[quote]LIFTICVSMAXIMVS wrote:
I never said killing the filibuster was the issue. That was the question. And getting rid of the filibuster with respect to the judicial nominee is another matter.
I also disagree with this. If the senate agrees to get rid of the filibuster as a whole then yes I would agree. The argument to get rid of them with respect to judicial appointments just because we don’t like the outcome is a bad idea. [/quote]
But don’t you see that the entire point does not involve caring about the outcome? Getting rid of the filibuster would NOT be because of disagreeing with the outcome. It would be because it is Unconstitutional on two separate grounds – illegal usurpation of the Presidential appointment power, and (a lesser argument in my opinion) an illegal interference with the Senate’s advise and consent responsibility.
It’s only coming up now for the first time because now is the first time the filibuster has been used in this Unconstitutional manner.
[quote]LIFTICVSMAXIMVS wrote:
I don’t think it falls under the constitution and therefore is not subject for the courts to decide. It is still a matter for the senate. And no I don’t think the filibuster should be gotten rid of–for whatever reason–just trying to argue for what case I would agree to it. [/quote]
OK. Explain to me how it would NOT be a Constitutional issue when one part of one branch of government exercises its power in a manner that is not specifically in the Constitution and that disallows another branch of government from exercising its enumerated power? I’ve already furnished my own examples and the examples of others on what a dangerous principle this would be, and how it does not hold with how other provisions in the Constitution are understood.
[quote]LIFTICVSMAXIMVS wrote:
You see, I don’t know if it actually is a constitutional matter or not. The word constitutional infers that it is covered in the constitution. It is not. Just purely from a historical perspective what is now considered constitutional once may have not been. I offer any of the current civil issues as a matter of evidence. [/quote]
While it is indeed true that judges have gone overboard in “interpreting” the Constitution to mean what they want it to mean, that happens much more often in the realm of individual rights that are either read out of or into existence. And usually those concern questions on which the Constitution was largely silent (privacy/abortion), or are due to technological changes that are of such a nature as to require some form of new interpretation (weapons technology vis a vis the 2nd Amendment).
When we have functional questions concerning separation of powers issues, what the Constitution says, and what it meant when it was passed, are of the highest importance (and of course many of us think that the only thing that matters is what the Constitution meant when it was passed, since we don’t like the idea of judicial oligarchy…). When the Constitution speaks directly on issues, and there is a conflict, the only thing remaining is to resolve the conflict – which, in this case, would involve applying some well tested and well used principles concerning the President’s specific enumerated power that has a large effect on the functionality of the government vs. a particular application by the Senate of one of its incidental general powers. It’s a pretty open-and-shut case, as far as these things go.
[quote]LIFTICVSMAXIMVS wrote:
I’m not even sure parliamentary procedure should be constitutional, either–with the explicit exception of procedures affecting the amending of the constitution–which of course are decided with parliamentary procedure.[/quote]
It’s not, really. The Constitution gives the Senate the general power to set its own rules. Kind of like how the House has the general power to initiate spending bills, but the limits aren’t prescribed, and the Constitutionality of any particular bill isn’t assumed just because of that power. That’s as far as it goes – it doesn’t prescribe any particular parliamentary procedures (though it occasionally imposes super-majority voting requirements).
[quote]LIFTICVSMAXIMVS wrote:
Trying to do away with rules of parliamentary procedure while the rules are in use is kind of like changing the rules of a ball-game while you’re already playing. If they want to decide on the issue–should they not wait until they have finished the issue at hand?[/quote]
Actually, given that each congressional term involves a new Senate, the mere fact that the previous Senate didn’t settle all the open issues on its plate should hardly be construed to require the new Senate to follow the same rules on a going-forward basis. So really, each term is a new game, given the teams are changing.
So stretching the analogy to its very furthest limits, you’d only have the Senate bound by a particular set of rules during that particular term.
Of course, it doesn’t seem to matter that much in the functioning of the House of Representatives, which adopts differing parliamentary procedures for different bills all the time, and has done so historically. So the only thing keeping the Senate from doing so would seemingly be tradition - especially as no particular procedures are prescribed in the Constitution.
[quote]LIFTICVSMAXIMVS wrote:
Sorry I didn’t dig up any previously written analysis to help me form my opinion.
[/quote]
That’s OK. You specifically used the “changing the rules while playing the game” example from the Laurence Tribe article I provided and critiqued without crediting him, but I’ll forgive your plagiarism since I am just happy you decided to read something on-topic to the issue.