A Simple Way Out of the Predicament Regarding Nomination Filibusters

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RedState: A Simple Way Out of the Predicament Regarding Nomination Filibusters

By: AndrewHyman (Diary) | December 10th, 2014 at 10:14 PM

 

There is currently a big debate among GOP Senators about whether to overturn the Democratic Senators’ recent elimination of most nomination filibusters. Some in the GOPare concerned that allowing the Democratic Senators’ precedent to stand could endanger filibusters of legislation as well, because the so-called “nuclear option” might be used in the future to completely eliminate the filibuster. However, many others in the GOPsupport leaving the Democrat-created status quo alone. For now, it looks like there is no momentum for reinstating the nomination filibuster.

 

This whole thing brings up an old constitutional controversy. When the Constitution originally gave power to the Senate to make its own rules, that power was exercised by a simple majority of Senators. Can subsequent Senate rules really wipe out that power of a simple majority of Senators to change its rules? The current rules ostensibly require 67 votes to change the rules. This leads to the perennial question of whether the Senate is a “continuing body” that is continuously bound by its rules, or

 

In my opinion, the best article on this subject was by Martin Gold and Dimple Gupta in 2004.

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THE CONSTITUTIONAL OPTION TO CHANGE SENATE RULES AND PROCEDURES: A MAJORITARIAN MEANS

TO OVER COME THE FILIBUSTER*

 

MARTIN B. GOLD** & DIMPLE GUPTA***

INTRODUCTION...........................................................206

I. SENATE PROCEDURES GOVERNING DEBATE .............210

II. CREATION OF THE FILIBUSTER ..................................213

A. The “Dignified Senate”..........................................213

B. The Inadvertent Creation of the Opportunity To

Filibuster.............................................................215

C. The First Filibusters...............................................216

III. THE CONSTITUTIONAL OPTION TO AMEND FORMALLY

THE STANDING SENATE RULES .........................217

A. The Senate Adopts a Formal Cloture Rule (1917).217

1. The “Willful Eleven”.......................................217

2. The Constitutional Option Is Introduced .........219

3. Cloture Established..........................................226

B. The Vandenberg Ruling and Wherry Amendment:

Cloture Broadened But Made More Difficult

(1948-1949) .....................................................227

C. The Return to Cloture by Two-Thirds Present (1953-

1959)................................................................230

1. The Civil Rights “Gravedigger” ......................230

http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf