Fred Henneke, Attorney & Counselor-At-Law


First of all, you can search the Constitution for the word “Filibuster” or “Cloture” until your eyes bug out without success. They are not there. Only a Senate rule requires the 60 votes to cut off debate.So, ending or modifying the 60-vote cloture/filibuster Senate rule is NOT unconstitutional nor is it breaking a long-standing Senate tradition. The cloture rule was enacted as an additional safeguard against the “tyranny of the majority” so feared by the framers of the Constitution; theoretically, it allows for the voice of the minority to he heard.

A filibuster is an attempt by the minority party to delay or block the Senate from voting on a bill or confirmation. ¬† Originally it referred to an effort by one, or more, Senators to take control of the floor of the Senate and refuse to release it while talking against a particular bill or confirmation. The longest filibuster was that of Strom Thurmond in 1957 when he held the floor for 24 hours, 18 minutes to protest the passage of the 1957 Civil Rights Act. The most famous, although not real, was that of Jimmy Stewart in the movie “Mr. Smith Goes to Washington”. Cloture is the act of cutting off debate and allowing the despised measure to come to the floor for a vote

The Senate traditionally operates by unanimous consent so the refusal of one Senator to let a bill come up for a vote would block its consideration. During the acrimonious debates of World War I, the Senate adopted the cloture rule that allowed/required a super majority of 67 Senators to cut off debate and proceed to a final vote. In the 1970’s the Senate reduced the vote required to 60 votes and also permitted more than one measure to be pending on the floor at any one time so the theoretical debate on the offending measure would not prevent the Senate from taking up other pressing business.

In 2013 the Republican minority in the Senate was stalling virtually indefinitely consideration of President Obama’s nominees for Federal judges below the Supreme Court- i.e., district courts and Court of Appeals positions. There was a crisis in the federal judiciary in that there were so many vacancies in these critical positions that the rights of the people to justice and adjudication of their disputes was seriously impaired. An arrangement was reached whereby the Democrats by majority vote ¬†amended the cloture rule (the “nuclear option”) to require only 51 votes- – a bare majority – to cut off debate on nominations to these lower federal courts. The lesser standard did NOT apply to nominations for the Supreme Court or legislation.

The Democrat Senators do not have enough votes to defeat the nomination of Judge Gorsuch to the Supreme Count. But they do have enough votes to successfully “filibuster” to prevent a final vote on his nomination. The Senate Majority Leader, Republican Mitch McConnell, has threatened to again invoke the “nuclear option” to further amend the cloture rule to require only 51 votes to cut off debate on Supreme Court nominations, thereby allowing Judge Gorsuch’s nomination to proceed to a successful final vote. Apparently this “nuclear option” will leave intact the requirement of 60 votes to cut off debate on legislation.

Besides pure partisan politics, and possibly some legitimate philosophical differences with Judge Gorsuch, why are the Democrats so adamant on denying him a seat on the Supreme Court? Two words – Merrill Garland. Last year, after Judge Scalia died, President Obama nominated Judge Garland for the Supreme Court vacancy. Despite having a firmer hold on the Senate than this year, the Republicans refused to even hold hearings on the nomination, much less have a vote. I did not understand or condone those high-handed tactics then and I still do not to this day. Judge Garland deserved an opportunity to go through the process, even though his defeat was virtually assured. The Senate’s constitutional duty is to “advise and consent” to Presidential nomination, not “run and hide”

And the soap opera continues. When will they get down to the people’s business?



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