IN DC

Taking a break before summer sessions start. Speaking of DC, I got a kind e-mail from a Republican attorney in the Senate who wanted to give expression to the Republican argument that the filibuster is unconstitutional. The main argument is that a filibuster changes the final vote on a nominee from majority vote to a supermajority. But a supermajority vote is not required by the constitution for judicial nominees and seems in fact to be prohibited, since other supermajority requirements are spelled out explicitly. This is the essence of the argument, as I understand it.

I think that the main interpretive difference here comes down to whether or not you think that "advice and consent" imposes a special set of criteria for evaluating Senate procedures on judicial nominees. As far as I understand their position, Republicans (and the anti-filibuster folks at Cornyn's hearing) wanted to limit their attack to the filibuster. But I think that this argument fails because there is no constitutional reason to distinguish between filibusters and any other final-up-or-down-vote defeating procedures, such as blue slips or other reasons for inaction in the judiciary committee. There may be prudential or political reasons to limit the attack to the filibusters, but I can't see any clear constitutional reason to limit the attack. Maybe I'm missing something, of course.

Plus, it seems to me that cloture votes and votes on the nominee are distinct enough as to have potentially different meanings. You could vote for cloture but against the nominee, ultimately, if you think that enough debate has occured, or that it's necessary to bring the vote to the floor even though you don't like the nominee. You could also vote against cloture but for the nominee, if for example you think that the President, the majority party, or the nominee him- or herself hasn't proceeded in a way to allow enough debate, for example. Procedure can be used to block votes, but it also has an identifiable, intelligible meaning. Again, unless you think that some combination of the advice and consent clause plus Senate custom (the ones you like, of course) clearly creates constitutional constraints on (ordinary) Senate procedures here, you'll be willing to entertain the separate meaning of the cloture vote.

And that's not even getting into the fact that the Senate shouldn't submit to Presidential interpretations of their obligations, or that Senate rules can probably be made under circumstances where the immediate partisan gains aren't at the forefront of everyone's (or most people's) minds.

WaPo's editorial yesterday is pretty good on these issues and on the current Republican proposal for a "nuclear option."