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Will the GOP “Go Nuclear” Over Judges? Don’t bet on it
NRO ^ | 5/8/2003 | Byron York

Posted on 05/08/2003 6:43:20 PM PDT by Utah Girl

here's been a flurry of speculation in the Senate and in conservative circles about a so-called "nuclear option" to break through the current deadlock over judicial nominations.

The scenario envisions Republicans using parliamentary maneuvers either to declare the Democratic filibusters of Miguel Estrada and Priscilla Owen unconstitutional, or to decide that Senate rules forbid the minority party from using the filibuster in cases of judicial nominations. In either case, the scenario goes, a simple majority of 51 votes could then be held to uphold the parliamentary ruling. Then, the Senate could move on to a final confirmation vote for both nominees.

While some senators have indeed studied the strategy, sources say there is little or no chance it will be used by the Senate Republican leadership anytime soon. What is more likely is that the GOP will try to introduce a version of a filibuster-breaking plan outlined by Georgia Democratic Sen. Zell Miller.

The Miller proposal is based on an idea put forth in 1995 by Democratic senators Joseph Lieberman and Tom Harkin (which itself was based on still earlier proposals). The plan in effect makes it progressively more difficult for a minority party to stand in the way of the majority's will. Under the plan, when a filibuster is under way and the majority tries to break it by holding a cloture vote, the first vote would require, as it does today, 60 votes to break the filibuster. But if the first attempt fails, the next cloture vote would require just 57 votes to end debate. If a third cloture vote was needed, 54 votes would be needed to end debate. Finally, a fourth cloture vote would require just 51 votes, a simple majority, to move on to a final confirmation vote. At that point, the majority's will would prevail.

"This would preserve the Senate tradition," Miller said in written testimony on Tuesday, "while still giving the minority plenty of time to plead its case without blocking the majority forever."

The only problem with such a proposal, Republicans concede, is that it would require a change in Senate rules, a move that would run into stiff Democratic resistance. Miller himself notes that in 1995, the Lieberman-Harkin plan won just 19 votes. "I'm enough of a realist to know things haven't changed that much in eight years and my proposal wouldn't fare much better today," Miller said. "But at the very least...I would hope we would consider applying my proposal to judicial nominations."

Still, it's likely that Republicans will introduce some version of the Miller plan, even though they know it is unlikely to win early approval. "It's an argument that has to be rolled out, discussed, you build public attention to it, and then see what happens," says one Republican.

If the Miller plan fails, GOP leaders will then consider whether to move on to stronger measures, including a stepped-up political campaign against so-called moderate Democrats who have so far supported the Estrada and Owen filibusters. Whether Republicans will ever decide to use the "nuclear option" is not clear.

The strategizing on Capitol Hill comes amid yet another highly visible breakdown in relations between the parties over the judicial issue. This latest breakdown occurred, ironically, at a hearing called to explore ways to resolve the impasse.

The hearing, held Tuesday, was presided over by Texas Republican Sen. John Cornyn, who chairs the Judiciary Subcommittee on the Constitution. Cornyn, a freshman, arrived in the Senate in the midst of the judicial fight; having played no role in old conflicts, and having no scores to settle, he set about looking for ways to end the fighting.

The hearing was the result of that search. Cornyn began the session — entitled "Judicial Nominations, Filibusters, and the Constitution: When a majority is denied its right to consent" — by trying to reach out to Democrats, especially to Wisconsin Sen. Russell Feingold, the ranking member of the subcommittee. "Senator Feingold is an honorable and public-minded person," Cornyn said in his opening remarks, "and I'm glad that we've already developed what I believe to be a good, cooperative, bipartisan relationship." "I think we agree...that the current judicial confirmation process is broken and something needs to be done," Cornyn continued, "and the purpose of this hearing is to talk about ideas about what can done."

For the briefest of moments it appeared as if there might be some real energy behind an effort to find a solution to the confirmation crisis. Then came Feingold's chance to speak. His message, and that of his fellow Democrats, might be briefly summarized as: Forget it.

To begin with, Feingold didn't like the name Cornyn had given to the hearing. "Unfortunately, the title of the hearing suggests that it may be intended to turn up the hear rather than cool things down," Feingold said. "The argument recently advanced on the floor by a number of senators that filibusters of judicial nominees are unconstitutional seems to be part of a campaign of political intimidation launched by supporters of the president's nominees. If this hearing is a prelude to a floor effort to rewrite the Senate's rules, or circumvent them through parliamentary tactics, I doubt very much they will succeed, and I am sure they will be me with stiff resistance. The end result could be to take the tensions we feel in this committee and spread them to the floor of the Senate."

