Filibustering a New Majority for Cloture

[Scarberry, Mark]

The focus of the Senate Republican Policy Committee's statement on the
"nuclear" or "constitutional" option was on the constitutional power of the
Senate to make rules by majority vote, not on the supposed
unconstitutionality of the filibustering of a judicial nominee. At least
that was my impression several months ago when I read it carefully. It can
be found at http://rpc.senate.gov/_files/Apr2505ConstOptSD.pdf. 

If the "constitutional" option requires a ruling from the chair that
judicial filibusters violate the Constitution, I could not support it. My
sense, instead, is that the option would require a ruling from the chair
that a judicial filibuster (at least the kind that is designed permanently
to prevent a vote rather than to give time for deliberation) is contrary to
prior Senate practices and procedures. That seems to me to be right. I
suppose the procedural device described by Paul would then be used to
prevent a filibuster on the question of whether to uphold the ruling of the
chair. The result would be a new precedent of the Senate that would prohibit
judicial filibusters (and restore, in the view of the Republicans, the prior
Senate practices and procedures).

Unrelated grammatical question: Garner and other English usage gurus suggest
that I should have said "question whether" rather than "question of whether"
in the second sentence above. But my ear says I'm right to include the "of."
Comments?

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Paul Horwitz [mailto:phorwitz at hotmail.com] 
Sent: Wednesday, November 02, 2005 10:06 AM
To: SLevinson at law.utexas.edu; RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu
Subject: Re: Filibustering a New Majority for Cloture

It's not clear to me that it -has- to be the Vice President.  I think 
whoever is presiding would be able to make such a ruling.  The Cheney 
scenario, as I understand it, envisions him in the chair to ensure a 
sufficient majority given the risk of defection.  Indeed, assuming the 
Senate obeys its own precedents, Cheney is not supposed to make such a 
ruling in the first place, assuming (which is a major assumption) that it is

indeed made on constitutional grounds: Senate precedent holds that the Vice 
President has no authority to decide constitutional questions.

As to Bobby's initial question, and to slightly modify Howard's answer, I 
had understood (though I'm now getting a little rusty on the mechanics -- 
time to brush off my knowledge, I fear) that the Vice President or Presiding

Officer's ruling is appealable and that appeal would be subject to normal 
debate rules, which include the possibility of a filibuster.  Rather, 
following the ruling, the Majority Leader (who is given priority of 
recognition on the floor in the event that several Senators seek recognition

simultaneously) will move to appeal the ruling, and then move immediately to

table the debate -- which is non-debatable and subject to a majority vote.

Paul Horwitz
Southwestern University School of Law
Los Angeles, CA


>From: "Sanford Levinson" <SLevinson at law.utexas.edu>
>To: <RJLipkin at aol.com>, <CONLAWPROF at lists.ucla.edu>
>Subject: Re: Filibustering a New Majority for Cloture
>Date: Wed, 2 Nov 2005 09:03:13 -0600
>
>As I recall, the President of the Senate, assuming he comes out of his 
>bunker, will rule, on a point of order, that the Constitution prohibits 
>filibustering judicial nominations. That will be challenged by the Dems, 
>but it only takes a majority (or perhaps only 50) votes to sustain the 
>ruling by the chair.  I do wonder, incidentally, if the Republicans are 
>eager to have this coup visibly symbolized by the mendacious Vice 
>President.
>
>Sandy
>- Sanford Levinson
>(Sent from a Blackberry)
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu <conlawprof-bounces at lists.ucla.edu>
>To: CONLAWPROF at lists.ucla.edu <CONLAWPROF at lists.ucla.edu>
>Sent: Wed Nov 02 07:48:18 2005
>Subject: Filibustering a New Majority for Cloture
>
>         A straightforward informational question. If the Republicans 
>decide to change the majority vote for cloture what precludes the Democrats

>from filibustering that vote.  There must be some obvious parliamentary (or

>other) rule against doing so because without such a rule the nuclear 
>option, as I understand it at least, is not a genuine option. Right or 
>wrong?
>
>Bobby
>
>Robert Justin Lipkin
>Professor of Law
>Widener University School of Law
>Delaware


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