Steven J. Duffield, Judiciary Policy Analyst/Counsel for the Senate Republican Policy Committee e-mails to point to a new paper available via the RPC: The Constitutional Option The Senate’s Power to Make Procedural Rules by Majority Vote [PDF]. I have only skimmed the document, but it appears to be most useful. I suspect I will have further comments at some point soon.

He further aided me in clearing up my confusion as to whether it is possible to debate a motion to bring a nominee to the floor: it is not. In fact, the ability to debate such a motion was changed by Senator Byrd (there’s a shock). Mr. Duffield wrote:

You are actually mistaken about the debatability of a motion to proceed to a particular nomination, ironically due to a Senate precedent (which is identical to a rule) created by then-Majority Leader Byrd in 1980. Under that precedent, a motion to proceed to Executive Session to consider a particular nomination is non-debatable. (See the discussion in the policy paper — the section on the 1980 precedent.) Interestingly, the 1968 aborted filibuster of Abe Fortas was on a motion to proceed to his consideration. Byrd eliminated that minority right. So, in the current case, the filibusters are on the nominations themselves, not just on the motion to proceed.

Not only am I pleased to have the procedure settled in my own mind, this clarification does bring up a few very interesting facts that are obscured by the press coverage of this issue. First, these events truly are unprecedented, not only in terms of the number, but in terms of the fact of what is actually being filibustered. The Fortas filibuster was not over the nomination itself, making it a different animal in many ways. That may be splitting procedural hairs, it is still the case that it was a different stage of the process.

Of course, the fact that Byrd was the engineer of the change is further evidence of the Democrats’ profound hypocrisy in this matter. Indeed, the change in the rule took place in 1980 and was done in precisely the way that Senator Frist is currently threatening to change the current rules (from the paper cited above):

The Senate’s Executive Calendar has two sections — treaties and nominations. Prior to
March 1980, a motion to enter Executive Session, if carried, would move the Senate automatically to the first item on the Calendar, often a treaty. Rule XXII provides (then and now) that such a motion to enter Executive Session is not debatable. However, unlike the non-debatable motion to enter Executive Session, any motion to proceed to a particular item on the Executive Calendar was then subject to debate. In practice, then, the Senate could not proceed to consider any business other than the first Executive Calendar item without a Senator offering a debatable motion, which then would be subject to a possible filibuster.15

Majority Leader Byrd announced his objection to this potential “double filibuster� (once on the motion to proceed to a particular Executive Calendar item, and again on the Executive Calendar item itself), and exercised another version of the constitutional option. This time he moved to proceed directly to a particular nomination on the Executive Calendar and sought to do so without debate. Senator Jesse Helms made the point of order that Majority Leader Byrd could only move by a non-debatable motion into Executive Session, not to a particular treaty or nomination.16 The Presiding Officer upheld the point of order given that it was grounded in Rule XXII and longstanding understandings of Senate practices and procedures. But Majority Leader Byrd simply appealed the ruling of the Chair and prevailed, 38-54. Thus, even though there was no basis in the Senate Rules, and even though Senate practices had long preserved the right to debate any motion to proceed to a particular Executive Calendar item, the Senate exercised its constitutional power to “make rules for its proceedings� and created the procedure that the Senate continues to use today.

I have been in favor of changing the filibuster rule on judicial nominees for some time, but the more research I do, the more adamant I am in my position.