Kmiec on the Filibuster
Doug Kmiec has an L.A. Times op/ed entitled A Catch in Senate Clogs Judicial Pipeline. Here is a taste:
- This can’t be, and isn’t, the law. An unbroken chain of Supreme Court rulings anchored in English common law provides that “every succeeding legislature possesses the same jurisdiction and power as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less.”
That the Senate has disregarded this ancient precept and is operating outside the Constitution gives the freshmen a chance to set things right. It’s not complicated. Have the same majority favoring Estrada pass a rule amendment restoring the right of a simple majority to close debate on all judicial nominations. If an objection or point of order is raised in favor of the unrepresentative (and unadopted) 60/67-vote rules, the presiding officer should overrule the objection, reminding the objectors that a majority of all elected senators must retain at least one chance in every Congress to amend its rules.