[Edit 12\/28\/17—In the title and throughout, I have replaced “illegal” with “unlawful”, in order to avoid the possible implication that the travesty below would be subject to criminal punishment, something I did not intend to imply.\u00a0 Since I wrote this article, the Republicans have followed suit by nuking the filibuster for Supreme Court nominees as well.—AW.]<\/em><\/p>\n Last week, 52 Senate Democrats voted to get rid of the filibuster for Presidential nominations to certain positions\u2014in particular for Lower and Appelate Court Nominees, but not for Supreme Court nominees.\u00a0 This move was branded as the “nuclear option” back when Republicans threatened to do it (but did not) during the Bush presidency.\u00a0 It was completely <\/em>and unabashedly <\/em>unlawful, and those Senators who voted for it (most of whom denounced it vigorously when Republicans proposed it) should be ashamed of themselves.\u00a0 This post will explain why their decision was contrary to the law.<\/p>\n The most important law in the United States is the Constitution<\/a>.\u00a0 It takes precedence over all other laws, and describes under what conditions laws can be made.\u00a0 It says among other things that<\/p>\n Each House [of Congress]<\/em> may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.\u00a0 (Article I. Sec. 5)<\/em><\/p><\/blockquote>\n In accordance with this proviso, each of the two houses of Congress has adopted a set of rules, which they use regulate debate, votes, and other matters (kind of like Robert’s Rules of Order<\/a>, but the details are different).\u00a0 The Sentate Rules can be found here<\/a> (Rule 22<\/a> being the most important for issues surrounding the filibuster).\u00a0 <\/em><\/p>\n Since the Constitution authorizes the Senate to make Rules for itself, these Rules are just as much binding law<\/em> as ordinary federal legislation is (but, obviously, they only bind the Senate itself, not the rest of us).\u00a0 The only possible exception would be if a Rule contradicted the Constitution.\u00a0 In that case, the Rule would be invalid.\u00a0 For example, if the Senate passed a Rule saying that they could expel Senators with a majority vote, then this rule would be invalid, since the section of the Constitution which I quoted requires a 2\/3 vote.\u00a0 But on most procedural issues, the Constitution is silent so the Senate gets to decide.<\/p>\n The important Rules to know about are the following:<\/p>\n The hard<\/em> way to end debate (which almost never happens) is to give two<\/em> chances to each Senator to speak as long as they can on the topic (without taking breaks to go to the bathroom!).\u00a0 This was used to pass the Civil Rights act of 1957<\/a>, after Senator Strom Thurmand spoke for 24 hours and 18 minutes.\u00a0 (This was a real<\/em> filibuster, the kind where you read biscuit recipies, which almost never happens these days.)<\/p>\n The easy way is to invoke cloture<\/em>, which limits the time left for debate:<\/p>\n So, practically speaking it takes 60 votes to do anything in the Senate.\u00a0 This Rule forces the Majority Party to have to reach out at least a little bit to the Minority Party when they pass legislation.\u00a0 Otherwise the Minority might refuse to vote for end debate (and this is what is usually called a “filibuster” in these boring times).<\/p>\n Some additional important Rules:<\/p>\n Now notice this.\u00a0 It takes a 2\/3 vote to change the Rules (really to end debate on a Rule change).\u00a0 But it only takes a majority vote to interpret <\/em>the Rules.\u00a0 This makes sense: when the Senators vote to change a rule, they are exercising a <\/em>legislative function, deciding what the rule ought to be.\u00a0 When the Senators vote on interpeting the rules, they are excercising a quasi-judicial function.\u00a0 Essentially, they are the “Supreme Court” which decides what the Rules mean.\u00a0 When making this vote, surely they are morally bound to judge honestly, and decide, not what they think the rule ought to be<\/em>, but what it actually is<\/em>.\u00a0 Otherwise, it wouldn’t make any sense for there to be a higher threshold in order to actually change the rules.<\/p>\n But the power to interpret necessarily includes the power to misinterpret <\/em>the Rules.\u00a0 This can be used to abolish any Rule by majority vote\u2014not by amending it, but simply by interpreting it not to apply, even when it clearly does apply.<\/p>\n This is the “nuclear option”.\u00a0 The way it plays out was as follows.\u00a0 Majority Leader Reid raises a Question of Order asking whether the Rules permit him to end debate on a Judicial Nominee with only a majority vote.\u00a0 Patrick Leahy, the Presiding Officer, rules that according to Senate Rules and precedents, the answer is No\u2014the Rules clearly state that a 3\/5 vote is required.