The Filibuster, the Quorum, and the Nuclear Exchange
Executive and judicial posts are filled by the President of the United States, who nominates appointees with the advice and consent of the Senate. Practically speaking, this means that the Senate must vote under regular Senate rules in favor of each appointment. These votes are similar to votes on bills, with the obvious exception that the latter are subject to amendments while the former are essentially up-or-down votes.
The United States Constitution requires that a quorum of Senators be present for regular business to be conducted. A quorum exists if 51 members are present, although that number of Senators does not necessarily have to be in the chambers at the time the quorum is declared.
A Senator may suggest the absence of a quorum, in which case the Presiding Officer must make a quorum call to determine that, indeed, 51 Senators are present. By unanimous consent, a quorum call can be suspended, delaying the final count until 51 members can actually respond to the call.
When a bill or nomination comes out of committee, a floor manager from each party will be designated to coordinate action on the floor of the full Senate. These managers are typically the chairman and ranking minority member of the committee from which the measure came; otherwise, a designee may be assigned by either or both of those persons to serve as floor manager with respect to a matter before the full Senate.
Once a Senator has been recognized by the Chair, that Senator has the floor.
By Rule XXII, a Senator is guaranteed debate without time limit unless at least 60 Senators vote in favor of cloture, which then sets an overall time limit for debate on a specific matter.
Should a proposal for cloture not be brought to a vote, or should such a vote fail to receive the necessary support of at least 60 Senators, then only the Senator who has the floor can end the filibuster, and he or she would do so by yielding or otherwise terminating his or her control of the floor.
In the matter of the so-called "nuclear option," by which is meant that filibusters on judicial nominees would be prohibited, the effect is to have each nomination come to the floor of the Senate with a built-in cloture, setting an overall time limit on debate, meaning that the "nuclear option" would be an exception to Rule XXII, this exception serving to set forth an unvoted, provisional cloture attached to each and every nomination brought to the floor of the Senate. To the extent that a simple majority could contruct this exception to Rule XXII, a standing arrangement requiring the approval of 60 Senators is entirely circumvented by a provision upon all matters of a certain type by the one-time consent of only a simple majority of the Senators, meaning that a protective arrangement that can be overcome only by a super-majority on a case-by-case basis becomes a sub-Rule imposed by a simple majority once and for all with a single vote.
In the event that the right of filibuster under Rule XXII becomes permanently and absolutely frustrated, the only recourse available to those Senators wishing to block a judicial nomination would be by an effort to deny the Senate a quorum by which to conduct regular business. Because under Senate Rules a quorum comprises a simple majority, those in oppositionmost likely the Party that is the minority by representation in the bodywould have to rely upon at least several members of the Party of the majority in order to execute an effective denial of quorum. Adding to the difficulty would be that the Presiding Chair could declare a quorum even if it was not so, and a Senator would have to be present and willing to suggest the absence of quorum. It is unlikely that any Senator in favor of the nomination pending would make that suggestion, meaning that a Senator in opposition would have to be present to make the suggestion, thereby slightly diluting the denial of quorum by such presence.
However, even in the nearly certain event that a denial of quorum failed, the absence of a significant block of Senators would have two practical effects: first, the official record of the Senate would reflect for the public and for historians the extraordinary situation that existed at the time the nomination was placed before the Senate; and second, those in opposition to the nomination would then have clearly before them a record of those of their Party who nonetheless chose to thwart the denial of quorum effort.
To this second point, it would then be up to the leadership of the Partynot to those in leadership of the Party's representatives in the Senateto take retributive action at the level deemed necessary to re-establish Party discipline. Such punishment could include measures as mild as denial of a certain portion of funds otherwise available for the Senators' re-election campaigns, or the measures could be as severe as expulsion from the Party.
Although expelling members from the Party of the minority might seem self-defeating, that would not necessarily be the case were the majority Party, by its case-by-case actions and by the accumulation of its bills passed, to become a pariah to the American electorate. Although expulsions would undeniably be risky punishment fraught with opportunities for backlash, the payoff would be substantial in terms of loyalty of remaining members and respect for the less accommodative wing of the Party.
Far more importantly, re-emphasizing the main potential benefit, were the majority Party, by its own malfeasance, incompetence, and criminality, to become widely rejected by voters, the alternative that had already displayed its willingness to gamble all to stop the excess would garner the reward as the wrath of voters translated into throwing the rascals out.
It is only by sharply distinguishing itself from the ruling Party that the Party in opposition can hope to gain from what is increasingly appearing to be an inevitable, looming interest by the electorate to put into the majority a Party that can take the nation in a new direction and begin the long, painful process of repairing the financial, ethical, and statutory damage done by the Party currently in the majority in both Houses of Congress.
In plain English, it boils down to this sequence. If the nomination of Samuel Alito comes to the full Senate, and if it looks like the Republican leadership has the votes to confirm him, the Democrats should filibuster. If the Republicans pull out their "nuclear option" and end the right of filibuster on Executive Branch nominations to the judiciary, then the Democrats should all walk out, save for one Senator who demands that a quorum be proved instead of being merely assumed by the Majority Leadership. Any Democrat who doesn't honor the denial of quorum walk-out gets kicked out of the Party and forced either to go Independent or to join the Republicans. It doesn't matter how powerful that Democrat is; as soon as he's no longer a Democrat, hang around his neck the label "Republican," and make everyone in America know that this is just another one of the fiscally reckless, ethically bankrupt members of the GOP who couldn't keep a federal budget balanced, who couldn't keep terrorists from knocking down our buildings, and who couldn't resist lying through their teeth to the American people so they could start a useless, savage, endless war for the benefit of pumping federal money by the hundreds of billions of dollars into the pockets of their corporate cronies.
In other words, let the loss for the Democrats of this Supreme Court nomination fight be the training ground where they not only learn how to fight like they want the country back, but where they also learn how to kill their own weaklings to get it back.
The Dark Wraith has spoken.