Republicans cower

The Republicans have snatched defeat from the jaws of victory. On judicial appointments, they have promised not to eliminate the filibuster, in return for a promise by Democrats not to filibuster except for "extraordinary circumstances," to be determined by the discretion of individual Democrats. The only concession is that Democrats agreed to let Brown, Pryor, and Owen get a vote. Read more . . .

The Dems are cheering with ridiculous statements like "the Republic stands!", as if it hung by such a thin thread that modifying a single Senate rule of order (changed by Dems as recently as 1975) imperils our whole way of life. I would have thought that the Republic relies upon things like the U.S. Constitution, the Bill of Rights, and the rule of law, not a single rule of parliamentary procedure.

There's never been a corresponding House rule. There has only been a Senate precedent, subject to tweaking throughout the years to make it easier or harder to filibuster. At one point the Senate adopted rules that allowed for a filibuster to occur even when someone was not present on the floor continuously (eliminating the possibility of spectacles like that in "Mr. Smith Goes to Washington"). In 1975, the majority reduced the number of votes needed for cloture from 2/3 (67) to 3/5 (60).

Is it in "keeping with the spirit of the founding fathers?" The founding fathers left it up to the Senate and the House to determine their procedural rules. Was a two-thirds cloture rule in keeping with "the spirit?" What about a 3/5 rule? If a 3/5 rule doesn't make Jefferson spin in his grave, would an 11/20 (55)?

What if the filibuster were withheld for judicial nominations? The long-standing tradition in the Senate was not filibustering judicial nominees. The only case I'm aware of -- LBJ's nomination of Abe Fortas to Chief Justice -- was filibustered because the nominee was accused of corruption and bribery. Fortas withdrew his nomination, and the scandal continued to grow to such an extent that he also had to resign his then-current position as Associate Justice. If the Democrats were willing to limit their filibuster to substantial ethics charges such as these, we wouldn't have gotten to this point.

The Senate's role in appointments is described as "advise and consent." A supermajority approval is not mandated constitutionally. (Nor is it prohibited, Sean Hannity notwithstanding).

This marks the end of any hope that either Senator Frist or Senator McCain had for getting the presidential nomination in '08. Meanwhile, the fight over the Supreme Court is just delayed, not avoided.