Prometheus 6

In the course of trying to shape the world such that all loose change rolls downhill into their pockets, Senate Republicans are considering trying to eliminate the filibuster. The Weekly Standard has an article just chock-a-block full of false memory syndrome:

Republicans say judicial gridlock was a big loser for Democratic Senate candidates this year. They point especially to the unseating of outgoing minority leader Tom Daschle.

"Tom Daschle's defeat was very instructive," says Texas Republican John Cornyn. "Until then, the Democrats had calculated that all of this was beneath the radar of most of the electorate, and that there wasn't any penalty to be paid. . . . But I think that one of the reasons Daschle was defeated was because of obstructing the president's judicial nominees." Cornyn believes this may chasten Daschle's colleagues.

…but the unknowledgeable will believe it, and sadly that includes many Senators.

The idea that rejecting ten of 213 candidates is obstructionist is bizarre. But that doesn't much matter, I guess. As the Weekly Standard says, this is about judicial philosophy. Republicans are, again, sending messages instead of getting the job done.

But, of course, they see their job as converting the nation to single party rule. And since we KNOW the ends justifies the means to this crew even if the end objectively sucks, get ready for more political foulness.

But what of its legality? If Republicans merely tinker with Senate precedent, they're on sturdy ground. If GOP senators look to formally amend Senate rules by majority vote, they may be okay, too--at least according to a wide swath of constitutional experts.

Indeed, myriad scholars argue Senate Rule XXII, which requires a two-thirds supermajority for cloture on rules changes, is unconstitutional. They cite a timeworn Anglo-American tenet that prevents legislators from binding their successors. This principle stretches from William Blackstone through James Madison. "One legislature doesn't have the authority to tie the hands of another legislature," says Duke law professor Erwin Chemerinsky, a prominent liberal. Rule XXII thus entails "impermissible entrenchment."

Michael Rappaport, a conservative law professor at the University of San Diego, agrees. "A majority of the Senate, constitutionally, has to have the right to change that filibuster rule," he says. The murky bit is just when or how often a majority can exercise that right. As presidents of the Senate, Rappaport notes, Richard Nixon, Hubert Humphrey, and Nelson Rockefeller all held that a majority could amend Senate rules at the outset of a new session. Those aren't "clear precedents," he acknowledges, since Humphrey's ruling was overturned. "But it's by no means a new view, or an unprecedented view."