The truth hurts

This is just plain laughable. Senator Byrd, when he was the majority leader, used the "nuclear" option FOUR times to change senatorial rules.

But Byrd's outrageous objection is doubly offensive because during his stint as majority leader, Byrd himself pushed through rules changes that benefited his party. Here is Byrd, from the Congressional Record, January 15, 1979 (courtesy of the blog Beltway):

"This Congress is not obliged to be bound by the dead hand of the past... The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time... So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate... It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote."

2. Later Models To Change Senate Procedures by Precedent: Four
Examples
During his two terms as Senate Majority Leader,375 Senator Robert
C. Byrd (D-WV) initiated four precedents that allowed a simple
majority to change Senate procedures without altering the text of any
Standing Rule. Two of Byrd's precedents overturned procedures then
standing,376 and two others would appear to contravene via
reinterpretation the plain language of an existing Standing Rule.377
a) A Precedent To End Post-Cloture Filibusters (1977)
In 1977, Byrd led a Senate majority in setting a precedent to
address a loophole that then existed in Rule XXII's cloture device?-
the post-cloture filibuster. Senators Howard Metzenbaum (D-OH) and
James Abourezk (D-SD) had set out to filibuster a proposal to
deregulate natural gas prices.378 The Senate had invoked cloture,
triggering Rule XXII's provisions limiting each Senator to one hour
of debate and prohibiting any "dilatory amendment, or amendment
not germane,"379 but to no avail. Metzenbaum and Abourezk
circumvented these limits by proffering a slew of amendments
without debating them (thus preserving their time for debate) and then
forcing quorum calls and roll call votes for each proffered
372. Id.
373. Id. at 57.
374. Id.
375. Byrd served as Senate Majority Leader from 1977-1980 and from 1987-1988.
Biographical Directory of the United States Congress,
http://bioguide.congress.gov/scripts/biodisplay.pl?index=B001210 (last visited Nov. 14,
2004).
376. These precedents were set in 1977 and 1980. 123 CONG. REC. 31,916-27 (1977);
126 CONG. REC. 4729-32 (1980).
377. These precedents were set in 1979 and 1987. 125 CONG. REC. 31,892-94 (1979);
133 CONG. REC. 12,252-60 (1987).
378. 123 CONG. REC. 31,916 (1977).
379. SENATE RULE XXII, STANDING RULES OF THE SENATE (1977), materials provided
by Senate Historian Richard Baker, on file with author; see also SENATE CLOTURE RULE,
S. REP. NO. 99-95, at 103-24 (1985) (setting forth legislative history of Rule XXII).
Issue 1] The Constitutional Option 263
amendment.380 Further, making points of order against the
amendments would not save time or avert these filibusters by roll call.
Although a point of order, if decided by the Chair, was not debatable,
an appeal from the Chair's ruling was debatable.381 Under the
Senate's rules, the minority could appeal the Chair's ruling on the
point of order, debate the appeal, and thereby continue their delaying
tactics.382 If a motion were made to table the appeal, Metzenbaum and
Abourezk would secure a roll call vote on the tabling motion. The
result was that by October 3, 1977, the Senate had spent "13 days and
1 night"383 debating the natural gas bill, which included "121
rollcalls" and "34 live quorums."384
That day, Byrd set in motion a two-part plan to end this postcloture
filibuster. First, he sought partially to reverse the Senate
procedure requiring the Chair to wait for a point of order before
ruling on a procedural defect:
I make the point that when the Senate is operating under cloture
the Chair is required to take the initiative under rule XXII to rule
out of order all amendments which are dilatory or which on their
face are out of order.385
The Vice President sustained Byrd's point of order:
[T]he point of order is well taken. The Chair will take the initiative
to rule out of order dilatory amendments which, under cloture, are
not in order … . and which on their face are out of order[.]386
Abourezk criticized Byrd for attempting "to change the entire rules
of the Senate during the heat of a debate … on a majority vote"387
(that is, for attempting to exercise a variant of the constitutional
option) and appealed the ruling.388 Byrd responded with a tabling
motion, which carried 79-14.389 The result was that a majority of
Senators had succeeded in altering Senate procedures without
changing the text of a Standing Senate Rule.
Armed with this new precedent, Byrd began calling up
380. See, e.g., 123 CONG. REC. 31,583-608, 31,749-55 (1977).
381. SENATE RULE XX, STANDING RULES OF THE SENATE (1977), materials provided
by Senate Historian Richard Baker, on file with author.
382. Id.
383. 123 CONG. REC. 31,921 (1977) (statement of Sen. Byrd).
384. Id. at 31,918 (statement of Sen. Stevens).
385. Id. at 31,916 (statement of Sen. Byrd).
386. Id. at 31,919 (statement of Vice President Mondale).
387. Id. at 31,916 (statement of Sen. Abourezk).
388. Id. at 31,919.
389. Id. at 31,919-20.
264 Harvard Journal of Law & Public Policy [Volume 28
procedurally defective amendments filed by Abourezk and
Metzenbaum. 390 The Chair then ruled each amendment out of order
without waiting for a Senator to raise a point of order against his
ruling.391 Despite Byrd's assurances to Senators Howard Baker (RTN),
Edmund Muskie (D-ME), and Abourezk that the right to appeal
would remain untouched if his point of order were sustained,392 Byrd
exercised his Majority Leader's right of preferential recognition to
call up the next amendment before Abourezk could appeal, thus
mooting the possibility that Abourezk could appeal the earlier
ruling.393 Byrd called up thirty-three amendments in succession,
foreclosing all appeals along the way, and the filibuster was
broken.394
b) A Precedent Limiting Amendments to Appropriations Bills (1979)
In November 1979, Byrd led a majority of Senators present in
setting a precedent that ran directly contrary to the plain language of
Senate Standing Rule XVI, the rule governing consideration of