In addition, Feingold said that "those of us who take the Constitution seriously" were dismayed at Republican attempts to end the Democratic filibusters of Estrada and Owen. Feingold conceded that the filibuster was a highly unusual tactic in judicial nominations — "We do admit it's an extreme step," he said — but insisted that the real villain in the judicial conflict was the Bush administration. "So far, the White House seems intent on forging ahead with its efforts to push through as many nominees with the most extreme views as possible, in the shortest possible time," Feingold said. Just as bad, he added, Republicans on the committee have "participated in that strategy by pursuing a 'take no prisoners' approach."

And that, at least from a Democratic standpoint, was the end of any "good, cooperative, bipartisan relationship" that might have existed at the hearing.

In the next hour, Feingold's sentiments were repeated by Massachusetts Democrat Ted Kennedy, who revived the old Democratic charge that "President Bush has no mandate from the American people to stack the courts with judges who share his agenda." New York Democrat Charles Schumer, who has proposed that the president solve the confirmation crisis by simply giving up his constitutional responsibility to appoint judges, appeared as a witness, telling the panel, "Yes, we're sort of in deadlock, but this was not started by Democrats."

After opening remarks, the hearing moved on to a long round of testimony from six constitutional experts. Much of the discussion focused on the legal basis for the "nuclear option." Specifically, the experts analyzed Senate Rule 22, which lays out the procedure for ending a filibuster. The rule reads, in relevant part:

At any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: "Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

The language of the rule, which was adopted in the late 1940s, seems quite clear: It takes 60 votes to end a filibuster. And if the majority tries to change Senate rules, and the minority launches a filibuster to stop that, an even greater majority — 67 votes, if all senators are present and voting — is required to end debate and move forward. At least on its face, Rule 22 is an immovable obstruction to the "nuclear option" solution to the Estrada and Owen filibusters.

In addition, Article I, Section 5 of the Constitution plainly states that the Senate "may determine the rules of its proceedings." Nevertheless, some Republicans are studying Senate precedents with an eye toward advancing the idea that Rule 22 does not apply to judicial nominations. But as attractive as that idea seems, many Republicans remain skeptical. "If they're going to do it [break the filibusters] by having the chair say X is really Y," says one, "that would be parliamentary activism."

Those in the GOP who oppose such a tactic find themselves in uncomfortable agreement with Schumer, who is the most outspoken opponent of President Bush's judicial nominees. At the Cornyn hearing, Schumer engaged the legal experts in a furious back-and-forth over the idea of changing Rule 22 or seeking a ruling that it is unconstitutional as applied to judicial nominations.

"I'm totally befuddled by the idea that it is unconstitutional to filibuster a judge but not unconstitutional to filibuster legislation," Schumer said. "This is taking the result you want and then twisting the legal argument to make it right. It's the most absurd thing I've ever seen, and I think it's almost a joke."

Schumer's position — and that of more than 40 of his fellow Democrats — leaves Republicans with a tough choice. They can either try to devise some parliamentary solution to the filibuster problem — a solution based on shaky grounds at best — or they can decide to escalate the political battle over nominations.

That would undoubtedly involve a high-profile effort by President Bush, both to put pressure on key Democrats in their home states and to nationalize the issue of Democratic obstruction. It would also involve returning the Senate spotlight to the Estrada nomination with a more rigorous effort than the off-and-on debate going on today. It might even involve Republicans forcing Democrats to mount an old-fashioned filibuster, that is, forcing them to talk without end to prevent votes on Estrada and Owen. "If people screwed up their moxie and hauled in the cots, it could be done," says one Republican.

But not easily. And it is entirely possible that none of those measures will produce a victory before the 2004 elections. But rather than rely on parliamentary sleight-of-hand, many Republicans believe the party must exercise raw political power to win the battle over judicial nominations. At the Cornyn hearing, Democrats made clear that they will not be persuaded to stop their filibuster. The question is whether President Bush and Senate Republicans can put enough political pressure on them to force the issue.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; News/Current Events
KEYWORDS:

1 posted on 05/08/2003 6:43:21 PM PDT by Utah Girl
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To: Utah Girl
"Going nuclear" would require backbones.

Sadly, the spinal x-rays of GOP senators are still being processed.

