- The Washington Times - Sunday, March 23, 2003

Judicial confirmation treachery is afoot among a fringe of Senate Democrats. It demands an equally bold Senate Republican answer: a Senate vote irrespective of the non-constitutional cloture rule of the Senate and judicial commissions for nominees who attract simple Senate majorities as prescribed by the Constitution. Turn the other cheek is canonical in the New Testament, but it would be foolhardy before the witch's brew of Democrats currently abusing the right of Senate debate.
A cynical filibuster has been launched against a vote on President George W. Bush's nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit. The nominee is a Stradivarius within the professional community: unexcelled academic credentials; celebrated service as a Supreme Court clerk and assistant solicitor general; impressive arguments before the high court in private practice; and, a deluxe rating from the American Bar Association's Committee on the Federal Judiciary, which Senate Democrats themselves have acclaimed as the gold standard for judicial qualifications.
Article II of the Constitution contemplates confirmation of the president's judicial nominees by simple Senate majorities. That threshold of consensus, the Founding Fathers believed, would thwart misuse of the president's appointment power to favor cronies or incompetents; and, check undue executive branch influence over the character of the third branch. The idea of Senate supermajorities for confirmations was rejected for reasons that are threefold: appointing a single federal judge was far less politically momentous than treaty ratifications for which a supermajority requirement was thought proper; the judiciary could become understaffed if a Senate minority were empowered to block nominees; and, a popular consensus over judicial philosophy that found expression in the election of the president and a Senate representing the entire nation should not be frustrated by a minority Senate fringe.
Article I, section 5, clause 2 of the Constitution authorizes, "Each House [to] determine rules of its proceedings." But those rules cannot defeat companion constitutional provisions. For instance, a rule that refused to count the votes of black or Hispanic-American Members would run afoul of the equal protection component of the due process clause of the Fifth Amendment.
For long years, Senate rules have tolerated unlimited debate as a tactic to shipwreck full Senate consideration of matters within its jurisdiction absent a supermajority vote to close further filibustering. At present, the rule requires a supermajority of 60 senators to invoke cloture. An unwritten rule of the Senate for two centuries, however, was that filibustering was taboo for judicial nominees, at least below the United States Supreme Court, in contrast to legislation or treaties.
That filibustering custom recognized that a Senate rule as applied to frustrate the enactment of legislation within its constitutional domain is less constitutionally troublesome than the identical rule as applied to thwart the appointment of judges who operate outside the Senate's jurisdiction and are tasked to check legislative abuses.
The Founding Fathers worried over an excess of legislation. Thus, laws were required to attract majorities in both the House and Senate; and, the president was endowed with a veto that could be overridden only by two-thirds majorities in both chambers.
When the Senate's 60-vote cloture rule torpedoes legislation that would have commanded a simple Senate majority, it generally advances the Constitution's disfavor of new laws. But even filibusters to oppose legislation can be clearly wrongful, as with the morally compelling 1964 Civil Rights Act.
Furthermore, there are self-evident constitutional limits on Senate cloture rules. Suppose the upper chamber emulated the discredited single-member veto of early Polish parliaments with a rule requiring Senate unanimity either to pass legislation or to ratify treaties. That rule would run roughshod over the constitutionally specified majorities needed for laws or treaties enshrined in Article I, section 7, and Article II, section 2, respectively.
The constitutional cloud over cloture rules darkens considerably when extended to judicial nominees. In contrast to legislation, our constitutional architects voiced no concern over either an excess of judgeships or too much judging. Indeed, they generally celebrated independent federal courts and the power of judges to pronounce on the constitutionality of government action the jewel in our Constitution's crown as acclaimed by both conservative Chief Justice William H. Rehnquist and liberal Associate Justice Ruth Bader Ginsburg.
Thus, filibustering judicial nominees who would be confirmed by a Senate majority works against the constitutional grain. No exception has been recognized for Senate minority opposition turning on judicial philosophy. President Franklin D. Roosevelt, for instance, packed both the lower federal courts and the Supreme Court with hard-core New Dealers without provoking filibusters.
In sum, neither in Senate traditions nor in constitutional law is there a crumb of justification for the fringe Senate Democrat filibustering of the impeccably qualified Mr. Estrada. Sen. Charles Schumer, New York Democrat, exemplifies their duplicity. In one sentence, he maligns Mr. Estrada as a stealth candidate who confounds the Senate duty to make an informed confirmation vote. In the next, he insists that overwhelming evidence proves the nominee is a far-right conservative outside the judicial mainstream who would create a dangerous imbalance on the court of appeals. And in the third, he accuses President Bush of conservative machinations by following the strong advice of former Democrat Solicitors General Archibald Cox and Walter Dellinger in declining to provide the Senate with confidential and legally privileged memoranda authored by then Assistant Solicitor Miguel Estrada. As F. Scott Fitzgerald bemoaned, the mark of a first-rate intelligence in modern times is the ability to keep two opposite ideas in the mind simultaneously yet retain the capability of functioning.
Senate Majority Leader Bill Frist, Tennessee Republican, should arrange for a Senate vote on Mr. Estrada irrespective of the cloture rule. His confirmation would be certain. The Constitution would be honored. And the federal judiciary would no longer be held hostage by a fringe Democrat minority.

Bruce Fein is a founding partner of Fein & Fein law firm.

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