general appropriations bills. The effect was to alter the operation of
Rule XVI without touching its text.
Prior to November 9, 1979, Senators frequently proposed
legislative amendments to appropriations bills. Legislative
amendments on appropriation bills violated Senate Rule XVI, which
exists in part to separate authorizations from appropriations.
However, the bar was not absolute. If the House acted first to legislate
on an appropriations vehicle, the Senate could respond with
legislative amendments of its own. Thus, when legislative
amendments were proposed in the Senate, they would be challenged
with a point of order and their sponsor would frequently raise the
defense that the amendment was germane to the underlying House
vehicle. Under Rule XVI, "all questions of relevancy of amendments"
had to "be submitted to the Senate and be decided without debate."395
If the Senate deemed the amendment germane, the point of order
would fail and the sponsor would achieve success without needing to
390. Id. at 31,927-28.
391. Id.
392. Id. at 31,917 (statements of Sens. Baker, Muskie, and Byrd).
393. Id. at 31,927-28. By Senate precedent, the majority leader has priority of floor
recognition. RIDDICK & FRUMIN, supra note 140, at 1091, 1098, also printed at S. DOC.
NO. 101-28 (1990).
394. 123 CONG. REC. 31,927-28 (1977).
395. SENATE RULE XVI, STANDING RULES OF THE SENATE (1979), materials provided
by Senate Historian Richard Baker, on file with author.
Issue 1] The Constitutional Option 265
overturn the Chair.
On November 9, Byrd set out to curb this practice. The Senate was
debating a Defense appropriations bill when Senator William
Armstrong (R-CO) proffered an amendment that would "lift the cap
which the administration has imposed upon military pay."396
Appropriations Chairman John Stennis (D-MS) raised a point of order
that the amendment constituted legislation on an appropriation bill.397
When Armstrong asserted the defense of germaneness,398 Byrd
interjected with a point of order:
I make the point of order that this is a misuse of the precedents of
the Senate, since there is no House language to which this
amendment could be germane and that, therefore, the Chair is
required to rule on the point of order as to its being legislation on
an appropriation bill and cannot submit the question of
germaneness to the Senate.399
The Presiding Officer noted that Byrd's motion raised "a question
of first impression" and sustained the point of order:
Since there is no House language in this bill for the amendment to
be germane to, the Chair thinks the point of order is well taken
and, therefore, sustains it.400
Armstrong appealed, and Byrd moved to table the appeal. In a vote
that ran almost entirely along party lines, Byrd prevailed 44-40,401
thus setting a precedent that has caused the Senate to operate in
manner contradicting the plain language of Rule XVI.
c) A Precedent Governing Consideration of Nominations (1980)
In March 1980, Byrd led the Senate Democrats in changing the
Senate's procedures for the consideration of nominations. The
Senate's Executive Calendar lists both treaties and nominations, in
that sequence.
Prior to March 1980, it had "been determined by a precedent that a
motion to go into executive session, being nondebatable, [would]
automatically put the Senate on the first treaty."402 A motion to
396. 125 CONG. REC. 31,877 (1979) (statement of Sen. Armstrong).
397. Id. at 31,892-93 (statement of Sen. Stennis).
398. Id. at 31,893 (statement of Sen. Armstrong).
399. Id. (statement of Sen. Byrd).
400. Id. (statement of the Presiding Officer).
401. Senator Thad Cochran (R-MS) was the only Republican to support Byrd, and
Senators George McGovern (D-SD), Spark Matsunaga (D-HI), and Paul Tsongas (D-MA)
were the only Democrats to oppose him. Id.
402. 126 CONG. REC. 4,731 (1980) (statement of Sen. Byrd).
266 Harvard Journal of Law & Public Policy [Volume 28
proceed to any other Executive Calendar matter would be debatable.
This well established procedure presented potential difficulties for
Byrd, who wished to push through the confirmation of Robert E.
White as Ambassador to El Salvador.403 Byrd would "run the risk of a
double filibuster?-one on the motion to proceed to the nomination
and then a filibuster on the nomination itself."404 Accordingly, Byrd
set out to alter Senate procedure to allow the Senate to proceed
directly to White's nomination with one, non-debatable motion.
On March 5, 1980, Byrd offered a motion:
Mr. President, I move the Senate go into executive session to
consider the first nomination on the Executive Calendar.405
Senator Jesse Helms (R-NC) raised a point of order against the
motion:
The Senator can move to go into executive session but he cannot
under the rules specify what we shall consider. The Senate
determines its order of business in executive session only after
going into executive session. It is not in order to determine the
order of executive business while in legislative session.406
The Presiding Officer immediately sustained Helms's point of
order:
Under the rule, rule XXII, paragraph 1, and precedents thereunder,
only a motion to go into executive session is in order.407
Byrd appealed the ruling, arguing that there was no logical reason
for the Senate to distinguish between a motion to proceed to the first
403. Id. at 4729.
404. Id. at 4731.
405. Id. at 4729.
406. Id. (statement of Sen. Helms).
407. Id. (statement of the Presiding Officer). Rule XXII, paragraph 1 provided (and still
provides):
When a question is pending, no motion shall be received but?-
To adjourn.
To adjourn to a day certain, or that when the Senate adjourn it shall be to a day
certain.
To take a recess.
To proceed to the consideration of executive business.
To lay on the table.
To postpone indefinitely.
To postpone to a day certain.
To commit.
To amend.
Which several motions shall have precedence as they stand arranged; and the
motions relating to adjournment, to take a recess, to proceed to the consideration
of executive business, to lay on the table, shall be decided without debate.
SENATE RULE XXII, supra note 1, at 15-16 (1980).
