Diary

Yes, we can filibuster Sotomayor (if we want to).

On his Campaign Spot blog at NRO, Jim Geraghty discusses the possibility of a Republican led Senate Judiciary Committee filibuster of Judge Sotomayor.  Here is the link to his post:

 

http://campaignspot.nationalreview.com/post/?q=Yzg0YjhlNjNkZDU2MDYyZjA1ODFlOGUwNmEwODQxMjg=

 

However, I must respectfully disagree with Mr. Geraghty’s final assertion in this blog post.  Based on the historical record, it seems likely that 1) a Senate Judiciary Committee filibuster exists, and 2) the Democrats WILL need a Republican to end debate in the Judiciary Committee over the Sotomayor nomination. 

Summary:
Looking at the original markup from 1979, when the current rules were introduced, it seems clear Rule IV was designed as a cloture rule to end what had been the prior right of unlimited debate.  The Democrats tried to argue that in a 2003 judicial nominate debate but they didn’t articulate it correctly and never went back to the original ’79 markup to prove it.  Then Senate Minority Leader Daschle sent a letter to then Senate Judiciary Committee Chairman Hatch saying, “I conclude Rule IV … clearly establishes a committee filibuster right.”  This is inaccurate. Even on the floor the filibuster does not exist by rule. On the contrary, it exists because of absence of a rule (save cloture) for bringing debate to a close. Rule IV was not designed to establish a filibuster; it was implemented as a cloture mechanism to end what had earlier been a right of unlimited debate.

THE RULE

Senate Judiciary Committee Rule IV provides:

The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

 

CONTROVERSY

There is some controversy over whether this provision permits a Committee filibuster, which can be sustained by a united minority, or merely provides a mechanism to force a vote on a matter the chairman does not wish to consider.

 

PRECEDENT

In March 2003, Democrats took the position that Rule IV creates a minority filibuster right that lasts as long as the caucus is united in its opposition. In the context of a fight over circuit court nominees John Roberts, Deborah Cook and Jay Bybee, then Minority Leader Daschle wrote Chairman Hatch:  “I conclude that Rule IV of the Judiciary Committee clearly establishes a Committee filibuster right” covering “deliberations on nominees and other important matters.”

This precedent might now serve Republicans well, but they took the opposing view in the same debate.  Chairman Hatch advised Senator Daschle that, according to “[b]oth Senate parliamentarians[,]…Committee Chairmen have the inherent power to bring a matter to a vote and to interpret Committee Rules.”  Accordingly, he wrote:  “Rule 4 is not the authority by which the Chairman calls for a vote.” Rather, it gives “a majority of the Committee (which must include members of both parties) a mechanism to force a vote, presumably when the Chairman does not want to call one.

 

ANALYSIS

·        As a matter of original intent, it appears the Democrats interpretation may be correct. The transcript from Jan 24, 1979, Chairman Kennedy presiding, reveals that the rule was introduced as a means of shutting off debate. It seems the committee, like the full Senate body, had thereto operated under a presumed right of unlimited debate. “The present rule is the Senator can talk as long as he wants to. I realize in a few cases that may have been abused…” (33) The original draft of the rule read “If the chairman determines that a motion or amendment has been adequately debated, he may call for a vote…” (31) Because of concerns about minority rights, it was suggested that “maybe you could require the vote of one minority member to terminate debate” or an “an extraordinary majority”  (42-43)  The final rule, which is identical to the current version, was adopted at the next committee markup on Jan 30, 1979.

·        Even if it exists, the Committee filibuster may ultimately be of rhetorical value only, since it could be defeated by a discharge motion on the Senate floor. Although a motion to discharge a matter from committee is debatable, it would likely succeed in the current Congress.

·        Rule IV refers to bringing a matter to a vote “without further debate,” suggesting some prior debate, meaning the item was already on the agenda rather than simply referred to the committee. Given the chairman’s ability to set the agenda, this might support an interpretation of Rule IV as a Committee filibuster rule, rather than a mechanism to compel a recalcitrant chairman. 

·        During a 02/27/2003 Senate Judiciary Committee markup, Chairman Hatch ruled that Rule IV “does not apply to executive nominations.” (132)  He also insisted:  “it is highly unconstitutional to filibuster executive nominees, especially judges.” (145) 

 

NOTE

With all this said, I would like to stress that I do not think that the Republicans should filibuster Judge Sotomayor in the Senate Judiciary Committee.  This filibuster would most probably be defeated, and regardless, President Obama is not likely to produce a better nominee for the Court.  However, the historical record in the Judiciary Committee does seem to show that the Republicans could filibuster her nomination, if they wished to do so.