Strengthening Constitutional Self-Government

No Left Turns

. . . Make That Three Judicial Nominees Clear Committee

The AP reports that Jay Bybee, nominee to the Ninth Circuit Court of Appeals, was voted favorably out of the Judiciary Committee by a tally of 12-6. This despite Democratic attempts to thwart the vote by exiting the room at various points throughout the proceeding to deny a quorum. Senators Hatch and Kennedy, who are known as the odd couple of the Senate given their off-camera comraderie, were anything but chummy today. Here is a sample of their exchange as conveyed in the AP story:

Sen. Hatch: We’re not going to have filibusters in committee. . . .

Sen. Kennedy: You may bully some but you’re not going to bully me. . . .

Sen. Hatch: You’re not going to bully me either. . . .

Given this highbrow dialogue, I almost expected to hear about the two distinguished gentlemen flinging Senate Navy Bean Soup at each other in the cafeteria. Some Democrats reportedly voted "present," and intend to voice their objections on the floor to Chairman Hatch’s "forcing" a vote over what the AP reports Leahy as calling a "committee filibuster." I must admit that I have never seen the term "committee filibuster" used before, and am somewhat incredulous as to its validity as an actual term. I was aware that you could suspend a vote in committee by denying a quorum (which the Democrats did for a time), but that is a far cry from a filibuster. Any insight readers can provide on "committee filibusters" would be greatly appreciated.

Discussions - 1 Comment

Personally, a committee filibuster would only seem possible if the chairman agreed to unlimited debate, or if the committee had a rule like rule IX in the Senate.

Concerning filibusters in general - I wonder if there is ever a point in which the Senate’s Rule IX could be judicable as an unconstitutional usurpation of executive power?

I am suddenly recalling Scalia’s dissent in Morrison v. Olsen, and suggesting that the congress could not, by law, force the executive to surrender some of its power.

Even though this was a dissent, could the question of the violation of separation of powers be legitimately put forth if a senate rule provides a means for the senate, as a body, to be rendered unable to perform its constitutional role of advice and consent? If so, would such a circumstance effectively render the power of the executive to appoint judges moot?

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