2 posted on 05/08/2003 6:49:44 PM PDT by Frohickey
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To: Utah Girl
I'd be happy if they just went electric.
3 posted on 05/08/2003 6:52:09 PM PDT by Texas Eagle
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To: Texas Eagle
Wait untill the tax reduction and economic stumulus package is passed then nuke-em
4 posted on 05/08/2003 7:03:54 PM PDT by spokeshave ( against dead wood (albore) Frogs & Rats)
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To: Utah Girl
I just can't believe that Senate Rules trump the Constitution. Where the Constitution calls for a super-majority...it specifies that.
5 posted on 05/08/2003 7:06:11 PM PDT by blanknoone
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To: blanknoone
It seems to me that the Senate Rules should be ruled unconstitutional.
6 posted on 05/08/2003 7:28:53 PM PDT by hoosiermama (Prayers for all)
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To: Utah Girl
At least on its face, Rule 22 is an immovable obstruction to the "nuclear option" solution to the Estrada and Owen filibusters. In addition, Article I, Section 5 of the Constitution plainly states that the Senate "may determine the rules of its proceedings."

Why is it immovable if it's unconstitutional when applied to nominations? It's just a rule. Or to put it another way, why does he think Article I, Section 5 trumps Article II, Section 2? The intention of Article I, Section 5 was obviously not to allow the Senate to make unconstitutional rules.

The last two times that something like the nuclear option was tried (in 1975 and 1957), it didn't succeed directly, but it sent such a shock wave through the Senate that the two parties reached a compromise solution. The same thing might happen this time. It's worth a try, at least as a last resort.

7 posted on 05/08/2003 7:41:21 PM PDT by Stay the course
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To: Utah Girl
According to Caro in his most estimable book "Master of the Senate; The Years of Lyndon Johnson," the trick is to propose rule changes at the beginning of a session when there technically are arguably no rules other than ordinary rules which require only a majority vote. After that,the door is closed. There cannot be a change of rules in mid-session without going through the filibuster process, and a filbuster over the number of votes required for cloture requires 67 votes. So unless the GOP pulls a rabbit out of the hat, all of this plotting is going to be still born.
8 posted on 05/08/2003 8:16:05 PM PDT by Torie
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To: Frohickey
Is there any way to use real nukes?

Or maybe just a Cobalt salted bomb to keep the historic Senate Rotunda intact.

If not, it's time to call the Delta force with some piano wire, time for heads to roll....
9 posted on 05/08/2003 8:16:05 PM PDT by ChinaGotTheGoodsOnClinton
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To: Utah Girl
According to Caro in his most estimable book "Master of the Senate; The Years of Lyndon Johnson," the trick is to propose rule changes at the beginning of a session when there technically are arguably no rules other than ordinary rules which require only a majority vote. After that,the door is closed. There cannot be a change of rules in mid-session without going through the filibuster process, and a filbuster over the number of votes required for cloture requires 67 votes. So unless the GOP pulls a rabbit out of the hat, all of this plotting is going to be still born.
10 posted on 05/08/2003 8:16:06 PM PDT by Torie
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To: Utah Girl
According to Caro in his most estimable book "Master of the Senate; The Years of Lyndon Johnson," the trick is to propose rule changes at the beginning of a session when there technically are arguably no rules other than ordinary rules which require only a majority vote. After that,the door is closed. There cannot be a change of rules in mid-session without going through the filibuster process, and a filbuster over the number of votes required for cloture requires 67 votes. So unless the GOP pulls a rabbit out of the hat, all of this plotting is going to be still born.
11 posted on 05/08/2003 8:16:06 PM PDT by Torie
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To: Frohickey
Is there any way to use real nukes?

Or maybe just a Cobalt salted bomb to keep the historic Senate Rotunda intact.

If not, it's time to call the Delta force with some piano wire, time for heads to roll....
12 posted on 05/08/2003 8:16:06 PM PDT by ChinaGotTheGoodsOnClinton
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To: Frohickey
Is there any way to use real nukes?

Or maybe just a Cobalt salted bomb to keep the historic Senate Rotunda intact.

If not, it's time to call the Delta force with some piano wire, time for heads to roll....
13 posted on 05/08/2003 8:16:30 PM PDT by ChinaGotTheGoodsOnClinton
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To: Utah Girl
Sounds like a great plan. Then by 2017 we'll get the judges we need. Get a freakin' spine you cuttlefish!
14 posted on 05/08/2003 8:20:47 PM PDT by ModernDayCato
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To: Torie
the trick is to propose rule changes at the beginning of a session when there technically are arguably no rules other than ordinary rules which require only a majority vote

That's what Nixon tried to rule when he attempted the original "nuclear option" in 1957. The ultimate result was a compromise (devised by LBJ as majority leader) that added Senate Rule V, paragraph 2: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."

