- The Washington Times - Tuesday, May 17, 2005

As the moment of truth approaches for Senate Republicans deciding whether to go “nuclear” to end Democratic filibusters of federal judicial nominees, the debaters continue to overlook the most important reason filibusters should be laid to rest: They are a substantial threat to a genuinely distinguished and intellectually diverse judiciary.

Beyond the issue of who controls the presidency or the Senate, filibustering judges is plainly a bad idea. It enables the minority party to blackball any nominee with any record of distinction, since any nominee worth his or her salt will have offended one or another interest group in the course of prior government or academic service. This means the courts will be filled with undistinguished, inoffensive “moderates” rather than a diverse group of the most talented judges from both parties.

Few people who distinguish themselves as public servants or academics do so without generating some opposition along the way. One cannot likely serve as chief lawyer for the Environmental Protection Agency, for example, without making at least some decisions deemed controversial by either environmentalists or industry.

Is it really in our democracy’s interests to limit the judicial talent pool to those who have avoided taking making hard judgments about contested legal issues? Both Republicans and Democrats should see that it is not.

To begin with, the matter of how to interpret the law, like democracy generally, benefits when a broad range of political perspectives is welcome to participate in the debate. For example, whether or not they believe the death penalty is a “cruel and unusual” form of punishment barred by the Eighth Amendment, most people can agree our constitutional democracy is enriched when vigorous advocates of the anti-death penalty position are allowed to challenge the conventional wisdom.

Moreover, every generation has its blind spots, errors that become clear only with the benefit of hindsight. Insisting that judges satisfy a “mainstream” litmus excludes those most likely to point out those errors before it is too late.

Changes in the law should occur slowly, and on most issues jurists across the spectrum agree. But iron sharpens iron, and if everyone on the bench thinks alike, needed changes will be greatly delayed and may not take place at all.

This is not to say outside-the-box thinking is the primary measure of a good judge. Senate Democrats, however, have filibustered even those whom the American Bar Association (once their gold standard) has given high marks, but whose views are allegedly outside the mainstream.

And when, as now, the mainstream is defined too narrowly and excludes those who would otherwise make good judges but occasionally have taken controversial positions on heated issues, many of the most distinguished candidates are barred.

Many federal judges who have faced strong opposition have gone on to influential careers. For example, Louis Brandeis is widely considered one of the finest justices in American history, yet he faced a bitter confirmation battle and ultimately was confirmed with just 47 “yes” votes.

Historically, the presidency has tended to shift back and forth between the parties. Thus, over time both parties will control the nomination process, and both can nominate distinguished lawyers to articulate their understanding of the law.

A future Democratic president will want to nominate the best and brightest Democratic lawyers to the bench without being blocked by 41 Republican senators. And when that Democratic president is appointing judges who hold the Democrats’ judicial philosophy, Republicans will benefit from the presence of talented Bush appointees who can publicly challenge Democratic judges’ rulings and occasionally change their minds with convincing dissents. A Supreme Court that includes the likes of Justice William Brennan (on the left) and Justice Antonin Scalia (on the right) is more likely to get things right than one made up of nine undistinguished moderates.

The interests of both Democrats and Republicans and ultimately of our democracy are served when the Senate confirms the best nominees of both parties. Filibusters (and other delay tactics) undermine such a system, relegating judicial service to those who have never said anything mildly controversial and essentially think alike.

Unless the Senate wishes to return to the standard championed by Senator Roman Hruska who infamously defended appointment of mediocre judges to the Supreme Court, judicial filibusters should be abandoned.

Steffen N. Johnson is an attorney in the Office of Legal Counsel in the U.S. Justice Department. The views expressed do not necessarily represent the views of the Justice Department or of the U.S. government.

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