In the argument between Kevin Drum and Juan non-Volokh about who’s trying to change the rules in the middle of the game, I think Kevin has the better case. By abolishing the “blue-slip” rule — after using it so effectively to block Bill Clinton’s judicial nominees, and in particular to help Jesse Helms keep the Fourth Circuit all-white — the Republicans left the Democrats with no option but to use the filibuster. So the argument that the use of the filibuster to block judcial appointments is some sort of outrageous novelty really doesn’t hold water, even ignoring the cases of Fortas and Paez.
The principle that the side in temporary control shouldn’t use that control to change all the rules in its own favor is a good and important principle, and Kevin is right to say that the Republicans have violated it massively and that the “nuclear option” is another good example of a bad practice.
But in my view Kevin, along with the rest of the liberals arguing about this issue (except Josh Marshall and me) is missing the main point. The “nuclear option” isn’t changing the rules in the middle of the game: it’s outright cheating.
The Senate rules can be changed, but doing so requires a two-thirds majority, which the Republicans don’t have. So the plan is to have Vice-President Cheney, as President of the Senate, rule that the existing Senate rules are unconstitional, and that the Constitutional provision that judges be appointed with “the advice and consent of the Senate” requires that a judge be confirmed as long as a simple majority of the Senate wants him confirmed. (Logically, that would seem to imply that no judicial nominee, or other nominee, could be held up in committee, but let that pass.)
But that ruling is blatantly false. The Constitution says nothing about each judicial nominee’s being entitled to a floor vote. The Constitution does, explicitly, give the Senate the power to make its own rules. (Article 1, Section 5, Subsection 2.) If it’s unconstitutional to use the filibuster to create an effective supermajority rule for judicial nominations, it must be equally unconstitutional to use the filibuster, or the budget rules, to create effective supermajority rules for legislation (since the Constitution specifies supermajorities for conviction on impeachment and for veto overrides).
Never before in the history of the Republic has a Vice-President used the power of the chair to rewrite the rules of the Senate, perhaps because never before has there been a Senate majority so partisan as to value party advantage over institutional prerogative. In making that ruling, Vice-President Cheney will be acting unconstitutionally. He will be blatantly violating his oath of office, as will every Senator who votes to sustain his action.
Changing the rules in the middle of the game is unfair. A party capable of Oakeshottian self-restraint will do so only when absolutely necessary. But if it’s done within the rules themselves, it can’t be called cheating.
Violating the rules so your side wins, however, is exactly that: cheating. In this case, it’s law-breaking and Constitution-busting, too. Every true republican will oppose it.
Isn’t it a shame there seem to be so few republicans in a Senate with a Republican majority? And am I the only one who finds it surprising that the unconstitutionality of the “nuclear option” hasn’t gotten more attention?
Thanks to Lindsay Beyerstein, here’s a CRS report that makes it clear that the nuclear option would involve violation of clear Senate precedent” “an extraordinary proceeding at variance with established procedure. [The report also makes it clear that my earlier assertion that the Senate rules require a two-thirds supermajority for rules changes was inaccurately stated; two-thirds is required only to stop a filibuster on rules changes. Stopping an ordinary filibuster only requires 60 votes.]
Another link from the same post: Norman Ornstein’s analysis of the nuclear option. Ornstein points out that Senate Rule XXXI specifically contemplates the case that a nomination will not be acted on before a recess, and provides that in that case the nomination dies.