"I think it was a historic day yesterday. It was the first ever call for a filibuster from the slopes of Davos, Switzerland."According to this, the Republicans have 53 of 55 votes as well as 3 Democrat votes pledged towards cloture with 1 "leaning in favor of voting for" candidate Samuel Alito. That's 57 of the required 60 to cut off debate and force an up or down vote. I don't know who the Republican holdouts are, for sure, but they are probably Chafee and Snowe. At least one of those should come around and that would leave only 2 Democrats who can read public opinion polls - which senators are addicted to doing - and count past all 20 fingers and toes - a more doubtful proposition - to garner the required 60 votes.
There is a big difference between voting yea or nay on cloture and voting yea or nay on the nominee. To vote against cloture, in essence a vote for a filibuster, the Democrats risk several things, the least damaging of which is to simply lose the cloture vote. That's pretty meaningless. If the Democrats succeed in getting 41 Senators to oppose cloture, the move could be viewed by the American voters as disruptive and obstructive to preparations for the Super Bowl - an unforgivable gaffe.
A successful vote against cloture would bring on a filibuster and could very well result in the evaporation of the "gang of 14" and the introduction of the "nuclear option". The nuclear option is the threat by Republicans to vote by simple majority (51) to change Senate rules to require only a simple majority to approve cloture on Supreme Court nominees and not the 3/5 super-majority (60 votes) as Senate rules now require.
I saw on some lefty blog yesterday the charge that the nuclear option would be breaking Senate rules. That's silly. Back when the nuclear option was first being threatened there were many who charged that it would be in violation of U.S. law and/or the Constitution. If you can find any mention of cloture or filibuster or simple majority Senate Supreme Court confirmation votes or 3/5 super-majority Senate cloture votes in the Constitution or the U.S. Code, I'll eat the copy that you can provide - with no salt or beer chaser. In fact, if you can find any requirement in the Constitution or the U.S. Code that requires the Senate to even conduct a vote on a presidential Supreme Court nominee, I'll eat that, too, and cheerfully so.
Prior to 1919, there was no procedure for cloture at all. Debate could theoretically go on forever. In fact, Henry Clay once got so angry at John C. Calhoun's interminable debating tactics that he suggested a cloture rule back in 1841. The Senate rejected any proposal to limit its prerogative of unlimited debate. In 1919, President Wilson, weary of unlimited debate, suggested a method be found to limit the debate. The 2/3 super-majority rule was adopted by the Senate and was called "cloture". In 1975, the Senate modified the cloture rule by reducing the 2/3 to a 3/5 super-majority. And remember, that is 3/5 of Senators present, willing and able to vote. It would be 60 if all 100 senators were present, 31 if only 51 senators were present.
The Senate (and the House, separately) operates under its own rules which it, alone, makes. The current Senate rules were all passed either by simple majority votes or by acclamation and are subject to change under the same criteria. Any party which can scrape up 51 votes (or a simple majority of senators present and voting) can change any Senate rule at any time for any reason or add a new one or delete an existing one. Changing a Senate rule to favor the party in power, however, is a double-edged sword. When that party eventually loses power, the sword of the Senate rule it adopted or changed can now be swung against it. That's why Senate rules are not being forever modified and re-modified.
If, in fact, the Senate's cloture-invoking 3/5 super-majority rule were indeed changed, Sen. Richard Byrd would likely drop dead of a heart attack or stroke but no one else in the senate would care so much. He is about the only guy in there who adheres (supposedly) to the old standards of behavior that have held sway in the Senate for oh these many years but are now mostly ignored. Senators now regularly engage in name-calling, which he abhors (supposedly), petty cut-throat tactics, which he abhors (supposedly) and Senators yodeling from Davos (which I am 100% sure he abhors).
Wiser heads I am sure will prevail and I am also sure that Senators Kerry and Kennedy are counting on them. This whole affair is a sop to the lefty wing-nut base and was doomed to failure as soon as Kerry opened his gaping maw.
UPDATE: I want to clarify that, if there is an attempt to invoke the nuclear option by changing Senate rules, the Democrats could wage a filibuster against that. In that case, current Senate rules require a 2/3 super-majority vote to invoke cloture to cut of debate on changes to Senate rules.
I also edited the reference to super-majority to read either 2/3 or 3/5, depending, because not all super-majorities are created equal. I also added in the history of Senate rule changes regarding cloture votes.
TAGS: John Kerry, Alito, filibuster, yodel