I've read the Constitution and have a question.

[mpanno]

Perhaps I missed something, or interpreted it wrong.

Frist is going to have a "test vote" on Tuesday to override the filibuster. Is that even legal? It's supposed to be put up for a vote or not, not "tested". Or am I wrong?

I feel that it is simply a way to find out who is not in lock step with the rightwingnuts and those senators will then be harangued, harassed, threatened or worse.

[Seeking Serenity]

1. How is that a constitutional question?

Just askin'.

[mpanno]

2. Sorry, was askin if my take on Frist's "test" was legal, Constitutionally.

[tritsofme]

3. What does this have to do with your reading of the Constitution?

The Houses of Congress can pretty much make up their own rules as per Article I Section 5.

[Erika]

4. It's a matter of changing Senate procedures

and has nothing to do with the Constitution.

[punpirate]

5. The Constitution allows...

... the Senate to make its own parliamentary rules. Therefore, all this argument about filibuster rules is about changing its internal rules of operation--the right wing is trying to say that this is a Constitutional matter--it isn't. It's about the right wing changing the Senate's internal rules to favor them now that they're in control as the majority.

In order to do this, they will have to break (or amend) a number of other Senate rules.

The business of a "test vote" is likely as you say--a means of identifying those who disagree with Frist. In itself, it's probably another case of making up the rules as they go along. *sigh*

[Jack Rabbit]

6. It's not a constitutional question, It's a matter of the Senate's rules.

As long as it is in line with the Seante rules, it can be "tested".

Keep in mind, while you read the Constitution, I'll bet you didn't find the word filibuster once. Or even debate.

[bullimiami]

13. right. and to change a senate rule it takes 67 votes

there is no way around that.


so why even bother pretending it is within the system. they intend to declare it changed because they declare it changed. that is a coup it is extra legal, outside the laws and rules.

[Jack Rabbit]

17. Incorrect

The Senate rules may be changed by a majority vote.

The number of senators to invoke cloture was changed from two-thirds to three-fifths in 1975 by a majority vote.

[mmonk]

18. I was under the impression

that Senate rules require a super majority to change the rules (to avoid the rules being changed every session like in the house). I do know they will have to avoid the parliamentarian in changing things so as to avoid being called out of order.

[Jack Rabbit]

20. I stand corrected

Senate Rule 22 (emphasis added):

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

That is the very question under consideration. Senator Frist is arguing that it is unconstitutional for one Congress to bind another by its rules. This is utter nonsense, since the rules specifically state (Senate Rule 5.2):

The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.

[WillowTree]

7. I think what you're referring to as a "test vote"...

....is the vote for cloture. On Tuesday, Frist or someone whom he will appoint to do it for him, will move for a cloture vote, meaning that they will take a vote as to whether or not debate on the nomination will be ended. If 51 senators vote "aye" (to end debate), then the next step would be to take the "up or down vote" on the Owen nomination. If the Democrats want to filibuster, which they undoubtedly will, then Senator Reid or someone acting on his behalf will declare the filibuster at that time. Up to that point, everything would have been done in compliance with current Senate rules.

It would only be at that point when Frist would begin the "nuclear option" process to have the filibuster of judicial nominees declared to be against Senate rules.

But in answer to your question if I understand it correctly, how the Senate goes about doing its business is not a constitutional question. The Constitution does not outline those rules, but allows each house of Congress to make its own.

[48pan]

8. Yup

"Frist is going to have a "test vote" on Tuesday to override the filibuster. Is that even legal?"

It's perfectly legal. The filibuster isn't in the Constitution. It is a Senate rule. It only takes 50% +1 vote to change the rules which are written by the Senate and can be changed by the Senate any time they want.

I believe one of the rules is that Senators cannot filibuster rules changes.

Here is the passage from the Constitution that covers judges:

and he (the President) 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

It merely says advice and consent of the Senate. Consent is a simple majority.

