Strengthening Constitutional Self-Government

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Congress

The Senate, the Court, and the Filibuster

It looks like Senate Republicans are going to filibuster Goodwin Liu to keep him off the Bench.  Turnabout is fair play, certainly.  And precedents matter.  But I wonder whether the filibuster is proper for nominees.

The key question is when the Senate is doing its "avise and consent" role, rather than working with the other branche(s) of the Legislature to make law, is it acting in Article I or Article II.  If giving its advice and consent is not a legislative task, and if the filibuster is a legislative action, then the answer is no.

Given the precedents that exist already, it's probably too late to do anything, but I thought the question worth raising, perhaps as a matter of historical interest.

One could argue that way back at the start of Washington's first term, when the Senate kicked the President and Secretary of War out of their chamber, rather than discussing instructions for negotiations with the Creeks that set the precedent for most of what followed in that area.

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