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May 14, 2005

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Nuance. Lost on the Repubs, I fear.

Yeah, well, they don't read this, anyway.

Consider it something to mutter into your latte, or whatever they say we drink.

Wnat the Republicans are doing with their selective editing needs to be further noted. Hatch, in particular, seems to have edited out significant scruples as well as memory of how he has worked procedures to get us where we are now.

Impressive work here. I applaud the energy and intensity of passion and interest. Thanks. I will link this on next update at Armageddon on the Potomac.

Hatch, in particular, seems to have edited out significant scruples as well as memory of how he has worked procedures to get us where we are now.

In all the drama of last week, one of the finer moments had to be Leahy in the Judiciary Committee, after Hatch had done his usual job of blustery outrage, saying "God love you, Orrin. You can say all that with a straight face."

I'm sure this isn't exactly the right post for this, but who has the time to dig through 30 posts on the nuclear option looking for where we addressed this exact sub-issue!

Anyway, Schumer made a floor speech today where he referenced an admission by Frist that the filibuster is not unconstitutional. I tracked down the relevant exchange from the Congressional Record:

Mr. BYRD. ...And the distinguished Republican leader talks about the need for an up-or-down vote, an up-or-down vote, an up-or-down vote. I have heard the President say something about that.

Mr. President, here is my guide, the Constitution of the United States. What does it say? Does it say that each nominee shall have an up-or-down vote? Does it say that? I ask the Senator from Tennessee, I ask any Senator to respond to that question. Does this Constitution accord to each nominee an up-or-down vote on the Senate floor?

Mr. FRIST. To the question, does the Constitution say that every nominee of the President deserves an up-or-down vote, the answer is, no, the language is not there.

I contended in someone's kos diary the other day that the Republicans didn't necessarily have to kick off the nuclear option with a ruling from the Chair that the filibuster is unconstitutional, but that they could find some other pretext to rule the filibuster out of order. Armando disagreed with me, National Review took my side (!), so I'm not sure exactly where that leaves my theory. But it may be that the Republicans have boxed themselves into a bit of a procedural corner here.

I don't read Frist's comments as ruling out the constitutional basis for the nuclear option. It's funny that it doesn't, considering that the whole basis for the current "crisis" in the judiciary is that "activist" judges are reading meaning into the Constitution that isn't in black and white, but basically all he's doing is saying that although the Constitution doesn't say anything about an up-or-down vote, that's just how he reads the "consent" part of "advice and consent."

Still, it is theoretically possible, I think, to pull off the nuclear option without referencing the Constitution. Since they're going to be breaking the rules anyway, they might as well just make a point of order that judicial filibusters shouldn't be allowed because they don't want them to be allowed, and let Cheney rule on that.

But I'm pretty sure they'll be sticking to the script. It sounds a lot better, and nobody will be any the wiser. Well, we will, but what good is that?

I agree there is some potential wiggle room in that statement, which is why Schumer in his speech today, and Reid in his statement tonight, did their best to pin him down to an admission that there is nothing unconstitutional about the filibuster.

Let's return to this.

I listened to Jon Kyl give his presentation this evening. He was well-prepared and persuasive. Many Republicans are not smart enough to understand the nuances of how the nuclear option works, and are simply primed to vote the way the boss tells them; I did not get the sense Kyl was one of them. I think he telegraphed at least some of how this will play out.

His point, to paraphrase, is that there are some actions that are technically within the Senate rules, but are nonetheless contrary to the "norms and traditions of the Senate," and thus a majority has the power to set a new precedent disallowing those actions. His basis for this claim was the various history involving Byrd.

There are 4 examples discussed in this post. I think only the 1977 and 1987 cases are relevant in any way. 1979 was a rule change at the beginning of a new Congress; Republicans are not going to take the position that they are changing the rules. 1980 was the replacement of an old precedent with a new precedent. There is no "old precedent" at issue here. There is merely an action - the judicial filibuster - which Kyl claims is technically within the rules, but contrary to the norms and traditions of the Senate.

So, are the 1977 and 1987 cases any sort of precedent? In 1977, I would contend that what the Republicans were doing was not "technically within the rules." The rules specifically provided that the amendments they were offering are out of order; they were just taking advantage of the fact that it takes a while to rule them out of order. Byrd fixed that loophole and ENFORCED the existing rule by making the amendments out of order automatically.

How about 1987? Well, I certainly don't agree that Byrd's precedents contravened the "clear text" of Senate Rule XII. Rather, to find a contradiction, you have to accept Simpson's argument that these precedents operated as a suspension of Rule XII, something that is expressly prohibited. I don't buy it. The point is that the Republicans found a loophole in Rule XII which is completely contrary to the spirit of the rule. Nothing in the rule expressly says that a Senator can talk all day explaining his reasons for not voting; so when a precedent is set that he cannot talk all day, that does not contravene the rule.

The key distinction here is that the filibuster is not some technical loophole that is clearly contrary to the spirit of some existing rule. When Frist filibustered Paez in 2000, he obviously never thought he was violating some Senate norm or tradition. That filibuster failed, of course; but it hardly matters, because Frist didn't know it would fail at the time he attempted it. And of course, this is far from the only example. There is simply no plausible argument that the filibuster is honestly "contrary to norms and traditions of the Senate."

So even if my prediction is right, and the Republicans execute the nuclear option without attempt to declare filibusters unconstitutional, the nuclear option will still be illegitimate. It relies on a majority of Senators to vote that black is white - that filibusters contravene the norms and traditions of the Senate - in order to justify the setting of their new precedent.

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