Issue 1] The Constitutional Option 267
nomination and a motion to proceed to the first treaty.408 Senator
James McClure (R-ID) protested that the proper method for altering
Senate procedure was by proposing "amendments of the rules," "not
simply by changing the rules by majority vote to meet a particular
situation," and urged the Senate to affirm the ruling of the Chair.409
That same day, the Senate rejected the ruling of the Chair by 38-54,
almost completely on party lines.410 Due to Byrd's new precedent,
motions to proceed to nominations are no longer debatable.
d) Precedents Concerning Rule XII's Voting Procedures (1987)
In 1987, a Byrd precedent once again changed Senate procedure to
run contrary to the plain text of a Standing Senate Rule. A Republican
minority had launched a campaign of delay to prevent the Senate
from taking up a Defense authorization bill. The minority invoked
Senate Rule XII, which requires that during a roll call, if a Senator
declines to vote on a call of his or her name, that Senator must give
reason for doing so and the Presiding Officer must put a nondebatable
question to the Senate on whether the Senator shall be
excused from voting.411 During a roll call on a Byrd motion to
approve the Journal,412 Senator John Warner (R-VA) declined to
vote, explaining that he had "not read the Journal."413 In accordance
with Rule XII, the Presiding Officer then initiated a vote to determine
if Senator Warner should be excused.414 Before a vote could be
announced, Senator Dan Quayle (R-IN) declined to vote on whether
Warner should be excused.415 A vote followed on whether to excuse
Quayle, during which Senator Steve Symms (R-ID) declined to
408. 126 CONG. REC. 4730 (1980) (statement of Sen. Byrd).
409. Id. (statement of Sen. McClure).
410. Id. at 4,732.
411. Rule XII stated (and still states), in pertinent part:
When a Senator declines to vote on a call of his name, he shall be required to
assign his reasons therefor, and having assigned them, the Presiding Officer shall
submit the question to the Senate: "Shall the Senator for the reasons assigned by
him, be excused from voting?" which shall be decided without debate; and these
proceedings shall be had after the roll call and before the result is announced;
and any further proceedings in reference thereto shall be after such
announcement.
SENATE RULE XII, STANDING RULES OF THE SENATE, S. DOC. NO. 100-4, at 7-8 (1987);
STANDING RULES OF THE SENATE, S. DOC. NO. 106-15, 106th Cong., 2d Sess. 8 (2000),
available at http://rules.senate.gov/senaterules/rule12.htm (last visited Nov. 14, 2004).
412. 133 CONG. REC. 12,252 (1987) (statement of Sen. Byrd).
413. Id. (statement of Sen. Warner).
414. Id. (statements of the Acting President pro tempore).
415. Id. (statement of Sen. Quayle).
268 Harvard Journal of Law & Public Policy [Volume 28
vote.416 At that moment, four votes were stacked: the vote on Senator
Byrd's original motion to approve the Journal; within it, the vote on
whether Warner should be excused; within that vote, a vote on
whether Quayle should be excused; and within that vote, a vote on
whether Senator Symms should be excused. The tactic could be
employed endlessly.
Byrd countered with a point of order. He posited that during a roll
call on a motion to approve the Journal, repeated requests by
Senators to be excused from voting were dilatory and out of order:
Mr. President, I make a point of order that the request of the
Senator to be excused from voting is for the purpose of delaying
the conclusion of the vote that the Journal be approved to date;
that in amending rule IV, the Senate intended that a majority of the
Senate could resolve the question of the reading of the Journal;
I make my point of order that a request of a Senator to be excused
from voting on a motion to approve the Journal is, therefore, out of
order and that the Chair proceed immediately, without further
delay … .417
Through a series of votes that ran almost entirely along party lines,
Byrd succeeded in establishing three precedents that radically
changed voting procedures under Rule XII. Prior to that day, dilatory
actions were deemed out of order only after cloture had been invoked.
Although cloture had not been invoked on the pending measure,
Byrd's new precedents established:
First, a point of order may be made during a rollcall vote on, or
subsumed by a vote on, a motion to approve the Journal that
repeated requests by Senators to be excused from voting on any
such vote is out of order as dilatory.
Second, repeated requests by Senators to be excused from voting
on a vote on, or subsumed by a vote on, a motion to approve the
Journal, when they are obviously done for the purpose of delaying
the announcement of the vote on the motion to approve the
Journal, are out of order.
Third, a Senator has a limited right to explain his reasons for
416. Id. (statement of Sen. Symms).
417. Id. (statement of Sen. Byrd). Rule IV provided (and still provides), in pertinent
part, that
the Journal of the preceding day shall be read unless by nondebatable motion the
reading shall be waived, the question being, "Shall the Journal stand approved to
date?", and any mistake made in the entries corrected.
SENATE RULE IV, STANDING RULES OF THE SENATE, S. DOC. NO. 100-4, at 3 (1987);
STANDING RULES OF THE SENATE, S. DOC. NO. 106-15, 106th Cong., 2d Sess. 3-4 (2000),
available at http://rules.senate.gov/senaterules/rule04.htm (last visited Nov. 14, 2004).
Issue 1] The Constitutional Option 269
declining to vote, but may not go on "forever" stating his reasons
for not voting.418
Although the precedents were technically limited to proceedings on
a motion to approve the Journal, Senator Alan Simpson (R-WY)
argued that their reach was far broader. He noted that Rule XII barred
all motions and unanimous-consent requests to suspend its
provisions.419 Simpson pointed out that the Senate had, in establishing
three precedents that contradicted Rule XII, violated this provision.
This, he explained, set a precedent that "a simple majority" could
constrain debate even when the Standing Rules appeared to prohibit
such an outcome.420

