If the ending of "The OC" has left you hungry for a new source of drama, look no further than the United States Senate.
Instead of the usual assemblage of half-asleep senators listening to boring speeches, the Senate promises to be full of action this week.
Republicans and Democrats are fighting over the right to filibuster judicial nominations. During President Bush's first term, Democrats prevented voting of ten judicial nominees by threat of filibuster.
Five of those same nominees face a repeat of that experience this time around.Senate Majority Leader Bill Frist, R-Tenn., lead the charge on behalf of Republicans as he declared the Democrat filibuster unprecedented and unconstitutional.
This is hypocritical, as Frist himself voted to filibuster a judicial nominee, Judge Richard Paez, during former President Clinton's second term. Even though Republicans don't have as high a success rate for this kind of filibustering (only one bipartisan success back in 1968 with Justice Abe Fortas), they aren't new to the concept of blocking judicial nominations.
When they controlled the Senate under former President Clinton, in his own words, "Republicans wouldn't even give a vote to 40 of my Court of Appeals judges."
Republicans killed many judicial nominations in the Senate Judiciary Committee, which they controlled then as they control now, and thus prevented many nominations from ever reaching the Senate floor.
Indeed, when President Bush came into office for his first term, he had 80 vacancies to fill left over from the Clinton days.
As for constitutionality, the document doesn't provide much specific guidance. It simply asks the President to appoint these positions using the Senate's "advice and consent." By tradition, this has been interpreted as such: the President consults with senators on which candidates from their home states would serve well; he then submits nominations, which go through the Senate Judiciary Committee and then to a floor vote in the Senate for confirmation.
The test case for the controversy, nomination of Judge Priscilla Owen, made it to the floor last week. Senator John Cornyn, R-Texas, speaking on behalf of the Majority Leader, invoked cloture on debate over her nomination this past Friday.
Cloture requires approval of three-fifths of the Senate, or 60 votes, which the Republicans don't expect to get. What will come next is what Senator Frist calls "fairness rule for judicial nominations." Republicans plan to set a new precedent of limiting debate and forcing the vote on Court of Appeals and Supreme Court nominations, and that requires only a simple majority to pass.
As the Constitution states, "Each House may determine the Rules of its Proceedings," the Republican attempt to change how judicial nominations are handled isn't outrageous.
Codifying their procedural motion as a resolution would make it more legitimate, but that would take 67 votes, which the Republicans cannot win. The rules for ending debate have changed more than once, the most recent modification being in 1975.
Back then, Democrats lowered the requirement for cloture from 67 votes to 60, after having suffered through a wave of Republican filibustering against civil rights legislation. The real controversy isn't about Justice Brown, it's about how much trouble President Bush will have getting through his pick for Supreme Court Chief Justice. Current Chief Justice Rehnquist who has been fighting thyroid cancer is expected to resign soon. With 55 members, Senate Republicans can easily confirm any of Bush's nominations if it comes to a vote.
But with Democrats employing the filibuster, Republicans have to struggle to get 60 votes to invoke cloture each time. If Republicans obviate their problem by changing Senate rules, it guarantees a free flow of justices from Bush's nomination to Senate confirmation to lifetime appointment in both Appellate Courts and the Supreme Court.
If Democrats lose, they will have lost power and say in all three branches of government.
