Why? Because a minority, under present Senate rules, prevails over a majority - even though that topsy-turvy proposition is nowhere to be found, as might be imagined, in the U.S. Constitution. Well, you say, just change the rules. Sure, says the Democratic minority, all you need is 67 votes. Whoa! Wait a minute, says Sen. John Cornyn (R-Texas), who was elected in 2002. I never had a chance to vote on these odd existing rules, and neither has a bipartisan group of 10 freshman senators. Too bad, says the minority. We not only determine the outcome, we also entrench our control of it by a two-thirds (67-vote) rule-change requirement that is carried over from a previous Senate. This makes no sense, and Senate Majority Leader Bill Frist (R-Tenn.) has introduced a straightforward resolution to untangle the mess. S. Res. 138 seeks to amend rule XXII of the Standing Rules of the Senate to provide for more timely consideration of all nominees requiring the advice and consent of the Senate. The proposed amendment would accomplish this by providing for declining majorities for subsequent cloture votes to close debate on nominations until, on the fourth try, only 51 votes would be needed.
The Senate Rules and Administration Committee now has sent S. Res. 138 to the floor and, even though the proposal makes tremendous sense, it's headed for a fight. Majority leader or not, Frist is being told he can't have it unless he has a supermajority of 67 votes. The Democratic position is flat out unconstitutional.
The unconstitutionality of allowing a previous legislature to prevent a subsequent one from exercising its full legislative authority is age-old and near axiomatic. Sir William Blackstone posited that "acts of parliament derogatory from the power of subsequent parliaments bind not." This understanding is embedded in our Founders' own suppositions about legislative power. James Madison and Thomas Jefferson both felt strongly about religious freedom and secured the enactment of the Virginia Statute on Religious Freedom. But however much they wished that enactment never to be repealed or altered, they acknowledged expressly that a legislative assembly has "not [the] power to restrain the acts of succeeding assemblies, constituted with powers equal to [their] own, and that therefore to declare this act irrevocable would be of no effect in law."
This precept is unassailably a part of preserving the "consent of the governed." The U.S. Supreme Court simply cited authority in a 1996 decision for the principle, noting that "the will of a particular Congress does not impose itself upon those to follow in succeeding years" and that the principle is "so obvious as rarely to be stated."