15 posted on 05/08/2003 8:38:14 PM PDT by Stay the course
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To: Stay the course
If you are right, then the party is totally over. Caro didn't mention that, or I missed it, but I suspect that you are right, since you are aware of the episode to which I was referring.
16 posted on 05/08/2003 8:41:18 PM PDT by Torie
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To: Frohickey
more like a joke
17 posted on 05/08/2003 8:43:17 PM PDT by TLBSHOW (the gift is to see the truth)
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To: Torie
The vice president did try to take a more active role in the Senate's deliberations on one occasion, but his effort failed. In 1957, the Eisenhower administration decided to push for a civil rights bill and anticipated that opponents of the bill would use a filibuster to kill it if necessary. Senate Rule XXII provided that cloture could not be invoked on a rules change, making it impossible to stop such a filibuster. At the opening of the first session of the Eighty-fifth Congress in 1957, Senator Clinton Anderson (D-NM), in a strategy intended to make cloture easier to obtain, moved that the Senate consider new rules. Nixon - over the objections of the Republican leadership, which supported the existing cloture provisions - stated that "in the opinion of the Chair," the membership after each election composed a new Senate rather than a continuing body. As a result, he ruled, the Senate could change the rules at the beginning of each Congress by vote of a simple majority. The Senate, however, tabled Anderson's motion the next day by a vote of 55 to 38. Later that year, after repeated attempts to change the cloture rule in order to pass the Civil Rights Act of 1957, Senate Majority Leader Lyndon Johnson engineered a compromise that applied cloture to debate on motions for changes in rules, but declared that "the rules of the Senate shall continue from one Congress to the next Congress unless they be changed as provided in these rules."

Mark O. Hatfield. Vice Presidents of the United States, 1789-1993


18 posted on 05/08/2003 8:48:17 PM PDT by Stay the course
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To: Stay the course
Hatfield is wrong about the GOP leadership opposing Nixon. They were in on the scheme, and supported it. I suppose one could argue that if the Senate is in fact not a continuing body per the Nixon ruling, than any rules that purport to bind a new body would be a nullity, because they could not bind the new body. I am beginning to see some daylight here.
19 posted on 05/08/2003 8:53:51 PM PDT by Torie
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To: Torie
If the argument that filibusters are unconstitutional when applied to the executive calendar is correct, then I don't think the rules matter. Suppose the Senate passed a rule that said that the President's nominees must be unanimously approved. Nobody would dispute that it was an unconstitutional infringement on the executive branch. Nobody would argue that it was legitimate simply because the Senate had instituted the rule within the bounds of existing rules and parliamentary procedure. What the Democrats are doing now is arguably the same thing. They are effectively imposing a 60-vote super-majority on the President's nominees. The Constitution trumps the Senate's rules.
20 posted on 05/08/2003 9:00:20 PM PDT by Stay the course
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To: Stay the course
Yes the constitution trumps the senate rules, but the rule is about cutting off debate. It is a procedural rule. I appreciate requiring supre majorities to cut off debate has substantive effect, but it has been around since the nation's founding. It used to be one senator could tie up the place. It didn't drop down to two thirds until the 20th century. I don't think SCOTUS will mess with a procedural rule, and indeed the Senate might ignore SCOTUS if it tried. SCOTUS isn't going there, in my opinion.
21 posted on 05/08/2003 9:03:29 PM PDT by Torie
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To: Torie
Using the filibuster to extend legitimate debate is one thing. I doubt if it was ever intended to allow permanent obstruction. I have read some persuasive arguments that the framers never intended unlimited debate to be an essential feature of the Senate. If so, the question then becomes, how do you determine where debate ends and obstruction begins? I think the Harkin-Lieberman proposal mentioned in the article would be a practical compromise. Maybe it should be revisited.

