection" of a nomination. Rejection is the inevitable result of permanently and definitely depriving Senators of a chance to vote up or down. This myth is not spelled out in any Senate rule, so there's nothing to stop the Senate from doing away with it. Then these rejective filibusters could be reined in by Rule 31, Section 3, which requires a majority vote whenever a nomination is "rejected."

The presiding officer of the Senate could, for example, address a situation where three failed cloture votes on a nomination were spaced at least a week apart, and more than fifty Senators voted for cloture each of those three times, and the presiding officer could say that, in such a case, the failure to have an up-or-down vote by a week before the end of the session would signify an attempted "rejection" (absent any resolution to the contrary). That way, Rule 31, Section 3 would then allow an up-or-down vote, and it would be out of order to filibuster so as to prevent that final vote. This kind of ruling would make good sense, because if there have been multiple cloture votes over an extended period of time, supported by a clear majority, then it's very likely that a minority is trying to kill a nomination rather than just discuss it.

The "rejection" language of Rule 31, Sections 3 and 6 evolved over many years, most notably the years 1843, 1868, and 1877. That was long before the Senate adopted its first cloture rule in 1917, arguably extended cloture to nominations in 1949, and allowed multiple simultaneous filibusters in 1975. So, it's not clear how the nineteenth-century framers of Rule 31 would have applied the word "rejected" to present circumstances. It's very clear, though, that the plain meaning of this word "rejected" describes what the minority in the Senate has recently intended to do to various filibustered judicial nominations. It's also very clear that --- so far --- the minority's power grab has been succeeding.