Constitutional Option Still on the Table

Many people have been touting the recent compromise int the Senate on filibustering judicial nominees as a victory for the dem/leftists. Those that believe this claim the dem/leftists can still filibuster nominees for "extraordanary circumstances". One would think, by listenting to these folks, that this agreement is cast in stone. It is not. The Constitutional option is still very much on the table. Senator Orin Hatch explains.

"On May 23, 2005, a group of 14 senators, seven Democrats and seven Republicans, issued a “Memorandum of Understanding on Judicial Nominations.” The Democrats’ part of the pact was pledging to vote for cloture on three named judicial nominees and to oppose filibusters of future judicial nominations except in undefined “extraordinary circumstances.” The Republicans’ contribution was pledging to oppose changing Senate rules or procedures regarding judicial filibusters during the current 109th Congress.

They announced this deal on the eve of a Senate vote that would have eliminated the judicial filibuster altogether. Four times during the 108th Congress, the Senate failed to invoke cloture, or end debate, on the appeals court nomination of Priscilla Owen. Had that happened again on May 24, 2005, Frist would have sought a ruling from the presiding officer that, after sufficient debate, the Senate should vote on a judicial nomination. I would have joined a majority of my fellow senators in voting to affirm that ruling, re-establishing Senate tradition and making the judicial filibuster a thing of the past.

Recently dubbed the constitutional option, this is a mechanism for changing Senate procedures—without changing Senate rules—that has been used, directly or indirectly, for nearly a century. The filibuster deal was struck, in part, so that the constitutional option would not, at least for now, be exercised.
The operative words here are “for now.” On its face at least, the deal fails to re-establish the Senate’s tradition of up-or-down votes for all judicial nominations reaching the Senate floor. Instead, it may effectively reduce the number of senators who can dictate which nominees receive floor votes to just the handful involved in this deal, since they can make or break the 60-vote threshold for invoking cloture, or ending debate, under Senate Rule XXII.

Loopholes in the Deal

Perhaps even worse, the deal does not even attempt to distinguish the “extraordinary circumstances” justifying future filibusters from the “extreme” standard Democrats say justified their past filibusters. Rather than confine the filibuster, this subjectivity creates loopholes large enough to drive a filibuster through."

As long as these extraordinary circumstances remain undefined, the constitutional option remains on the table. It will likely be when the time comes for a nominee to be named to replace a SCOTUS justice that the extraordinary circumstances card will be played and the constitutional option will again become the center of debate. What we have now is a very fragile truce that will collapse under it's own weight. - Sailor