Thursday, April 28, 2005

Florida: From "Culture of Life" to "Kill them all and let God sort it out" in less than a month

Ahhhh. . . Florida, mecca of the "Culture of Life" where every living creature lives in perfect harmony with a shared respect of the miracle and sancity of life. Every life is a precious gift of God... unless you're armed.

This week, Florida Governor, and High Ambassador for the Culture of Life, Jeb Bush signed legislation removing the requirement that lethal force in self-defense was available only when the person could not reasonably flee from the physical threat.

So, in Florida, the law prefers to err on the side of life, so long as it doesn't make you run like a nancy boy.

Now, to be clear, the idea of not requiring a person to try and flee before using lethal force is hardly new or radical as it already existed in Florida and most other states, but in very limited circumstances. What is radical is how that exception will now be applied generally, despite the fact that the public policy in the old exemption does not hold true in the new expansion.

Recognizing that every home is the owner's castle, the "Castle Doctrine" allows a resident who encounters an intruder in the home to use deadly force when the resident has a reasonably belief that the intruder presents an immediate threat of serious physical harm or death of the resident without demonstrating that resident could not flee without using physical force.

The Castle Doctrine and other aspects of the criminal defense of self-defense is based upon the American Law Institutes Model Penal Code Section 3.04(b)(ii)(A) which states:

"The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, except that: the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be."

The Castle Doctrine makes sense in the context of the home or workplace because where do we expect people in such a situation to flee to? Where do we expect them to go where they'd be safer than in their own homes?

The legislation signed by life/gun-lover Jeb Bush expands the exception to the "duty to retreat" from just the home and office to EVERYWHERE. The NRA began its push in state legislatures for right-to-carry concealed weapons in Florida, and the NRA is interested in pushing this legislation in other "fly-over" states (everywhere but CA and NY, I guess.)

So, expect the NRA to make a stop in a state legislature near you soon!

Wednesday, April 27, 2005

Thomas and Scalia: Correct?!?

Obsessive Law Student and I just recently had a conversation about the intelligence of Supreme Court Justice Clarence Thomas.

While I can't say I consider Justice Thomas to be an all-time genius, his recent dissent with Justice Scalia and Kennedy in Small v. United States, decided yesterday, I believe was dead-on.

Gary Small was convicted in a Japanese court for trying to smuggle several pistols, rifles, and ammunition into Japan and served three years in prison there. After his release, Small returned to the United States where he purchased a handgun from a licensed Pennsylvania gun dealer, a week after he was paroled. Federal authorities arrested Small and charged him with violating 18 U.S.C. s 922(g), unlawful possession of a firearm by a felon.

The statute makes it "unlawful for any person . . . who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . any firearm."

The United States Supreme Court reversed Small's conviction, finding that when Congress used the term "any court" it did not intend to mean convictions in a foreign court. The Court found it reasonable to presume that Congress did not intend as such since foreign convictions are less trustworthy and that Congress did not consider the issue of whether foreign convictions would count.

Applying "strict textualism," Thomas, Scalia, and Kennedy take the majority to task for creating a brand-new presumption that such statutes mean only domestic convictions. For Thomas and Scalia, when Congress says "any court," they mean just that unless the statute clearly defines "any court" to mean domestic federal and state courts. They chide the majority for making presumptions of facts in which the court did not even ask the parties to brief the court concerning.

So, if you've been convicted for arming a third-world despot, don't worry, you can still buy and own a gun in the United States, but not if you were convicted of a felony in Utah.

What also troubles me is how this could be used against the Court's recent use of foreign law to interpret the Constitution. In Roper v. Simmons, 125 S.Ct. 1183, decided nearly two months ago, the Court declared all executions of minors unconstitutional under the Eighth Amendment's prohibition of cruel and unusual punishment.

The Court has been criticized for relying (on a much smaller part than conservative critics have portrayed) on foreign law to establish a growing global and national consensus against juvenile executions. Indeed, most of what the Court cited in Roper were changes done by foreign nations by statute, treaty, or pronouncements. But if the Supreme Court states that a foreign court's conviction, which is merely the application of facts to their own statute, is unreliable, then how can you rely on those same unreliable systems to determine an abstract concept like "emerging international consensus?"

That's not my view, but it could be argued.

Bolton's Nomination to Senate Floor Come Hell or High Water

I'm starting to wonder if the GOP is starting to read this blog:

"President Bush and Senate Republicans are intensifying their push to confirm John R. Bolton as ambassador to the United Nations and are considering forcing a showdown vote on the Senate floor if the Foreign Relations Committee refuses to endorse the controversial nominee, according to White House and Senate aides.

. . .

"Even a negative committee vote -- which would occur if two or more Republicans joined the panel's eight Democrats in opposing Bolton -- could result in the nomination reaching the floor with a negative recommendation, the aide said. There is precedent for this: Supreme Court nominee Robert H. Bork was given a vote in the full Senate after most Judiciary Committee members voted against him."

