Good buddy Neal Boortz explained the filibuster to a caller the other day in the clearest possible manner, sans the usual snarky asides. His legal training shone bright as he explained the elephant in the room in easy to grasp constitutional terms:
***In the Senate it takes a majority vote to confirm presidential appointments to be in constitutional compliance with the Senate's role of "advise and consent."
***The senate rules call for a three-fifths vote to stop debate on a nominee.
The distinction between voting on a presidential appointment (a constitutional matter) versus voting to stop debate (a procedural matter) is central to the discussion of filibusters. My long-winded treatment of the subject, cited at Stones Cry Out, did not clearly point out this procedural distinction. The Constitution lays down the "majority" rule, but it does not, thankfully, micromanage the debate. This is as close as our system of representative democracy gets to a consociational feature, now being applied to emerging "democratic" legislative models.
Meantime, the elephant is still in the room.
Josh Marshall makes interesting speculations about what could be happening behind closed doors.
I don't think anyone likes to look into a future in which a minority goup is left without this blunt instrument in it's parliamentary toolkit. Even surgeons use hammers from time to time.
Josh Marshall: But let's remember what this is about. It's about whether the Democrats retain their significant lever of power to block President Bush's most extreme judicial nominees. Democrats give that up, they lose. Republicans give that up, they lose. It's really that simple.
Professors Michael Rappaport and John McGinnis take a look at the history of the filibuster...
Both the text and structure of the Constitution show that only one of three possible views about the constitutionality of the judicial filibuster is correct.
The first view ... is that filibustering judges is simply unconstitutional. But the Constitution expressly gives the Senate the right to fashion its own rules of procedure and nowhere requires application of majority rule to confirmations.
The second view ... is that a majority has no right to change the filibuster rule because the Senate rules still require a two-thirds vote to end a filibuster mounted against a resolution to change the filibuster. But this Senate rule conflicts with the structure of the Constitution.
The third and constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option – the route contemplated by our founding document.
Herein lies the rub...
Of course, the Senate majority's undoubted power to change the filibuster rule does not mean that doing so would be good policy. If modern judges feel free to amend the Constitution in the guise of interpreting it, there is a strong argument that an express supermajority confirmation rule might be beneficial. After all, through its express amendment process the Constitution requires a stringent supermajority rule before politicians can establish new norms that will bind future generations. If judging has become just politics by other means, it does seem strange to permit justices confirmed by a mere majority to start imposing their values on the rest of us.
As they say, "Indeed."
Tip to The Right Coast