Bunker Mulligan "Let us endeavor so to live that when we come to die even the undertaker will be sorry." ~Mark Twain

This week’s topic comes from a fellow Texan.

Does the President of the United States have Constitutional authority to an up or down (simple majority) vote on his judicial nominees?

The days of Huey P. Long and Strom Thurmond as filibuterers is long gone. Today, the wimps we have in the Senate don’t have to inconvenience themselves to filibuster. Another thing that has changed is that judicial nominations, not just legislation, are now being subjected to this procedure.

The modern filibuster is much more powerful than its historical predecessor because it is invisible: The Senate rules do not require any senator to actually hold the floor to filibuster. Instead, a minority of 41 senators simply notifies the Senate leadership of its intent to filibuster. Other Senate business goes on, but a vote on a particular issue — a nomination — cannot be brought to a vote.

And the concept is really hypocritical, as explained by Orrin Hatch:

Many senators once opposed the very judicial nomination filibusters they now embrace. Senator Leahy, for example, said in 1998: “I have stated over and over again…that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported.” Since then, he has voted against cloture on judicial nominations 21 out of 26 times. Senator Ted Kennedy, a former chairman of the Judiciary Committee, said in 1995 that “Senators who believe in fairness will not let a minority of the Senate deny [the nominee] his vote by the entire Senate.” Since then, he has voted to let a minority of the Senate deny judicial nominees a vote 18 out of 23 times.

Why the change? Well, in the 1950s, when the Democrats controlled the Senate,

Majority Leader Senator Mike Mansfield (D-Montana), spearheaded the adoption of a new Senatorial procedure. Mansfield created a system that would technically maintain the Senate’s tradition of unlimited debate but would prevent a legislative logjam. This system is known as the “two-track” system. In this system, if one issue or “track” is being filibustered, the Senate can switch to another track in order to deal with other pending business.

The idea was to be able to block any legislation the minority didn’t like while allowing for other legislation to continue on its merry way. Previously, any filibuster shut down the Senate until it was halted. At that time there was a requirement for two-thirds of Senators present (not two-thirds of all Senators) to break the filibuster. In 1975 that was changed to a requirement for sixty votes. During the long floor speeches of earlier filibusters, the group wanting to maintain them had to keep enough people on the Senate floor to prevent that two-thirds majority. According to Rule VI, “A quorum shall consist of a majority of the Senators duly chosen and sworn.” Fifty-one. Two-thirds of that is 34. So, both sides had to stay in the chamber.

No more. Now they simply say, “I am filibustering this nominee or legislation.” Then they can go home and get some sleep.

Senators can change their own rules, as they have done many times, with only a simple majority vote. That is what is being proposed. Personally, I don’t think a filibuster does the country any harm. Keeping our Senators from legislating is, in my mind, a good thing. But current filibusters don’t do that. They need to revert to the single track system they once had. Inconvenience isn’t something Senators like. And the old style filibuster inconvenienced them. So, don’t expect that outcome. The alternative is to restrict them to legislative issues, not nominations.

And quit whining.

Discerning Texan