Of course, we know what happened to the Bork nomination. While its rare that a committee rejects or cannot agree on a recommendation for a nominee. It's even rarer still for the full Senate not to defer to the committee's recommondation.

I say if the GOP is hell-bent to disregard the Senate Foreign Relations Committee (which they control), then the Democrats should filibuster. It makes no sense to say that filibustering nominees that have received party-line majority approval should be filibustered, but a nominee that couldn't win a stacked-deck vote should not.

If I were a back-bench bomb-throwing Democratic Senator, I'd offer this amendment the next time the Legislative Appropriation Bill comes around --
"$1.58 for the Official Senate Rules Drafting Pencil."

Imagine the ink it would save....

Tuesday, April 26, 2005

Push Polling on TME

If there's nothing more shameless than push polling your own poll, I don't what is.

At 10 p.m. last night I put a dreaded counter on the website because I was interested to learn how many people were visiting. I was shocked to learn that I've had over 2,000 visitors, not hits, since then.

I don't know what counts for critical-mass for non-scientific web-polls, but I figured since more than just myself and Obsessive Law Student knew about it, a web-poll regarding this debate would be interesting.

Then I noticed that the poll doesn't allow people to explain their vote, and I haven't created an open thread for it until now. So feel free to add comments explaining your votes. Since we don't know what sort of compromise would have been possible (before Frist nixed it), people may have certain assumptions of what a compromise would entail to get both parties on board.

So pundit away! I'll post my own answer later tonight.

Thanks for all the kind praise, thoughtful comments, and interesting e-mails. I appreciate your support. And please, e-mail your friends and get our traffic up even higher tonight!

I couldn't agree more

Federalist Papers # 76

The Republicans are arguing that it's "unconstitutional" that Democrats have threatened to use the filibuster under the Senate rules to block the confirmation of seven of the President's judicial nominations. Democrats counter the Senate filibuster (used in the past by Republicans) is a necessary legislative instrument to keep the Executive nomination power in check.

At moments like this, I ask: WWAHD? (What would Alexander Hamilton do?).

Here's what he said in Federalist Papers #76:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrance would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view of popularity. And, in addition to this, it would be an efficacious source of stability in the administration.

"[The President] would both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which [the President] particularly belonged, or of being in some way or other personally allied to him.

"To this reasoning it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to [the President's] views. . . . But it is as little to be doubted that there is always a large proportion of the body which consists of independent and public-spirited [people] who have an influential weight in the councils of the nation. Hence it is (the present reign not excepted) that the sense of that body is often seen to control the inclinations of the monarch, both with regard to [people] and to measures. Though it might therefore be allowable to suppose that the executive might occasionally influence some individuals in the Senate, yet the supposition that he could in general purchase the integrity of the whole body would be forced and improable."

I report, you decide.

Monday, April 25, 2005

DeLay of Justice?

This long-time congressional representative made a name for himself in Washington with his bombastic rhetoric, endearing him to Rush Limbaugh and neo-conservatives across the nation with his biting criticism of the federal government and the Democratic House leadership.

Unfortunately, staffers of the Congressman caught the attention of prosecutors who began investigating the staffers for being "bag men" for monied interests. The Congressman was outraged at the obvious partisan legal campaign to take him down. That just caused the investigation to take a turn for the worse as staffer after staffer turned on the Congressman, giving evidence of influence peddling in return of free meals and personal services.

The Congressman valiantly tried to circle his supporters around his cause declaring that the prosecution was an effort of the federal government to silence his political views. Eventually, a trickle of news stories lead to the public airing of witnesses and documents creating a trail of influence buying of the Congressman. Eventually, the Congressman was able to get some key Republican figures to circle the wagons to make one last stand, not in the courtroom, but in the political arena.

But it was all for naught. The House of Representatives expelled Jim Traficant anyway. Sound familiar?

Another "Constitutional" Option: End Advise and Consent

Art. II., Sec. 2 of the United States Constitution states: "[The President] shall . . . nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Here's the scary thought. The "advice and consent" of the Senate is optional for the inferior federal judges (U.S. Circuit Court of Appeals and U.S. District Courts). If the Senate wanted, Congress could just pass the law and vest the power in the President alone. No Senate committee confirmation hearings, no committee recommendation, no Senate floor vote, nothing. Of course, U.S. Supreme Court nominees would still have to go through the Senate, but since most cases never make it that far, so what?

On the flip side: The constitution does not distinguish between appointments to Art. II positions and Art. III, so the GOP is clearly splitting hairs here. Furthermore, there's nothing REQUIRING the Senate to give its consent. Why can't the Senate, using its powers under Art. I, Sec. 5, withhold its consent if it can withhold its consent at all? There's been no real explanation of that, and I would REALLY like to hear it.

