It is a common observation that people often assume the attributes of their adversaries. This is not surprising, since adversaries compete in the same environment under a similar set of constraints. Successful strategies by one side are likely to be emulated by the other. However, it is possible that the adoption of the tactics of one’s adversaries may subtly undermine one’s integrity. During the Cold War, the defeat of Communism seemed so laudable that tactics that might otherwise be eschewed are ironically embraced. Though Americans never came close to duplicating the abusive policies of the Soviet block, we may have strayed further from our ideals than necessary. In a similar way, the competition for appointment of federal judges has threatened to force Republicans, the supposed conservatives, into compromising respect for traditional legislative institutions to match the tactics of Democrats.
If the Constitution and laws were interpreted properly to begin with, the stakes over judicial confirmations would be much smaller and the consequent animosity attenuated. Judges would sort out legal ambiguities in a way that arises organically from legal precedent. However, since the beginning of the last century, Liberals have used the courts to win victories by judicial fiat that could not be won in the court of public opinion. From the 1960s on, Democrats largely controlled the legislature and the courts. Without much judicial restraint, the country lurched to the Left. Since the Reagan Revolution, Democratic electoral power has ebbed. Both the legislative and executive branches of government are now under Republican control. Liberals are now the reactionaries, hoping the courts can maintain political victories that have been electorally defeated. The stakes have thus been raised.
After Ronald Reagan appointed Sandra Day O’Connor and Antonin Scalia to the high court, the Left panicked when Reagan had yet another opportunity for a judicial appointment to the US Supreme Court. Hence, when Judge Robert Bork was nominated, he was viciously opposed by the Left who even went so far as to check on his video rentals hoping to find compromising information. In the 1980s, we still indulged the illusion that judges were not overtly political appointees. Presidential nominations for the federal courts were generally accepted lest they lacked the appropriate legal credentials or were soiled by ethical problems. Bork’s academic and legal background was impeccable and no particular ethical problems surfaced. Therefore, Democrats tried to paint Bork as an “extremist” that was too far outside the legal mainstream to be accepted, a charged most knew was, at best, an exaggeration. They succeeded in keeping Bork off the Supreme Court, but ignited a couple of decades of fireworks over judicial nominees.
Not too many years later, Charles Schumer, Democratic Senator from New York, argued that Democrats should drop the charade of hiding their political opposition to candidates. Schumer believes that presidents deserve little deference with respect to judicial nominees. Potential judges can be opposed based solely on political differences. Under the Schumer doctrine, legal competence and ethical fitness were no longer sufficient qualifications.
Since then, Democrats and Republicans have battled in the Senate refusing to confirm some of each other’s court nominees. Most recently, Senate Democrats have conjured up a new tactic. No longer a majority party in the Senate, Democrats are not able to bottle up nominees in the Judiciary Committee, preventing even a vote on a nominee. Such a tactic was a way to impede presidential judicial nominations without the political costs of open opposition in the Senate. Indeed, there were times when nominations were stopped in committee that would have succeeded if brought to a floor vote.
Now that the Democrats do not control the Senate, they cannot bottle up judicial nominees in committee. Instead, they are filibustering to keep nominees from coming to a vote. Stopping a filibuster requires 60 votes, so Democrats can prevent nominees from coming to a vote even if a majority favors a nominee. In effect, they have exploited the rules of the Senate to require a super majority to approve judicial nominees. This technique is now being used against Miguel Estrada’s nomination to the US Court of Appeals for the DC Circuit. Democrats oppose the nomination primarily because Estrada is a conservative Hispanic. If advanced to the Circuit Court, Estrada’s Hispanic background would make it difficult for Democrats to oppose him publicly were he to be nominated for the US Supreme Court.
Republicans indignantly argue that such an exploitation of the rules is a circumvention of the Constitutional requirement of only a simple majority for judicial nominations. While the Republicans are correct that the Democrats are violating the spirit of the Constitution, they really do not have a legal case. No court would rule in favor of the Republicans given the fact that the Constitution also gives each chamber of Congress the right to make its own rules.
There is a Republican idea to use a parliamentary trick to circumvent the Democratic filibuster. However, the use of such a device is not only disingenuous but would weaken the filibuster, an important legislative institution. In the future, Republicans may well need the filibuster to stop Democrats from plunging the country head on into a socialist state. Weakening the filibuster rule would be myopic. Republicans would compromise the moral authority to criticize Democrats for their abuse of Senate rules once they embark on the same practice.
President George Bush needs to make a political not a parliamentary defense of his nominees. He needs to speak forcefully on behalf of his nominees. He needs to campaign directly against the more moderate Senators who might be persuaded to abandon a filibuster. The Republican Party needs to push hard in the next Senate elections to extend their numerical lead in the Senate, making it more difficult to sustain a filibuster. Democratic reactionaries will be forced to resort to parliamentary stalling techniques, while Republicans are making the political case to the public. Republicans should embrace the Democratic filibuster as an opportunity to explain their own philosophy of jurisprudence and Constitutional law. The cynical exploitation of Senate rules to undermine presidential prerogatives could serve as a metaphor for the Democratic lack of respect for the rule of law and Constitutional restraints. It will become progressively more difficult for Democrats to argue that they oppose Republican judicial nominees as extremists when they themselves engage in extreme tactics to satisfy a lust for political power.