Going `NUCLEAR` to make a permanent change to the Standing Rules of the Senate are the only options left that would put an end to the latest fiasco and solidify in writing, a tradition that has not been trampled on for 214 years. This so called `deal` is a 2 page memo filled with promises that will be kept "based upon mutual trust and confidence." That gives me a warm fuzzy, promises being kept by centrists from both sides of the isle that have a hard enough time remembering which side of the isle they represent. Granted, certain legislation when stalled in either house of congress, calls for strong leadership from both sides to come to a bi-partisan agreement. But 99.99 % of the time, the end result is in the form of something legally binding like a Senate Bill, or a simple/concurrent/joint resolution. Not a warm, fuzzy, touchy/feely two-page memorandum of agreement based upon "mutual trust and confidence."
In order for the GOP to be successful in changing `Senate Procedures and Practices` to guarantee an up or down vote for judicial nominees would be to establish parliamentary precedent, rather than trying to amending the Standing Rules of the Senate. Amending the Standing Rules takes a simple majority vote, but such amendments can themselves be filibustered. So the same 60 votes needed to break the filibusters of judicial nominees would be required to amend the Standing Rules.
What really is at issue here is affirming and restoring the precedent of voting on judges with majority support. Senate precedent is properly established with a simple majority (51 votes) on a parliamentary ruling that cannot be filibustered. Such precedents can be consistent with, alter, or even override the Standing Rules. All Senate Majority Leader Frist would need to do is raise a parliamentary "point of order" that enough time has transpired debating the nomination of Justice Owen and that further debate would be "dilatory." The chairman upholds the point of order. The Democrats would appeal the ruling of the Chair. Republicans would move to "table" the appeal. If 51 Republicans voted to table, a precedent would be set for voting on judicial nominees. The precedent applies to all nominees in the future, regardless of what party controls the White House and the Senate, unless a Senate majority changes it again. This method of setting precedents by parliamentary procedure and majority vote is not new: it has been invoked by Senator Robert Byrd four times — in 1977, 1979, 1980, and 1987.
Most Senate Democrats suggest that codifying the longstanding tradition of voting on judges, and leaving untouched the separate tradition of allowing filibusters of legislation will somehow make it easy and tempting to erase future filibusters on executive nominations and bills. Actually, Republicans are the ones who in the past have opposed "erasing" the real filibuster tradition on legislation. If anyone thinks that a President Hillary Clinton and a Democrat-controlled Senate would hesitate for one second to do away with the legislative filibuster if it suited their purposes, regardless of whether Republicans in 2005 did or did not clarify the precedent of voting on judges, think again my amigos.
(Michelle Malkin)
