Frank’s Case Book

One cannot help but feel a little sympathy at the frantic floundering of Liberals in the wake of the nomination of Judge John Roberts, Jr. to the Supreme Court. Liberals have the upsetting and accurate notion that Roberts is an attractive, smart Conservative with too little of a paper trail to criticize. The Bush Administration has carefully prepared the judicial nomination battle field by cutting off potential Liberal avenues of attack.

Roberts has the appearance and deportment of a choir boy, as opposed to the professorial pedant arrogance of Judge Robert Bork. Bork’s demeanor appealed to like-minded Conservatives, but scared off others. Moreover, when Bork was “borked” in 1987, the Reagan Administration was surprised and unprepared for the mean-spirited and personal assault on Bork from the Left. This episode initiated the current trend toward highly-polarized federal court confirmation confrontations. In the Roberts case, the Bush Administration was able to maintain secrecy until the formal announcement of the nomination, allowing the Administration to frame the nominee before opposition groups could effectively undermine Roberts.

In addition, President George Bush at least went through the motions of consulting with members of the Senate on both sides of the aisle. Lack of consultation can not be effectively used as an excuse to delay Roberts’ confirmation or even a vote on his confirmation.

Strategic planning and frustration have largely reduced Liberals to rambling incoherence. In order to excavate potentially incriminating information, some Liberals now argue that attorney-client privilege should be violated and written legal advice Roberts wrote on behalf of the government when in the Solicitor General’s Office ought to be released. Surely they can not really believe their own arguments in this regard.

Liberals are the ones who normally claim that the Constitution is a living and breathing document that should change with the times, unmoored by the text or the original understanding of the Founders. Yet now they are arguing it is extreme for the Courts to re-examine “settled law” (at least the Roe v. Wade abortion decision). In other words, Liberal victories are to be forever enshrined, but the Constitution should remain open to future Liberal extension. It is difficult to believe that there are some who maintain that same-sex marriage is a Constitutional right and at the same time claim Courts should not question settled law. Liberals find themselves in an intellectual pretzel, twisted and contorted by both their inability to win political victories and their undemocratic reliance on the courts to impose their agenda.

Unless there is some character issue lurking that will disqualify Roberts, the nominee will be confirmed. Democrats and Liberals (and Republicans and Conservatives for that matter) should exercise due diligence in vetting Roberts before the Senate Judiciary Committee and the full Senate. However, Liberals should avoid rancor and mean-spiritedness. If a nominee as squeaky clean and so obviously intellectually and temperamentally qualified for the Court as Roberts is attacked, then the Liberal opposition will lose what little credibility they have with the public. Such an erosion of credibility would make it difficult in the future for Liberals to oppose a more firebrand Conservative that Bush might nominate in the future.

Some Conservatives too need to take a deep breath and show a little faith that Bush’s nominee will not prove to be another Judge David Souter. David Souter was nominated by the first President George Bush and has moved to the Left end of the US Supreme Court. Firebrand polemicist Ann Coulter argues that Bush’s nominee is “Souter in Roberts’ Clothing.” Like-minded Conservatives would have preferred an outspoken Conservative Constitutionalist with a clear judicial record. This would have provided assurance that a Republican judicial nominee would not “grow” in the position and eventually and inevitably succumb to the temptation of the law and try to legislate from the Court.

In the Weekly Standard, Fred Barnes reports that the current Bush Administration too was concerned, if not pre-occupied, about avoiding another Souter. When Souter was nominated he was not carefully vetted or questioned by the administration of the first President Bush. In lieu of a careful examination, the first Bush relied on recommendations of Chief of Staff John Sununu and Republican Senator Warren Rudman. Barnes assures us that not only was Roberts questioned extensively on his judicial philosophy, but also that there were backdoor assurances by Conservative judicial saint and Associate Supreme Court Justice Antonin Scalia that Roberts would be a welcome addition to the Court.

Perhaps as important as Roberts’ judicial philosophy is his style. While the blunt and colorful decisions of Scalia and Justice Clarence Thomas are enjoyable to read, perhaps they tend to alienate judges who otherwise might be more sympathetic. Roberts’ quieter style and legal expertise might be able to sway more justices toward Conservative positions than Scalia and Thomas did. Given the narrow margin of some decisions, that talent might prove crucial.

Liberals should accept the unavoidable with uncharacteristic grace and Conservative should support Roberts without, an all too characteristic, excessive fear of mistakes past.

