The Republican hegemony in Washington depends on bending, breaking and ignoring rules that have bound our democracy together these many years.
House Majority Leader Tom DeLay is a prime example of someone who sees rules as being non-binding when it comes to asserting his own authority.
Now the Republicans in the Senate are preparing to break the rules there in order to give President Bush an unprecedented 100 percent approval of all his judicial nominees. I mean, why settle for just 95 percent when you can break the rules and get whatever you want?
This article from the Christian Science Monitor explains the rules that will be broken if the Republicans pull the trigger on their “nuclear option.”
The debate revolves around three related provisions: the Constitution's advice and consent clause, the congressional rules clause, and Senate Rule V.
Article II, Section 2, of the Constitution says in part that the president shall have the power to nominate and appoint judges "by and with the advice and consent" of the Senate.
While the same clause requires a two-thirds Senate vote to ratify treaties, it sets no specific requirement for judicial confirmation.
That suggests that it takes a simple majority of 51 votes to confirm a judge, which has been the historic practice. But some legal analysts say that nothing in the Constitution prevents the Senate from setting a higher standard.
The Constitution also says in Article I, Section 5: "Each House [of Congress] may determine the rules of its proceedings." Senate rules permit members to engage in filibusters to stall judicial confirmation votes. Under Senate Rule XXII, even though only 51 votes are needed to confirm a nominee, it takes at least 60 votes to end a filibuster. In addition, the rule says any attempt to change a Senate rule requires the support of two-thirds of the senators "present and voting" (67 votes if all 100 senators are participating).
It is those higher vote requirements that are the intended target of the nuclear option. Under that option, the Republicans would use a majority vote (rather than 67 votes) to change the filibuster rule from 60 votes to 51 votes.
That would implicate Senate Rule V, which says that the Senate's rules shall continue from one Senate to the next "unless they are changed as provided in these rules."
Republicans say the combination of Rule V and open-ended Democratic filibusters of judges can result in unconstitutional entrenchment, rendering Rule V invalid. This is why some Republicans are calling it the "constitutional option." Democrats say the rules are clear and fair, and should not be unilaterally changed in the middle of a heated dispute.
So, summing up. The Republicans will disregard Senate Rule XXII and Rule V in order to change Senate rules with a simple majority vote because they think that anything less than 100 percent approval of all Bush judicial nominees is somehow unconstitutional.
But the real truth is that they just don’t think rules should ever apply to them.