Philadelphia Reflections

Following the Rules

Contrary to press accounts, I did not warn the President about anything and was very respectful of is Constitutional authority on the appointment of federal judges.

Sen. Specter

As the record shows, I have supported every one of President Bush's nominees in the Judiciary Committee and on the Senate floor. I have never and would never apply any litmus test on the abortion issue and, as the record shows, I have voted to confirm Chief Justice Rehnquist, Justice O'Connor, and Justice Kennedy and led the fight to confirm Justice Thomas. . . .

In the lame-duck season after the 2004 Presidential election that is, during that two-month interval between the November election and the January inauguration Senator Arlen Specter (R, PA) said something or other about upcoming Senatorial confirmations of Federal judges. As the probable next chairman of the Senate Judiciary Committee, but known to be in conflict with most of the Republican party on the subject of legalizing abortion, his influence would bear an important influence on the outcome. The Senate Republican leadership then said something or other which had the basic significance of, "You aren't going to be elected Chairman of the Judiciary Committee unless we know in advance where you are going with this matter." Regardless of the merits, and regardless of its eventual outcome, the episode illustrates a little-understood but crucial moment in the history of any Congress. The moment lasts about five minutes, and it only comes once, every two years.

Sen. Arlen Specter, (R) PA

You can't run a parliamentary body without rules. The first item of business, therefore, must be the adoption of rules. With rare exceptions, the traditional set of rules is proposed and adopted. All done. Don't bother us any more on this topic, because the rules just adopted ordinarily provide major obstacles to change once adopted. Since committee appointments are next on the agenda, and committee membership is vital to legislative effectiveness, and since committee appointments are in the hands of the majority party leadership, this is not the moment for a new legislator to be making trouble. And an old legislator wants to progress toward chairmanship of his prized committee.

Among things which the rules, adopted in a twinkling, provide for is whether committee chairmen are elected by the members of the committee, or selected by the leadership. For the most part, this issue is so sensitive, that traditional resolutions of it rely on seniority. Like the selection of a King by elevation of the first-born male offspring of the last one, the seniority system does not always choose the best candidate, but it avoids bloodshed and allows progress toward the business at hand. After all, when committees are evenly divided and hotly contested, the adversary environment will ensure that the chairmen can't get away with much. Conversely, in a committee heavily weighted toward one side of a controversial issue, that majority will surely get its way. Either way, it doesn't make as much difference who is chairman as it first seems; you might as well let seniority rule.

The rules of the House of Representatives allow the Rules Committee to limit debate on an issue to a time fixed in advance. Hidden in this rule is the power of the leadership to select who is going to speak, who is going to be excluded. When you elected your local congressman, you probably didn't anticipate he might not be allowed to speak on your favorite topic, but that's the way it works out. In the Senate, on the other hand, there is a rule of unlimited debate by any Senator on any topic, for whatever duration. Or almost. When some Senator has had all the blather he can stand on a topic, he is privileged to rise and say, "Mr. Speaker (vice-President), I move that we vote immediately on this and all pending matters." To which the person in the Chair will reply, "That motion is in order, but it requires an affirmative vote of 60 Senators to be adopted. All in favor, please signify by saying 'Aye.' " That's where filibusters come from, and it's all in the rules.

Rules adopted in the first few minutes of the opening session are very difficult to change once adopted. Creating situations the founding fathers never contemplated, perhaps, but also very hard to argue with under all the turbulent circumstances of a democracy. Or, perhaps, a Republic.

Originally published: Thursday, October 27, 1994; most-recently modified: Friday, May 17, 2019