FILIBUSTER PHILOSOPHY….I may be all wet about this, but I want to toss out a question about today’s likely showdown on the nuclear option. Basically, what’s happened so far is this: last week the Senate began debating the nomination of Priscilla Owen to the 5th U.S. Circuit Court of Appeals. On Friday, John Cornyn introduced a motion to end debate and force a vote on Owen’s nomination. According to Senate rules, this would normally require 60 votes to pass.

What’s expected to happen on Monday is that Bill Frist will ask the Senate’s presiding officer ? probably Dick Cheney ? to rule that debate can be cut off with only a majority of votes. Kaboom! From that point forward, debate on judges can be cut off with 51 votes and filibusters can no longer be used to obstruct judicial nominations.

But here’s the part I’m not sure of. As I understand it, there are two possible theories under which Cheney could rule in Frist’s favor:

  1. He could rule that although the 60-vote rule is generally valid, it’s unconstitutional in the specific case of judicial nominations. The theory here is that since the constitution states that the president, “by and with the Advice and Consent of the Senate, shall appoint [judges],” the Senate has an affirmative responsibility to provide advice and consent. It’s unconstitutional to abdicate that responsibility by refusing to vote.

  2. He could declare that the rules of a previous Senate aren’t binding on a future Senate. In other words, if a previous Senate decided by a majority vote that 60 votes are required to end debate, the current Senate has the same right by majority vote to overturn that rule.

It strikes me that there are dangers to both approaches for Republicans. For option 1, the danger is an appeal to the Supreme Court. Normally, the Supreme Court is unwilling to interfere with internal congressional rules, but if the presiding officer makes a ruling based on a specifically constitutional interpretation, isn’t it possible that they might be willing to get involved? And since this interpretation seems prima facie dubious, it might well get overturned.

For option 2, the danger is that the ruling creates a precedent that applies to all Senate rules. No matter what Karl Rove thinks, it’s likely that Democrats will one day control the Senate again, and when they do they could use the exact same theory to wipe out all filibusters and pass legislation willy nilly. Liberal legislation tends to be harder to reverse than conservative legislation, so in the long term this could do a lot of harm to conservative causes.

I may be off base on this stuff, but I’ve heard both theories put forward and haven’t gotten a clear sense of which one Frist and Cheney intend to use. If things go as planned, I guess we’ll find out today.

UPDATE: A law professor emails to point to this speech by Jon Kyl outlining the likely justification for today’s ruling. Basically, it’s option #2 with a few added nuances. He also suggests that Supreme Court intervention is vanishingly unlikely regardless of what justification is used.

Another reader suggests that “Cheney will rule on the basis of (1), setting precedent as (2).” He’s usually pretty sharp on stuff like this, so that’s where I’ll put my money for now. Stay tuned.

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