A Senate rule that's long allowed a large minority of senators to block a vote with a filibuster - or the mere threat of one - has become a powerful check on majority rule. It's an indirect way to force a supermajority vote of 60 on critical issues, rather than a simple up-or-down majority vote of 51.
But unlike other checks and balances in the American system of government, this rare use of political power is not explicitly spelled out in the Constitution. It's time to consider whether it should be - before the Senate self-combusts over the filibuster issue in coming days.
Senate Republicans are on the verge of restricting use of this rule to prevent Democrats from filibustering a vote on several of President Bush's lower-court judicial nominees. If they succeed in using this so-called nuclear option, they open the way for the president's Supreme Court nominees to be approved by 51 votes, thus shaping court decisions for decades to come on such hot-button issues as abortion, the death penalty, and religion in public places.
The stakes for American society in this debate are thus very high - so high that the question about the majority size in such Senate votes should be thrown back to the people through the process of amending the Constitution through the states.
The Senate's heated confrontation shows it can't claim its historic role as "the saucer that cools the tea." The public must now take charge.
The nation's Founders purposely allowed the Senate to set its own rules, including how to "advise and consent" on the president's key appointments and treaties. They didn't, however, anticipate vote-blocking filibusters, or the introduction of rules in the 20th century that require supermajority votes to close debate.
Use of the filibuster to block votes, made famous in the 1939 film "Mr. Smith Goes to Washington," has since been elevated as a powerful check - as powerful as, say, the presidential veto or the House's authority over impeachment and revenue bills, which are in the Constitution.
Amending the Constitution would be no easy task. For one, a proposal to eliminate the filibuster or require a supermajority to end a judicial filibusters would have to be approved by three-fourths of the states.
This long course would mean the Senate would need to come up with a temporary compromise on judicial nominees.
The nation deserves a grass-roots debate over the role of judges and how they should be selected. Do Americans really want, for instance, both parties to compromise and approve judicial nominees that can best bring the most bipartisan, perhaps neutral, interpretation of the Constitution? Or do they want the majority party in the Senate to be able to seat judges with only one party's ideological bent - including Supreme Court justices who might even influence the outcome of presidential elections?
Over recent decades, more and more "landmark" decisions by the high court, such as the one in 2000 that tipped the election to Bush, or the 1973 Roe v. Wade decision on abortion, have left opposite impressions among Americans. Judges are either vital to society in deciding important and controversial matters or they inject too much personal or political opinion in decisions, usurping the role of elected representatives in better reflecting the people's will.
Division over the courts really represents a debate over how much government should honor the most heart-felt interests of a minority. Whether in using courts or the filibuster, a minority group often seeks to protect itself from majority rule in elected bodies. And indeed, democracies couldn't function if the majority too often steps on minority interests to the point that the minority would no longer support democracy itself.
The Constitution hasn't been amended in 34 years - a long dry spell. The last serious attempt was the proposed Equal Rights Amendment, which failed but nonetheless pushed forward progress on women's rights.
Before the Senate heads into a showdown that could further split the nation, it needs to step back and hand this issue over to a wider, and perhaps wiser, set of Americans beyond the Beltway. Who knows, that route may become a popular way to settle the most difficult national issues, better than a few judges can.