I just now received this memo by e-mail. It is self-explanatory and is very much "hot off the press:"
Sent: Monday, April 25, 2005 10:04 AM
Subject: The Constitutional Option -- RPC Policy Paper April 25, 2005
To: Persons interested in judicial nominations
Fr: Steven J. Duffield, Senate Republican Policy Committee (Jon Kyl, Chairman)
Re: New Policy Paper: The Constitutional Option
The Senate Republican Policy Committee has released a new policy paper, The Constitutional Option: The Senate's Power to Make Procedural Rules by Majority Vote. This paper examines the constitutional and historical basis for the Senate's power to define its practices and procedures, and examines how this constitutional power relates to filibusters of judicial nominations. This policy paper will be distributed to all Republican Senators and made available to them in the Republican Cloakroom.
The paper is attached, and is likewise available at http://rpc.senate.gov/_files/Apr2505ConstOptSD.pdf. The executive summary is copied below.
Steven J. Duffield
Judiciary Policy Analyst/Counsel
Senate Republican Policy Committee
347 Russell Senate Office Building
202.224.2946 Fax 202.224.1235
· The filibusters of judicial nominations that arose during the 108th Congress have created an institutional crisis for the Senate.
· Until 2003, Democrats and Republicans had worked together to guarantee that nominations considered on the Senate floor received up-or-down votes.
· The filibustering Senators are trying to create a new Senate precedent — a 60-vote requirement for the confirmation of judges — contrary to the simple-majority standard presumed in the Constitution.
· If the Senate allows these filibusters to continue, it will be acquiescing in Democrats’ unilateral change to Senate practices and procedures.
· The Senate has the power to remedy this situation through the “constitutional option” — the exercise of a Senate majority’s constitutional power to define Senate practices and procedures.
· The Senate has always had, and repeatedly has exercised, this constitutional option. The majority’s authority is grounded in the Constitution, Supreme Court case law, and the Senate’s past practices.
· For example, Majority Leader Robert C. Byrd used the constitutional option in 1977, 1979, 1980, and 1987 to establish precedents that changed Senate procedures during the middle of a Congress.
· An exercise of the constitutional option under the current circumstances would be an act of restoration — a return to the historic and constitutional confirmation standard of simple-majority support for all judicial nominations.
· Employing the constitutional option here would not affect the legislative filibuster because virtually every Senator supports its preservation. In contrast, only a minority of Senators believes in blocking judicial nominations by filibuster.
· The Senate would, therefore, be well within its rights to exercise the constitutional option in order to restore up-or-down votes for judicial nominations on the Senate floor.