Patterico's Pontifications

3/5/2005

The Toe-Sucker on the Nuclear Option

Filed under: Judiciary — Patterico @ 10:34 pm



The toe-sucker has a good argument that Republicans blew their chance to exercise the nuclear option when they adopted typical rules at the beginning of the Senate session. He says Bush and Rove must be behind this. The theory is that they don’t really want the ability to name hard-right judges, because it will alienate the public.

I wonder if he’s right.

6 Responses to “The Toe-Sucker on the Nuclear Option”

  1. I had the same thought when I read it. I don’t know that he is correct that it is too late for the nuclear option, but he has plenty of company on the general theory, particularly if you read “anti-abortion” when you see “hard right”. There was an oped in the WSJ opinion page recently (can’t remember if it was by a Dem or Repub)arguing that the Dems shouldn’t fight against these appointments so hard because the current situation allows the Republicans to bloviate about abortion without doing anything, thus having the best of both worlds.
    An artcle by (I think) Christopher Caldwell back in 2000 struck me as perceptive, claiming that the electorate itself is comfortable with this hypocrisy, because many of them would rather give the “correct” opinion to pollsters and really wouldn’t want a vigorously anti-abortion regime.

    Rick (01a4d5)

  2. Well, Bush did say he wanted to be a unifier, didn’t he?

    steveM (f48812)

  3. Sen. Cornyn provides an interesting history about the so called, “nuclear option”: U.S. Sen. Robert Byrd (D-W.Va.) had an op-ed in the Washington Post today (‘Nuking’ Free Speech, http://www.washingtonpost.com/wp-dyn/articles/A5692-2005Mar3.html) arguing against the current Senate proposal to restore the rights of the majority and end the unprecedented filibusters against the President’s Judicial nominees. But his arguments were both factually wrong, and historically inconsistent with his own voting record.

    Sen. Byrd said that restoring Senate tradition “could rob a senator of the right to speak out against an overreaching executive branch or a wrongheaded policy. It could destroy the Senate’s very essence — the constitutional privilege of free speech and debate.” But history—and Sen. Byrd’s own actions—prove otherwise.

    In fact, Sen. Byrd is often credited with pioneering the Senate procedure he now derides as a denial of free speech and a threat to our liberties. Recall that it was Sen. Byrd who led the charge to establish new Senate precedents in 1977, 1979, 1980, and 1987 – including a number of precedents that were designed specifically to stop filibusters and other delay tactics that were previously authorized under Senate rules or prior precedents:

    In 1977, Senator Byrd led the establishment of a new precedent in order to break a post-cloture filibuster on a natural gas deregulation bill, stating:

    “I make the point of order that when the Senate is operating under cloture, the Chair is required to take the initiative under Rule XXII to rule out of order all amendments which are dilatory or which on their face are out of order.” That precedent contravened prior precedent, which would have required the Chair to await a point of order from the floor.

    In 1979, Senator Byrd led the establishment of a new precedent that allowed the Chair to rule on questions of germaneness raised during the consideration of appropriations bills – notwithstanding Senate Rule XVI, which states that all questions of germaneness on appropriations bills must be decided by the full Senate.

    russ (1a796d)

  4. If Byrd’s reasoning is correct that the rule would infringe on a constitutional right to free speech, then allowing 60 Senators to vote to end fillibusters is unconstitutional as well. Just because you have 60 votes shouldn’t allow an infringement of “the constitutional privilege of free speech and debate”. The free speech privilege is unlimited.

    Gerald Apge (add20f)

  5. I thought the nuclear option worked like this:

    Republican Senator: Point of Order. The cloture requirement of 60 votes does not apply to confirmation votes, as confirmations are Constitutionally mandated to be majority votes.

    [Senate President] Cheney: The point of order is well taken. It is my ruing that the cloture requirement of 60 votes does not apply to confirmation votes, as confirmations are Constitutionally mandated to be majority votes.

    Democrat Senator: I challenge the ruling of the Chair.

    Cheney: The ruling has been challenged….

    [debate]

    Cheney: The vote is now on the challenge to the chair’s ruling. A simple majority of the Senators present is required to overturn the ruling….

    Note that the presumption in Robert’s Rules is that a tie goes in favor of the Chair, so unless the Senate rules are different, it takes 50% plus one to overturn the ruling.

    I don’t see how any set of rules that does not SPECIFICALLY include cloture as applied to confirmation votes can prevent this scenario.

    Kevin Murphy (6a7945)

  6. Didn’t Bill Frist explicitly state that he withheld the privilege to not accept prior session’s rules?

    Joel B. (3abb5b)


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