THE GAME'S A-FOOT? A BALL? TWO?

Sen. Kerry calls for filibuster of Alito
Unclear if Massachusetts Democrat has votes needed to block nominee
Thursday, January 26, 2006; Posted: 4:23 p.m. EST (21:23 GMT)
CNN
WASHINGTON (CNN) -- Sen. John Kerry has decided to support a filibuster to block the nomination of Judge Samuel Alito to the Supreme Court, CNN's Congressional Correspondent Ed Henry reported Thursday.
Kerry, in Davos, Switzerland, to attend the World Economic Forum, was marshaling support in phone calls during the day, Henry said.
He announced his decision Wednesday to a group of Democratic senators, urging they join him, Henry said. Kerry also has the support of his fellow Massachusetts senator, Democrat Edward Kennedy.
Some senior Democrats said they are worried that the move could backfire.
Republicans need 60 votes to overturn a filibuster.
Senior White House officials said the move makes the Democrats look bad, and Republicans already have enough votes to overcome any filibuster attempt.
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What does Kerry mean when he says he "supports" a filibuster? Does he mean that he would personally launch it? (if anyone can talk for hours on end - actually, he's got some stiff competition - and I'm not just talking about Strom Thurmond). Or does he just mean he would support someone unannounced other person's effort to filibuster? Does he even mean he'd support Ted Kennedy's stated intention to filibuster? (I'm not sure the Democrats would want Kennedy - if they wanted anyone - to do this).

Do we even know if the Democrats have the votes to stop cloture? Right now, there are 23 confirmed "no" votes. Two Democrats, Tin Johnson (D-SD), and Ben Nelson (D-NE) have come out in favor of Alito. Blanche Lincoln (D-AR), thought to be a potential "yes" vote, is voting no. Mary Landrieu (D-LA) said she does not support a filibuster, but appears to be voting "no."

Here's what I don't get. Let's assume the party has 41 confirmed "no" votes in its pocket. Do Senate rules REQUIRE that 41 or more people formally vote "yea" to the question of whether to filibuster before someone can be filibustered? I don't think so. Even if they did, the Republicans are threatening to destroy a Senate rule by threatening to exercise a nuclear option, so why can't the Democrats, if such a rule exists, disregard that one?

Of course, the Constitution provides no help on this subject. Article I merely says that "Congress shall prescribe the rules of procedure that govern its business." It does not say whether, by "Congress," it means "the majority" of a particular house, "Congress" as a whole, "2/3," "a quorum," -anything. The word "filibuster" does not appear in the Constitution. A filibuster is obviously constitutional, because it is a procedural rule under any definition of that term (Republicans tried arguing it was unconstitutional last summer; if that were the case, then the above-cited provision of Article 1 would have to be struck down, meaning that the Executive or supreme court would prescribe the rules governing Congressional proceedings. Such a delegation of power is itself unconstitutional).


Kerry may well know that less than 41 votes are there and he thus could just be showboating (he also could just be showboating if 41 people have to approve a filibuster). But then again, he may be going out on a limb... We'll see.