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On March 17, the Senate Judiciary Committee voted along strict party lines to send to the Senate floor President Bush’s renomination of William Myers III for a seat on the Ninth Circuit U.S. Court of Appeals. Last July, Myers’ supporters failed to garner the necessary votes to overcome a filibuster. This renomination, the first of seven by the president, faces another Democratic challenge, and the Republicans are already agitating for filibuster reform. A group of Republicans, led by the majority leader, Bill Frist, intends to propose a rule change so as to allow a simple majority of senators to cut off debate on judicial nominees. Sen. Frist has referred to judicial filibusters undertaken by the Democrats as “an affront to the advice-and-consent power of our Constitution.” In fact, the Republican proposal to infringe on the right of the Democrats to speak out on nominees threatens the very balance of power among the three branches of government. In a statement to The New York Times reported March 16, Sen. Frist characterized the proposal to cut off debate on a simple majority vote as a “return to 200 years of tradition.” This misrepresents Senate history. The fact is that the filibuster has been employed by both parties in the Senate for more than 165 years. At no time in those 165 years have the rules permitted the Senate to cut off debate on judicial nominees on a simple majority vote. The clear tradition of the Senate is one of open and unlimited debate, which may be curtailed only by a super-majority vote. Under the “advice and consent” role laid out in Article II, Section 2, of the Constitution, the Senate is obliged to approve or reject the president’s nominees to the federal bench. The Founders had a clear rationale for imposing this special duty on the Senate: While House membership is apportioned based on the population of each state, the Senate is composed of two senators from each state. This provides the Senate with a crucial capacity to protect minority interests, particularly with regard to appointments. Without this capacity, which exists only in an arena of unlimited debate, the majority is free to rubber-stamp any nominee offered by the president. Elimination of filibuster means elimination of unfettered debate. And this, in turn, means the 55 Senate Republicans can silence the concerns of the 44 Democrats and approve over the Democrats’ objections any judicial nominee. This “nuclear” option would empower the slim Republican majority to pack the federal judiciary with judges favorable to the president’s agenda. With this tantalizing possibility as a backdrop, Sen. Frist and his allies propose to eliminate the provision of Senate Rule XXII that requires a two-thirds majority vote to invoke cloture, or close debate, and replace it with a simple majority-vote rule. Sen. Trent Lott, R-Miss., coined the term “nuclear” option to describe this proposal; it is also called the “constitutional” option (the historic and more politic term recently adopted by the Republicans). The tactic acquired the label “constitutional” because proponents relied upon Article I, Section 5, of the Constitution, which reads, in part, “[e]ach House may determine the rules of its proceedings.” Proponents argue that Rule XXII is therefore not binding since it was adopted by a previous session of the Senate. By any name, the proposal is a gag measure to be used against the senators who oppose a judicial nominee. In the 88 years since the adoption of Rule XXII, senators from both sides of the aisle have threatened the “nuclear” option more than a half-dozen times. Each time, the Senate has been loath to drop this particular bomb on its own house, and for good reason. The rules of procedure adopted by the Senate are “the only weapon by which the minority can defend themselves” against “the irregularities and abuses � which the wantonness of power is but too often apt to suggest to large and successful majorities,” as Thomas Jefferson warned. (T. Jefferson, A Manual of Parliamentary Practice, � I.) A strategy for the Republican majority to overhaul the filibuster rules recently appeared in an article co-authored by Martin Gold, Sen. Frist’s former floor adviser, entitled, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster” (Martin B. Gold and Dimple Gupta, Harvard Journal of Law & Public Policy, Vol. 24, No. 1). A draft of this article made the rounds of Senate Republicans at the end of 2004, according to Jeffrey Toobin, writing in the March 7 issue of The New Yorker. Gold contends that, under Article I, Section 5, the Senate is free to change, or even ignore, Rule XXII and to close debate by a simple majority vote under “traditional parliamentary procedures,” which are found in Robert’s Rules of Order. However, Gold and his Senate cohorts have miscalculated. A vote to “call the question” and end debate requires a two-thirds majority vote under Robert’s Rules, because cutting off debate infringes on a member’s right to speak (Robert’s Rules of Order Newly Revised (10th ed. 2000), pp. 189-201). Thus, resorting to traditional parliamentary procedures would result in an increase in the voting requirement to close debate. In any event, this Senate, by operating under extant rules in its first months in session, has implicitly ratified them. According to an advisory opinion authored by Richard Nixon in 1957, the current session of the Senate has arguably acquiesced to previously adopted standing rules by conducting business without changing or revoking those rules (103 Cong. Rec. 178 (statement of Vice President