Which side is approaching the issue of judicial filibuster correctly?

[Emsworth]

The judiciary has no authority to review Senate business, which is specifically made an autonomous unit in the Constitution. The Senate is its own supreme court.

Well, how much business does the have in determining if something is constitutional? Actually, the court can review rules on constitutional grounds. I just don't want to give them any reason to review it.

I find myself in total agreement with A18. There can be no doubt that a ruling of the President of the Senate is nonjusticiable. Precedent is entirely in line with such a view.

[Emsworth]

Here is what the Court said, overturning a lower court opinion. Emphasis is added:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=144&invol=1

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If outside of the limitations, you start getting problems.

I would argue that Ballin is not particularly germane. If the Senate were to hold (through a ruling upholding the Chair) that filibusters are impermissible on nominations, then there is no recourse. The rule would not contravene the Constitution, as the Constitution does not require that filibusters be permitted. You would be correct that such a ruling would stand on very flimsy constitutional grounds; however, the grounds are irrelevant. The fact would remain that the Senate has, in pursuit of the power granted by the Constitution, decided that filibusters are no longer allowed on nominations, and that the Supreme Court cannot compel the Senate to change such a rule.

A rule that could be justifiably challenged would be, to take an example, a rule that dispenses with the Yeas and Nays even if 1/5 of the members present demand otherwise.

[Emsworth]

The problem is the grounds used.  A constitutional issue is litigable.  Claiming that this ruling is based on a constitutional provision, puts this into the judicial branch.  If there were some "non-constitutional" ground, that could possibly be different, but they are arguing it on constitutional grounds.

Now, if they could reasonably interpret the rules, as the exist, as permitting the majority to limit debate, it would not be a constitutional issue and could not be reviewed by the courts.

The GOP argument here is ultimately, this violateds the rules, but the rules violate the Constitution.  The problem is, the Senate is not the final word on constitutional issues.  The courts would almost have to rule that the senate did not have the power to create the 2/3 vote cloture rule in the first place.

The Senate may change the rules for whatever reason it pleases, including perceived unconstitutionality, and the Supreme Court does not have the authority review the rule change unless the new rule is itself unconstitutional. The grounds of the rule change, in my opinion, are absolutley irrelevant; what matters is whether the rule itself is constitutional or not. Otherwise, the independence of the Senate would be meaningless.

[Emsworth]

The problem is the grounds used.  A constitutional issue is litigable.  Claiming that this ruling is based on a constitutional provision, puts this into the judicial branch.  If there were some "non-constitutional" ground, that could possibly be different, but they are arguing it on constitutional grounds.

Now, if they could reasonably interpret the rules, as the exist, as permitting the majority to limit debate, it would not be a constitutional issue and could not be reviewed by the courts.

The GOP argument here is ultimately, this violateds the rules, but the rules violate the Constitution.  The problem is, the Senate is not the final word on constitutional issues.  The courts would almost have to rule that the senate did not have the power to create the 2/3 vote cloture rule in the first place.

The Senate may change the rules for whatever reason it pleases, including perceived unconstitutionality, and the Supreme Court does not have the authority review the rule change unless the new rule is itself unconstitutional. The grounds of the rule change, in my opinion, are absolutley irrelevant; what matters is whether the rule itself is constitutional or not. Otherwise, the independence of the Senate would be meaningless.

You notice in Ballin, they said or fundamental rights.  The right to demand that an in force rule be enforced is a "fundamental right."

Fundamental rights are those that belong to the People. Senators do not have "fundamental rights" in that capacity.