RUSH: Now, all this talk about Souter retiring and the fight over his replacement and so forth. The conventional wisdom was that Arlen Specter defecting to the Democrats put them close to a filibuster-proof majority in the Senate which would allow Obama to just skate through his agenda.
And on most subjects, it appears to be true. However, Specter’s defection may actually end up giving Republicans the ability to filibuster judicial nominees at the Judiciary Committee level so that the nominees never get out of committee. Now, these are big IFs, but it’s possible. Here’s the explanation from Professor Michael Dorf of Cornell Law School on his blog Dorf on Law. And this was written two days before Souter announced he was quitting. ‘Does Arlen Specter’s defection from R to D strengthen the President’s hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority,’ in this case the Republicans.
‘Before today, Specter was likely to be that one Republican’ who would vote to break a filibuster on the Republican side, but he’s gone. Here’s the Senate Judiciary Committee rule, ‘Bringing a Matter to a Vote: The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.’
Now, this is interesting. Specter… Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority he’s just another Democrat vote. Now, here are the other Republicans on the Judiciary Committee: Orrin Hatch, Charles Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham[nesty], John Cornyn, and Tom Coburn. The weak link, obviously, is Lindsey Graham[nesty], who is a member of the Gang of 14. But if Lindsey Graham[nesty] chose to stay the course and vote with the Republicans, they may not be able to stop runaway spending or any of that, but they may be able to stop judicial nominations. Specter may have ended up handing the Republicans a gift in this regard.
Now, folks, admittedly this is a bit of a long shot because this is going to require that the Republicans have the fortitude to even do this, to even try it; ’cause if they did — if they essentially filibustered the vote in the Judiciary Committee — the media is going to be all over these things. I mean, it’s going to be like Dunkirk. It’s going to be like Hiroshima. It’s going to be like Nagasaki. I mean, nuclear ammo is gonna rain down on these guys if they try it. But it’s possible. They could do it, and if so… Now, you might be saying, ‘Well, they’ll just change the rules.’ Well, how likely is it that they’ll change the rules? They adopt the rules at the start of a congressional year. They can be amended, but it’s a tough thing to do.
And Dingy Harry, he’s already cooked his goose there with his insistence on rules regarding the seating of Roland Burris, the renegade replacement for Obama in the Senate as nominated by Blago, Rod Blagojevich. It’s so fascinating to watch and learn all the possibilities here in the process here of stonewalling any particular judicial nominee that the Republicans choose to filibuster or stop.