[the_doc]

I note that the D.C. Circuit Court ruled, apparently 2 to 1, that the Court had no jurisdiction in the case Cornyn cited. (The reason why I say "apparently" is that Judge Harry Edwards, by his very dissent against the larger position taken by the Court, definitely maintained that filibustering against nominees is flatly un-Constitutional.)

The funny thing here is that Cornyn has apparently gone on record in recent days as agreeing that the Circuit Court was correct--i.e., that the Circuit Court had no jurisdiction in the Senate case. Cornyn specifically stated, along with a political science prof from U of Mass, that the Court cannot get involved in a procedural matter of the Senate.

This is patently absurd. If the filibuster is un-Constitutional--as Cornyn is trying to suggest that it is by citing Edwards and others--then the Court system definitely is the remedial entity under the Constitution if the Senate refuses to come back into line with the Constitution.

Maybe a lousy Court would continue to refuse to get involved, just as our wonderful D.C. Court did, but if Edwards was correct in his minority opinion--and again, Cornyn is trying to say that Edwards was correct, then the Court system would be derelict in its Constitutional responsibility if it simply dismissed a case against filibustering.

My complaint here is that Cornyn was not being consistent when he suggested last week that the Courts have no right to get involved in Senate business. This was the position of the political science prof, which position was argued on the basis of separation of powers in complete contempt for the equally important principle of checks and balances.

This is why I said that Cornyn would have been more prudent as a lawyer and former judge if he had kept his mouth shut last week. To argue that the filibuster against nominees is un-Consitutional after having argued that the Court has no jurisdiction is legally untenable.

[Remedy]

1. the filibuster against nominees is un-Consitutional
2. the Court has no jurisdiction

I agree with both of the above.

Imagine Bush telling Ashcroft to enforce an intrusion of the Court against the Republicans in the Senate. Imagine the Democrats not calling for impeachment of the judges that ruled against them.

• Congress, the Court, and the Constitution
• Congress, the Court, and the Constitution (2nd & 3rd excerpt)
• Congress, the Court, and the Constitution (LOUIS FISHER)
• Judicial Monopoly Over the Constitution:Jefferson's View
• Lincoln on Judicial Despotism

[Don'tMessWithTexas]

The question is whether the filibuster is per se unconsitutional. In the 1950s, civil rights legislation was filibustered regularly. The constitution calls for a majority vote of ordinary legislation as well as judicial nominations. Was the filibuster of the civil rights legislation unconstitutional? The League of Nations treaty was tied up in filibuster even though there was a sufficient number to pass the treaty.

I believe it would be far easier to use a procedural device to rule the filibuster out of order by using a ruling from the chair. The bottom line is that this is a procedural matter of the Senate. No federal jurisdiction.