Notes on the Nuclear Option -- Part XIV

by Kagro X 

As reported by The Hill yesterday:

If Republicans seek to break the Democratic filibuster of judicial nominees, they would have to do so over the objections of the Senate parliamentarian, according to Senate Minority Leader Harry Reid (D-Nev.).

Such objections by the appointed keeper of the Senate’s rules would have little practical effect — since any Republican sitting in the chair would be free to reject or ignore the parliamentarian’s advice. But opposition from an ostensibly neutral staff member could have a political impact, making the GOP tactic appear to be out of bounds.

Small comfort. But worth noting.

The article goes on:

Originally, it had been thought that Vice President Cheney, who also serves as president of the Senate, would sit in the chair to issue the seminal ruling. But Sen. Ted Stevens (R-Alaska) told The Hill that he is so upset by the Democratic filibuster that he plans to be in the chair. As the most senior member of the majority party, Stevens is the president pro tempore of the Senate, a largely ceremonial post that puts him in the presidential line of succession.

Without Cheney present, Frist would either have to have 51 votes lined up, or call the Vice President in for a rescue operation at the last minute. That could, of course, be precisely the kind of stage managing the Republicans have in mind.

Also of interest:

Under another scenario laid out by Marty Gold, a former senior aide to Majority Leader Bill Frist (R-Tenn.), Frist may seek a ruling that continued debate on a nominee is “dilatory.” Whoever is sitting in the chair then could rule on his own that debate should be cut off, setting off an appeal and tabling motion.

That would represent a small change in strategy. It had been anticipated that Frist would seek a ruling either: 1) that Senate Rule V unconstitutionally prevents a majority of the Senate from adopting rules of procedure by a mere majority vote (as opposed to the 2/3 vote required in the rules), or; 2) that filibustering a judicial nomination unconstitionally prevents the Senate from meeting its "obligation" to provide its advice and consent in the form of an up-or-down vote on the nominees, or; 3) both.

The problem with option 1 was discussed in Part III: that the only widely-accepted interpretation of that theory says such changes are only permissible at the beginning of a new Congress. The problem with option 2 was discussed both in Part IX and in comments on another blog, but to sum up, there's nothing like a consensus opinion that the Senate has any real "obligation" at all.

But here's an interesting, new, from-out-of-left-field, unintended consequences problem with option 2: If the fact that the Constitution requires the advice and consent of the Senate for judicial appointments can be interpreted fairly to mean that the Senate is obligated to have an up-or-down vote, what are we to make of the Constitution's requirement that each House of Congress "punish its Members for disorderly Behaviour?"

Over in the House, Tom DeLay is enjoying the benefits of living in an "ethics-free zone." The House ethics committee is unable to function for lack of an agreed-upon set of procedural rules, a condition triggered by the House GOP's attempt to -- for the first time ever -- dictate that committee's rules to it in the overall House Rules package, as opposed to permitting the evenly divided panel to adopt its own rules as is usually the case. And, no surprise, the rules the GOP Conference would have forced on the committee make it virtually impossible to bring serious scrutiny to bear on DeLay's ethical missteps.

But for how long can the House exist in what Senatorial Republican logic would deem an "unconstitutional" state? If the Art. II, sec. 2 requirement of advice and consent means the Senate has no choice but to respond with a positive procedure for manifesting that consent, then doesn't the Art. I, sec. 5 requirement mean the House has no choice but to respond with positive procedures for manifesting its punishment of disorderly behavior?

Too fine a point for digestion over morning coffee and papers, perhaps. And not really worth discussing in an atmosphere in which Republicans are expected to rule by fiat and not by precedent. But perhaps something to scratch Beltway-bound, egg-shaped heads about.

Comments

[Petey]

It's odd. In the past few days, I've been noticing that most pundits are becoming quite certain of the outcome of whether or not Frist is going to find his 50 or not. But this certainty is coming on both sides of the counting.

I used to be certain that Frist wasn't going to find his 50. Now, I'm becoming uncertain.

[Sandra]

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