Marbury vs. Madison vs. Cheney

[progressivejazz]

This nuclear option thing comes down to this: Frist doesn't have the 67 votes necessary to change the rules legitimately, so he'll ask for a ruling by the chair (Cheney) that filibustering a judicial nomination is unconstitutional. Cheney will say it is. When the Democrats object, their motion will be denied consideration for an indeterminate time, i.e., forever.

So the real nub of it is that Cheney gets to decide what is constitutional and what isn't.

But every schoolchild these days is taught that the case of Marbury vs. Madison established the Supreme Court as the proper determiner of constitutionality.

The Democrats can't do anything legally until Cheney does his thing, but once that happens don't they have a legitimate case before the Supreme Court to have it judge the constitutionality of Cheney's decision? Since when does a Vice President determine the constitutionality of anything?

My real fear is that the Democrats won't do this, but when the shoe is on the other foot, the Republicans will run to the Supreme court to have it undo the very ruling that put Bush's judges on it in the first place. And conservative judges have anything but a glowing record of recusing themselves from cases they have an interest in. So the Republicans will have a perfect life--no filibusters while they're in power but filibusters when they're not.


I'm no lawyer. Can any legal scholar out there tell me if my thinking is straight on this?

[SteppingRazor]

1. Both you AND the GOP are right on this.

Yes, Cheney, as President of the Senate can rule this to be unconstitutional. After that, a case can be brought to the Supreme Court, both on the constitutionality of filibusters and the constitutionality of the process to repeal them (which goes back to the citing of Marbury v. Madison you mentioned)

[progressivejazz]

2. So why aren't the Democrats saying this? (n/t)

.

[Walt Starr]

3. It's their reserve nuclear arsenal

They aren't going to tell the Repukes, "We'll see you in court"

They'll just file within minutes of Cheney fviolating Article III, Section 2, Clause 1 of the constitution:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State; (See Note 10)--between Citizens of different States, --between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

According to the consitution, only the judiciary can determine whether something is or isn't constitutional.

[progressivejazz]

4. So far two folks agree with me.

But if we three are so smart, why hasn't any pundit at least mentioned this as a possibility? Are we just smarter?

I can't believe it's just this simple.

[progressivejazz]

5. Is this what will happen?

If my reasoning is correct, this represents the logical next step for the Democrats on Tuesday. And if that's true, every pundit on the tube should be mentioning it.

But they're not.

So I suspect my reasoning isn't correct.

But what's wrong with it?

Help.