Work is underway in the Senate between Democrats and Republicans to avoid a political showdown over the use of the filibuster to block radical judicial nominees. What baffles me is why. The use of the filibuster is absolutely constitutional and completely legal. The Constitution makes it overwhelmingly clear in plain and simple language that the Senate writes its own procedural rules. The Senate can also change its rules if it has sufficient votes to do so. The Senate rules don't even mention the word "filibuster" that I'm aware, but this is a term given to the use of a Senate rule-- that of allowing unlimited debate until cloture-- to prevent a vote from going forward. There's a very good reason for requiring 60 votes for cloture: it prevents a simple majority from ramming through anything it wants, which is what the Republicans want to do now.

Republicans are being pathetically disingenuous when they whine that they want these judicial nominees, who are so far departed from the normal political spectrum in this country that they make me look like Ann Coulter, to have an "up or down vote." This is not true. The truth is that they want these nominees to have an "up vote." Republicans hold the simple majority needed to vote any of these judges into office, so as soon as a vote can happen, they'll be rubber-stamped.

If anything, the only thing that's being discussed that's illegal is the Republican conspiracy they've been calling the "nuclear option." There's a senate rule that allows the Presiding Officer to decide on questions of order. This provision is meant to be used when the Senate isn't clear on the use of its own rules. The Presiding Officer is typically either the Vice President or the most senior member of the majority party; in this case, Republicans may have Senator Ted Stevens in the chair. Republicans plan to ask whether unlimited debate on a judicial nominee is consistent with the Senate rules, and they plan to get the Presiding Officer to lie and break the rules and say that unlimited debate is not consistent with the Senate rules-- even though it plainly is.

What baffles me is why Democrats are attempting to reason with Republicans and make deals over this. These are not rational, reasonable human beings they're dealing with, so why try to make deals? Rick Santorum with his usual wisdom has already compared Democrats to Hitler, saying "It's the equivalent of Adolf Hitler in 1942." I'm not making this up. It's a pity the Senate doesn't observe Godwin's Law.

Democrats have threatened to bring Senate business to a standstill if Republicans use their nuclear lie to break the rules, and I think that's absolutely what they should do. Have some testicular fortitude for once! If you make a deal with the Devil, you're going to get burned. According to press reports, one potential deal would allow up votes on five of the seven judicial nominees under consideration, including extremist right-wing activist judge Patricia Owen. Democrats are actually considering an agreement to not filibuster again except under "extraordinary cases."

That's funny, I thought these are by definition extraordinary cases! The Democrats have already allowed through 96% of Bush's nominees without attempts to thwart them. And since when did the minority party have to seek the majority party's permission to use a filibuster?

The filibuster is a desperately needed rule of Senate order. It forces the majority party to deal with the minority party's concerns, even (and especially) when they don't want to. It prevents the Senate from going too extreme in either political direction. Republicans have filibustered when they were the minority party, and in fact led the first-ever filibuster of a judicial nominee, that of Abe Fortas in 1968.

It's especially important with regard to judicial nominees. Judges are meant to be independent, without their own political agendas. Yet the Bush administration wants radical judges that their own people have criticized as right-wing activists. These are exactly the type of nominations that should be filibustered. Judges with clear political agendas, regardless of their party affiliation, should be blocked from the bench by the minority party if necessary. That's all that's happening here: exactly what should be happening.

Yet now the spineless Democrats are caving in to the Republicans, effectively agreeing to their rule breaking. It reminds me of junior high all over again, playing volleyball during PE; when one side is convinced that it isn't the other side's turn anymore because of some rule breach, but the other side doesn't believe there was a rule breach-- each side keeps grabbing the ball and serving, convinced that it is their serve. The Republicans are breaking the rules, and now the Democrats are there "negotiating" allowing them to do it. And you know if the roles were reversed, the Republicans would be crying "foul."

The job of the Senate is to debate and confirm judicial nominees who deserve a place on the Federal bench. The job of the Senate is to adhere to its own rules, not for the majority party to break the rules as it sees fit. The only way for the Republican steamroller to be stopped is for somebody to take a stand, and it's looking like the Democrats aren't willing to be that somebody.

---Nick

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