Here's the Nuclear Option procedure, for those who are wondering:

[beaconess]

After a few days of debate on Owen and Brown (when he thinks he has the votes), Frist will call for an end to debate and ask for unanimous consent to go to a vote.

The Dems will object, stating their intention to continue debate. Normally, at that point, Frist would move to invoke cloture, which would "lie over" for two session days and then be voted on - if 60 Senators voted to cut off debate, the nomination would go to an up or down vote. If fewer than 60 Senators voted yes (regardless how many voted no), the nomination would not be voted on.

However, unless a compromise has been reached, he'll pull the nuclear option trigger. It would proceed as follows:

A Republican - probably Frist - will raise a point of order, asking for a ruling on whether further delay, i.e., filibuster, violates the Constitution when applied to judicial nominees. The chair (possibly Cheney), of course, will rule that such filibusters are unconstitutional and that the vote on the nominee must be taken.

A Democrat - likely Reid - will appeal this ruling. A Republican will move to table the appeal. The Senate will then vote on the motion to table the appeal. Because a motion to table cannot be filibustered, it will go to a vote and will need 51 Senators for approval. Frist only needs 50 of the 55 Republicans to vote yes, since Cheney would break any tie.

If the motion to table is approved, Democrats cannot object further to the vote on the nominee and an up or down vote on confirmation will be taken.

[tedzbear]

1. Thanks!

kick!

[gordianot]

2. OMG So 51 votes can table the measure.

It sounds easier than I thought.

[Nite Owl]

3. And the dems are at an even

more disadvantage since they have Cheney to break a tie.

[Nite Owl]

4. If they are ruling filibusters

as unconstitutional then would there be an opening to have this brought to the SCOTUS? Don't know if this would actually help us but just wondering if there was the possibility.

[Vickers]

10. No, the filibuster is a part of Senate procedure and not law

But hey, what's a little Senate history among these unpatriotic, America-hating cowards?

[beaconess]

11. That won't work - the Supreme Court has no jurisdiction over this

matter. The Supreme Court doesn't adjudicate "political questions" (Florida 2000 notwithstanding) and would never rule on how the U.S. Senate interprets the Constitution in connection to its own rules.

[TahitiNut]

18. Since the Constitution DOES specify a couple of instances ...

... where super-majority votes of the House and Senate are required, I believe they could rule on this narrow interpretation of the Constitution. This would fall within their purview exactly to the degree that the Constitution itself establishes authority over "rules" such as the number of votes required.

I agree, however, that they'd probably avoid this even though it'd be for specious reasons. In a strictly fiefdom sense, however, I can also see how they'd be highly motivated to accept a petition -- this is about the Judiciary! They are the Judiciary. (Remember, only the Supreme Court itself is specifically authorized by the Constitution. None of the other Federal courts are Constitutionally mandated.) I can easily see how "turf" would drive them to push back at the temerity of a "co-equal" branch of government to take greater control over the make-up of the Judiciary.

[unblock]

19. that's not entirely true

for instance, theoretically (one hopes!) the supremos could get involve if a senate majority decided they had the power to evict all the democratic senators en masse.

[nickgutierrez]

5. Thanks for the breakdown.

It's good to know exactly how these sorts of things work.

[Walt Starr]

6. Yes, but doesn't it get referred to the Senate Parlimentarian before

the motion to table the appeal?

[beaconess]

12. Not necessarily - these things don't have to be referred to the

Parliamentarian, and even if it is, he just offers an advisory opinion - it's not binding.

They won't refer it to him, though, because he has already publicly stated that this violates Senate rules. He would rule against them. It wouldn't have any legal effect, but it could cause them a public relations problem. So they'll just act like he's a potted plant.

[janx]

7. This is dangerous. But I'm glad that Cheney would be the one

to declare the filibuster unconstitutional--because it clearly isn't, and I dare that man to abuse his office and position to state that it is in his greed for even more political power.

[ComerPerro]

14. Ironic, isn't it, because

aren't judicial nominees supposedly so important to Republicans because they can put in "good" judges, who will rule according to the law and not how they personally interpret the constitution?

WTF?

I mean, where is the disconnect?

Republicans get upset because a body of 9 judges interprets the law and constitution and renders decisions accordingly (as is there role) but they have no problem with someone like Cheney interpreting the Constitution as he sees fit ?

[Oreo]

8. Looks like once that final vote happens

The fascist takeover will be complete.

The only thing we have left is the 2006 vote... err...ummm... we all know how that'll go!

[MadisonProgressive]

16. No - the takeover will be complete when they

amend the constitution to allow a President to be re-elected for more than 2 terms. That will surely happen before the 2006 elections.

[FSogol]

17. Bring it on. I nominate Bill Clinton. NT

[MadisonProgressive]

21. Sorry, they need to be consecutive!

[Wabbajack]

9. I thought the vote

will be not to table the appeal but "to sustain the ruling of the chair".

[beaconess]

15. I believe they could do either

But the scenario most often floated is tabling the appeal - perhaps because that seems less ominous than actually upholding Cheney's ruling.

