Legal Theory Blog

Confirmation Wars: Bits and Pieces
Gathered from hither and yon, bits and pieces on the confirmation wars:

–Rick Hasen reports on a lawsuit to have the filibuster declared unconstitutional. I agree with Rick, this seems like a sure loser. Also, see Rick’s post entitled Changing the filibuster rules? Rational Republicans will say “no”.
–On NRO, Byron York has a piece entitled Nuclear Option, No. Nuclear Response, Yes. Here is a juicy bit:
Amid all the talk of Republicans using the so-called “nuclear option” to end the Democratic filibuster of the president’s judicial nominees, there’s been little discussion of perhaps the key question in the matter: How many Republicans actually support that strategy?

That’s a state secret,” says one Republican. “It’s fair to say we’ve been in a constant state of checking for two or three months.”

The answer is critical, since Democrats — with the possible exception of Georgia’s Zell Miller — will undoubtedly oppose the plan, which calls for Republicans to use a parliamentary maneuver to end the filibusters of Miguel Estrada and Priscilla Owen by a simple majority vote, instead of the 60 required by the Senate’s rules. United Democratic opposition means the nuclear option cannot be attempted unless it has the nearly unanimous support of the Senate’s 51 Republicans.

Even if the level of a Republican support is a “state secret,” it is clear that there is no unanimity of opinion yet. Rather, Republican senators fall into three categories. Some are ready to try the nuclear option now. Some would be ready if Democrats filibuster more Bush nominees. And some would go forward only if Democrats filibuster a Bush Supreme Court nominee.

And also on NRO, John Eastman has a piece entitled Filibuster Preservation. Here is a bite-sized chunk:

Senate Rule XXII currently provides that the filibuster rule can only be changed by a 2/3 vote, a provision that was first enacted back when Dwight Eisenhower was president and southern Democrats were using the filibuster to block civil-rights legislation. As constitutional-law scholars across the ideological spectrum have noted, that supermajority requirement is patently unconstitutional, for it allows a prior Senate to impose its will on the current Senate and deprive the people of their ability to effect change through the majoritarian political process. Liberal U.S.C. Law Professor Erwin Chemerinsky has written, for example, that “entrenchment of the filibuster violates a fundamental constitutional principle: One legislature cannot bind subsequent legislatures.” Lloyd Cutler, former counsel to Presidents Carter and Clinton, has contended that the “requirements of 60 votes to cut off debate and a two-thirds vote to amend the rules are both unconstitutional.” Conservative law professors John McGinnis and Michael Rappaport have contended that “the Constitution prohibits legislative entrenchment” such as that effected by Rule XXII. At last Tuesday’s hearing, Catholic Law School Dean Doug Kmiec, Northwestern Law School Professor Steven Calabresi, and constitutional scholar Bruce Fein all joined with me in affirming that view.

–Lee Davidson has a column in the Desert News entitled Senators headed straight for judicial N-war. Here’s the beef:

This year, Democrats chose to fire essentially the first nuclear missiles in the escalating battles. They chose to filibuster — or refuse to cut off debate to allow a vote — against two Circuit Court of Appeals nominees: Miguel Estrada and Priscilla Owen.

A successful filibuster had never before been mounted against a circuit court nominee. It had only been used once to stop a Supreme Court nominee (who was accused by people in both parties of scandal).

Estrada and Owen have support of a majority in the GOP-controlled Senate, normally enough for confirmation. But it isn’t when a filibuster arises, which requires a three-fifths vote to stop it — or 60 of 100 senators. So just 41 senators may kill nominations.

Hatch and Republicans are furious and say Democrats can expect similar treatment of nominees by any future Democratic president. Why would Democrats resort to the filibuster — and possibly tie nominations in knots for years?

Hatch says Democrats are worried that up to three Republicans now on the Supreme Court may resign: William Rehnquist, Sandra Day O’Connor and John Paul Stevens. He says they are making clear they won’t allow conservative replacements.

So in turn, Republicans in the future may allow no liberals. Stalemate.

Senate Republican Leader Bill Frist and Hatch offer a way out. They propose changing Senate rules so that on judicial nominations, only the first “cloture” vote to stop a filibuster would require 60 votes. The next would require 57, the next 54, and the next just 51 — ensuring most nominees would get a vote eventually.

But such a rules change itself requires two-thirds approval, or 67 votes. So why do Republicans imagine they could get that? Because of what they call the “nuclear option” that may come instead.

In it, Republicans could have the Senate’s presiding officer — maybe Vice President Dick Cheney — hand down a parliamentary ruling that the Senate’s filibuster rules do not apply to nominations, only to legislation, because the Constitution requires only a simple majority vote for confirmations.

Democrats could appeal that — and would need only a majority vote to reverse the chair’s ruling. But since the GOP holds the majority, the appeal would probably fail. It would do away with filibusters entirely on nominations, and possibly greatly limit debate.

Republicans hope that “nuclear threat” will force Democrats to back off on their use of the filibuster or allow softening of rules. If not and the political nukes fly, both sides will be taking revenge wherever they can. It won’t be pretty. Everyone is on the brink now. Either they take a breath and step back, or mushroom clouds are coming.