As the Senate is wrestling with the question of the filibuster and whether it can be used to block a president’s nominees to the federal bench, we find our thoughts turning to Article 1, Section 5 of the Constitution, where the founders of America established this bedrock: “Each House may determine the Rules of its Proceedings.” There has been much Sturm und Drang about what the founders did and did not want in respect of the filibuster. Judicial Watch, a most estimable institution, is bringing a lawsuit against the filibuster, but at the end of the day, our guess is that the drama unfolding this week on the floor of the Senate is one the founders anticipated and believed should be a matter in which the Senate itself is sovereign.

That doesn’t mean that differences of opinion do not obtain over “advice and consent.” The founders didn’t actually say, but in their wisdom, it seems clear, for those of us in the plain-language school of constitutional law, that they did give each legislative body the authority to set its own rules. Over the years, the Senate has applied to these decisions the same process it applies to most other legislation. The real argument is over whether executive appointments deserve a process that ensures that, at the end of the day, the Senate doesn’t just offer advice but also makes a final decision on whether or not to consent.

Democrats marshal several arguments in defense of judicial filibusters. For starters, they argue that the Senate was intended by the founders to preserve minority rights. That, by our lights, is only partially true. The Senate was designed to protect the rights of small states against big states. But it wasn’t designed to provide a way for politicians to enforce policy ideas that hadn’t won at the polls. Which is what today’s Senate Democrats are trying to do.

Judicial appointments were certainly discussed on the presidential campaign trail last summer. President Bush won a popular majority in that election. The past few election cycles, judicial appointments have been an issue in many Senate races. Republicans have won a majority in that body. Today’s Democrats are exploiting a procedural quirk to sneak in through the back door a judicial philosophy they couldn’t carry through the front. This can hardly be what the founders intended.

The argument that the end of judicial filibusters will somehow change the deliberative character of the Senate strikes us as chimerical. In yesterday’s floor debate, Democrats kept repeating the famed metaphor that the Senate should be the cooling cream poured into the hot coffee cup of hurly-burly democratic politics. Certainly, by forcing senators to craft legislation that would at least manage not to deeply offend three-fifths of their number, the filibuster used to encourage a certain collegial, contemplative atmosphere. Yet, as the nasty tenor of the debate over these nominees has shown, that amicable atmosphere, poisoned by the Democrats themselves in the battle over Judge Bork, is already gone. In our current environment, the idea of preserving the filibuster to preserve comity is oxymoronic.

One can never be sure of what the founders would have made of today’s Senate, where such an obstinate minority, pandering to particular special interests, is using a tactical ploy to thwart the will of a majority of Senators and of a majority of Americans. Although they were keenly aware of the dangers of unfettered democracy, the founders believed that, ultimately, the majority should rule. Four years, one presidential election, and two Senate electoral cycles after some of these nominations were first advanced, we are, we hope, about to see what the majority the voters elevated will decide, using the bedrock power to set their own rules in fulfilling their obligation to advise and consent.