[WillowTree]

9. Sorry, but you've got that wrong.

As the Senate rules now stand, it takes 60 votes to change the rules. Because of that, it would be pointless to filibuster a vote on a rules change because if they have enough votes to make the change, then they necessarily have enough to override the filibuster and if they don't have enough votes to make the change, then there would be no need for those opposing the change to filibuster.

I think that they're going to ask for a ruling from the chair (which will be occupied by Cheney especially for this occasion) for either one of two things. Either they will ask him to rule whether the existing Senate rules allow for a filibuster on judicial nominations or they will ask him to rule whether or not filibustering such votes is constitutional. In either case, Cheney will rule that the filibuster violates either the rules as they now stand or the intent of the Constitution. Once he does that, they will have to vote to whether or not to accept his ruling, and that only requires 51 votes to pass.

At that point, they'll take their "up or down vote", Owen will be confirmed, and then the Democrats will do whatever they're going to do.

[48pan]

10. Thanks for the clarification

In either case, the group with 51 votes and the VP makes the rules.

[TahitiNut]

11. No, it takes 67 votes to invoke cloture on debate for a rule change.

RULE XXII

PRECEDENCE OF MOTIONS

1. When a question is pending, no motion shall be received but

To adjourn.

To adjourn to a day certain, or that when the Senate adjourn it shall be to a day certain.

To take a recess.

To proceed to the consideration of executive business.

To lay on the table.

To postpone indefinitely.

To postpone to a day certain.

To commit.

To amend.

Which several motions shall have precedence as they stand arranged; and the motions relating to adjournment, to take a recess, to proceed to the consideration of executive business, to lay on the table, shall be decided without debate.

2. Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:
"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Thereafter no Senator shall be entitled to speak in all more than one hour on the measure, motion, or other matter pending before the Senate, or the unfinished business, the amendments thereto, and motions affecting the same, and it shall be the duty of the Presiding Officer to keep the time of each Senator who speaks. Except by unanimous consent, no amendment shall be proposed after the vote to bring the debate to a close, unless it had been submitted in writing to the Journal Clerk by 1 o'clock p.m. on the day following the filing of the cloture motion if an amendment in the first degree, and unless it had been so submitted at least one hour prior to the beginning of the cloture vote if an amendment in the second degree. No dilatory motion, or dilatory amendment, or amendment not germane shall be in order. Points of order, including questions of relevancy, and appeals from the decision of the Presiding Officer, shall be decided without debate.

After no more than thirty hours of consideration of the measure, motion, or other matter on which cloture has been invoked, the Senate shall proceed, without any further debate on any question, to vote on the final disposition thereof to the exclusion of all amendments not then actually pending before the Senate at that time and to the exclusion of all motions, except a motion to table, or to reconsider and one quorum call on demand to establish the presence of a quorum (and motions required to establish a quorum) immediately before the final vote begins. The thirty hours may be increased by the adoption of a motion, decided without debate, by a threefifths affirmative vote of the Senators duly chosen and sworn, and any such time thus agreed upon shall be equally divided between and controlled by the Majority and Minority Leaders or their designees. However, only one motion to extend time, specified above, may be made in any one calendar day.

If, for any reason, a measure or matter is reprinted after cloture has been invoked, amendments which were in order prior to the reprinting of the measure or matter will continue to be in order and may be conformed and reprinted at the request of the amendment's sponsor. The conforming changes must be limited to lineation and pagination.

No Senator shall call up more than two amendments until every other Senator shall have had the opportunity to do likewise.

Notwithstanding other provisions of this rule, a Senator may yield all or part of his one hour to the majority or minority floor managers of the measure, motion, or matter or to the Majority or Minority Leader, but each Senator specified shall not have more than two hours so yielded to him and may in turn yield such time to other Senators.

Notwithstanding any other provision of this rule, any Senator who has not used or yielded at least ten minutes, is, if he seeks recognition, guaranteed up to ten minutes, inclusive, to speak only.