The shrillness of the response on the Left at the prospect of President George W. Bush appointing a justice to the US Supreme Court after the retirement of Associate Justice Sandra Day O’Connor is a direct measure of just how out-of-kilter the jurisprudence of the Supreme Court has become. Even before knowing who the President’s nominee will be, Senator Chuck Schumer(D-NY) was overheard declaring, “We are contemplating how we are going to go to war over this.” The martial ardor of Schumer and his fellow Democrats and Liberals is a consequence of out-of-control judicial activism and repeated losses at the polls. After losing the Presidency, Congress, the Senate, and the bulk of state legislatures, the courts, led by judicial activists, remain the only way to implement the Liberal agenda. Elections matter. Reactionary Liberals are desperately trying to hold on to past gains and to implement laws that have been largely repudiated by the electorate.

If courts and the Supreme Court, in particular, just had sufficient self-discipline to interpret the law and the US Constitution according to the judicial philosophy of original understanding, then in principle the political inclinations of a judge is immaterial. If judges did not impose their own views of what the law ought to be, then their views would not be particularly relevant. However, Liberals have developed over a century a theory of jurisprudence whereby presumably enlightened judges, can breathe fresh life into laws and alter them to suit Liberal sensibilities. Once such jurisprudence is accepted, the political philosophy of the nominees becomes very important. Indeed, even a return to a judicial philosophy of original understanding becomes a threat.

There have been many controversial court decisions, most recently about the states’ right of eminent domain and about the appropriate interpretation of the First Amendment prohibition that Congress shall make “no law respecting an establishment of religion or prohibiting the free exercise thereof.” However, abortion is the colossal issue that has focused all the unwanted attention on the Supreme Court. Abortion decisions, from Roe v. Wade that prohibited the limitation of abortions before fetus viability to Madsen v. Women’s Health Center where the Court limited the free speech rights of protestors around abortion clinics, have done the most pernicious damage to constitutional jurisprudence. In order to permit the widest possible latitude for abortions, the Court has found it necessary to distort the Constitution far more than for other issues. It will be difficult for the Court to recover from this damage.

The irony is that if Roe v. Wade were overturned, laws affecting the bulk of pregnant woman would probably remain largely unchanged, consistent with the general disposition of the country. Most of the states would voluntarily allow abortions in the first trimester of pregnancy. However, against the desires of the rabid abortion lobby, many states would limit late-term abortions and require parental notification before minor girls are permitted to obtain an abortion. Liberals are fighting to retain a rather extreme position on abortion: unfettered of abortion on demand for anyone until birth.

On other issues, the eagerness of Schumer and his Liberal allies to go to “war” over a Supreme Court nomination is also a consequence of an accurate assessment that the public is largely against them on many questions from gay marriage to the Court’s excessive hostility to religion.

Since the Court has erected a fortress of extreme positions, it will take at least a couple of decades of Conservative decisions on the Court to restore judicial respect for the original understanding of the Constitution. Until the US Supreme Court returns to being a court rather than a super legislature, nominations to the Supreme Court will continue to be high-voltage disputes. Once restoration is achieved, Liberals, if they are to win political victories, will have to do so the hard way. They will have to persuade Americans of the prudence of their ideas.

Liberals retain an inherent rhetorical advantage in arguing about legal cases before the US Supreme Court. When the current state of “settled law” is inconvenient for the Liberal agenda, Liberals have no problem arguing that the US Constitution should be a “living document” adapting to new exigencies. Those old rulings and precedents should not stay the hand of a modern court. On the other hand, if the current state of settled law favors Liberal positions, they criticize Conservatives for wanting to change previous US Supreme Court decisions. The result is a ratcheting effect. Liberal-activist victories are ensconced as permanent fixtures and immutable law, while Conservative-strict-constructionist victories are always provisional, subject to review and reinterpretation.Despite Conservative reverence for precedent, even Conservative jurisprudence recognizes that precedent is less constraining on the Supreme Court than it is in lower courts or legislatures. If a legislature gets a law wrong, it can always enact a new one. If a lower court interprets the law incorrectly, higher courts have an opportunity to over rule it. If the US Supreme Court gets it wrong, there is little recourse. Except in the extreme and difficult case of a Constitutional Amendment, the response by elected officials can at best be made along the margins. The US Supreme Court is the primary institution for correcting previously incorrect decisions. If not, the country would be burdened with incorrect decisions forever. Schools might still be segregated if the “separate but equal” interpretation of the Fourteenth Amendment in Plessy v. Ferguson could not have been overturned by a subsequent Court decision in Brown v. Topeka Board of Education.

