Turns out that whether you call it constitutional or nuclear is purely a matter of whether you are in the majority or minority. April 25, 2005 United States Senate Republican Policy Committee: The Constitutional Option: The Senate’s Power to Make Procedural Rules by Majority Vote Executive Summary • The filibusters of judicial nominations that arose during the 108th Congress have created an institutional crisis for the Senate. • Until 2003, Democrats and Republicans had worked together to guarantee that nominations considered on the Senate floor received up-or-down votes. • The filibustering Senators are trying to create a new Senate precedent — a 60-vote requirement for the confirmation of judges — contrary to the simple-majority standard presumed in the Constitution. • If the Senate allows these filibusters to continue, it will be acquiescing in Democrats’ unilateral change to Senate practices and procedures. • The Senate has the power to remedy this situation through the “constitutional option” — the exercise of a Senate majority’s constitutional power to define Senate practices and procedures. • The Senate has always had, and repeatedly has exercised, this constitutional option. The majority’s authority is grounded in the Constitution, Supreme Court case law, and the Senate’s past practices. • For example, Majority Leader Robert C. Byrd used the constitutional option in 1977, 1979, 1980, and 1987 to establish precedents that changed Senate procedures during the middle of a Congress. • An exercise of the constitutional option under the current circumstances would be an act of restoration — a return to the historic and constitutional confirmation standard of simple-majority support for all judicial nominations. • Employing the constitutional option here would not affect the legislative filibuster because virtually every Senator supports its preservation. In contrast, only a minority of Senators believes in blocking judicial nominations by filibuster. • The Senate would, therefore, be well within its rights to exercise theconstitutional option in order to restore up-or-down votes for judicial nominations on the Senate floor.
Posted on: Thu, 21 Nov 2013 23:41:25 +0000
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