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Wikiquote updateSince I've put a fair amount of time into expanding Wikiquote's entry for Justice Scalia, I've felt particularly concerned by the fact that its formatting really needed attention, I just couldn't figure out any way to make it clearer. None-the-less, I've hit on an approach I think works. You can see the results at http://en.wikiquote.org/wiki/Antonin_Scalia. Regarding the "nuclear option" and our discussion of it on the "Confirm Them" website..... I do think it is important to point out that the "rules" of the Senate have been change many times and not always by a formal rules change. US Senator Robert Byrd, as Senate Majority Leader, accomplished de facto rules changes several times. So, if the Democrats filibuster the Alito nomination and the Republicans decide to use the "Byrd option" (or nuclear option if you prefer that terminology), it will be interesting to see how it all plays out. At this point, I seems like the Democrats won't be able to persuade 41 of their 45 to oppose cloture. So, the issue might not come up. But my argue still stands as I stated on "Confirm Them." The US Senate operates on a "majority rule" basis because the constitution's default position allows each body to set its own rules. For now, the Senate is operating under rule 22 [which requires 60 votes to end debate (with numerous exceptions, like budget reconciliation)]. But it only takes a simply majority to ignore rule 22, just as US Senator Robert Byrd only needed a simply majority to ignore the rule that said motions to proceed to a executive nomination are debatable. Timestamp: 1/7/2006 12:50:00 PM | Cite as: #1 Comment by Simon: Rock, Not only did Byrd change the rules several times, but IIRC, he himself floated the nuclear option. It is, hopefully, clear that my concerns vis-a-vis the nuclear option are not sympathy for the Democrats' position. I explained my views and reasoning on the filibuster last year at more length. As you correctly note, the Senate adopts its own rules; unlike the House, though, it usually adopts the rules of the previous Senate by implicit unanimous consent unless the rules are speficially challenged when the Senate convenes. If the Senate can adopt its own rules, it follows that it can also adopt rules for how the rules are to be amended, which it has done: the rules permit a filibuster of a motion to change the rules. This may well be unfair, unreasonable and pretty dim, but those are the rules. Now, there is an exception to that; the Senate may not adopt (or at least, sustain) a rule that is unconstitutional. The Senate may adopt rules and procedures to fulfill its Constitutional duties and incumbencies, and these do not, per se, violate the Constitution (see Nixon v. United States, 506 U.S. 224) (1993); therefore, it stands to reason that the Senate can adopt rules and procedures that it deems appropriate, governing its duty to advise and consent to nominations to the Judiciary -- an institutional, not individual, responsibility, incidentally: "by and with the advice and consent of the Senate," not the Senators, U.S. Const., Art. I §2; "One of the most effective ways of diluting or expanding a [constitutional provision] is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning" (Griswold v. Connecticut, 381 U.S. 479, 509) (Black, dissenting). Per Nixon, the Senate can adopt the rules and procedures it sees fit to carry out its duty to advise and consent, provided that those procedures do not violate the Constitution itself, for example, by involving members of the House of Representatives in its deliberations. The Nuclear Option charges precisely that the Constitution is violated by the rules the Senate has adopted: that the Constitution requires a simple majority vote to advise and consent. It clearly does not; except where the Constitution explicitly directs otherwise, each house may adopt rules and procedures that it deems appropriate to its task, just as was at issue in Nixon. The Senate has done so, and now apprehending a rule they dislike and cannot summon the votes to change, the majority seeks to abolish that rule by abusing the Constitution to a conclusion it clearly does not support. I'm not necessarily opposed to ending the filibuster on judicial nominations; I'm not even necessarily opposed to doing away with it altogether (although I lean the other way). My opposition to the nuclear option is solely because I don't accept that the judicial filibuster is unconstitutional, and thus I see no difference between the judicial activists who use the Constitution as a back door to implement an agenda for which they lack the votes at the ballot box and the Senators who seek to use the Constitution as a back foor to implement an agenda for which