Tomorrow, March 10th, the Senate Judiciary Committee will consider the nomination of mining and cattle industry lobbyist William Myers III for a lifetime appointment to the U.S. Court of Appeals?-the second highest court in the land. Myers is the first of 20 judicial nominees Bush has re-submitted in his second term. All 20 repeat nominees were rejected last term by Senate Democrats (as compared to the 204 judges they accepted) because these nominees consistently sided with corporate special-interests over the rights of ordinary Americans.

This time, Bush is ready to fight dirty to force these nominees through. Dick Cheney has even threatened to use a parliamentary trick to eliminate the centuries-old rule requiring judges to have broad support in the Senate. This would effectively silence all 44 Democratic senators and the 173 million Americans they represent?-the majority of the country.

To ram his nominees through, Bush is hoping to use a parliamentary trick the Republicans refer to as the "nuclear option." For 200 years, if enough senators strongly objected to a federal judge, they could use a filibuster to force more debate until all their concerns were addressed. That's how Democrats blocked the worst of these 20 nominees last term. Actually changing the rule would require a 2/3 vote of the Senate?-and Bush doesn't have near that level of support.

So instead, Vice President Cheney has threatened to abuse his authority as President of the Senate, and just declare that the right to filibuster judges is null and void. If Senate Majority Leader Bill Frist can twist enough arms to get 50 senators to support the ruling, the filibuster is history. For the first time ever, one party would have complete control over judicial nominations, all the way up to the Supreme Court.

Both parties in the Senate were given the power to approve or reject judicial nominations because?-above all else?-judges must be trusted by Americans on all sides to rule fairly. So why does Bush refuse to send a few replacement nominees both parties can agree on? Why is he so intent on smashing Democratic resistance to these and all future nominees? Because while his presidency will be over in 4 years, the judges he appoints will be on the bench for the rest of their lives

Baldimo
Those are the rules that they have lived under for 200 or so years.


Are you under the mistaken belief that the constitution spells out every rule and procedure of our congress?

The fact is that is the current procedure.