Thursday, July 12, 2007

Lieberman and the Nuclear Option

I, as well as many other liberals, are very frustrated with Senate Majority Leader Reid's accomodation with Senator Lieberman (CFL-CT) as on the most salient issue of the day he is voting as if he is a Republican. Some of this is probably due to his long standing personal belief system (when in doubt, bomb some more) and a good chunk of it that Republicans are the ones who elected him last time around. And we had believed that the Senate organizing resolutions that passed in January have made him irrelevant. These resolutions organized the committees and named the chairmen. These steps ensured that if Lieberman defected or a Democratic Senator from a state with a Republican governor died, the Democrats would still control the agenda.

However, I was thinking and talking about this problem with Spork and we came up with the last tenterhook of control that Joe Lieberman has to protect his political rent seeking behavior. The threat is simple --- he defects, turns the Senate 50-50 with Cheney as the tiebreaker, and then we go back to where we were during the last session with the mechanics of the nuclear option:

Of the many nuclear variants allegedly available, the most likely path for Frist goes something like this: Facing a filibuster on the nomination of former Interior Department counsel William G. Myers to the U.S. Court of Appeals for the 9th Circuit (or on the motion to take up the nomination), Frist will posit a point of order to the Senate's presiding officer. In all likelihood, Vice President Cheney will have taken the chair for this purpose.

Frist's point of order will posit: 1) that debate has gone on long enough, and; 2) that because the Constitution requires the Senate's advice and consent on judicial appointments, preventing a vote on that consent is unconstitutional.

If he wants to make a further point, he might also posit: 3) that Article I, Section 5 of the Constitution gives each house of Congress the right to determine its own rules of procedure, and; 4) that therefore the Senate may, under Art. I, Sec. 5, vote by a simple majority to change the rules, henceforth to permit ending debate on judicial nominations (and/or motions to consider such nominations) by majority vote....

So if the precedents say that the Chair cannot rule directly on a constitutional question such as that Frist will have to pose, why will Cheney do it?

Because a constitutional question submitted to the Senate is itself debatable, and therefore, subject to filibuster. So that leaves Frist back at square one: a filibuster on the question of whether or not his point of order should be sustained and the filibuster forbidden.

Clearly, then, it's much preferable for Cheney to simply ignore precedent and rule directly on Frist's point of order, and express the opinion that filibusters of judicial nominations (or indeed any filibusters at all) are unconstitutional. Such a ruling would be immediately appealable, but that appeal itself would be subject to a motion to table -- a motion which could carry by a simple majority, and would have the effect of killing the appeal and letting the ruling stand

So Sen. Lieberman could threaten to defect, and with the short term oddity of a 50-50 Senate, throw is into chaos and destroy the insititutional's distinction from the House. This is about the only good threat that we were able to put together that is plausible and understandable.

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