they lack the votes in the Senate. Timestamp: 1/9/2006 12:56:00 PM | Cite as: #2 Comment by Rock: Simon, As you correctly note, the Senate adopts its own rules; unlike the House, though, it usually adopts the rules of the previous Senate by implicit unanimous consent unless the rules are speficially challenged when the Senate convenes. Actually, Senator Frist announced at the beginning of the 2005 Senate session that he was not accepting the rules held in the previous session and gave himself the option of revisiting the rules regarding judicial filibusters. I don't accept that the judicial filibuster is unconstitutional, and thus I see no difference between the judicial activists who use the Constitution as a back door to implement an agenda for which they lack the votes at the ballot box and the Senators who seek to use the Constitution as a back foor to implement an agenda for which they lack the votes in the Senate. But one can support "the Byrd option" without believing that judicial filibusters are unconstitutional. The US Senate isn't governed only by its rules. It is governed by "precedents" and often waives its own rules using unanimous consent requests. Clearly, a "friendly chair" (like Vice President Dick Cheney) and a Senate Majority Leader backed up by 49 other US Senators can choose to ignore a standing rule. That's what Vice President Mondale, Senate Majority Leader Robert Byrd and half of the US Senate did in 1977 and 1980 regarding post-cloture filibusters of the natural gas deregulation bill (1977) and a Presidential nomination to El Salvador (1980). The procedures regarding cloture in the US Senate have changed many times, sometimes by a formal change in the standing rules, sometimes by adopting a new precedent. Timestamp: 1/10/2006 12:02:00 AM | Cite as: #3 Comment by Simon: Rock, Certainly, it's true that Frist made a declaration, of sorts: Right now, we cannot be certain judicial filibusters will cease. So I reserve the right to propose changes to Senate rule XXII, and do not acquiesce to carrying over all the rules from the last Congress.151 Congressional Record S14 (1/4/2005). However, even if we take Frist's statement at face value, it amounts to a statement that Frist doesn't like the rules, nothing more. He requests no action on his statement, files no motion, and the idea that he can simply declare that one or more rules of the Senate is no longer in operation, by personal fiat, seems very strange to me, and unsupported by any precedent, rule or evidence of which I'm aware. To challenge the rules, he would have to actually challenge the rules; see generally, Riddick's Senate Procedure, pp.1220-24. Many times in recent Senate History - since 1917 - efforts have been made at the beginning of each session to actually change the rules. But Frist's statement scarcely rises to an attempt to change the rules, by comparison to previous attempts: In 1917, a Senator wishing to dispense with the rules raised a question with the Chair (Riddick, supra, at 1220); in 1949, a formal motion was filed (id. at 1221). In the Eighty-third Congress on January 3, 1953, a motion was made "that in accordance with article 1, section 5 of the Constitution which declares that '* * * Each House may determine the rules of its proceedings. * * *,' the Senate take up for immediate consideration the adoption of rules for the Senate of the Eighty-third Congress(ibid.) The same motion was filed on January 3, 1957, at the commencement of the eighty-fourth Congress, and again in 1959 (ibid.). In each of seven successive attempts to change the rules at the opening of a new Congress - in 1961, 1963, 1965, 1967, 1969, 1971 and 1975 - motions were filed (id. at 1222 n19). Frist cannot simply declare that one or more of the rules are no longer in operation; certainly, he can "g[i]ve himself the option of revisiting the rules regarding judicial filibusters" by reserving - as does every Senator - "the right to propose changes to Senate rule XXII," and arguably he could make a motion at the beginning of the 109th Senate that one or more rules no longer operate. But he did not, and cannot reserve the right to do so later in the session: the Senate either changes its rules at the beginning of the session, or by failing to change them, it accepts them, including their internal provisions for changing the rules, per Senate Rule V(2) ("[t]he rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules"). Respectfully, while your other remarks aren't incorrect, as far as they go, I feel they are inapplicable. Certainly, the Senate may suspend the rules by unanimous consent, but no less certainly, there is no question of unanimous consent to do so over this question. It is also true that the Senate may change its own rules at any point, and it may do