The time between when the US Supreme Court makes an incorrect decision and later has an opportunity to correct it can be very long, many years or decades. This inertia is salutary. We would not want US Supreme Court jurisprudence flapping in the wind responding to every shifting judicial breeze. Legislatures can sometimes mitigate some of the more extreme inequities associated with bad Court decisions.

Recently, in a 5-4 decision, the US Supreme Court in Kelo v. New London extended the reach of eminent domain, allowing governments to seize private land not only for public use, but to transfer the land to private use for government convenience. The decision has largely been panned. In response, Congress this week passed by a strong bi-partisan 231-189 majority (192 Republicans for, 31 against, 39 Democrats for, 157 against) an amendment to an appropriations bill that would withhold federal funds from any project that uses this extended power to seize private land. The appropriations bill covers spending by the Departments of Transportation, Treasury, and Housing and Urban Development [1].

Despite any pleasure derived by circumventing an incorrect Court decision, Conservatives should always be a little wary against such federal bullying of state and local governments, since it undermines the spirit of federalism. By-and-large many matters should be left to the discretion of local governments. However, one can be excused in this case because the federal bullying is to mitigate the bullying of private land owners by state and local governments. Such are the compromises that must be made when the Supreme Court gets it wrong, way wrong.

[1] Allen, M. and C. Babington, “House Votes to Undercut High Court on Property: Federal Funds Tied to Eminent Domain,” Washington Post, July 1, 2005, A01.

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” — Fifth Amendment to the US Constitution.

The Fifth Amendment to the US Constitution provides important rights to individuals against arbitrary action by the state. These zones of individual protection have generally grown wider over time. An important exception in this expansion is the “Takings Clause,” whose protections have dwindled over time. The Takings Clause of the Fifth Amendment basically requires two things: that private property seized by the state only be taken for “public use” and such taking needs to be accompanied by “just compensation.”

Typically this clause has been invoked when the state seizes land under eminent domain for public use as in a park, hospital, highway, or sewage treatment plant, where the public actually comes to own the land. In other cases, the court has permitted the transfer to a private entity when the land will be used for the broad public purpose of a “common carrier.” Principle examples include railroad and power line right-of-ways.

In its latest ruling in Kelo v. City of New London, by a slim 5-4 majority, the Court erased any residual protection against arbitrary state condemnation. Essentially the words of the Takings Clause have been changed from, “…nor shall private property be taken for public use, without just compensation” to “…nor shall a person be deprived of just compensation, when private property is taken at arbitrary public discretion.” One key requirement of the Takings Clause is thus removed.

Even Justice John Paul Stevens, writing for the majority, concedes that under the “public use” provision the state “may not take the property of A for the sole purpose of transferring it to private party B, even though A is paid just compensation.” Moreover, the Court concedes that the state may not cavalierly assert a public purpose as a pretext for a taking on behalf of a private entity. Nonetheless, the Court just made that very thing much easier to do.

Pfizer, a large and influential pharmaceutical company, is building a new research facility in New London, Connecticut in conjunction with a city redevelopment plan. By taking the land of the petitioners under eminent domain as part of the redevelopment plan, the city of New London asserts that the concept of “public use” is expansive enough to include the potential increase in jobs and government revenue when property is transferred from one private concern to another. The petitioner Susette Kelo and nine others involved in the suit are pushed out to make room for the economic development based on Pfizer’s new facility. The property of the petitioners was not blighted, just inconvenient. The Supreme Court in the Kelo opinion endorses the expansion of state power.

In her pointed dissent, Justice Sandra Day O’Conner argues that under the logic of the Court in this case, “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Moreover, private negotiations in transactions may be altered with the knowledge that a powerful company might be able to persuade a local government to take property under the auspices of an economic development plan.

In the majority opinion, Stevens argues that the state can be restrained from abuse of the takings powers by the political process. The people can vote out those leaders who use eminent domain excessively. However, if the political process were a sufficient and entirely reliable protection of individual rights, there would be no need for the Bill of Rights and little need for judicial review. Indeed, there are many times that the majority of a local area would be happy at the use of eminent domain against an unpopular land owner. Tyranny is tyranny, even if practiced by a majority. Indeed, it is precisely against potential public tyranny that the Bill of Rights was enacted.

