Friday, May 20, 2005
THE CONSTITUTIONAL OPTION TO CHANGE
SENATE RULES AND PROCEDURES:
A MAJORITARIAN MEANS TO OVER
COME THE FILIBUSTER*
MARTIN B. GOLD** & DIMPLE GUPTA***
http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf
The forest and the trees:
http://www.washingtonpost.com/wp-dyn/content/article/2005/05/17/AR2005051701425.html?nav=hcmodule
http://www.washingtonpost.com/wp-dyn/content/article/2005/05/16/AR2005051601307.html
The history of the filibusters involve some of the great conflicts of American History – the reserved rights of a minority to prevent majority action in the U.S. Senate involve President Jackson and the Bank, the issues of states rights and slavery, the American entry into WW I, the civil rights crisis and other major crisis in the society. I don’t think the confirmation of judges reaches this high standard. The members of the senate are quite clear that by being a continuing body where the rules can only be changed within the rules that require super majorities to curtail minority power. Clearly the Senate has the constitutional power to change its rules by majority vote and restore the “motion to proceed” used by other legislative bodies around the world. The distinctive character of the U.S. Senate is the power of minorities to prevent the will of the majority for decades as in the case of civil rights – from the 1890’s to the 1970’s.
Tomorrow or Friday, Frist and other Republican senators are likely to file a motion seeking cloture, or an end to debate. One session day must pass before a vote to end debate, so a vote would be held and Republicans would expect to get fewer than 60 votes to confirm Owen.
Frist aides say he has not decided exactly what would occur next. But the scenario most widely expected among senators in both parties is that he would seek a ruling from the chair -- Vice President Cheney, if it looked as if the vote was going to be close -- that filibustering judicial nominations is out of order. Assuming the chair agreed, Reid would then object and ask that the ruling of the chair be tabled. Most Republicans would then vote against the Democratic motion, upholding the ruling. Then the Senate would move to a vote on Owen, and a precedent will have been set that it takes 51 votes, not 60, to cut off debate on a judicial nomination.
A virtual script for what could happen next is included in an article published last fall in the Harvard Journal of Law & Public Policy by Martin B. Gold, a partner at Covington & Burling who is a former floor adviser to Frist, and Dimple Gupta, a former Justice Department lawyer who was hired in March by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).
SENATE RULES AND PROCEDURES:
A MAJORITARIAN MEANS TO OVER
COME THE FILIBUSTER*
MARTIN B. GOLD** & DIMPLE GUPTA***
http://www.law.harvard.edu/students/orgs/jlpp/Gold_Gupta_JLPP_article.pdf
The forest and the trees:
http://www.washingtonpost.com/wp-dyn/content/article/2005/05/17/AR2005051701425.html?nav=hcmodule
http://www.washingtonpost.com/wp-dyn/content/article/2005/05/16/AR2005051601307.html
The history of the filibusters involve some of the great conflicts of American History – the reserved rights of a minority to prevent majority action in the U.S. Senate involve President Jackson and the Bank, the issues of states rights and slavery, the American entry into WW I, the civil rights crisis and other major crisis in the society. I don’t think the confirmation of judges reaches this high standard. The members of the senate are quite clear that by being a continuing body where the rules can only be changed within the rules that require super majorities to curtail minority power. Clearly the Senate has the constitutional power to change its rules by majority vote and restore the “motion to proceed” used by other legislative bodies around the world. The distinctive character of the U.S. Senate is the power of minorities to prevent the will of the majority for decades as in the case of civil rights – from the 1890’s to the 1970’s.
Tomorrow or Friday, Frist and other Republican senators are likely to file a motion seeking cloture, or an end to debate. One session day must pass before a vote to end debate, so a vote would be held and Republicans would expect to get fewer than 60 votes to confirm Owen.
Frist aides say he has not decided exactly what would occur next. But the scenario most widely expected among senators in both parties is that he would seek a ruling from the chair -- Vice President Cheney, if it looked as if the vote was going to be close -- that filibustering judicial nominations is out of order. Assuming the chair agreed, Reid would then object and ask that the ruling of the chair be tabled. Most Republicans would then vote against the Democratic motion, upholding the ruling. Then the Senate would move to a vote on Owen, and a precedent will have been set that it takes 51 votes, not 60, to cut off debate on a judicial nomination.
A virtual script for what could happen next is included in an article published last fall in the Harvard Journal of Law & Public Policy by Martin B. Gold, a partner at Covington & Burling who is a former floor adviser to Frist, and Dimple Gupta, a former Justice Department lawyer who was hired in March by Senate Judiciary Committee Chairman Arlen Specter (R-Pa.).
