Tuesday, May 31, 2005

Senate Majority Leader Bill Frist, Tennessee Republican, encountered more a Dunkirk than a defeat last week over the judicial filibuster. The issue will soon return to the forefront. Champions of the minority tactic advance reasons that are both dangerous to democracy and constitutionally indefensible. Those wayward ideas should be openly attacked and firmly repudiated by a Senate majority and the American people.

Mr. Frist had slated May 24, 2005, for the Senate to proscribe filibustering against federal circuit court and Supreme Court nominees. That proscription would restore a tacit Senate understanding for more than two centuries that the filibuster implies a revolutionary Senate right to destroy the Third Branch by refusing to vote on any judicial vacancy.

The majority leader was thwarted, however, when 14 well and ill-intentioned Republicans and Democrats concocted a fragile agreement for the former to desist from the filibuster over pending federal circuit court nominees absent “extraordinary circumstances” in exchange for the latter voting to extend its life. The agreement is destined to shipwreck.

Democrats insisted on making “extraordinary circumstances,” like Humpty Dumpty, mean whatever they want it to mean. Thus, filibusters over Brett Kavanaugh, nominated to the U.S. District of Columbia Circuit Court of Appeals, and William Haynes, nominated for the U.S. 4th Circuit Court of Appeals, seem inescapable. Democrats oppose the former for his involvement with Independent Counsel Kenneth Starr in the investigation of former President Clinton. They squawk at the latter for a legal memorandum addressing the interrogation of Guantanamo Bay detainees. In any event, the Republican-Democrat pact eschews any pledges regarding a Supreme Court vacancy, which is likely in June or July. The merits of the judicial filibuster remain pressing.

Proponents urge that federal judges, especially Supreme Court justices, are too important to be left to a simple Senate majority for confirmation. They serve for life, it is said, and decide on the constitutionality of major political issues. Abortion rights, affirmative action, freedom of speech, war powers, church-state relations, private property, and privacy are staples of the Supreme Court’s docket.

But the importance of an office is not the constitutional standard for departing from simple majority voting rules. If that were the case, the election of the president would require a supermajority of electoral votes. Moreover, the filibuster’s defenders vastly overstate the power of a single appointee.

On the nine-member Supreme Court, a justice must persuade at least four others to prevail. And the justices collectively characteristically owe their appointments to several presidents.

Of the current nine, Chief Justice William Rehnquist was initially appointed by President Richard Nixon; Associate Justice John Paul Stevens was appointed by President Gerald Ford; Associate Justices Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy were appointed by President Ronald Reagan; Associate Justices David Souter and Clarence Thomas were appointed by President George H.W. Bush, and Associate Justices Ruth Bader Ginsburg and Stephen Breyer were appointed by President Clinton. Thus, with the possible exception of Chief Justice John Marshall, who served from 1801-1835, no single justice or even pair of justices has ever dominated the Supreme Court.

Two of the court’s historic super novas — Associate Justices Oliver Wendell Holmes and Louis D. Brandeis — often dissented. In addition, the doctrine of stare decisis, i.e., the reluctance of the high court to overturn precedent, sharply circumscribes the ability of a justice to overhaul constitutional doctrines.

Chief Justice Rehnquist, for example, in Dickerson v. United States (2000) shied from voting to overrule the notorious Miranda decree, which handcuffs police interrogations of suspects in custody, despite scorn for its ramshackle reasoning.

A federal circuit judge sits as one among hundreds. Like Supreme Court Justices, circuit judges must persuade their colleagues to make their views law. And they may not disturb Supreme Court precedents.

The Founding Fathers carefully considered the wisdom of supermajority requirements. They embraced them sparingly in the Constitution where it was thought the benefits of departing from majority rule outweighed the disadvantages. Supermajorities were thus endorsed for constitutional amendments, expelling a member from Congress, convicting a president of an impeachable offense, ratifying treaties and overriding a presidential veto. They resisted supermajorities for federal judges because of its tendency to reduce appointees to the lowest common Senate denominator. The result would be a Supreme Court of mediocrities where brilliance is imperative.

Senate Democrats also contend the judicial filibuster is part of the Constitution’s celebrated separation of powers and protection of minorities. But neither in the Constitutional Convention, nor in the Federalist Papers, nor in the state ratifying conventions is there a crumb of evidence to support the contention. James Madison in Federalist 47, for example, explains the need to separate legislative, executive, and judicial power to avoid tyranny with no hint of a corresponding need to divide power among political parties.

And the Constitution, simpliciter, protects minorities by placing fundamental rights beyond the reach of the majority. As Supreme Court Justice Robert Jackson amplified in West Virginia State Board of Education v. Barnette (1943): “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

The bedrock of the judicial filibuster is that a Senate minority should be permitted to prevent a vote because they have been unsuccessful in persuading a majority to defeat a nomination. That idea does violence to Justice Holmes’ free speech admonition in Abrams v. United States (1919): “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.”

The logical sequel to the judicial filibuster is a Democrat insistence on blocking the 2006 elections because they have not persuaded a majority to vote in their favor.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has prepared an “Advise & Consent Handbook” on the judicial filibuster.

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