Historically, Republicans have favored the filibuster and Democrats have opposed it. Therefor there are both being at least inconsistent in their present positions, if not actually hypocritical.
A more important point, however is at stake which is not being widely discussed. Senate Rules say that debate can only be halted by 60 votes. Republicans want to change this as to confirmation of judges only. That is their right! But it is their right to do it only within the procedures of the Senate which provides:
RULE 43
Suspending and Amending Rules
Any Rule of the Senate or severable portion of a rule of the Senate may be suspended by unanimous consent of the Senate. Without unanimous consent one day's previous notice shall be given of a motion to suspend any of the rules or severable portion thereof. A motion to suspend shall require a vote of two-thirds (2/3) of the membership of the Senate.
Any permanent amendment, rescission, or repeal of any of the Senate rules shall require a two-thirds (2/3) vote of the total membership of the Senate. However, from the convening of the 2006 legislative session through the second Thursday of the 2006 legislative session, any permanent amendment, rescission, or repeal of any of the Senate rules may be made by adoption of a Senate Resolution that has been referred to and has received a favorable report from the Rules Committee.
The Clerk of the Senate shall have these rules recorded in a permanent book which shall be kept at all times in the Senate Chamber. All permanent changes in the rules after they have been adopted shall be recorded in a Permanent Rule Book and certified by the Clerk of the Senate. These rules shall remain in full force and effect until the conclusion of the terms for Senators or until the Rules are amended, suspended, or repealed by a vote of two-thirds (2/3) of the membership of the Senate prior thereto.
Last Updated: 1/12/05 4:27 PM
Then how can the Republican majority change the rules by majority vote? The answer is by a sham interpretation of the rules by the Vice-President followed by a sham upholding of a ruling by a majority of the Senate.
RULE 7 A.
Question of Order
Appeal from President's Decision
If a Senator in speaking, or otherwise, violates the Rules of the Senate, the presiding officer shall, or any member may, by raising a point of order, call him to order; and when a member is called to order by the President or under a point of order, he or she shall sit down and may not proceed without leave of the Senate, unless the President takes the point of order under advisement. The President may call for the Sense of the Senate on any question of order. Every question of order must be decided by the President, without debate, and Senators shall have the right to appeal the decisions of the President to the full Senate. When the decision of the President is appealed, the President Pro Tempore or his or her designee shall preside and the President shall retire from the chamber during the pendency of the appeal and the Senate's debate and action on the motion to appeal. The question before the Senate shall be "Shall the ruling of the President be overridden?" and after not more than thirty (30) minutes, fifteen (15) minutes for and fifteen (15) minutes against, of debate it shall be decided by a majority vote of the membership.
This of-course assumes that the ruling of the chair shall be made in good faith. But in this case the ruling would fly in the face of the clear rules of the Senate and therefor would be a violation of law and ethics. It is hard to believe that there are not five Republicans who believe in the Rule of Law and are willing to stand up to uphold that rule of law. To do otherwise is to open a Pandora's box. Also the VP has said that he would vote to break a tie. Since he must retire from the chamber it is hard to see how he could do that within the rules but it appears that no rules and no laws are any longer binding upon this runaway Republican majority.
Here is what two former Republican Senators writing in the Wall Street Journal had to say on the subject. What follows is an excerpt:
THE WALL STREET JOURNAL
Don't Go Nuclear
By Jim McClure and Malcolm Wallop
15 March 2005
The United States Senate is heading toward a crisis of sorts over the Democratic minority's use of extended debate to prevent votes on many of President Bush's most important judicial nominations. Together -- and as Republicans -- we served a combined 36 years in the Senate. We are no strangers to the filibuster and, in the past, did not hesitate to employ or to support that instrument on extraordinary occasions. .... it does not call for what is being referred to as a "nuclear option" from the Senate majority leader.
Over the past year, that "option" has been variously, and vaguely, defined. In his opening remarks to the Senate on Jan. 4, however, Sen. Bill Frist made things suddenly clear. Read carefully: "I reserve the right to propose amendments to Senate Rule XXII [concerning extended debate] and do not acquiesce to carrying over all the rules from the last Congress." The first clause is innocuous; every senator has the right to propose rules changes. But the second clause is dynamite, capable of blowing out the foundations of the Senate itself. It means the majority leader will eventually propose, against history and common sense, that the Senate is not a "continuing body." Or, to be precise, a continuing body with continuing rules, for there is the heart of the matter.
Some of the public may need to be reminded that, when the 109th Congress convened in January, only about one-third of the Senate was sworn in, namely, those members elected or re-elected last November. The other two-thirds of the membership did not stop being senators after last year's adjournment, and they did not mysteriously lose the body of rules and precedents under which the Senate operates from year to year and, ultimately, from generation to generation.
Sen. Frist's carefully crafted remarks suggest an intention to ignore all that by implying that his acquiescence is needed to "carry over all the rules from the last Congress." Without those rules, how does the Senate decide anything? How does it change the rules? How does it cut off a judicial filibuster? By simple majority vote...
All this -- in effect, turning the Senate into a high-end version of the House of Representatives -- is too high a price to pay in order to stop Senate Democrats' abuse of the filibuster on judicial nominations. It is disheartening to think that those entrusted with the Senate's history and future would consider damaging it in this manner. The alternate "nuclear" strategies under discussion are also problematic. A Constitutional point of order, for example, would, according to Senate tradition, be referred to the full Senate, where it is debatable (i.e., filibusterable). The only other option is for the chairman to rule, without citing the Constitution, that judicial nominations cannot be filibustered. That course would have no basis in either law or Senate rules. (emphasis added)
At this point, no one knows how the "nuclear option" drama will play out, but we would respectfully offer to senators, both Republican and Democratic, a bit of back-country wisdom: When you find a bear in your cabin, it's not smart to try to burn him out.
Messrs. McClure and Wallop, Republicans, are former senators from Idaho and Wyoming, respectively.
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