Filibustering a New Majority for Cloture

[Paul Horwitz]

It's not clear to me whether you're saying that "popular notions of 
filibuster[s]" -would- suffice to invoke a rule change altering/restoring 
Senate tradition, or whether they wouldn't.  I thought the latter, but I'm 
not sure.  If the former, it raises the interesting question whether a rule 
change manoever would be justified to the extent that both the minority AND 
the majority in effect collaborate by consent in a system in which 
"filibusters" of judicial nominees are maintained.  One of the interesting 
things about the judicial filibuster debate, in my view, is that genuine 
filibusters -- that is to say, genuine efforts to hold the floor and extend 
debate to ward off a vote -- are rarely, if ever, maintained on the floor of 
the Senate.  Even the show "filibusters" mounted once or twice by the 
leadership in recent years have been Potemkin filibusters.  Why change the 
rules if the rules aren't enforced?  (A point I make not only to criticize 
the majority in the Senate, but the minority too, who want to forestall 
votes on certain nominees but not bear the political pain of publicly 
delaying work on the rest of the Senate legislative agenda.)

Paul Horwitz
Southwestern University School of Law
Los Angeles, CA


>From: JMHACLJ at aol.com
>To: CONLAWPROF at lists.ucla.edu
>Subject: Re: Filibustering a New Majority for Cloture
>Date: Thu, 3 Nov 2005 12:27:36 EST
>
>
>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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