so by simple majority vote on a motion to change the rules - but for as long as the rules provide for the filibustering of rules changes, cloture must first be invoked before that vote on the rules change motion can be taken. Timestamp: 1/10/2006 10:28:00 AM | Cite as: #4 Comment by Rock: Simon, Respectfully, while your other remarks aren't incorrect, as far as they go, I feel they are inapplicable. I guess this is where we disagree. The 1977 vote related to natural gas deregulation and the 1980 vote related to the motion to proceed to the executive calendar nomination of the abassador to El Salvador both show how a new precedent can be implemented by majority vote. Similarly, this is what could happen if less than 60 votes for cloture on the Alito nomination are obtained. Senate Majority Leader Frist could say, "I move that the debate over the Alito nomination has gone on long enough and that we proceed to a vote on the Alito nomination." Vice President Cheney, acting as the presiding officer, could sustain Frist. Senate Minority Leader Reid could then appeal Cheney's ruling. Frist could then make a motion to table (which is a non-debatable motion) the Reid appeal. The vote on the Frist motion to table the Reid appeal would be, effectively, a majority cloture vote. If Frist's motion to table was upheld, a vote on the Alito nomination would follow. Sure, it might all happen without a change of one comma in the standing rules of the US Senate. But Alito would get an up or down vote. It has happened before, at least twice while Byrd was majority leader of the US Senate. Timestamp: 1/10/2006 7:12:00 PM | Cite as: #5 Comment by Simon: Rock, A couple of things to note in reply to those comments. First, assuming that such a change actually is possible within the current rules of the Senate (and without a little more research, I don't know whether it is or not), my objection - which is solely the asking for a ruling that the filibuster is unconstitutional - would be mooted. As I've said more than once, my objection is procedural, not substantive, i.e., my intention is not to defend or support the minority's obstruction, but to oppose any attempt to falsely use the Constitution as a get-out clause; so, take the false appeal to the Constitution out of the equation, and I would have no real objection to proceding down the road you suggest. I think that's a pretty clever solution, and I really don't know whether it works within the current rules and precedents, I'll need to look into that a bit further, but I wanted to concede (or at least, clarify) the point above. Just a couple of words about Byrd and 1977; I have to be brutally honest and say that I know practically nothing about the 1977 and 1980 votes you mention, and since the Congressional Record from that period is not online, I can't say with certainty what really happened. However, my understanding is informed by this quote from Sen. Byrd at ConfirmThem, and this press release from Sen. Cornyn. Byrd asserts - and Cornyn does not deny - that: Critics have alleged that my actions in [the 1977 vote] “cut off debate'’ and somehow constitute a precedent for ending a filibuster of a judicial nominee by 51 votes before cloture has been invoked. But that argument is erroneous . . . The Senate was operating postcloture. The Senate had voted 77 to 17 to end debate. I didn’t do that; the Senate took that action."I want to make it clear that I am not simply taking Byrd at his word; rather, I'm assuming that if materials which contradicted Byrd's description of the situation, Sen. Cornyn would use them in support of his argument. But Cornyn does not: instead, Cornyn merely notes that Byrd's action created a new precedent, contrary to "prior precedent, which would have required the Chair to await a point of order from the floor" before cutting off post-cloture debate. This is a slightly different situation to that faced now: Byrd created a precedent that did not conflict with - or directly supercede, as the motion you suggest would - any of the standing rules, but which changed only how that rule was implemented by the Chair. I will look into this further, out of curiosity, but again, just to clarify: my objection to the nuclear option is entirely obviated if it is deployed in the method that you propose. Timestamp: 1/10/2006 7:49:00 PM | Cite as: #6 Comment by Rock: Simon, I agree with you that Rule 22 of the US Senate, requiring more than a simple majority to end debate is not unconsitutional. I will try to post the issues surrounding the 1977 debate over natural gas deregulation and the 1980 vote on motions to proceed to a specific executive calendar nomination later this evening or tomorrow. But immediate next, I will post an exerpt from a May 19, 2005 speech by US Senator Jon Kyl (R-Arizona). Timestamp: 1/10/2006 8:00:00 PM | Cite as: #7 Comment by Rock: As promised, here's an interesting except from US Senator Jon Kyl's May 19, 2005 speech on the Senate floor. Fortunately, the Senate is not powerless to prevent a minority from running roughshod over its traditions. It has the power--indeed, I would say the obligation--to govern itself. As I will demonstrate today, that power to govern itself easily extends to the device that has come to be known as the constitutional option. The Constitution is clear about the scope of the Senate's power to govern itself. Article I, section 5, clause 2 of the Constitution states that each House may determine the rules of its proceedings. The Supreme Court of the United States has rarely interpreted this clause, but one case is important for our purposes, the case of the United States v. Ballin, a case decided in 1892. That case dealt with the power of the majority of the House of Representatives to make rules, and it contains two holdings that bear on our situation today. First, the Supreme Court held that the powers delegated to the House or the Senate through article I, section 5, clause 2 are powers held by a simple majority of the quorum. The Constitution states that a majority of Members constitutes a quorum, and the Supreme Court, therefore, held that ``when a majority are present the house is in a position to do business.'' The Supreme Court continued: All that the Constitution requires is the presence of a majority. Thus, a majority is all the Constitution requires for us to make rules, to set precedents, and to operate on a day-to-day basis. The Supreme Court made this clear. Second, the Supreme Court held that the power to make rules is not one which, once exercised, is exhausted. It is a continuous power, always subject to being exercised by the House. By ``House,'' the court means the House of Representatives or the Senate. The import of this statement is crucial for present purposes. The power of the majority of Senators to define Senate procedures is one that exists at all times, whether at the beginning, the middle, or the end of Congress. The constitutional background is simple and uncomplicated. We can govern ourselves. We can do it by majority vote, and we can do it at any time. Let me repeat: The Supreme Court has held that we have the right to govern ourselves, that we can do it by majority vote, and we can do it any time. Timestamp: 1/10/2006 8:08:00 PM | Cite as: #10 Comment by Rock: Simon, What follows is excepted from "The Constitutional Option to Change Senate Rules and Procedures: A majoritarian means to overcome the filibuster," by Martin B. Gold and Dimple Gupta Here's an except regarding the 1980 debate over the nomination of Robert White as Ambassador to El Salvador. In March 1980, Robert Byrd (Majority Leader at the time) led the Senate Democrats in changing the Senate's procedures for the consideration of nominations. The Senate's Executive Calendar lists both treaties and nominations, in that sequence. Prior to March 1980, it had "been determined by a precedent that a motion to go into executive session, being nondebatable, would automatically put the Senate on the first treaty." A motion to proceed to any other Executive Calendar matter would be debatable. This well established procedure presented potential difficulties for Byrd, who wished to push through the confirmation of Robert White as Ambassador to El Salvador. Senator Byrd offered a motion: "Mr. President, I move the Senate go into executive session to consider the first nomination on the Executive Calendar (not merely the first item on the Executive Calendar)." Senator Jesse Helms raised a point of order against the motion: "The Senator can move to go into executive session but he cannot under the rules specify what we shall consider. The Senate determines its order of business in executive session only after going into executive session. It is not in order to determine the order of executive business while in legislative session." The presiding officer immediately sustained Helms's point of order. Under Rule 22, paragraph 1, and precedents thereunder, only a motion to go into executive session is in order. Byrd appealed the ruling. Senator McClure protested that the proper method for altering Senate procedure was by proposing "amendments of the rules," "not simply by changing the rules by majority vote to meet a particular situation," and urged the Senate to affirm the ruling of the Chair. That same day, the Senate rejected the ruling of the Chair by 38 to 54, almost entirely on party lines. Due to Byrd's new precedent, motions to proceed to nominations are no longer debatable. Timestamp: 1/10/2006 10:35:00 PM | Cite as: #12 |
    
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