The case should be especially illuminating for Liberals who devote excessive faith in the power of government for good. The Libertarian part of the Conservative soul realizes that while government power can be used for good, it will inevitably be applied in the service of the politically powerful. Big companies like Pfizer will likely always be able to persuade local governments of the public benefit pursuant to the use of eminent domain on the company’s behalf.

This is why even dependably groups Liberal groups like the National Association for the Advancement of Colored People (NAACP) actually sided with the land owners in this case. The NAACP recognizes that frequently it is the poorest and the least influential, oft times African-Americans, who bear the greatest burden of aggressive urban renewal and economic development. African-Americans have too often been exploited by local governments to be as sanguine as the Court about reliance on the wisdom of local governments unfettered by Constitutional restraints. It should not go unnoticed that it was the Conservative side of the Court with its devotion to an “original understanding” jurisprudence that is protecting the individual against the predations of activist governments acting on behalf of large moneyed interests.

Liberals have always been vocal about seeking Constitutional protections for privacy rights, but often fail to appreciate the intrinsic linkage between property rights and personal liberty. Freedom and ability to control our lives increases with increasing property. Without diminishing the value and ability of those without resources, who typically has a greater scope of action, one with resources or one without? Limiting property rights directly reduces personal freedom.

Fortunately, the victory against freedom represented by the Kelo decision was a narrow 5-4 one. If a more Conservative Supreme Court emerges during President Bush’s second term, despite inevitable Liberal Democratic opposition, perhaps this ravaged ground of freedom, strip-mined by recent Court decisions, can be reclaimed to a more pristine condition.

”Congress shall have the power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” — Article I, US Constitution.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” — Amendment X, US Constitution.

In 1941,Claude Filburn,a farmer in Montgomery County, Ohio sowed 23 acres of wheat. This acreage exceeded his 11.9 acre allotment under the Agricultural Adjustment Act of 1938. However, Filburn never intended his crop for commerce, interstate or otherwise. The wheat was consumed on his farm by his family and his livestock. The Federal government fined Filburn for his deliberate, wanton, and excessive farming. Filburn challenged these fines and the case found its way to the US Supreme Court.

The US Constitution grants Congress the explicit power to regulate interstate commerce, the so-called “Commerce Clause” of Article I. Filburn’s position was that his wheat production did not represent commerce and certainly not interstate commerce. Hence, it could not be regulated by the Congress. Looking back we can understand the economic foolishness of central control of the agricultural economy, but in during the Great Depression and its aftermath, the power of the Federal government was expanded to meet economic exigencies. After a few judicious appointments to the Supreme Court by President Franklin D. Roosevelt, a largely compliant Court searched for ways to justify these extensions of Federal power.

In Wickard v. Filburn, the Court ruled for the Federal government by arguing that “interstate commerce” included intrastate production and consumption. Certainly, in the Court’s view, local private consumption can have consequences on interstate commerce. Justice Robert H. Jackson, a judge recently appointed by President Roosevelt and writing for the Court in the case, argued that economic necessity “has made mechanical application of legal formulas no longer feasible” and that interstate commerce “extends to those activities intrastate which so affect interstate commerce.”

The thread of effect from farmer Filburn’s 23 acres of wheat produced and consumed entirely within a single state, within a single county, indeed on a single small private farm to interstate commerce is extremely thin. Under such an aggressively broad definition, the power to regulate interstate commerce grants the Federal government the power to regulate virtually any activity. Thus, a Constitutionally enumerated power of Congress grows into an expansive license. Jackson and Roosevelt’s Court were certainly more fecund in producing Federal power than poor farmer Filburn was in producing wheat.

The consequences of such foolish precedents tend to propagate indefinitely. Over sixty years later, California and a number of other states explicitly permitted private cultivation and use of marijuana for medicinal purposes. This time, a usually Conservative President George W. Bush and his Attorney General Alberto Gonzalez sought to use the Federal government’s interstate commerce powers to prohibit such activities. Last week, the US Supreme Court in Gonzales v. Raich, again ruled for the Federal government. Pursuant to a broad interpretation of the interstate commerce clause as given in Wickard v. Filburn, the Court decided that the Federal government can prohibit the private production and use of marijuana.

