There is still no agreement between Republicans and Democrats over President Bush's judicial nominations, and the filibuster debate threatens to rip apart the Senate.
But filibusters didn't start just recently... it goes all the way back to our Founding Fathers. To break a log jam at the Constitutional Convention, their compromise was this: The House of Representatives would be the popular body representing the will of the people, while the Senate, as the deliberative body, would protect small states and minority views.
For the first 130 years of our nation, senators believed that meant giving each member an unlimited right to speak. Ending a debate to take a vote or conduct senate business required the approval of everybody.
In 1917, however, President Woodrow Wilson wanted to get around a few senators filibustering his efforts to bring America into World War I. Wilson's supporters in the Senate adopted Rule 22, which allowed members to end debate if two-thirds of the Senate agreed.
The next change didn't come until 1975, when the Senate reduced “cloture” from two thirds to three-fifths or 60 votes.
Since then, in order to avoid filibusters and keep Senate business going, issues or nominations that didn't have the support of at least 60 senators were, more often than not, were never brought to the floor.
In the case of Supreme Court nominees, out of 26 rejected in our nation's history, only 12 received an up or down vote, like Robert Bork, who was defeated. 14 nominations did not get a vote, 8 were bottled up or blocked by the Senate, and 6 had their nominations withdrawn.
One Supreme Court nominee, Abe Fortas in 1968, was pulled by President Johnson following a 4-day Senate filibuster. Historians note that's it's the only time a judicial nominee has ever been blocked by a filibuster on the Senate floor. But historians also point out that hundreds of other judicial nominations have been stopped by committee holds or indefinite delay.
Senate blocks of all kinds, including filibusters, have long stopped controversial ambassadors and cabinet nominees.
It goes back to the constitution. The president, “...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.”
As the Constitution underscores, the founders of our nation did not make a distinction or special category for judicial nominees. The heart of the Senate debate today is whether judicial nominees should now be treated differently... and what “differently” means.
David Shuster reports for Hardball, which airs weeknights, 7 p.m. ET on MSNBC.