The Senate leadership is pondering repealing the cloture requirement of 60 votes to close debate and stop a filibuster for judicial nominees. Cloture would be repealed not through a formal rule change, but through a clever finesse of the rules. The parliamentarian responsible for interpreting how the rules apply would simply invalidate the cloture rule. This would be challenged and the rule would need 51 votes to keep it at that point assuming Dick Cheney is against.

The Senate Democrats have warned that they will bring all business to a halt in the Senate were this to occur. This is credible, but in turn may be finessed with something even more drastic.

Here is a new option--call it a thermonuclear option--that would allow the Senate to switch to a new majoritarian mode and continue to function. A member would call a point of order saying that none of the rules are in order because they had not been approved by a majority of the current members. The parliamentarian would rule that yes, after over 200 years of precedent, the original Senators clearly made a mistake in assuming that Senate rules bound future Senates. The majority could then go on to adopt any rules they want. This could allow it to continue to function without the participation of any Democrats.

Cloture should be an issue that cuts across party lines. If the Senate repealed cloture on all legislation, the House would have equal say in all matters for a change. This would be a big boon to states like California, New York and Texas that are highly underrepresented in the Senate. Democrat Senators from all States that have nine or more Representatives in the House should be in favor.

The flip side of course is that small state Senators should be opposed. There are many more small state Senators than large state Senators. For this reason, cloture is unlikely to ever be repealed without a massive buyout transferring money from large states to small to compensate them for the lost pork in future years. Even cloture removal just for judicial nominations would be a critical weakening of small state power.

While I like supermajoritarianism in general, I have not been a fan of supermajority requirement in the Senate and a simple majority requirement in the House. This systematically bleeds money from big states to small states. While perhaps a sensible policy during colonization, now it is just a pork fest. Arnold Schwarzenegger made that point after getting elected. My question is, "Why has the House not imposed its own 60% cloture requirement to balance the power in the Senate?"

More on legislative power can be found in "The Senate: An Institution Whose Time Has Gone?" in The Journal of Law and Politics, 1997.

IMHO, the Senate is supposed to be the more deliberative body of Congress. The supermajority rules for halting debate (and preventing filibustering) are intended with that in mind. Turning the Senate in another copy of the House of Representatives sounds a very bad idea to me.

If the Senate has problems with the confirmation of judges, then they should compromise and select judges that don't receive such fierce opposition or make a deal to subvert the opposition. Instead, they are proposing (yet again, IIRC there's a long history of these sorts of attempts) the elimination of cloture. I don't see the need for such a rule change, particularly given that whatever group dominants the Senate would run with it.

Also, I see no problem with the relative strength of small states. After all, this is one of the few remaining checks against a strong central government or overcentralized urban areas. The relative difference in funds received per capita, is IMHO an indication of the amount of bribe that urban political powers have to deliver to rural regions.

A member would call a point of order saying that none of the rules are in order because they had not been approved by a majority of the current members.

Rules in each House of Congress are voted on at the beginning of each new Congress, along with other administrative preliminaries such as leaders and committee chairmen.

If the Senate has problems with the confirmation of judges, then they should compromise and select judges that don't receive such fierce opposition or make a deal to subvert the opposition.

That would make the Senate -- or rather, a minority of Senators -- a co-equal partner in the selection of judges. That is not what "advise and consent" means.

If McGehee is right and the rules are voted on at the beginning of each new Congress, then the Thermonuclear option will have to wait until January 2007 when new rules are voted on in the Senate.

Actually, Sam, that will be January, 2007, when the new Congress elected in 2006 takes office.

[Changed from 2006. -SD]

> This systematically bleeds money from big states to small states.

You write that like it's a bad thing.

> While perhaps a sensible policy during colonization, now it is just a pork fest.

The nation can't afford to send pork to big states.

Federal money is typically spent on things that the locals don't think are worth what they cost.

The Senate IS a copy of the House of Representative by virtue of the 17th Amendment for all intents and purposes.

I don't have a problem with legislative filibusters as there is ample scope for horse trading. Judicial confirmation is a yes/no proposition and not adjustable incrementally.

That would make the Senate -- or rather, a minority of Senators -- a co-equal partner in the selection of judges. That is not what "advise and consent" means.

Seems to fit just fine with the "consent" part. If you can't get 60 senators to consent to *discussion* on your judicial candidate especially when you get 55 automatic votes, then there's something wrong with the candidate.