The decision was 6-3, with Justices Sandra Day O’Connor, William H. Rehnquist, and Clarence Thomas dissenting. Unfortunately, Justice Antonin Scalia, usually a reliable adherent to an “original understanding” jurisprudence, sided with the majority. However, even Scalia’s vote would not have made a difference. Justice Thomas’s dissent was the most direct and eloquent:

The respondents “use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

“…the only way in which a human being can make some approach to knowing the whole of a subject, is by hearing what can be said about it by persons of every variety of opinion.” — John Stewart Mill, On Liberty.

A couple of weeks ago, Linda Foley the President of the Left-leaning Newspaper Guild, speaking at the National Conference for Media Reform accused, without the courtesy of providing proof, the American military of deliberately targeting journalists. Perhaps more revealing was that Ms. Foley’s remarks were greeted with applause and cheers confirming that her audience was sympathetic to her remarks. One gets the sense that there is an incestual reinforcement of views between Ms. Foley and her audience that blinds both to alternative points of view.

After the firestorm that followed Ms. Foley’s remarks, one might have thought she would be more circumspect in her comments, at least for a little while. But the lure of an enthusiastic, like-minded audience proved too great a temptation. Following Ms. Foley around with a microphone in search of an incendiary statement is akin to following a fuse to a bomb. The inevitable happens. On a discussion panel on media reform at the Take Back America Conference held at the Washington Hilton in Washington DC this last week, Ms. Foley seemed to eschew balanced news reporting. She said: “The conservatives have got us, as a country, now believing that balance — giving both sides — is the same as truth, and there are some things that are just false.”

Deconstruction of the statement provides and interesting insight into the maelstrom of ideas swirling around what counts for modern Liberal minds. By “balance,” Ms. Foley is referring to equal coverage of competing ideas. Ms. Foley believes that the press should identify ideas or notions that progressive minds have decided are settled and not open to debate, upon which there is no longer legitimate controversy. In such cases, according to Ms. Foley’s prescription, giving both sides is misleading. It gives people the false impression that both sides of the argument have equal merit. Foley’s argument reveals an arrogant distrust in the public’s ability to properly weigh the arguments.

Josh Silver of the Fair Press, on the same panel, offered an example of a settled issue that does not require balanced presentation: global warming. The media should not present both sides, because one side has been so discredited. Leaving aside for the moment the fact that there remains considerable scientific debate as to the rate of global warming, what fraction of it is associated with anthropogenic sources, and the relative costs between reducing green house gas emissions versus dealing with the consequences of warming, would not a balanced presentation on global warming inevitably lead the public to a the fair conclusion based on the evidenc? Given the difficulty Ms. Foley has in choosing her words carefully, one is not inclined to allow her the discretion to decide what issues have or have not been settled.

There are other social questions that have been decided empirically, but which Liberals have chosen to ignore. The correlation between intact families and positive outcomes for children is undeniable, but is certainly not given much attention by progressive journalists. Such a settled question would not be politically convenient for some. That home schooling and private and charter schools are generally at least as good for children as government-run schools does not receive much attention. Such a settled question would politically harm school teacher unions, an important Liberal constituency. That a promiscuous gay-male lifestyle bore considerable responsibility for the rapid spread of lethal AIDS infections is a settled question. However, this settled issue is not given much media attention for fear that it would reflect badly on gays. Intolerance for alternative view points is a Liberal “fundamentalism” more severe, rigid, and exclusionary than the much caricatured religious fundamentalism.

There indeed may be some settled questions that we need not continually debate. Journalists need not spend time presenting both sides on the issue of whether the Earth is flat. That is a settled question among for nearly all of us. However, there are some questions that Liberals might considered settled that many do not. Part of good journalism is recognizing those issues for which there is real disagreement in the public, even if the journalists themselves have reached their own conclusions.

The inability of Ms. Foley to see the danger of unbalanced reporting, it precisely why people are migrating away from Liberally-biased sources of news. People perceive the imbalance and do not appreciate a one-sided presentation. If a question is settled, then it would not be news and need not be reported at all. If there is significant disagreement among a large number of people, a decent respect for the consumer of news requires a balanced presentation. Why should people trust those news sources that don’t trust them; that eschew the necessity for balance and arrogantly presume the wisdom to decide which issues ought to be controversial and which ought to be settled? The comments of Foley and her Liberal compatriots are an outgrowth of the extreme frustration that when both sides are presented, some people arrive to different conclusions than they do.

Reporters should report, we should decide.