After cloture is invoked, the reading of any amendment, including House amendments, shall be dispensed with when the proposed amendment has been identified and has been available in printed form at the desk of the Members for not less than twenty four hours.


http://rules.senate.gov/senaterules/menu.htm

[WillowTree]

14. You're absoultely right about the 2/3 requirement...

....for a rules change. I misspoke (mistyped??) and appreciate the correction.

[TahitiNut]

12. Nowhere does it say "consent is a simple majority"!

In fact, "consent" to amending the Constitution itself is specified as two-thirds of the Senate and House. Likewise, it requires "two-thirds majorities of both houses" to override a Presidential veto. Furthermore, it requires the the "Concurrence of two-thirds" for the Senate (or House) to expel a Member. Even more, it requires that "two thirds of the Senators present concur" for any Treaty signed by the President to be ratified, another "Power, by and with the Advice and Consent of the Senate," given the President.

In other words, it's not at all out of line that the power to populate an entirely separate Branch of Government (the Judicary) require a two-thirds majority of the Senate to consent. There is absolutely NOTHING in the Constitution that would forbid this 200-year-old practice.

Article I, Section 5 -
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Article I, Section 7, (Paragraph 3) -
Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Article II, Section 2, (Paragraph 2) -
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

[Erika]

15. Excellent post

Most people are tired of the Bushies trying to ramrod their radical agenda down our throat and calling it constitutional.

[WillowTree]

16. The Constitution doesn't specify...

....that a super-majority is required, either, for judicial appointments, whereas it does, as you have pointed out, specifically stipulate that a super-majority is needed for such things as approval of treaties and veto overrides. This leaves the assumption that a simple majority is all that is required by the Constitution for advice and consent of judges.

And I'd appreciate it if you could cite your source documenting that judicial appointments require of a super-majority vote for confirmation is a "200 year-old practice" when many judges, at least some of them Clinton appointees, have been approved by the Senate with barely more than fifty votes. Most judicial nominees who are confirmed do receive more than sixty votes, but that is because more than sixty Senators chose to vote that way on most of them, not because more than fifty-one votes were required for confirmation by either the Constitution or the Senate rules.

My statement above to which you were responding, however, was referring to the fact that rulings from the chair, which is what will be involved if the "nuclear option" is attempted, only require a simple majority vote for approval. That's why they're going to do it that way. They will present it, not as a change to existing rules, but as a ruling by the President of the Senate (Cheney) as to a clarification of existing rules. And, since the existing rules do not state specifically one way or the other whether the filibuster rule applies to advice and consent votes, it is left open to Cheney to rule as he sees fit. We don't have to like it, but that's the way it is.

[TahitiNut]

21. You've misinterpreted what I said.

I've never taken the position that "a super-majority vote for confirmation is a '200-year-old practice'." The '200-year-old practice' to which I refer is open (unlimited until 1917) debate in the Senate, irrespective of the matter being debated for most of its history. The antecedent for 'this' in my reference to "this 200-year-old practice" was the practice of open and unlimited (until 1917) debate in the Senate.

The observation that judicial appointments have been approved with majority votes less than super-majority votes is irrelevant. Posing this as some kind of argument ignores the fact that opposition/support isn't merely binary. A Senator can be in opposition or support of any action of the Senate but not regard the degree that opposition or support sufficient to either block or ram through the action. That's life. Again, it's not simply binary. Rabid partisanship, of course, is eroding that -- almost entirely from the right today.

The purported power of the chair to obliterate a long-standing Rule of the Senate with the concurrence of a simple majority is founded on partisan hypocrisy and dishonesty. Rarely have we ever seen a clearer example of the conflict between 'the ends justify the means' and 'rule of law' ethics. I don't believe any honest, informed person would condone this behavior lacking an awareness of whether they were in the majority or minority. (This is Rawls' "Veil of Ignorance" paradigm.) The only reason many/most Senators on the right will (predictably) support the abolition of a long-standing Senate Rule using the facade of a ruling by the President of the Senate is because of their objective, not because of the principle. The Senate Parliamentarian himself reportedly views this approach as illicit as well. This is the corruption of rabid partisanship and power - the insatiable appetite for power. Lord Acton's words come true yet again.

