The maneuvers required to kill the filibuster in the Senate (as laid out in this WaPo article and linked to below) are convoluted indeed, but they're worthy of further examination.  Bear with me here: this is interesting and vitally important stuff; what happens in the next week or two has the potential to set truly dangerous precedents.

Ordinarily, to cut off debate in the Senate and force a vote (an act known as "cloture"), a resolution is introduced.  The petition must "ripen" for one full working day -- kind of a cooling-off period -- and then it is put to a vote.  To pass and therefore cut off debate, the successful cloture motion must garner a majority of three-fifths, or sixty votes.  The Republicans don't have 60 votes, however...they have 55, necessitating these unprecedented tactics.

Here's how it's going to go down.  The Senate is currently debating the nomination of Texas Supreme Court Justice Priscilla Owen for a spot on the federal bench.  Democrats are threatening to filibuster.  If they do, Sen. Frist probably will not invoke a cloture resolution (which would not likely have enough votes to pass), but rather ask the chair for a "point of order" -- a procedural ruling -- to the effect that filibustering judicial nominees is out of order.  The presiding chair (Vice President Cheney or, more likely, his designate) would rule in Frist's favor.  Sen. Reid, the Minority Leader, would object to the ruling and move that the ruling be tabled.  The issue would be put to a vote, and this vote would only require a simple majority to pass.  Thus would the filibuster effectively be ended.

Now, the Senate can make its own rules.  This privilege is explicitly granted in the Constitution (Article I, Section 5, Clause 2, to be exact), but it's important to note that the "nuclear option" is not an official rule change, which requires 67 votes, or a two-thirds majority.  If 67 senators want to change the rules, then fine.  That's how the system is supposed to work.  The "nuclear option", however, is a de facto rule change that can be accomplished with only 51 votes; it's cheating.

Here's the really important point of all these machinations:  If the "nuclear option" is invoked, it basically consists of the Republican majority, along with Vice President Cheney, declaring that the existing Senate rules are unconstitutional.  Their sole justification for such is the Constitutional clause requiring the "advice and consent" of the Senate in judicial nominations by the President...and they are choosing to interpret the phrase "advice and consent" in an unprecedented, extraordinarily narrow way, concluding that the only way the Senate can advise and consent to these nominees is by a straight up-or-down vote by the full Senate.

Let me repeat this, because this is vital:  the Senate Republican caucus is arguing that filibustering judicial nominees isn't wrong, or misguided, or a waste of time and other resources.  Instead, they're arguing that filibustering judicial nominees is unconstitutional.

Josh Marshall says it, as usual, better than I can:

Nobody believes that.

Not Dick Cheney, not any member of the Republican Senate caucus.

For that to be true stands not only the simple logic of the constitution, but two hundred years of our constitutional history, on its head. You don't even need to go into the fact that other judicial nominations have been filibustered, or that many others have been prevented from coming to a vote by invocation of various other senate rules, both formal and informal, or that almost countless numbers of presidential nominees of all kinds have simply never made it out of committee. Indeed, the whole senate committee system probably cannot withstand this novel and outlandish interpretation of the constitution, since one of its main functions is to review presidential appointees before passing them on to the full senate.

Quite simply, the senate is empowered by the constitution to enact its own rules.

You can think the filibuster is a terrible idea. And you may think that it should be abolished, as indeed it can be through the rules of the senate. And there are decent arguments to made on that count. But to assert that it is unconstitutional because each judge does not get an up or down vote by the entire senate you have to hold that the United States senate has been in more or less constant violation of the constitution for more than two centuries.

To which I add that, in addition to the explicit Constitutional provision that the Senate is entitled to make its own rules, and in addition to two-hundred-years-plus of Senate precedent, there is also strong judicial precedent that the "nuclear option" is illegal.

In the 1892 Supreme Court decision United States v. Ballin et al. (144 U.S. 1), (which has been cited, oh, hundreds of times), Justice David Brewer wrote the majority opinion which held, in part, that

The constitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.

This seems pretty clear to me.  Not only are Sen. Frist and company bent on declaring the rules unconstitutional just because they don't have enough votes to legally change them, but they're also going against an oft-cited Supreme Court decision, two hundred years of Senate precedence, and the Constitution itself.

It's a blatant power grab, pure and simple.

Comments

[Ayelet]

I'm appalled, but not surprised. Cheating on the part of this administration will never surprise me. They embody the true definition of cheating, lying, thieving. What shocks me is that the American public cares more about the latest George Lucas cash-fest than about the illegal, immoral doings of their government.

[Karl Maher]

You people kill me. In 1975, Democrats changed the cloture threshold from 67 to 60 votes -- and they did it by majority vote. Why 60? Because there were 60 Democrats in the Senate in 1975. For the balance of the 94th Congress, the minority had no right to filibuster -- on judges or on legislation.

[Vidiot]

But that was done by legally changing the rules of the Senate. What Frist & Co. want to do is not to legally change the rules, but rather reap the political benefits of a rule change without actually having the sufficient number of votes to actually change the rules.

You know, if the Senate Republican caucus wants to change the cloture threshold to 55, or even 51 votes, that's fine. But it'll take them 67 votes to do so, and that's how the system works.

What Mansfield did in 1975 was opportunistic, yes...but was it indeed done with a simple majority vote? (I thought it took a two-thirds vote to change Senate rules.)

What Frist and Cheney are proposing to do is declare the entire 200+ year precedent of the Senate unconstitutional, simply for the sake of a power grab.