The Republican's apocalyptic fervor, which by its nature demands a dramatic showboat finale, appears to have reached a head. A cloture vote to end debate is scheduled for Tuesday, leaving Majority Leader Bill Frist little room for anything but an obnoxious show of force.

Here's what he hopes will happen: cloture fails, since Republicans do not have sufficient numbers to swarm-out the opposition. Debate would continue, but wait! Frist calls up to his man Dick Cheney, conveniently seated above, for a "point of order," and Mr. Cheney unilaterally declares that the rules do not apply. The opposition appeals this ruling, helplessly, but it is "tabled" on a simple majority vote. A cloud of smoke and the smell of sulphur fills the chamber.

That is what they call the nuclear option -- that moment of suspension of law, a brief interlude into what 1930s German philosopher Carl Schmitt called a "state of exception," in which an edict substitutes for democratic methods of governance.

Does it matter that the rule of law is being circumvented, as long as the usurper has the support of fifty senators? The answer to that can be found by looking at our form of government. We are a democracy, but we are bound by our Constitution to refrain from trampling on the rights of individuals. Even if a landslide majority wanted this website shut down, it is our right under the First Amendment to speak and publish freely. The premise of our republic is that there are some things a majority cannot have. The lesson for the senators, stranded on a desert isle, is that they still aren't allowed to eat the Democrats.

Thomas Jefferson wrote: "It is much more material that there should be a rule to go by than what that rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members."

For all the bratty complaints of Republican senators -- no matter how hollow and devoid of historical context -- however unfair they choose to believe the Senate rules are being to them, they should realize that their naked power-play runs against the very idea that a humble republic can withstand an emergency, real or fake.

MYTH: Blocking judges is unprecedented

The Democrats' judicial-filibuster campaign has been unprecedented in scope, intensity and duration. Not surprisingly, therefore, it has achieved its primary goal, which has been to eviscerate President Bush's electorally transmitted constitutional prerogative to shape the federal courts. Indeed, during their first terms in office, not one of all the other post-World War II presidents has been comparably constrained from fulfilling this constitutional mandate at the circuit-court level. Never before has the White House's opposition party in the Senate systematically deprived up-or-down votes for circuit-court nominees in the manner that the Democrats have throughout the first term of George W. Bush, particularly through their unprecedented use of the filibuster since early 2003. (Editorial, "Unprecendented obstructionism," Washington Times, 5/12/05)

One of the great traditions, customs and unwritten rules of the Senate is that you do not filibuster judicial nominees. You certainly do not filibuster judicial nominees who would otherwise win an up-or-down vote. And you surely do not filibuster judicial nominees in a systematic campaign to deny a president and a majority of the Senate their choice of judges. That is historically unprecedented. (Charles Krauthammer, "Nuclear? No, restoration," Town Hall, 5/16/05)

The judicial filibuster isn’t a tradition, but an innovation; not a function of checks and balances, but a perversion of them; not an outgrowth of the Constitution, but at best irrelevant to it. The Senate has two broad traditions. It has respected the filibuster, which allows a minority of 41 senators to extend debate indefinitely and block a vote on a bill. But it has also brought — in its “advice and consent” role under the Constitution — a president’s nominees to the floor for an up-or-down vote without filibusters. (Rich Lowry, "Go nuclear," Town Hall, 5/13/05)

REALITY

This is the most crucial component of their farce: they can't pull off all that grandstanding unless they will to believe that the Democrats are forcing their hand by some outrageous infraction.

Like last week, we can simply list off a number of bona fide appeals-court or Supreme Court judicial filibusters: Fortas, Rehnquist, Breyer, Wilkinson, Manion, Carnes, Sarokin, Stewart, Paez, Berzon. This supposed "great tradition ... that you do not filibuster judicial nominees" dissipates rather quickly.

But that doesn't tell the whole story. Not only are there examples of exceptional cases of judges who reach the floor of the Senate and who are filibustered -- and yes, these nominees did have "majority support," or else the filibuster would not have been necessary -- but true story of judicial confirmation must include the hundreds of nominees who never even made it to the floor. Such were the rules of the Judiciary Committee that the chair could pocket any nominee he pleased, and any minority member could block, and any member from the nominees' state could block ("blue slip"), and so on.

Al Gore called these shadow filibusters, and the current chair of Judiciary, Arlen Specter, remembers. "Through blue slips and holds, seventy of President Clinton’s nominees were blocked," he said on Thursday. "When it became clear that the Republican-controlled Senate would not allow the nominations to move forward, President Clinton withdrew 12 of those nominations and chose not to renominate 16."

When the Republicans took control of the Senate during Bush's first term, Judiciary chair Orrin Hatch dumped those rules. An extraordinarily whipped caucus (only one vote out of nearly three thousand individual GOP votes on nominees was against the nominee) combined with a newly-lubricated committee has created an effective rubber stamp for the president's nominees.