[TahitiNut]

13. The Constitution requires a 2/3rds super-majority of both houses ...

... and 3/4ths of the states to amend the Constitution. Nowhere does the Constitution imply or indicate that this is the exclusive application of a super-majority. Indeed, a 2/3rds vote of both houses, not just one, is required to override a Presidential veto! The claim that it's "unconstitutional" is hypocritical and fraudulent. The USSC probably wouldn't accept an appeal, since the rules of legislative bodies are internal.

One of the "arguments" posed by the Reichbots that filibusters are somehow less legitimate when checking the power of the President to appoint Federal Judges than when checking the ability of the Congress to pass legislation is a total fraud, clearly depending on their audience to swallow such bullshit mindlessly. The Judiciary is a coequal branch of the federal government. The House of Representatives has no role in appointments - only impeachments. Such appointments are for life, absent impeachment and trial causing removal. Thus, the sole check and balance on such appointments is the Senate which has permitted filibusters for over 200 years. Legislation requires approval by both houses of Congress and Presidential approval (lacking 2/3rds override). Legislation is then subject to Judicial review!! Even after that, legislation is often reversed or overridden by subsequent legislation - and legislation regarding military funding is subject to a 2-year Constitutional limit.

Legislation thus has far more checks and balances than appointments to a separate and coequal branch of the federal government. Make no mistake: this is a megalomaniacal power grab!

[TahitiNut]

20. It's not clear that Cheney, Frist, and Reid would be the actors.

The Reichbots are working to "stage manage" this and Ted Stevens (R-AK and President Pro-Tempore of the Senate) reportedly wants to be presiding so he can stick it to the Democrats. Likewise, the Reichbots are attempting to assess the plus/minus of Frist making the point of order given his aspirations for 2008. (I'm sure Lott would love to do it.)

[beaconess]

22. True - I'm hearing that Stevens wants to be the chair and make the ruling

but only Cheney can break a tie. And, whether or not Frist actually raises the point of order, his fingerprints are all over this maneuver it will be hard for him to separate himself from it, regardless what he does.

[tritsofme]

32. If Stevens is presiding, we know without a doubt they have 51 votes

assured, because to break a tie, Cheney would need to be presiding over the Senate.

[Gothmog]

23. Senate Parliamentarian will be called on by Reid

The Senate parliamentarian has let it be known that he thinks that the nuclear option is illegal. At some point, Reid will try to get a ruling from him. Any such ruling will be non-binding but could influence some swing votes.

[PurityOfEssence]

24. Doesn't it take a 2/3rds vote to change the rules?

As such, isn't any maneuver short of that a complete violation of the rules?

Filibustering is one thing, but that's Piracy.

[TahitiNut]

27. It's an interesting issue of severability ...

... since the language which requires a 2/3rds vote of Senators present and voting to invoke cloture on debate on a motion to change the rules is in the very same sentence as the language which requires a 3/5ths vote of Senators duly chosen and sworn to invoke cloture on all other debate.

Needless to say here, the Republicans are engaging in outright fraud and hypocrisy.

[tritsofme]

31. They are not trying to change the rules per se

They are trying to establish new Senate precedent through a ruling from the Chair.

It is a very grey area, but there is no venue to appeal to.

[beaconess]

35. Yes. But they're breaking the rules to get their way.

[Zerex71]

25. Where does this come from?

What document or source do the official rules and descriptions of House and Senate business come from?

[TahitiNut]

26. Senate Rules and Procedure can be read here ...

http://www.senate.gov/reference/reference_index_subjects/Rules_and_Procedure_vrd.htm

The relevant paragraph under Rule XXII is ...

Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question: "Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn -- except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting -- then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Close attention should be paid to the language in (my) boldface.

[Prisoner_Number_Six]

28. Any reason why the Dems can't call the vote first?

Since Cheney would need to be present for this crap to go through, why can't WE call it when he's undisclosed?

It's gonna be called, so what's the diff if we force it on them?

If this is a stupid concept, I'll shut up. I'm just curious as to what difference it would make.

[vman13]

29. Wait A Minute...

...I was under the impression that the Republicans would move to change the rules to make a successful cloture vote in cases of Judicial Nominations to a simple majority of 51 as opposed to a super-majority of 60. I could be wrong, but based on the rhetoric that what is sounded like

[rusty charly]

30. New Rule Change...

...Would Prevent Democrats From Speaking

http://villagevoice.com/news/0520,sutton,64001,9.html

[aion]

33. No mention of the parlimentarian?

I think you missed the part where the republican-appointed parlimentarian confirms Cheney's decision that the 2/3 requirement of the Senate Rules doesn't apply to the President's appointments.

[TahitiNut]

34. Read the thread. The Senate parliamentarian has no power ...

... and is an advisory position only. Reportedly, Reid has already talked with him and the tactics planned by the Fristians don't pass muster. So ... they won't even bother asking him.

[beaconess]

36. kick