Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: xzins
AND by simple majority vote WITHOUT the possibility of filibuster.

You're wrong. Debate on a change to the rules of the Senate can only be closed with the consent of two-thirds of the Senators present and voting...that's 67 votes, a "super fillibuster", as opposed to the 60 required to close debate on other questions. See Senate rule XXII.

Makes the possibility of a rule change highly unlikly. While I'd like to impute pure and noble motives to the Senate Republicans, I don't think enough of them will want to give up the possibility of having this leverage for their own future use. What if the shoe was on the other foot with John Kerry elevating some ultra-liberal judge from the California 9th District Court of Appeals to the Supreme Court and the Repulicans were in the Senate minority?

55 posted on 11/11/2004 7:12:16 PM PST by gbchriste
[ Post Reply | Private Reply | To 11 | View Replies ]


To: gbchriste
What if the shoe was on the other foot with John Kerry elevating some ultra-liberal judge from the California 9th District Court of Appeals to the Supreme Court and the Repulicans were in the Senate minority?

Which possibility was very close to being realized and could well be in one or two election cycles. We all understand the impatience to radicalize the SC on certain issues (called conservative if you agree with it all), but real change procedes at what many will perceive to be a glacial pace. It is the genius of the system put in place by our founding fathers. It may be frustratingly slow, but it keeps things from getting too out of kilter too fast. It keeps us from being like Italy or France.

59 posted on 11/11/2004 7:17:06 PM PST by AndyJackson
[ Post Reply | Private Reply | To 55 | View Replies ]

To: gbchriste
The article makes the point that the entrenchment of old rules is unconstitutional. If this were the first Senate ever in the history of the US, would they be prevented from making a rule because of an already existing rule?

Why filibuster is unconstitutional

No, the cleaner constitutional argument is not to attack the filibuster head-on, but to raise serious objection to its entrenchment--that is, to the Senate rule that prevents a new Senate from changing the cloture rule without a two-thirds vote. Senate Rule V provides that the rules of the Senate shall continue from one Congress to the next unless amended by two-thirds of those present and voting.

This violates fundamental law as old as Sir William Blackstone, who observed in the mid-18th century that "Acts of Parliament derogatory from the power of subsequent parliaments bind not." Likewise, the Supreme Court has repeatedly held that the legislature does not have the power to bind itself in the future. As the Court stated in Ohio Life Ins. and Trust Co. v. Debolt (1853), for the political process to remain representative and accountable, "every succeeding Legislature possesses the same jurisdiction and power . . . as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less."


71 posted on 11/11/2004 7:27:14 PM PST by xzins ((Now that the election's over; I need a new tagline...))
[ Post Reply | Private Reply | To 55 | View Replies ]

To: gbchriste

So we have a meta-filibuster.

And if that is to be argued, then a meta-meta-filibuster.

And...


113 posted on 11/11/2004 9:17:41 PM PST by The Red Zone (The GOP is Charlie Brown, the lives of millions of unborn is the football, and Specter is Lucy.)
[ Post Reply | Private Reply | To 55 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson