When some members of Congress violate the Constitution, how can we have any confidence in their leadership? Yet that is precisely the effect these unlawful filibusters of judicial nominees are having -- undermining confidence in the Senate. Instead of voting yes or no on President Bush's picks for certain federal judgeships, Democrats are refusing to allow a vote to even take place, using a Senate rule that no motion may come to a vote while still under discussion.

The filibuster, as it's called, has been used by both sides for over a century and a half to delay votes while opinions are changed by argument and deal-making. Its original intent was somewhat more noble: to make sure all sides had their say during a debate. It was also supposed to mean that the subject at hand was actually being discussed, in an effort to convince some of the majority to change their minds. In reality, filibusters have included Senators reading phone books and even the Bible while simply holding the floor in the effort to prevent a vote from taking place. Senator Huey Long (D-LA) famously regaled the Senate with Shakespeare readings and favorite recipes in the 1930's (your grandpa's tax dollars at work).

This rule created reverse pressure on those doing the talking, since no further Senate business could be transacted while a filibuster was in effect. The only way to end it is to get three-fifths (originally two-thirds) of the Senators to vote, called a cloture vote. In theory, as Senate business piled up, Senators would eventually feel the pressure to vote to allow the process of voting to continue. All a Senator has to do now is announce that a vote will be filibustered, and the Senate moves on to other business. It effectively gives any Senator the power to force any measure to take 60 votes to pass instead of 51, just by saying so.

That's all well and good for bills and motions, since the Constitution deliberately left the Senate free to write its own rules of operation. In general, the less the Senate does, the better off we all are, anyway. The Constitution specifically calls upon the Senate to perform certain functions, however. Using the Senate "house rules" to play political games with those duties subverts the purpose behind calling for Senate participation in the first place. The Senate's role in Presidential nominees to federal courts is one of those functions.

He 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.
- Constitution of the United States, Article II, Section 2

The "advice and consent of the Senate" is being withheld by the actions of the Democrat minority. The Senate is not being allowed to vote either for or against some of the President's judicial nominees, by a fake filibuster during which no one is speaking, and while other business comes and goes on the Senate floor. While the Republicans are trying to end this abuse of the filibuster, the Democrats are clinging to their obstructionist ways with all their waning might. Opponents of the proposed rule change, which would prevent judicial nominations being filibustered as though they were common bills or motions, call it the "nuclear option." Its supporters refer to it as the "constitutional option." The nicknames alone pretty much summarise the arguments from each side.

Democrats and Liberals are trying to confuse regular filibusters with unconstitutional ones in the minds of the public, suggesting that all filibusters are in danger of being halted. One television commercial "defending the filibuster" shows a clip from Frank Capra's 1939 movie, "Mr. Smith Goes to Washington." The clip is supposed to remind us how the brave, idealistic and honest Smith used a filibuster to convince the heartless politicians to do the right thing, until he collapsed from exhaustion. Can we afford to let the time-honored tradition of the filibuster be destroyed, the ad asks? In fact, this sort of truth-twisting provides more evidence for the theory that Liberals believe that movies are more realistic than real life -- or that the public can't tell the difference. They don't seem to realise that we're not fooled by their Hollywood depictions of reality anymore... not when we can turn to CSPAN to see the real Senate in "action." The commercial, by the way, neglects to mention that the fictional Mr. Smith was filibustering a bill, not a judicial nominee.

It doesn't matter who sits in the White House, or who holds a majority in the Senate -- violations of the Constitution by those sworn to uphold it cannot be allowed to stand unchallenged. If Senate Majority Leader Bill Frist (R-TN) thinks he has the necessary votes to stop unconstitutional filibusters, he ought to do so without further hesitation. If not, perhaps those who don't want the Constitution violated ought to contact their Senators and tell them to stop these unlawful filibusters.