If they decide to do it, I'm not sure they can. I'm not Senate parliamentarian, but my understanding of how the "nuclear option" worked is it exploited a loophole in Senate procedure. Even though a proposed rule change--including a rule change to eliminate the filibuster--could be filibustered, under the rules if the chair decides that a rule is unconstitutional that ruling can be decided on a strict majority vote.
Harry Reid eliminated the filibuster for judicial and executive appointees last year by scheduling a vote that he knew the GOP would filibuster, declaring that the filibuster of executive appointees is unconstitutional because the Constitution says that appointees get confirmed by a majority of the senate, which must mean 51 votes and not 60, and then a majority of the senate upheld that ruling.
In order for the GOP to reinstate the filibuster rule, they would have to amend the Senate rules. But that amendment could be filibustered by the Democrats (the filibuster has only been eliminated for executive appointees, not legislation or rule changes). To use another nuclear option to get around a Democratic filibuster, the Republican leadership (presumably Mitch McConnell) would have to claim that the filibuster of executive appointees is constitutionally required, something that has no real textual basis in the constitution and ignores most of American history when appointees were confirmed on a simple majority. I guess those facts wouldn't necessarily prevent McConnell from doing it anyway. I don't think the judiciary would touch this--the principle of separation of powers means that the Senate can pretty much do whatever it wants with its own procedural rules and the courts are not going to ever rule them wrong. But still, there is a logical impediment to reinstating the filibuster that was not present when Reid eliminated it.
(via Memeorandum)
Harry Reid eliminated the filibuster for judicial and executive appointees last year by scheduling a vote that he knew the GOP would filibuster, declaring that the filibuster of executive appointees is unconstitutional because the Constitution says that appointees get confirmed by a majority of the senate, which must mean 51 votes and not 60, and then a majority of the senate upheld that ruling.
In order for the GOP to reinstate the filibuster rule, they would have to amend the Senate rules. But that amendment could be filibustered by the Democrats (the filibuster has only been eliminated for executive appointees, not legislation or rule changes). To use another nuclear option to get around a Democratic filibuster, the Republican leadership (presumably Mitch McConnell) would have to claim that the filibuster of executive appointees is constitutionally required, something that has no real textual basis in the constitution and ignores most of American history when appointees were confirmed on a simple majority. I guess those facts wouldn't necessarily prevent McConnell from doing it anyway. I don't think the judiciary would touch this--the principle of separation of powers means that the Senate can pretty much do whatever it wants with its own procedural rules and the courts are not going to ever rule them wrong. But still, there is a logical impediment to reinstating the filibuster that was not present when Reid eliminated it.
(via Memeorandum)