If this Rule (Rule XXII) can be abolished/modified, not through the accepted process of proposal, debate, and vote as assumed by the Rules themselves but by partisan fiat, then absolutely no Rule of the Senate can ever used to rein in one-party rule. If the Rules of the Senate can only be used as a club to hammer down the minority and are easily discarded by the majority when viewed as inconvenient for a partisan agenda, then we no longer live in a nation under the 'rule of law' and, instead, live in an Authoritarian State. Fascism.

[48pan]

19. Either it takes 2/3 to pass something or it doesn't

In other words, it's not at all out of line that the power to populate an entirely separate Branch of Government (the Judicary) require a two-thirds majority of the Senate to consent. There is absolutely NOTHING in the Constitution that would forbid this 200-year-old practice.

And nothing that requires it.

Every passage you quoted says nothing about 2/3 to confirm a judge or change a rule. So what your post amounts to is simply finding every occurance of 2/3 in the Constitution and the finding that is doesn't say 2/3 for judges.

Are you trying to claim that all things must pass by 2/3 majorities?

The operative passage is: Each House may determine the Rules of its Proceedings

That passage says absolutely nothing about the process or the need for a 2/3 majority for anything but expulsion of a member.

The Senate rules (rule 12) set the level to end debate at 3/5 and to ammend the rules at 2/3 of the members voting, assuming a quorum is present. Those rules are not in the Constitution and can be changed by the Senate. They also make the President of the Senate (Cheney) the arbitor of the rules.

Rule 20 goes as follows: 1. A question of order may be raised at any stage of the proceedings, except when the Senate is voting or ascertaining the presence of a quorum, and, unless submitted to the Senate, shall be decided by the Presiding Officer without debate, subject to an appeal to the Senate. When an appeal is taken, any subsequent question of order which may arise before the decision of such appeal shall be decided by the Presiding Officer without debate; and every appeal therefrom shall be decided at once, and without debate; and any appeal may be laid on the table without prejudice to the pending proposition, and thereupon shall be held as affirming the decision of the Presiding Officer.

So I guess the process will be that Frist will make a point of order and claim that judicial nominees do not require a 3/5 majority to end debate; Cheney will agree; Ried will object and the Senate will vote. If 51 or more Senators agree, the objection will be upheld. If 50 agree, Cheney will bread the tie. If they can't get 50, the objection will be denied.

Our only hope is to get 51 votes against the objection.

It's fun reading all of this stuff. I'm kind of hoping the nuclear option passes so the Republicans can be seen for the fascists they are. That will guarantee they are thrown out of both houses and the executive at the next election.

[TahitiNut]

22. A "question of order" is almost universally accepted as meaning ...

... in compliance with the Rules. It is an extraordinary (unprecedented?) abuse of the power of the Presiding Officer (with partisan support) to use a "point of order" to change the Rules themselves.

The long-standing accommodation for prolonged debate (and even filibusters) in the Senate is memorialized in the Rules of the Senate. The Rules of the Senate clearly provide for changing those Rules and nowhere do they specify that the blackletter (not a mere interpretation) Rules may be changed by a "point of order."

What's even more obscene is the hypocritically narrow pretense of abolishing the super-majority cloture Rule on questions of Judicial appointments "only" since nowhere in the Rules are such questions so narrowly addressed. This, in effect, creates a fictional "Rule" through a decision of the Presiding Officer, supported by 50%+1 of the members, and without debate allowed. It's a charade.


Note: The antecedent for 'this' in my reference to "this 200-year-old practice" was the practice of open and unlimited (until 1917) debate in the Senate.