- The Washington Times - Monday, May 2, 2005

If the radical arguments defending judicial filibusters are accepted, the Constitution will be imperiled. The three branches will chronically clash and urgent unwritten constitutional rules will wither. The stakes thus transcend Senate confirmation of judicial nominees.

Filibuster proponents observe the Constitution omits language explicitly obliging the Senate to vote on any presidential nominee. Article II, section 2, clause 2 (the Appointments Clause) states only that appointments require “the advice and consent of the senate.” Thus, blocking a confirmation vote through a filibuster is constitutionally undisturbing because an express command is not transgressed.

But the Constitution is replete with inexplicit obligations necessary to make the enterprise function and flourish. As Paul preached to the Corinthians: “Not of the letter, but of the spirit; for the letter killeth, but the spirit giveth life.”

An independent federal judiciary was established to check the expected constitutional abuses of the legislature and executive. The Appointments Clause, however, does not explicitly compel the president to make any nomination, as it does not explicitly compel the Senate to vote. But a judiciary without judges would be a farce. Accordingly, an unwritten rule for more than two centuries has obligated the president to nominate judges and the Senate to vote confirmation or rejection to honor the Constitution’s separation of powers.

Article II, section 3 entrusts the president with taking “care that the laws be faithfully executed.” Congress has created a cavalcade of federal departments and agencies to enforce a staggering constellation of federal statutes. The Appointments Clause, nevertheless, does not expressly command the president to nominate executive officers to captain the federal bureaucratic colossus. The president, for instance, would be acting within the constitutional text if he de facto closed the Education Department by refusing to nominate any official to serve. That neglect would be tantamount to an unconstitutional voiding of a federal statute by executive decree. Thus, an unwritten rule obligates the president to staff departments and agencies to avoid demoting laws to sound and fury signifying nothing.

Article II, section 1, clause 5 and Article III, section 1 protect the president and federal judges from diminished compensation during their continuance in office. Article 1, section 9, clause 6, however, declares that, “No money shall be drawn from the treasury, but in consequence of an appropriations made by law.” And members of Congress are unaccountable to the judiciary or executive for voting in favor or against bills under Article I, section 6, clause 1. Accordingly, Congress would not contradict the express words of the Constitution by refusing to vote money to pay the salaries of the president or judges. But an unwritten rule followed by Congress requires such funding to shield the presidency and judiciary from retaliation for conduct disliked by the legislature.

Article III leaves the number of Supreme Court Justices unfixed. The Radical Republican Reconstruction Congress exploited that indefiniteness for partisan gain. It slashed the number from 10 to eight to thwart appointments by execrated President Andrew Johnson and to boost the influence of Lincoln appointees. The Radical Republicans then raised the number to nine in 1869 on the heels of the election of Republican President U.S. Grant. Ever since, an unwritten rule has elevated the number nine to constitutional status to forestall political manipulations of the high court. The sacredness surrounding a constancy of nine defeated President Franklin D. Roosevelt’s machinations to jump the number to 15 in hopes of constitutional rulings endorsing the New Deal.

Filibuster champions also maintain that intensity should count in politics and, that an impassioned minority should prevail over a phlegmatic majority. But there is no reliable yardstick for measuring the intensity of proponents or detractors.

Were congressional supporters of equal rights for blacks secured by the 1964 Civil Rights Act more intense in their support than were the filibustering resisters in opposition, for instance, Sen. Robert Byrd, West Virginia Democrat, who cherished segregation for the ages?

Moreover, if intensity should count in forcing legislative inaction, intensity should count equally in enactment of legislation. The policy consequences in both cases are equally momentous. As Edmund Burke lectured, “The only thing necessary for the triumph of evil is for good men to do nothing.” Thus, blacks remained oppressed, debased and lynched for a century after the Civil War because of the inaction of Congress in passing protective legislation.

The intensity argument would justify the enactment of laws and even the election of members of Congress by zealous minorities. Government by the consent of the governed would be turned on its head, and the wisdom of the Founding Fathers as elaborated by Thomas Jefferson ignored: “The first principle of republicanism is that the lex majoris parties is the fundamental law of every society of individuals of equal rights; to consider the will of society enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, no other remains but that of force, which ends necessarily in military despotism.”

Haven’t defenders of the judicial filibuster advanced principles that deserve no quarter under the Constitution?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. Mr. Fein has recently prepared a handbook on Advice & Consent.

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