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Rush Limbaugh speculated recently that Sen. Arlen Specter's switch to the Democratic Party wouldn't necessarily be a boon to Democrats when it comes time for Supreme Court nominations.
"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," Limbaugh said on his radio show May 1. "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 'if's, but it's possible."
Limbaugh cited a legal blog, Dorf on Law , as his source on the matter. Law professor Michael Dorf wrote that the Senate Judiciary Committee has a rule that one member of the minority party must agree for a matter to be brought to a vote. Otherwise the matter will not be voted on. Dorf is a law professor at Cornell University and a former clerk to Supreme Court Justice Anthony Kennedy.
We confirmed the Senate Judiciary Committee's rule that the blog cited. Rule IV states, "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."
We should note that this is not a filibuster, which is a tactic used on the Senate floor to prevent a vote by refusing to stop debating. It was immortalized in the movie Mr. Smith Goes to Washington, in which Jimmy Stewart portrays a senator who filibusters to save his reputation. He eventually collapses in exhaustion . These days, the threat of filibuster is usually enough to stop legislation on the Senate floor until supporters can muster the 60 votes needed to overcome it.
But Rule IV is a way of refusing to allow a measure to get a committee vote.
Typically, though, there has been great reluctance to bottle up nominations like this. A Senate staff member referred us to a 2001 letter signed by Judiciary Committee Chair Patrick Leahy and then senior Republican Orrin Hatch. (Leahy is still chairman; the new top GOP member is Sen. Jeff Sessions of Alabama.)
The letter states, "The Judiciary Committee's traditional practice has been to report Supreme Court nominees to the Senate once the Committee has completed its consideration. This has been true even in cases where Supreme Court nominees were opposed by a majority of the Judiciary Committee. We both recognize and have every intention of following the practices and precedents of the Committee and the Senate when considering Supreme Court nominees."
Limbaugh conceded that using Rule IV would be controversial.
"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," he said. "I mean, nuclear ammo is gonna rain down on these guys if they try it. But it's possible."
But we wondered if using this Rule IV would be the end of the story.
To find out, we turned to one of the Senate's official historians, Donald Ritchie.
He said that both the House and the Senate have rules that allow them to pull matters out of committee, even when the committee refuses to vote on a measure. The rules usually require that the matter lay over for one day, but then the body can take up the matter that the committee failed to address.
"It's not 100 percent on either side. It's not easy for the majority, but it's not impossible either," he said. "Nothing is easy in the Senate. I don't make any predictions."
It's also important to note that a nominee can get a failing vote from a committee, and then still be approved by the full Senate.
A prominent example of this is when President Franklin Roosevelt nominated Henry Wallace to be secretary of commerce in 1945. The Senate committee voted against the nomination, but the full Senate then voted on the matter and approved his nomination, Ritchie said.
Limbaugh is right about the existence of the committee rule and its potential effects. He admits it's a longshot. But it's not a filibuster in committee in the way that the rule works. And unlike the classic filibuster, the Rule IV move could likely be overcome by the full Senate. But at its core, Limbaugh is right it's a possible maneuver for the Republican minority. We rule Limbaugh's statement Mostly True.
RushLimbaugh.com, Did Arlen Specter do us a favor? (transcript), May 1, 2009
Senate Committee on the Judiciary, Rules of Procedure United States Senate Committee on the Judiciary , accessed May 5, 2009
Dorf on Law, Justice Souter to retire (updated) , April 30, 3009
Dorf on Law, More Spec(ter)ulation Re Souter Replacement , May 1, 2009
Cornell University Law School, Michael Dorf biography , accessed May 5, 2009