\u00a0 So Reid appeals the decision to the main body of the Senate.\u00a0 The Senate voted 52-48 to overrule the decision of the Presiding Officer (among the 52 being Leahy himself!).\u00a0 Bye bye filibuster for Judicial Nominees.\u00a0 (3 Democrats had the integrity to vote against, and of course the Republicans also voted against.)<\/p>\n Note that no actual change to the text of the Rule occured.\u00a0 It was only “reinterpreted”, in a Humpty Dumpty-esque act of linguistic power:<\/p>\n ‘When I<\/em> use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean\u2014neither more nor less.’<\/p>\n ‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’<\/p>\n ‘The question is,’ said Humpty Dumpty, ‘which is to be master\u2014that’s all.’\u00a0\u00a0\u00a0\u00a0 (St. Lewis Carroll, Through the Looking Glass<\/a>)<\/em><\/p><\/blockquote>\n I have asserted that there can be no actual <\/em>justification for the Senate’s interpretation of Rule 22<\/a> .\u00a0 There are only 2 possible ways the decision could be correct.\u00a0 Either: A)<\/strong> Rule 22<\/a> has a special exception for certain Judicial Nominees or else B)<\/strong>\u00a0Rule 22<\/a>‘s 3\/5 vote requirement is unconstitutional when used to filibuster Judical Nominees.\u00a0 (But apparently\u00a0 not Supreme Court and Executive Branch Nominees?!?)<\/p>\n Option (A)<\/strong> is clearly absurd.\u00a0\u00a0Rule 22<\/a> gives the threshold to “bring to a close the debate upon any measure, motion, other matter pending before the Senate”.\u00a0 Clearly the approval of a Judicial Nominee is “a measure, motion, or other matter”.<\/p>\n Option (B)<\/strong> is only slightly less absurd.\u00a0 The\u00a0Constitution<\/a> says that the President:<\/p>\n shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.\u00a0 (Article II. Sec. 2)<\/em><\/p><\/blockquote>\n The argument here is that “Advice and Consent” implicitly includes the idea of a majority vote.\u00a0 This is a rather weak argument, since “majority vote” is nowhere included in the text.\u00a0 Whereas the statement about the Senate making its own Rules is quite explicit.\u00a0 So this interpretation of the Constitution seems quite dubious.<\/p>\n Even if the Constitution did<\/em> require a majority vote for Nominees, there is absolutely no good reason why this should apply to some types of Nominees but not others.\u00a0 Nor is it obvious why the filibuster would be constitutional for legislation, since the majority vote requirement could just as easily be read into the power of the Senate to pass Bills.\u00a0 But if the filibuster is unconstitutional in general, this would be a rather surprising thing to find out now, after 170 years of precendent to the contrary.<\/p>\n The fact is that those who voted for the “nuclear option” knew perfectly well that it was of extremely dubious legality.\u00a0 They didn’t do it because they genuinely believed in it.\u00a0 They did it for political reasons, as a naked act of political power.<\/p>\n Can any justification can be made for this act?\u00a0 Let me make some points about what is and is not relevant:<\/p>\n All told, it is a dark day for the Republic.\u00a0 The trouble is, these days both Parties hate each other so much that they spend all their time thinking about how the other side is hypocritical, without noticing that they also chang their position whenever it is convenient.\u00a0 (See Kerr’s Law<\/a>).\u00a0 Political expediency trumps truth.\u00a0 I’ll spare you all the juicy quotes from the Senators who flip flopped on this issue when the Party roles were reversed.<\/p>\n Instead I will remind us of the words of the Master whom most of those in Congress claim to serve:<\/p>\n How can you say to your brother, \u2018Let me take the speck out of your eye,\u2019 when all the time there is a plank in your own eye?\u00a0 You hypocrite, first take the plank out of your own eye, and then you will see clearly to remove the speck from your brother\u2019s eye.\u00a0 (Matthew 7:4-5<\/a>)<\/em><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":" [Edit 12\/28\/17—In the title and throughout, I have replaced “illegal” with “unlawful”, in order to avoid the possible implication that the travesty below would be subject to criminal punishment, something I did not intend to imply.\u00a0 Since I wrote this … Continue reading \n
\n
\n
\n
\n.<\/span><\/li>\n
\n.<\/span><\/li>\n
\n.<\/span><\/li>\n
\n.<\/span><\/li>\n
\n.<\/span>
\nIf we further suppose that the Supreme Court knew perfectly well that the decision was erroneous, but did it anyway in order to spite their political opponents, then that would be a pretty close analogue to what the Senate just did.
\n.<\/span><\/li>\n
\n.<\/span>
\nThis doesn’t make much practical difference, though.\u00a0 A completely lawless use of the power to interpret is exactly the same as if there were no law at all.
\n.<\/span><\/li>\n