The controversy over the filibuster of judges is far more difficult for Conservatives than it is for modern Liberals. After four years of whining, complaints, grumbling, and protests about the Constitutionally-mandated Electoral College, the present Democratic feigned devotion to the judicial filibuster and the rights of political minorities is too transparently disingenuous to even be hypocritical. It is a totally insincere and manufactured self-righteousness marshaled in the service of patent political pragmatism.

Conservatives are congenitally suspicious of transient majorities and favor slower and more deliberative processes. Conservatives believe that large changes are best accompanied by clear rather than narrow majorities. When we have narrow majorities little happens and this is generally good. This disposition is what animates the reluctance to challenge the filibuster from Conservatives like George F. Will.

Honest people or those whose minds are not sealed shut with the cement of political partisanship acknowledge that the use of the filibuster to block judges, that would otherwise win a majority vote on the floor of the Senate, is unprecedented. However, the filibuster can play a salutary legislative role. Since Democrats in the Senate have raised the stakes by using the filibuster, some Conservatives are fearful that if Republicans use their majority to change filibuster rules with regard to judicial nominees, it will serve as precedent for future Democratic majorities to eliminate the legislative filibuster.

The entire political fight between the Republicans and the Democrats reflects the present disposition of Republicans to regard themselves as a minority party in temporary control and the Democrats to believe that they are really the majority party that has fallen into a transient minority position. Republicans, especially older ones have the soul of a minority party. As a consequence, they are inherently reticent about circumscribing the rights of legislative minorities. Democrats by contrast are pushing for minority rights now, but will little compunction about eliminating them when they return to a legislative majority.

We already know this will be Democratic behavior. Democrats, sometimes with Republican help, are the party that chiseled away at filibuster rules in the past, from the point where one Senator could stop the Senate, to requiring a 33% minority, and eventually a 40% minority. It is not hard to see that if Democrats are stymied in the future by a persistent legislative minority, they will trim the power of the filibuster even further.

At this point, the Democrats have, in effect, altered tradition by insisting upon a supermajority of 60% for judicial appointments. Republicans have a choice: they can accept this new requirement or fight it. When Democrats come to power, they will not have to face these same limitations for two reasons. First, Republicans have never used the filibuster to stop the nomination of someone who would be confirmed by the full Senate. Even if Republicans follow the new precedent established by their Democratic colleagues, Democrats will have few qualms about using their majority position to change the rules back again. If over 200 years of tradition and precedent could not compel a more collegial approach to judicial nominations, it is doubtful that even a dedicated and disciplined Republican minority could stand in their way.

Ask yourself why Democrats, as a minority in the Senate, would risk the legislative filibuster by the unprecedented extension of the filibuster to judicial nominees. They see little down side. If Republicans allow the judicial filibuster, they can block Bush’s choices without calling a single vote on the Senate floor. They, in effect, negate the prerogatives of the President and the choice of the people in the last election. When they become a majority party they will simply change the rules again on their own behalf.

Though many Republicans do not realize it, there is now really little risk for Republicans in voting down the judicial filibuster. Whether Republicans restrain themselves or limit the judicial filibuster, Democrats can be depended upon to not exercise restraint in the future. Republicans should act like a majority party now, while they have the opportunity. The Democrats certainly will.

“[The] Senate of the United States is the only legislative body in the world which can not act when its majority is ready for action. A little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” — President Woodrow Wilson.

It was only five years ago when Democrats were doubled over in acute political pain as George W. Bush’s victory the 2000 election punched Democrats in the gut. Bush won with a narrow margin in the Electoral College and just as narrow a loss in the popular vote. Although the Constitution is clear about how a president is elected, we heard a never-ending torrent of complaint that the Electoral College was antiquated and should be reformed. The will of the people as reflected in a direct majority, as opposed to assent filtered through the structures of a republican government, should be supreme.

Democrats today are not so sanguine about majorities. Now they sing of the virtues of the legislative filibuster, the tool of a persistent minority. Democrats condescendingly explain that the Senate should be a “cooling saucer,” preventing the government from being swept along by a fervent majority. Nonetheless, the current debate over the legislative filibuster has the virtue of forcing us to re-examine the underpinnings and assumptions of both Constitutional provisions and legislative rules.

The current controversy is centered around the duty of the Senate to “advise and consent” on Presidential appointments of federal judges. President George W. Bush has nominated a number of judges to the Federal bench that Democrats are holding up. If brought to the floor, most if not all, of these nominees would win confirmation with a majority. However, Democrats in the minority can exploit the filibuster rule that, in effect, requires a 3/5 majority (60 Senators) to close debate and bring the nomination to the floor of the Senate for a vote. Hence, with only 41 Senators, a minority is able to reject a presidential nomination.