And I don't think SCOTUS wants to go there either.
22 posted on 05/08/2003 9:21:31 PM PDT by Stay the course
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To: Stay the course
According to Caro, at one time, the Senate practically dictated one was going to be in the President's cabinet. For many years, things were far, far worse than they are now. In short, what the Dems are doing is not new and novel.
23 posted on 05/08/2003 9:23:43 PM PDT by Torie
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To: Utah Girl
They may not, but I am about to! The left is making me crazy already, and it is just the beginning.
24 posted on 05/08/2003 9:28:34 PM PDT by ladyinred
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To: Torie
Thanks for your comments. I want to light a fire under the Senate to get them to do something, but the dems are being really stinky about all of this. Hatch is my senator, I call every 2 or 3 weeks, and push on this issue. He is very frustrated, he was supremely fair during Clinton's reign of terror.
25 posted on 05/08/2003 9:34:42 PM PDT by Utah Girl
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To: Torie
but it has been around since the nation's founding

It began in 1917 according to the Senate website.

26 posted on 05/08/2003 10:44:54 PM PDT by FirstFlaBn
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To: Stay the course
..."the rules of the Senate shall continue from one Congress to the next Congress unless they be changed as provided in these rules."

That is an interesting opinion by LBJ when he was the Senate Majority Leader. I thought that previous Congresses could not tie the hands of future ones, since that would be the tyranny of the past over the present and future. That at least is how I understand the House to operate. Strange that the Senate would allow previous Senates to foist their rules upon their successors at the begining of each session, that is every two years.

I have read countering opinions that the Senate considers itself to be a continuing body, since only one-third of its members are elected every two years, unlike the House where a complete "new" body is elected every two years.

So if the Senate today created a rule that no legislation could be brought to the floor unless it had a 67 vote supermajority, and that this rule was binding on it, and any or all future Senates unless those future Senates mustered the 67 votes to overturn such a rule this would be OK? It would give any future minority Party with 34 disiplined members an absolute VETO over any legislation or the ability to to change the rules imposed by some long-ago Senate...

A never-ending Legislative 'Groundhog Day'.

Makes you think...


dvwjr
27 posted on 05/08/2003 11:31:23 PM PDT by dvwjr
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To: FirstFlaBn
The Senate originally had a procedure for ending debate called "moving the previous motion" (copied from the British Parliament). It was eliminated in 1806. From 1806-1917, there was unlimited debate. In 1917, the cloture rule was added with a majority requirement of 2/3 of Senators present. The majority was raised to 2/3 of all Senators in 1949, then changed back to 2/3 of those present in 1959. In 1975, it was lowered to 3/5 of all Senators, but cloture on rule changes was left at 2/3 of those present. In 1979, in order to stop the stall tactics that became known as "post-cloture filibusters", post-cloture debate was limited to 100 hours. It was changed to 30 hours in 1987.
28 posted on 05/09/2003 5:38:58 AM PDT by Stay the course
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To: Frohickey
Frist avoided military duty because of a spinal problem.
29 posted on 05/09/2003 5:42:10 AM PDT by cynicom
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To: Stay the course
Correction: The Senate originally had a procedure for ending debate called "moving the previous question".
30 posted on 05/09/2003 5:42:44 AM PDT by Stay the course
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To: hoosiermama
It seems to me that the Senate Rules should be ruled unconstitutional.

On what constitutional basis? The Senate & House have the Constitutional right to set their own rules. To solve any problem you must deal with facts, even those you currently don't like, not wishfull thinking (please make it go away mommy). At this time it seems the only way to get an up/down vote is to convince the opposition to relent - this will take a lot of political persuasion, not the stamping of feet and threats of holding your breath.
31 posted on 05/09/2003 5:57:39 AM PDT by familyofman
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To: familyofman
Does the consitution specify a majority vote or supermajority vote of the senate to confirm a judge?

If the former (which it is), how can the Senate create, without going through the bother of a Constitutional amendment, its own aconstituional supermajority requirement?

Can the Senate, by its own power, repeal the Consitution's two-thirds requirement for approving treaties and say instead that treaties shall be approved by a simple majority vote?

No?

Well if they can't turn a constitutionally-specified requirement of a supermajority into a simple majority requirement, how can they turn a constitutionally-specified requriment of a majority into a requirement for a supermajority?

If they can't go from A to B, they can't go from B to A, either.

The Constitution says what it says. It requires no supermajority for confirming judges.

32 posted on 05/09/2003 6:10:58 AM PDT by Warhead W-88
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To: familyofman
Furthermore, the Congress has been slapped down for creating unconstitutional rules regarding self-governance before.

See the Adam Clayton Powell case, for example, where the House presumed to add a new requirement for swearing in a member of the House not specified in the Constitution.
33 posted on 05/09/2003 6:12:19 AM PDT by Warhead W-88
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