Originally posted by: LunarRay
I must be dreaming.. or Deja Vu ing.. I thought we already did this one... to death. I'm getting old, I guess.
The minority the constitution sought to protect was the individual states... hence the two senators per state regardless of population. The minority was further protected by the constitution for various other issues requiring a super majority. Judicial nominees are not among the consent issues the constitution sought to protect by a super majority.
The senate rule allowing infinite debate subject to cloture takes the vested authority of the Executive to nominate Judicial branch members and subjects it to a condition not provided for in any of the Articles which so vest. A clear violation of the constitution in my opinion. This is what must be protected even at the expense of having very undesirable Judges and Justices from the minority point of view. (I would support one of the four blocked judges, BTW)
Perhaps you should read this:
The Constitutional Argument Against the Filibuster
The June 5 hearing - led by Trent Lott, the former Republican Senate majority leader - posed a few constitutional questions relating to the filibuster. Senator Lott stated that he was cognizant that federal courts, including the Supreme Court, might well decline to resolve these questions based on the "political question" doctrine, which suggests that some questions are not susceptible for judicial review. But he still wanted answers, referring to the oath he had taken to uphold the Constitution.
First, the Senators asked, how can one square the filibuster device and practice with the Constitution itself?
As Professors Erwin Chemerinsky and Catherine Fisk have noted in an elegant law review article, in seven instances, the Constitution requires the use of supermajority rules by one or both houses of Congress. But the filibuster rule is not among them.
For instance, the Constitution requires a 2/3 supermajority of each House to override a Presidential veto of legislation. In addition, it requires a 2/3 majority of the Senate to convict and remove an officer of the United States who has been impeached by the House (as many will remember from President Bill Clinton's impeachment).
In short, some suggest, ordinary majority rule is the Constitution's baseline, and the Constitution is careful and explicit in detailing the situations in which supermajorities are required. Thus, the Constitution's drafters plainly knew how to impose a supermajority rule when they wanted to. They didn't, however, impose the supermajority requirement for ending debate in the Senate.
Therein lies the primary argument against the constitutionality of the filibuster: In failing to expressly include the Senate cloture rule, the Constitution implicitly excludes it. (The Latin term for this interpretive rule is expressio unius est exclusio alterius.) The Constitution, on this reading, gives an exhaustive, exclusive list of all supermajority rules that can be applied in the House or Senate.
The Argument for the Filibuster's Constitutionality
Unfortunately for filibuster opponents, things are not that simple. Another hallowed interpretive principle suggests that a list - such as the Constitution's list of supermajority vote situations - can be illustrative, not exhaustive. It can suggest the kind of circumstances in which a supermajority rule might be appropriate, without providing an exhaustive list of all such rules that can ever be imposed.
Moreover, the Constitution, in Article I, section 5, anticipates that the House and Senate will make rules beyond those set forth in the Constitution, and specifically gives them authority to do so: "Each House may determine the rules of its proceedings." And, aren't the filibuster rule and companion cloture vote rule just these types of procedural rules? Remember, when a filibuster is ongoing, the cloture rule technically requires a supermajority to end debate - a procedural occurrence - not a supermajority to enact the legislation or approve the nomination in question.
Finally, most constitutional analysts are understandably reluctant to disturb practices that have a long historical pedigree - which the filibuster certainly does. In light of this reality, the constitutional case against the filibuster becomes even weaker.
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