In the coming weeks, the president’s Supreme Court nominee will — with much fanfare and snapping of flashbulbs — testify before the Senate Judiciary Committee, Congress’s coliseum for ideological, philosophical, and political battles.
The panel, which has jurisdiction over all things covered under the Constitution, has hosted history-making clashes over abortion rights, immigration, and — perhaps most famously — judicial nominations. But for the past few years, those same legislative gladiators have also been quiet comrades-in-arms, writing a significant and complex law that could dramatically improve the way America invents life-changing products.
Its bipartisan work on the sweeping patent reform bill has grabbed few headlines, but it indicates that collegiality is no stranger to the lawmakers who may wrestle over the confirmation of the country’s next Supreme Court justice.
"You may see a lot of partisanship, and that's what occupies 90 percent of the media,” said Sen. Jon Kyl, R-Ariz. “But 90 percent of the work we do is not partisan.”
Leading their party’s message
Many members of the Judiciary Committee are long-serving stalwarts who champion their party’s core beliefs, in and out of the hearing room. Besides Chairman Patrick Leahy, the Democrats include Sens. Dianne Feinstein of California, Chuck Schumer of New York, and Dick Durbin of Illinois. The Republicans include Kyl, Utah’s Orrin Hatch, Alabama’s Jeff Sessions, and South Carolina’s Lindsey Graham.
They were among the first senators called by President Barack Obama when he was seeking suggestions on his court pick, and they will be among the first visited by the woman he selected — Solicitor General Elena Kagan.
In addition to their committee duties, these senators are often enlisted to wage war in the form of press conferences, op-eds, and Sunday morning talk show appearances.
Occasionally they take aim directly at each other.
In a recent news conference on financial regulatory reform, Democrat Schumer took aim at one of Kyl’s arguments against the bill, using language seldom used in the Senate.
"The minute these things come out of the mouths of some of our Republican colleagues, we rebut them," Schumer said, "and fortunately, these lies are not talking hold."
But at the same time public rhetoric soared, Schumer and Kyl (and several of their committee colleagues) were united behind closed doors, putting the final touches on a bill to overhaul the nation's patent system.
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“The greatest asset America has”
In simple terms, patents are granted to inventors — both individuals and companies — to protect their products from being used by others for a period of 20 years. The concept is as old as the Constitution.
Video: High court pick coming ‘very soon'’ However, the consensus is that the patent system is broken and hasn't been updated in more than 55 years. The process for getting patents and defending them in court has become problematic, costly, and burdensome. Dennis Crouch, an associate professor at the University of Missouri School of Law, says the U.S. Patent Office has a backlog of 750,000 applications.
Supporters of an overhaul effort say that the flawed system stifles innovations and can delay the discovery of life-saving drugs and energy technologies. And those discoveries would lead to more jobs, boosting a sagging economy.
"Intellectual property is probably the greatest asset America has in terms of future economy and if we don't protect it, everyone will lose," said Schumer. "It creates jobs."
"The only way we can compete in a worldwide market is to have the best technology, the most innovative," said Leahy.
Not an ideological issue
Crouch believes the Judiciary Committee’s bipartisanship on the bill exists primarily because patents skirt the issues most likely to draw fire: party ideology, taxpayer dollars, and size of government.
"It's about issues of property rights, rather than growing or shrinking the size of the government," he said. (The patent office is supported by application fees rather than by tax dollars.)
Sessions, the committee's ranking Republican, seemed to agree. Patent reform is "a complex thing, but it's not a ideological thing or a philosophical thing. Those are the things that divide us," he said.
Bipartisanship is more common than most Americans would realize. Just within the past week, senators have collaborated to introduce several bills, including ones addressing Wall Street reform, airline passenger rights, gun ownership, and tweaks to Senate procedure.
Many of these bipartisan proposals do not survive the daunting legislative process. Others pass, without national fanfare, tucked inside the more popular or controversial provisions of other bills.
Who will replace Justice Stevens? "[On] the major issues, unfortunately, the top level issues ... there's not much bipartisanship," added Schumer. "But you go one layer deeper and there's lots of it. The patent bill is a great example."
While the patent reform bill has a majority of the panel's support, its future is unclear. The bipartisan bill must fight for time on the Senate floor with other more partisan bills, like the financial reform overhaul currently dominating legislative headlines. And while the House has passed a patent bill in the past, it has not acted this year.
"[Majority Leader Harry] Reid would do well to make sure that there is time, because I think we could have a nice debate, a good discussion like the Senate is suppose to operate," said Sessions. "We would look like grown-ups on that issue."
But with a confirmation vote on Kagan's nomination expected before July 4, the committee will more than likely return to the coliseum.
"On judges, you have a conservative approach and a liberal approach and that's kind of different" from the patent bill, Sessions said last week. "And if the judge is going to act in a way that you think weakens the constitution then you've got a burden to object."
In Senate parlance, those are fighting words.
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