There is no doubt that Senate rules allow for this outcome. However, there is procedure by which a simple majority can change the filibuster rules to prevent them from being applied to judicial nominations. This is either the “nuclear option” or the “Constitutional option” depending on the spin one wishes to apply. Democrats are crying foul, embracing a claim to defend the rights of minority.

The real history of the filibuster is a complicated and interesting one. Gold and Gupta provide a comprehensive review in a scholarly article in the Harvard Journal of Law and Public Policy [1]. In identical wording, the Constitution provides that both the Senate and the House can make their own rules. In the very first Senate, there were no filibuster provisions. Following the common practice of the time, including the Continental Congress and the British House of Commons, and the present rules of House of Representatives, a simple majority can end debate and bring anything to the floor for a vote.

In the 1806 codification of the Senate rules by then Vice-President Aaron Burr, there was acknowledged oversight which allowed for unlimited debate. Rather than filibusters in the Senate being a Constitutional provision, filibusters were introduced by accident. The use of unlimited debate to prevent bringing a bill to the floor was first employed in disputes over the Bank of the United States in the 1830s. Though the filibuster was infrequently used, for 111 years (1806 to 1917), a single Senator could prevent a vote on a bill by simply continuing talk. This is the ultimate in minority rights. A single Senator could stop the Senate from action.

In 1917, isolationist Republicans used the filibuster to make it more difficult to President Woodrow Wilson to prepare for war. Using the threat of eliminating the filibuster rules altogether, a compromise change in rules was agreed to. Two-thirds of the members of the Senate could vote “cloture” to end the filibuster.

During the rest of the 20th century, the filibuster was used most effectively by Southern Democrats to bottle up civil rights legislation. Again in response to the threat of a drastic limitation of the filibuster, rules were slightly modified in 1959 to allow for cloture with 2/3 present as opposed to 2/3 of the entire Senate. Further limits were agreed to in 1975 when cloture could be evoked by 3/5 of the Senate (60 senators). Further reforms were pushed through by Senator Robert Byrd (who now worships the filibuster as a member of the minority) to provide alternative means to limit debate.

In short, the Senate rules about filibuster, instituted by accident, are just rules than can and have changed from time to time. The filibuster is not unconstitutional nor is it any way required by the Constitution. It is not a gift from our Founding Fathers, but an accident.

The recent use of filibuster to prevent the President’s judicial nominees from receiving an up-or-down vote in the full Senate is, if not unprecedented, at least very rare and a recent phenomenon. Save for the large number now being filibustered by Senate Democrats, the only previous use was during the confirmation of Abe Fortas for promotion from a Supreme Court justice to chief justice. In 1968, Republicans were concerned about the ascension of a liberal justice following the expansive rulings of the previous Warren Court. However, the Abe Fortas case was atypical since it was revealed in hearings that Fortas kept President Lyndon Johnson informed of the secret deliberations of the Court and had accepted what seemed to be excessive and inappropriate private payments for teaching a summer course at American University. This is hardly the precedent, Democrats should base their current opposition to nominees for whom the only objection is one of political philosophy.

The current debate about filibusters can have an important impact on future Senate actions. However, the current tussle is one of political wills, not of constitutional dimensions.

If the situations were reversed, we know that Republicans and Democrats would have different arguments. We know this because situations were once similarly reversed. During the Clinton administration, Republicans kept some of President Bill Clinton’s nominees from coming to a vote on the Senate floor. Rather than needing a filibuster, Republicans were able to bottle up some nominations by the more conventional process of not reporting the nominees out of committee by a majority of the committee.

At that time Barbara Boxer (D-CA) had different position with respect to judicial nominees when she said, “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.” Similarly Diane Feinstein (D-CA) averred, “Our institutional integrity requires an up-or-down vote.” The dean of Senate Democratic Senators Edward Kennedy (D-MA) indignantly argued, “We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote.”

It must be the mark of a truly agile politician to be able to argue both sides of an issue with equal measures of sincerity. The question is now whether Republicans will call the Democrats bluff and end the filibuster of judicial nominees.

References

1. Gold, M. B. and D. Gupta, “The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster,” Harvard Journal of Law and Public Policy, vol. 28, 68 pages, 2004.