"Play by the Rules"--A Commentary by Prof. Bruce Ackerman
Play by the rules
'Option' a bad idea
By Bruce Ackerman, Sterling Professor of Law and Political Science
Senate rules require Republicans to reach across the aisle to gain the confirmation of the President's judicial nominees. Since 60 votes are needed to override filibusters, Republicans (who now number 55 in the Senate) must obtain the support of five other senators to win a victory. To make life easy for themselves, however, they are considering a plan that would eliminate this remaining obstacle to hard-right appointments.
Their plan relies on Vice President Cheney, whom the Constitution designates as president of the Senate. Rather than following the existing Senate rules, Cheney would announce that further debate on a judicial nomination was dilatory, and order the Senate to proceed to a final vote. Under this scenario, 41 Democrats could no longer hold off the nomination. They would need 51 to overrule the Senate president. This is called the "nuclear option" inside the Beltway, since it would eliminate all further cooperation between Democrats and Republicans, bringing Senate business to a halt.
Is there a legal basis for Cheney's action? In a recent article, Martin Gold and Dimple Gupta make the Republican case. Gold has been a floor adviser to Senate Majority Leader Bill Frist, and Gupta has recently been hired by the Republicans on the Senate Judiciary Committee. So the essay deserves attention.
The writers point, correctly, to a constitutional problem raised by the fact that the Senate, unlike the House, does not vote on its rules at the beginning of each new Congress. This position is entrenched by two centuries of practice, and the Senate rules explicitly state that such rules "shall continue from one Congress to the next Congress unless they are changed as provided in these rules." Under this traditional understanding, there is no need for a new vote on the rules since the Senate is a continuing body and only one-third of its members are new.
Despite its pedigree, this position is constitutionally questionable. Article One grants each house the power to determine "the rules of its proceedings," and this may be read to imply that a majority of the Senate, at its first meeting, has the authority to reject old rules. If Cheney had raised this matter when the Senate first convened in January, he would have been acting well within the precedents established by previous Senate presidents.
But he did not do so. Instead, the Republican majority allowed the Senate to organize itself under its customary procedures. Cheney and the Senate are now operating under the rules, which explicitly require a two-thirds vote for any change. This is the point at which Gold and Gupta move onto forbidden ground. They claim the Senate president may simply ignore the rules in determining when debate should end. This is to advocate utter lawlessness. Although the Constitution gives each house the right to change its rules, nothing in the Constitution remotely authorizes the Senate president to ignore them.
Such an abuse of power would be particularly egregious in the present case. Most Senate rules don't implicate the balance of power between the different branches. But the filibuster rule is different. It determines the extent to which the President can override senatorial resistance to his nominees. By acting lawlessly, Cheney would be using his power as a representative of the executive branch to weaken the Senate and undercut our system of separation of powers.
An enduring constitutional order requires political restraint. Using the Senate presidency as a battering ram will hurt everyone in the long run - not least the "strict-constructionist" judges propelled onto the bench by this illegal maneuver.
If the majority of senators wish to change the rules of the Senate, they should wait until the next Congress opens, not indulge in lawless action in the meantime.
Bruce Ackerman is author of a multivolume constitutional history, We the People.