Patterico's Pontifications



Filed under: General — Patterico @ 7:00 am

IGNORANT WEEKLY STANDARD EDITORIAL: This Weekly Standard editorial has several wrong-headed suggestions and comments regarding the confirmation process. The editorial writer should be reading Lawrence Solum’s blog, which I commended to you the other day.

The editorial rejects a rule change as a possibility, stating that “no changes in Senate rules can be made except by a two-thirds vote–an even bigger hill to climb [than cloture].” Solum explains why this is wrong here. Republicans can solve the problem without getting 2/3 of Senators to approve a rule change. I think this is worth spending some time on so that all readers understand it.

The explanation is under Solum’s heading “A Dramatic Moment.” After hypothesizing a vote on a rule change — which would itself be filibustered — Solum says: “And then something truly historic happens. At some point, a Senator rises to make a point of order. Let’s not worry yet exactly what point of order. The point of order triggers a ruling from the Chair–something to the effect that Rule 22 itself can be modified by a simple majority, despite the text of the rule. Another Senator rises–asking for a vote to overrule the chair, but the chair’s ruling is sustained. It only takes a simple majority to sustain the Chair’s ruling on the point of order. Now the way has been paved to go back to the nomination, close debate, and confirm Estrada and Owen.”

Whether this would be wise is a different issue. But that is how it would work — and Republicans would need only a majority.

Another misguided quote in the Weekly Standard editorial: “Not incidentally, the Senate Republican leadership could force the Democrats to conduct a real filibuster–marathon, stay-up-all-night sessions like those of yesteryear. That might fix the process real quick.” And it might not, as Solum explains here. The bottom line is in an analysis, quoted by Solum, by Stan Bach of the Congressional Research Service: “The Senators participating in the filibuster need only ensure that at least one of their number always is present on the floor to speak. The proponents of the question, however, need to ensure that a majority of the Senate is present or at least available to respond to a quorum call or roll call vote.” This rule always works to the disadvantage of the party opposing the filibuster. That’s why you don’t see “real” filibusters any more.

Hope that clears up some of the contours of the debate.

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