Democrats May Forgo the Right to Block Future Republican Judicial Nominees

oralloy wrote:

If the Democrats really violated the process for changing the rules, I wonder if the Republicans could sue and have the courts nullify the rule change?

No. The Constitution gives Congress the power to make their own rules. No judge would be able to take a case questioning their rules.

the recent Senate action is unconstitutional.

hawkeye10 wrote:

the recent Senate action is unconstitutional.

How so?

jcboy wrote:

hawkeye10 wrote:

the recent Senate action is unconstitutional.

How so?

the argument is that capricious government is an assault upon constitutional society, and thus as upholders of the Constitution SCOTUS has jurisdiction to forbid it. SCOTUS can rule that while the Senate has the power to set its own rules, it does not have the power to change them without following its own rules for doing so.

The nuclear option, called the constitutional option by some proponents, is a generic term for a set of parliamentary maneuvers used in the United States Senate to achieve approval of certain motions by a majority vote, rather than the "super-majority" required by previous Senate rules and precedents. The nuclear option had arisen in reaction to the frequent use of Senate rules by a minority of Senators to block consideration of a nominee for an Executive Branch or judicial position (or less frequently, a bill or resolution). Between the 1970s and 2013, threats by the majority party to use some version of what is now known as the nuclear option resulted in some changes to Senate rules and practices to limit opportunities for blocking nominations, without actually invoking the nuclear option itself.[1] In November 2013, Senate Democrats used the nuclear option to eliminate filibusters on executive branch nominations and federal judicial appointments other than those to the Supreme Court.
Before November 2013, Senate rules required a three-fifths majority ("duly chosen and sworn"[2] -- usually 60 votes) to end debate on a bill, nomination or other proposal; they also require a two-thirds majority ("present and voting"[2] -- 67 or fewer votes) for a change to the Senate rules. Those rules effectively allowed a minority of the Senate to block a bill or nomination through the technique of the filibuster. This had resulted in a de facto requirement that a nomination have the support of 60 Senators to pass, rather than a majority of 51. A three-fifths majority is still required to end debates on legislation and Supreme Court nominations.
In most proposed variations of the nuclear option, the presiding officer of the Senate would rule that a simple majority vote is sufficient to end debate, and if the ruling were challenged, a majority would be required to overturn the ruling. This would mean, for example, that 51 Senators who favor a nomination could use their majority to uphold the presiding officer's ruling that only 51 votes are needed to end debate and proceed to a final vote, and once the 51 had voted to end debate, they would then have sufficient votes to confirm the nomination. This would end what had effectively become a 60-vote requirement for confirmation of an executive or judicial nominee, or the passage of legislation.
Some variations of the nuclear option involve changing the Senate rules themselves, while others would use the maneuver to create a new precedent for particular types of measures, by having a majority of the Senate uphold the ruling of the presiding officer that a previous rule or precedent is no longer valid.

Is this constitutional?
Sure is. The Constitution doesn't say anything about Senate rules. It puts that power in the hands of senators and congressmen.
"Each House may determine the Rules of its Proceedings," according to Article 1, Section 5.
Senators are tasked with signing off on nominees in Article II, Section 2. But it doesn't say how exactly, which has led to a centuries-long debate on the matter.

Here's what the Constitution says about the president's power to appoint: "He shall have Power... with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
OK. Fine. There's nothing in the Constitution. But Senate rules are pretty clear on the 60-vote threshold.

The debate between minority rights and majority rule continues as of 2010, in particular as it relates to filibustering in the United States Senate.[28][29] If the Senate voted on whether to change the cloture rule, only a simple majority would be needed to change it, though the attempt itself might be filibustered in an effort to prevent the majority from reaching a vote.[26] However, a possible paradox arises due to the presence of a rule that requires a two-thirds majority to change the rules.

With a simple-majority vote, the Senate acted to end the unconstitutional practice of allowing a Senate minority to keep critically important executive and judicial posts vacant for months and years. The Senate invoked a constitutional option -- not a "nuclear" one -- to end the 60-vote threshold required to end confirmation filibusters. The Senate action is a return to the constitutional governance of the Framers' design -- there is nothing "nuclear" about simple-majority votes.

Framers Intended Simple-Majority Confirmation Votes

The super-majority vote design of the Articles of Confederation failed badly. Thus the Delegates to the 1787 Constitutional Convention explicitly rejected general super-majority vote requirements for the Republic's second constitution. The Framers allowed only five explicit exceptions to Senate simple-majority rule: expelling members, ratifying treaties, overriding presidential vetoes, convicting on impeachments, and proposing constitutional amendments. Pursuant to Article II, Section 2, Clause 2, the Senate's advisory-consent votes are to be simple-majority votes. The Senate's job is to timely "ratify or reject" the Executive's choice of nominees by simple-majority confirmation votes.

the Senate has the power to set its own rules, it does not have the power to change them without following its own rules for doing so.

Moreover, Judge Sullivan concluded that, “to intrude into this area would offend the separation of powers on which the Constitutional rests. Nowhere does the Constitution contain express requirements regarding the proper length of, or method for, the Senate to debate proposed legislation. Article I reserves to each House the power to determine the rules of its proceedings…the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court.”

Actually, it does mean they can change them without following their own rules since they can simply change the rules to say they can change the rules however they want.

"proclaiming that reality is whatever they say it is."

wait a minute...
YOU do that.
a lot...

specifically, how an I trash?

bullshit.
you posted that "you trash should not go around blah blah blah your betters..."

and why are you better than me?