ConfirmThem

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

Deacon, at PowerLine links to San Diego Tribune piece by Michael Rappaport and John McGinnis, (also cited by Andrew below) which explains some of the history behind the current filibuster rules, and which defends the Republican desire to change said rule. Here's the meat of their argument.

The Senate majority's power to modify the filibuster is also strongly supported by constitutional principles. Both the text and structure of the Constitution show that only one of three possible views about the constitutionality of the judicial filibuster is correct. The first view - advocated most recently by Senate majority leader Bill Frist, R-Tenn. - is that filibustering judges is simply unconstitutional. But the Constitution expressly gives the Senate the right to fashion its own rules of procedure and nowhere requires application of majority rule to confirmations.

The second view - advocated by many Democrats - is that a majority has no right to change the filibuster rule because the Senate rules still require a two-thirds vote to end a filibuster mounted against a resolution to change the filibuster. But this Senate rule conflicts with the structure of the Constitution.

The Constitution provides only a single method - the constitutional amendment process - to entrench a rule against repeal by a majority. If Democrats were correct that rules can be insulated from majority amendment, a bare majority in each House could have passed the Bill of Rights and made it our fundamental law by declaring that only unanimous votes by both Houses could pass legislation violating its principles. The Democratic view also conflicts with a principle known since before the framing of the Constitution that one legislature cannot bind subsequent legislatures.

The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option - the route contemplated by our founding document.