Nixon)). Moreover, by seeking to amend Rule XXII, the Republicans would necessarily affirm its existence and viability, so any motion to amend the rule would constitute a renunciation of the constitutional argument that it is not binding on this Senate. And closing debate on a motion to amend rules requires a three-fifths majority vote under Rule XXII, or a two-thirds majority vote under Robert’s Rules. Rule XXII is itself the product of thorough debate and compromise. The Senate enacted the first cloture rule in 1917 following a threat to invoke the very “constitutional” option that Frist and others now propose (Gold and Gupta, p.227). With occasional adjustment by the Senate, the current cloture rule has been in place ever since. Rule XXII, with its super-majority requirement to cut off debate, is a reasonable limitation on totally unfettered and intentionally dilatory oratory. There is no rational basis to further erode the right of speech in the Senate and to do so would be to deleteriously alter the balance of interests struck by the compromise rule. The Republicans could take an even more radical tack. Shortly after debate on the Myers nomination commences, the proponents of the gag measure could assert that further debate on the nomination is dilatory and not in order. Under Senate rules, such points of order are not usually debatable. Undoubtedly, the presiding officer of the Senate, either Vice President Dick Cheney or Sen. Ted Stevens (R-Alaska), president pro tem, would rule in favor of the point of order, thereby cutting off debate on the nominee. The minority Democrats would appeal the ruling. The Republicans would then move to table the appeal, a motion to table being non-debatable and subject to a simple majority vote. It would pass, and the filibuster of the nominee would be defeated. The Republicans should reconsider the nuclear option, given the ensuing fallout should it succeed. Under traditional parliamentary procedures, it is a violation of fair procedure to employ a motion to table in order to defeat a measure (Robert’s Rules, pp. 207-209). This is so because permitting a motion to table to have this effect closes debate on a simple majority vote, when a two-thirds majority is required. Acting in defiance of this long-standing rule of parliamentary procedure would set a dangerous precedent, one the Republicans may find themselves chafing under in the future. Prior to the Republican sweep of Congress and the White House, Sen. Frist and other Republicans proposing the gag measure freely invoked filibuster. For example, they filibustered six of President Clinton’s judicial nominees, all of whom were ultimately appointed after they received a majority vote. Moreover, the Republican minority succeeded in blocking 60-plus nominees in committee. This tactic is unaffected by the proposed rule change, as are other similar types of filibuster, including placing a hold on a nomination, refusing to report a nomination out of committee, objecting to unanimous consent agreements, being absent during quorum calls, and voting against cloture. Radical filibuster reform has ramifications far beyond the Senate chamber. The “procedural” cloture rule dramatically impacts the substantial rights and interests of the public. Clearly, unchallenged lifetime appointment to the federal bench of a biased ideologue could significantly affect the interests of millions of Americans. And, it would overturn 165 years of precedent in the Senate. The Founders were wary of capricious alteration of the Senate’s procedures. In a section of Jefferson’s Manual of Parliamentary Practice entitled “The Importance of Adhering to Rules,” he expressed an abiding concern that there be a “uniformity of proceeding” in the Senate that was “not subject to the caprice of the Speaker, or captiousness of the members.” He urged that “order, decency and regularity be preserved” in the Senate. (T. Jefferson, A Manual of Parliamentary Practice, � I.) John Jay also emphasized the importance of Senate continuity and stability, writing of the need for staggered Senate elections in order to preserve “uniformity and order, as well as constant succession of official information. �” (The Federalist, No. 64 (Jay)). As Gold admits, previous Senates, confronting the “constitutional” option, have backed away from it because it would doom the body to chaos and disrupt its capacity to conduct the business of the people (Gold and Gupta, p. 233). One bleak consequence of abandoning Senate rules has stayed the hand of prior Senates when confronted with the “constitutional” option: the upheaval in overall Senate business that would ensue. As Sen. William Knowland, R-Calif., stated in response to a 1957 challenge to the “continuity” of Senate rules, “[w]ithout rules, there would be no committees; and without committees, the legislative business of the Senate could not be conducted, except by unanimous consent” (10 Cong. Rec. 209 (1957) (statement of Sen. Knowland)). As Sen. Knowland pointed out, “that would be minority rule with a vengeance.” The chaos occasioned by a showdown on the filibuster of judicial nominees is not the direst consequence of the nuclear option. Worse by far is the chilling effect on the minority party’s speech that would empower a slim Senate majority to rubber-stamp every judicial nomination by the president, regardless of concerns over qualification or other issues. In that nuclear winter, the rights of all citizens could be chilled. Deborah C. England is an attorney in San Francisco practicing civil rights litigation.

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