MYTH: The president deserves his nominees to be confirmed; nominees deserve a vote

[Democrats'] appropriate role regarding “checks and balances” is to present their arguments before the whole Senate and vote the nominees up or down. (Janice Shaw Crouse, "The fraudulent filibuster," Town Hall, 5/14/05)

[The Senate] has also brought — in its “advice and consent” role under the Constitution — a president’s nominees to the floor for an up-or-down vote without filibusters. (Lowry)

Justice Owen deserves an up-or-down vote, the sooner the better. (Editorial, "Time to vote on Justice Owen," Washington Times, 5/15/05)

REALITY

There is nothing intrinsic to any of the president nominations that gives them the right to "an up-or-down vote."

"[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, whose appointments are not herein otherwise provided for, and which shall be established by law..." (Article II, Section 2 of the Constitution)

The phrase "up-or-down vote," or even "simple majority" does not appear. Instead, nominees must obtain the "consent" of the Senate -- in all its un-majoritarian ways -- before they can be appointed. The Senate is not required by the Constitution to give that consent, nor to perform a particular procedure -- nor to do anything at all.

This is part of what's called checks and balances, that uniquely American institution, and perhaps nowhere is it more important than when two branches are determining the fate of the third. Chief Justice William Rehnquist, himself filibustered twice, had this to say:

This seemingly simple clause has been a bone of contention between the president and Congress and between the president and public officials at various times in our history. These conflicts and their resolutions show that the framers were extraordinarily shrewd in protecting one branch of the federal government from the unwarranted incursions of the other. (Rehnquist, 9/17/87)

The language of who "deserves" what is particularly disturbing for those of us who care about things other than partisan politics: it is the people who deserve to have a fair and independent judiciary. The satisfaction of the president or the resume of a nominee come in far, far behind.

MYTH: Democrats are trying to force their nominees; Dems are using the courts to push their agenda

Democrats hope to employ the threat of a filibuster to force President Bush to nominate philosophical clones of Judge Batallion and apostatize from his promises. Ending the judicial filibuster is urgent to prevent Democrats from smuggling a discredited agenda into imaginative constitutional decrees. (Bruce Fein, "A tipoff judicial ruling," Washington Times, 5/17/05)

This filibuster is the parliamentary standby resorted to by liberal Democrats. They use it to preserve not segregation but rather judge-made law. They are the reactionaries of the 21st century.... [A]s the Democrats' power in legislatures all over the land has slipped into minority status, they have increasingly favored the courts to make law.... Judge-made law is the law of the Democratic minority.... Control of judicial nominations is the Democrats' last means of making policy in this increasingly conservative country. (R. Emmett Tyrrell, Jr., "Judgeship jousting," Washington Times, 5/13/05)

They are going to such bitter lengths, we suspect, precisely because they view the courts as their last hold on federal power. As liberals lost their majority status over the past 30 years, they have turned increasingly to the courts to implement their political program. If Democrats succeed in blocking these nominees, they will feel vindicated in their view that judicial activism pays. ... If Democrats can't succeed any longer in legislating through the courts, maybe they'll even return to trying to win power the old-fashioned way, through elections. (Editorial, "How we got here," Wall Street Journal, 5/16/05)

REALITY

Along with the fanciful notion of the "unprecedence" of the filibuster, this myth is a major driving force behind the whole, apocalyptic showdown -- that Democrats are somehow lording over everybody through the federal courts, creating a crisis of some kind.

Huh?

First -- notice that seven out of the nine members of the Supreme Court were appointed by Republicans. And then observe that Republican-appointed judges hold the majority on 10 out of 13 of the circuit courts of appeal. In fact,

In the last thirty-five years (since 1969) there have been thirteen appointments to the Supreme Court. Republican Presidents have made eleven of those appointments while Democratic Presidents have made two. At the Circuit Court of Appeals level, the pattern remains the same. Since 1969, Republican Presidents have appointed 211 Judges to the Circuit Courts. Democrats have appointed 122. Since 1969, Republican Presidents have appointed 813 trial Judges to the District Court bench while Democrats have made 508 such appointments. (Dwight Meredith, Wampum)

In other words, by any standard available, Republicans currently have a near-lock on the judiciary. If you don't like the state of law, don't blame us!

Second -- Democrats have blocked just ten of Bush's 218 nominees to the federal bench. Who are the other 208? Are we to believe that the president nominated a pack of liberals, and all the Republican senators voted to confirm them? Does that make any sense at all?

No. Bush has appointed, with the consent of the Senate, more than two hundred presumptive conservatives already. Almost any of them would be preferable to the ten extreme or inappropriate nominees who have been blocked.

Since I highly doubt that Republicans have run out of the national supply of conservative judges, it shouldn't be a problem to pick out a few who, say, don't find Social Security unconstitutional. Maybe they can find someone who didn't practice law without a license. And so on.

Instead, Republicans persist with the demand that every last one of Bush's nominees get confirmed. Clearly, if there is to be any check at all on the exertion of power by the president, it will not come from the fawning lickspittles on the Republican side of the aisle.

It is appropriate, then, that the slim plurality of Republicans who might just be in favor of the nuclear option come Tuesday will likely require Dick Cheney to walk over from the White House to preside and cast the tie-breaking vote. Cheney, sworn in to the executive branch, will utter the edict that will suspend the concept of the Senate for a little while, and replace it with the perfunctory execution of political will. The idea that the framers might just have been on to something in creating a legislative body apart from the executive branch will be tossed aside. They will hope no one is looking.