Filibustering a New Majority for Cloture

[Scarberry, Mark]

The Republican Senate Policy Committee's view, as I understand it, is that
such insistence on unlimited debate violates Senate practices and precedents
when it is designed to prevent an ultimate vote on a nomination, as opposed
to merely delaying the vote for a reasonable period of time for
deliberation. The Committee also seems to suggest that it is not improper to
insist on unlimited debate where the nomination lacks majority support; I
suppose the rationale would be that such debate provides time for a
face-saving withdrawal of the nomination or for persuasion of fence-sitting
Senators where such persuasion may affect the outcome of an ultimate vote.
This second situation may actually just be a subset of the first, in that
the delay presumably would be only for a reasonable period of time. 

 

Of course I don't speak for the Committee (and the Committee doesn't speak
for me), and it's been a while since I carefully read the report. It seems
to me that this is a reasonable view, but of course it may also be
reasonable to reject it.

 

Mark S. Scarberry

Pepperdine University School of Law

 

-----Original Message-----
From: Chambers, Henry [mailto:hchamber at richmond.edu] 
Sent: Thursday, November 03, 2005 10:49 AM
To: JMHACLJ at aol.com; CONLAWPROF at lists.ucla.edu
Subject: RE: Filibustering a New Majority for Cloture

 

Certainly, unlimited debate cannot become a filibuster in the absence of a
cloture vote.  However, I am not sure that a failed cloture vote
automatically turns unlimited debate into a filibuster given that (I think)
any group of 16 senators may file a cloture petition under Rule XXII.  I
will ask the question slightly differently.  

 

Under what circumstances does insisting on unlimited debate (per Senate
Rules) on a Supreme Court nominee become improper?  

 

-Hank   

 

Henry L. Chambers, Jr., Professor of Law

University of Richmond School of Law

28 Westhampton Way

Richmond, VA 23173

804-289-8199

 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of JMHACLJ at aol.com
Sent: Thursday, November 03, 2005 12:28 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Re: Filibustering a New Majority for Cloture

 

In a message dated 11/3/2005 10:19:59 A.M. Eastern Standard Time,
hchamber at richmond.edu writes:

If the Senate rule is that debate is unlimited (at least until cloture),
when does unlimited debate become a filibuster?

Just a surmise here, but a filibuster exists when cloture votes fail to
terminate debate.  Probably some popular notions of filibuster include
interminable delays that result (1) because no one has the stomach to
repeatedly schedule votes to invoke cloture or (2)  because modern
legislative practices have led the Senate to operate on a segmented or
divided calendaring system, in which the regular business of the Senate is
not subjected to clogging that would result from having a unified calendar.

 

Jim Henderson

Senior Counsel

ACLJ

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