Filibustering a New Majority for Cloture

[Paul Horwitz]

I appreciate your cite to the RPC report, which I don't believe I'd seen.  
I'd have to parse it a little more closely before commenting on it.  I had 
thought the leadership had left open the question of precisely what route 
they would pursue in seeking a ruling from the chair, but this memo, at 
least, doesn't directly suggest judicial filibusters are themselves 
unconstitutional.  As you know, this is one argument that has been floated, 
on the basis of the Advice and Consent Clause (Senator Frist, as I recall, 
made a number of statements along this line), and I take it we agree that 
this is a problematic argument.  More significantly -- I'd go with "question 
whether."

Paul Horwitz


>From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
>To: CONLAWPROF at lists.ucla.edu
>Subject: RE: Filibustering a New Majority for Cloture
>Date: Wed, 2 Nov 2005 11:56:58 -0800
>
>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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