Your Constitution in Action, #1: The Filibuster

Article II, Section 2, paragraph 2 of the constitution states the following:

"[The President] ...shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators
present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other
public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not
herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such
inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

The important section of this is "...shall have power, by and with the advice and consent of the Senate" and "all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law". This says the President nominates, the Senate approves (50% +1 votes for passage), and since the constitution provides for only the creation of the Supreme Court, and not the federal judiciary (which was created by an act of congress), federal judges fall under all other officers, not specifically stated in the constitution. That's it. That's all the constitution says of the subject of the federal judiciary, excluding the Supreme Court

So how do these few simple rules turn into such a huge rats nest of filibusters, committees, subcommittees, and legislative rules? Here's how: Article I, Section 5, paragraph 2.

"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member."

This says Senate will be in charge of making up their own rules, their own proceedings, punish their own members and generally be like foxes in charge of the hen house. These two items are the only constitutional related items in the swamp of judicial nominees. But just what does "advice and consent" really mean? Consent obviously means a floor vote with a simple majority (50% + 1). There are no requirements as to which way a senator votes. There are no restrictions saying a senator must vote down if he thinks the judge stinks, nothing saying a senator votes for a judge if he likes them. Senators are pretty much free to vote however they want, based on whatever criteria they choose. A nominee has a really cool house boat and throws great parties? He's in. And if the nominee is made by a president from the other party? He's out.

The second part, about the senate free to make its own rules is where most of the problems arise. In order to deal with the massively over blown government they created, the senate has formed committees to handle special duties, i.e. Armed Services Committee, Foreign Affairs Committee, Intelligence Committee (oxymoron if I ever heard one), Ethics Committee (even a better oxymoron). These committees form subcommittees to handle even more specific issues, i.e. The Senate subcommittee on procuring the best parking spots at Reagan National Airport, etc. The Judicial Committee has a subcommittee which, among other things, reviews the judicial nominees from the President. These nominees will have to jump through all kinds of hoops to please this subcommittee, here's where you see them on the news getting grilled by the loyal opposition party, and given hand jobs by the party of the president. If they don't please the subcommittee (i.e gain consent), then the nominees never make it to the floor for the "consent" part of the full Senate's constitutional duties.

Since the Senate gets to make the rules, there are all kinds of tricks they can play to gum up this simple process. Enter the filibuster. I'm no expert on senate floor rules, for one reason the senate likes to keep them as complicated as possible so that we "common" people aren't really quite sure what exactly they're up to. Here's a more specific explanation.

Wikipedia: Filibuster

We've all seen a movie were the only idealistic politician left Washington stands up and speaks till he's about to die in an attempt to save the "little people" from the evils of politics. That's Hollywood's version. What it really comes down to, when the senate is in action, the minority party threatens to seize the floor of the senate and begin to debate, and continues till the majority party finally gets tired and gives up. I don't think there's been a real filibuster in years (Strom Thurmond holds the individual record - over 24 hours trying to block the Civil Rights Act of 1957 - but the Southern Democrats, including Al Gore Sr, were involved in a 73 day filibuster against the Civil Rights Act of 1964); they're very inconvenient, messy and time consuming. Now if they can get enough votes to support a filibuster, the threat is usually enough (the mere thought of a politican threatening to speak to me for 24 hours is enough to bring me to my knees too). So they threaten to do this big talk fest, which requires 60 senators to stop. That's significant. Because to vote consent, the nominee needs a simple majority, 50% + 1. But to break a filibuster requires 60 votes. Currently, the republicans have a 55 - 45 majority (I think). That means they have the numbers to pass a nominee on the floor vote, but not enough to end debate in committee to bring a floor vote. And this is why all the big huffing is going on.

Since these are senate rules, and not a constitutional requirement, the senate can simply change the rules to prevent filibusters. The republicans are threatening to do this. But some republicans are worried, they remember what its like to be a minority party, and they know at some point they very may will again be a minority. If they do away with the rule, then they can't use it either. We'll have to see how it plays out. Will the democrats threaten a filibuster? Will the republicans accept the challenge? Will they actually make the politicians get up there and speak for hours? Will the republicans change the rules to remove the filibuster? Stay tuned!

So that's my simple primer on judicial nominees. I make no preferences, I don't even know the names of the judges or their qualifications. Just a simple explanation as to what the evening news will never go into detail on (I saw a 20 second story on this last night on some program and realized they never explained a single thing about what really is going on). Whether it's good or bad, I'll leave it up to you.