More Spec(ter)ulation Re Souter Replacement

My posts (here and here) on the possibility of a mini-filibuster in the Senate Judiciary Committee got quite a bit of play today. In addition to fielding some calls from reporters in which I had to make clear that I didn't even know whether such a maneuver would be deemed impermissible by a customary norm, I noted various bloggers and others running with the idea, including, among others, the NY Times, Rush Limbaugh (a reader of DOL?!), and most interestingly, this piece by Sam Stein on HuffPo.

Stein confirms what I was able to learn by questioning the Capital Hill reporters who called me today--that Judiciary Committee Rule IV could indeed be used to block a vote if the Republicans on the Committee hold to party discipline. However, he also explains, as did a commenter on my second post, that the full Senate could "pull" a nominee out of Judiciary if the Committee refuses to vote, but that doing that would require the ability to break a filibuster in the full Senate. Given that, the true magic number remains 60 votes in the Senate, and that seems very likely even without Al Franken. Knowing that a mini-filibuster could be broken by exactly the same method as a regular filibuster, Senate Repubs on the Judiciary Committee are unlikely to bother with the mini-filibuster.

Bottom Line: There may be circumstances in which the Senate Judiciary Committee rules (or the rules of other committees) give the minority party an additional tool to block action by the majority party, but judicial nominations appear not to be among them. As a citizen, I breathe a sigh of relief for the wellbeing of the nation, tinged with only a smidgen of regret as an academic that I don't get to see my hypothetical scenario play itself out. Perhaps I'll resurrect it in a future exam question.

Posted by Mike Dorf