Terms of the Filibuster Debate

Here are two leadins for articles appearing in this weekend's papers

Washington Post
The White House intervened in Congress's bitterly partisan debate over federal judges, as Vice President Cheney vowed to break a tie vote if necessary to change Senate rules and ban filibusters of judicial nominees.

New York Times
The vice president said he supported changing the Senate rules to stop the Democrats from blocking judicial nominees.

Both of them say the Republicans are going to "change the rules" to stop Democrats from using the filibuster. But that's hardly accurate. Rule changes require 2/3rds approval within the United States Senate. Its been that way since the beginning of time. This is different from the House were rule changes can be made with a simple majority. What the Republic Caucus is planning to do is declare a particular rule unconstitutional.

Here's the general plan. A judicial nominee is brought up for debate, some basic level of debate will undoubtedly be allowed, and then some Republican Senator will move to vote, followed by a Democrat making a point of order that he or she has more to say and a cloture motion has not been approved. A cloture motion is required to end debate in the Senate Rules. At this point the President of the Senate (or possibly the Senate Majority Leader... but I think the ceremonial task will fall to the President) will declare the rule unconstitutional as applied to the Executive Calendar (where Presidential Appointments get listed... distinct from the Legislative Calendar). A Democrat will then challenge the ruling of the Chair. At this point it will take 50 Senators (plus the Vice President Cheney) to uphold the ruling of the Chair.

There are two interesting aspects of this plan. First is a matter of language. This is not a true rule change, it is a rule stripping. But cloaking it as a "change" as if it is a normal course of business is probably helping the Republicans sell it to the American People. I think that's why its taking them so long to actually execute the plan... they are biding their time until the perception changes from a massive departure of Senate precedence to an average, every day rule change.

The second aspect is whether or not this will actually make a difference. The only way to end debate in the Senate is through a cloture motion, requiring a 3/5th approval. A filibuster is not an actual thing so much as it is a lack of cloture. If they rule the cloture rule unconstitutional as applied to the Executive Calendar, what exactly is left? As I would interpret it, debate would remain unlimited and there would be no mechanism left to end that debate. Maybe I'll look up the actual rules and see if there is something I am missing.

Even so, if the Senate does go through with this, the Democrats can take their case to the Supreme Court who may decide that the rule is not, in fact, unconstitutional and reinstate it. This may seem like a violation of the separation of powers... but in fact it is a rule necessary to maintain that separation. If the majority party can declare whatever it wants unconstitutional without judicial review it places the majority as the final arbiters of our constitutional rights and gives them an unstopable tool to wield against the minority.