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Solum On Estrada


Professor Larry Solum (of University of San Diego) has thought harder than
most about the nominations process. He has a typically insightful analysis of
the Estrada withdrawal on his Legal Theory Blog. Click here.

Here are a few excerpts:

The first lesson of Estrada is that Schumer has won the battle
within the Democratic Senate Caucus. Ideology is now on the table. Prediction
is perilous, but now that the Democrats have opened the door to open
ideological warfare, it does seem unlikely that Republicans will choose to
remain on the stoop if and when the tables are turned and they find themselves
able to block a qualified Democratic nominee of good character whose ideology
they find objectionable. . . .

Couldn’t the filibuster be broken if the Republicans forced the Democrats to
go 24/7? No. Because the 24/7 option actually gives an advantage to the
minority. Why? In order to force a 24/7 filibuster, the majority must maintain
a quorum at all times, but the minority need only have one Senator present to
maintain the filibuster. So 24/7 both exhausts and distracts the majority,
while allowing the minority the opportunity to rest and carry on their
ordinary business. No modern filibuster has been broken by the 24/7
option. . . .

He also mentions my NRO proposal (Benching Bork: How
to End the War Over Judges
) concerning recess appointments but rightly concludes
that “this suggestion does not seem to have moved President Bush.”

He also offers this observation:

[A] gaggle of conservative law professors, lead by Doug Kmiec,
have argued that the constitution requires that a Senate majority be able to
change the cloture rule. I’m not sure Kmiec is right, but I’m not the judge of
this issue. And neither are the courts. When it comes to this issue, the
highest constitutional court is the Senate itself. Here is the bottom line.
Unless the Senate leadership pushes hard for a rule change, it looks like the
filibuster of judicial nominees has been entrenched as consistent with the
customs and rules of the Senate.
There is much much more. Check
it out.


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