So let’s start with the black-letter law, the Senate Rules, as they read today — March 5, 2015:
And if that question [of whether debate shall be brought to a close on ANY MATTER OR UNFINISHED BUSINESS pending before the Senate] shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn [except for rules changes] then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of…
So why has it become “the new norm” that non-Supreme Court nominations have been, since November, 2013, clotured by a majority vote?
The answer is that the Democrat in the Chair has ignored the rules and issued a illegal ruling every time a nominee has been clotured by fewer than 60 votes. And each new nominee has constituted a new instance of fraud on the institution.
Which brings us to the question at hand: Assuming more than 41 senators oppose cloture on the nomination of Loretta Lynch, the Chair (and the whole Senate, in considering the ruling of Chair) has a decision to make: He can re-nuke the Senate by reaffirming Reid’s repeated illegal actions in cloturing nominations with fewer than 60 votes. Or he (and the whole Senate) can decide to abide by the Senate rules and require 60.
When the rules require 60 votes, it is mind-blowing how any non-corrupt Presiding Officer can avoid the obvious ruling: “On this vote, the yeas are 59. The nays are 41. Three-fifths of the Senators duly chosen and sworn not having voted in the affirmative, the motion is not agreed to.” And it is equally mind-blowing that a Senate now controlled by Republicans would not successfully appeal any ruling not complying with the black letter of the law. But, as we saw with the King arguments before the Supreme Court yesterday, the black-letter law and the Constitution are no longer an impediment to Democrats’ “noble” liberal policy ends.
It was breath-taking to see the unintentionally self-mocking statement of the doddering (but apparently awake and non-drunk) Ruth Bader Ginsburg: “I have never seen anything like this, where it’s if you take what the statute says you can have … disastrous consequences.” (???) In other words, the feckless Ginsburg conceded, from the bench, that she was ignoring the law to achieve a policy objective. As with the Supreme Court, Senate Republicans may, with Lynch, have a choice between complying with the law or violating the law in order to achieve liberal policy goals. They can honor the law and the rules. Or they can honor [mc_name name=’Sen. Harry Reid (D-NV)’ chamber=’senate’ mcid=’R000146′ ] and adopt his lawless actions, which, not so long ago, they found vile and reprehensible.
One more thing: In this morning’s New York Times, Gail Collins, echoing a universal Democratic narrative, rejoiced that the Democratic congressional geniuses (my characterization) had trounced Republicans and would hereafter succeed in outflanking the GOP to such an extent that Congress would hereafter be governed by a coalition of GOP leadership and Democrats. Both the Republican leadership and conservative Republicans have a strong interest in making it clear that they, not Obama, Reid, and Pelosi, control both Houses of Congress. But, if the Senate dutifully confirms Lynch, it will only have calcified the Democrat narrative that the GOP is not in control.