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Judd Legum and Christy Harvey: Republican Myths About Judicial Filibusters

Judd Legum and Christy Harvey, in the Nation (3-3-05):

[The authors are employed by the American Progress Action Fund.]

The greatest impact of George W. Bush's second term will likely be from his judicial nominations, including the appointment of one or more Justices to the Supreme Court. The President's selections will have long-lasting effects on all aspects of American life, including our health, our freedoms and our privacy. Senate conservatives, led by majority leader Bill Frist, have already launched a determined campaign to insure that any potential opponents are silenced--principally by attacking the Senate's most effective tool, the judicial filibuster. A closer look shows right-wing arguments for doing so are based on a series of myths about the Constitution, history and the right wing's own conduct.

Myth 1: Judicial filibusters are unconstitutional. Frist and other Republicans adamantly argue that efforts to challenge Bush's judicial nominees via filibuster are unconstitutional. This past November Frist said,"After much debate and compromise, the Framers concluded that the President should have the power to appoint. And the Senate should confirm or reject appointments by a simple majority vote. This is 'advice and consent.'"

Frist and company love talking about the Constitution and what the Framers intended. But they should get their facts straight. There is nothing in the Constitution requiring the Senate to" confirm or reject appointments by a simple majority vote." The Appointments Clause of the Constitution requires the consent of the Senate before judicial nominees are appointed. The Rules of Proceedings Clause gives the Senate the power to determine the method of consent. It doesn't matter how many times Frist says it: There is no requirement for the Senate to confirm or reject a nomination. No vote means no consent: And that's OK.

In 2003 Judicial Watch, a conservative advocacy group, filed an ultimately unsuccessful lawsuit against the Senate, claiming that the judicial filibuster was unconstitutional. Although no text supports its argument, Judicial Watch argued that it's implied that the Senate's"advice and consent" power must be exercised by a simple majority vote, because it's consistent with the"ordinary principle of majority rule." Nice try, but that position is actually antithetical to the intent of the Framers, who were careful to make sure the majority didn't always rule. James Madison wrote in The Federalist Papers that"measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." The Senate was created, in part, to prevent the problems associated with the tyranny of the majority.

The real culprit here is Bush, who has ripped the"advice" out of"advice and consent." He has stubbornly refused to substantively communicate with any senators who oppose his nominees. When the Senate fails to confirm his nominees, Bush just reappoints them or, worse, bypasses the Senate altogether and installs them on the bench during a recess. This kind of toxic environment makes judicial filibusters more likely.

Myth 2: Judicial filibusters are unprecedented. Republicans insist that judicial filibusters never happened before. Frist put it this way:"In February 2003 the minority radically broke with tradition and precedent and launched the first-ever filibuster of a judicial nominee who had majority support." In truth, no one should understand the legitimacy of judicial filibusters better than Bill Frist. On March 9, 2000, Frist participated in a filibuster of Richard Paez, President Clinton's nominee to the Ninth Circuit. When confronted about his vote late last year, Frist claimed he filibustered Paez for"scheduling" purposes. Not true. A press release by former Senator Bob Smith titled"Smith Leads Effort to Block Activist Judicial Nominees" plainly states that the intent of the filibuster was to"block" the Paez nomination.

In fact, Paez was only one of at least six filibusters Republicans attempted during the Clinton years. Senator Orrin Hatch and others argue that these filibusters don't count because they ultimately weren't successful in blocking the nominees. All that proves, however, is that Clinton's nominees were moderate enough to secure sixty votes. It also suggests the remedy to Bush's problem: Stop nominating extremist judges to the federal bench.

Myth 3: Republicans have the moral high ground. According to Republicans, their opposition to judicial filibusters is motivated by a nonpartisan commitment to law and decorum. Frist said Republicans in the Senate"are the stewards of rich Senate traditions and constitutional principles that must be respected." Frist talks a good game. In reality, Republicans aren't motivated by a desire to protect the hallowed pages of the Constitution. Rather, right-wing zealots have shown themselves ready to do anything--and everything--to force through their judicial nominees while blocking those of their opponents. One of the more egregious examples of dirty tricks occurred in 2002-03, when Republican staffers from the Judiciary Committee hacked into Democratic computers and stole hundreds of files. Fifteen of those confidential memos, which detailed Democratic strategies for fighting the most extreme Bush judicial nominees, were then leaked to friendly conservative media outlets like the Washington Times, columnist Bob Novak and the Wall Street Journal editorial page.

That wasn't the first time Republicans contaminated the judicial nomination process. During the Clinton years, they used a slew of questionable legislative ploys to smother judicial nominations quietly while in committee. One favorite tactic: In 1994 Senator Hatch added language to the Senate rules for confirming nominees. His objective: to allow a single senator to easily--and secretly--block nominations from leaving committee. It worked. Judge Marsha Berzon's nomination was secretly stymied for more than two years. (Senator Bob Smith finally admitted his role.) The nomination of Judge Ronnie White, who had bipartisan support in the Senate, languished in committee for almost two and a half years. Judge Helen White waited four years for a hearing; she never got one. This behind-the-scenes scheming proved to be so popular, Republicans were able to block more than sixty of Clinton's nominations. (To no one's surprise, as soon as Bush took office, Hatch abandoned this procedure, allowing nominees to sail through.) The bottom line: While a filibuster requires at least forty-one Senators on board to block a nominee, under Republican leadership, it took only a single dissent.

Myth 4: Filibusters are more appropriate for legislation than judges. Hatch claims that filibusters of judicial nominations are unacceptable. However,"filibusters of legislation," he argues,"are different." He's got it backward. Yes, the filibuster plays an important role in protecting minority interests when it comes to legislation. But unfair laws can be overturned or amended at any time. If minority interests are trampled, the aggrieved parties can take their case to the American people and set the country down a new path. Federal judges, however, are nominated for life. Those confirmed by this Congress will be issuing important rulings long after the current group of politicians is history. These judges should not be hard-line ideologues for the controlling political party. They should be acceptable to a broad range of Americans. In other words, if a judicial nominee can't secure sixty votes in the Senate, he or she is not a good choice for the federal bench.

Bush may make the nominations, but federal judges interpret the law for all Americans. Members of the Senate have the responsibility to use every tool they have to make sure the right judges are confirmed. There is no reason that taking a hard look at every nominee precludes a civil, substantive and productive process. But the first step toward ending the acrimony over judges in Washington is putting a stop to Frist's partisan propaganda campaign.

Reprinted with permission from the Nation. For subscription information call 1-800-333-8536. Portions of each week's Nation magazine can be accessed at http://www.thenation.com.