Social Security Part IV: The Flat Tax

Not content to exhaust what little political capital the President had coming out of the 2004 elections, it appears the White House political operation is ready to move onto the next issue that will galvanize Democrats and encourage moderates to vote Democratic in 2006.

Apparently the WH feels it hasn't wasted enough capital on its doomed and floundering Social Security privatization, Terri Schiavo, and judicial filibusters. They are now ready to launch yet another effort that is near and dear to conservative hearts. The institution of the flat tax.

Yes, the flat tax, it's not just for doomed billionaire candidates anymore. It's now going to be government policy.

I am skeptical when this White House talks about "simplifying" the tax code that they are really taking about reform like we saw Sen. Bill Bradley and Sen. Bob Dole do in the 1980s. Just as personal=private and constitutional=nuclear, "simplifying" means only one thing-- a flat regressive national sales tax.

Of course, they are correct that there are multiple tax breaks for education. I've always taken the Lifetime Earning Credit because it lets me, as the President says, "keep more of my own money." But since this is a highly popular Clinton tax break, I bet the WH will get rid of it and keep the less effective tuition deduction.

What's almost comical is this quote: "But the proliferation of tax breaks end up costing the public because they mean lawmakers cannot lower income tax rates, Steuerle said.
'They make it look like smaller government, when in fact it's actually bigger government," he said.'"

That's right, tax credits and deductions are big government programs that prevent good hearted Republicans from being able to cut the tax rate even lower. Massive across-the-board tax cuts didn't cause an explosion in government and deficits, my $1,200 Lifetime Earning Credit did.

So any Democrat thinking about opposing the President's flat tax proposal is on notice. To oppose this means you are somehow for higher taxes, bigger government, protecting a confusing and volumeous tax code, and not balancing the budget.

That's be funny if I didn't honestly believe it to be true. This Administration has no shame. Hopefully, Democrats will take the offensive on this as they did with Social Security and point out that the Republicans plan to reduce the deficit by raising taxes of lower and middle income families and college students.

Personally, the more the Democrats take on the fiscal conservative, pro-targeted tax cut mantra, the better off we'll be. That's another debate the Democrats can win in the election.

The GOP Filibuster Snowball

Well, the three people that read this blog can verify that I predicted it first.

From an AP wire story on U.N. Ambassador John Bolton's nomination:

"I think the best policy is to have his nomination come to the full Senate, not decided by a committee because the Constitution says that advice and consent are the province of the Senate itself," said Sen. Arlen Specter, R-Pa., on CNN's "Late Edition."

So now the Senate Judicial Committee chairman is on the record saying that what committees decide about a nominee should have no effect on whether the nomination receives a vote from the full Senate. I will give Chairman Specter credit for being logically consistent.

Why have Senate committees and hearings if the committees vote means nothing? The fact is that the committee hearings do and should continue to mean something. I hope the Democrats pick this up and insist on an amendment that ties the termination of the filibuster to the end of nominations going through the committee vetting process. You can't justify one without the other and it's time to call the GOP's bluff.

It's already established Supreme Court precedent that the Senate may delegate its constitutional authority to a Senate committee or subcommittee. See, Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732 (1993). So, this is yet again, another GOP misrepresentation on the issue. The U.S. Constitution does not mandate that each and every nominee receive a vote from the full Senate. If that was so, does that mean that the subsequent appointments made as a result of GOP's success in denying Clinton nominees are invalid and that the Clinton appointees denied a floor vote or, as in some cases, even a hearing, should be considered duly appointed?

To go with the GOP view, then anything the Ethics Committees have done is unconstitutional. Does this mean that Jim Traficant was illegally removed from office? The U.S. Supreme Court, in Nixon, said no. Therefore, Specter's constitutional interpretation on political appointments is misguided.

Sunday, April 24, 2005

Going Nuclear

Apparently the Senate GOP is hell-bent on getting rid of the judicial filibuster without any consideration of its future implications (or maybe, if your a theorist like me, because of them).

After viewing their strategy over the past few weeks, I'm amazed at two things 1) that the GOP keeps winning elections; and 2) the GOP strategy on this matter seems to be nothing more than to win the battle of diction. In case you haven't noticed lately, the GOP has stopped referring to their proposal to get rid of the Senate's ability of the judicial filibuster as the "nuclear option" and have begun to start calling it the "constitutional option."

According to the revisionist at the RNC, they have every right to call every reporter, publisher, TV station, newsroom, etc. to demand that they not use the term "nuclear option" unless they are essentially quoting a Democrat using that term because the term is nothing more than a Democratic rhetorical attempt to frame the issue as an unprecedented, over-reach by the GOP.

Unfortunately for the GOP, it's not a Democratic term. Sen Trent Lott (R-MS) (perhaps they still remember him, he used to be their Senate Majority Leader) was the first to coin the term and countless conservatives have used it. Indeed the term "nuclear" would seem to be a more accurate term than "constitutional." There's nothing constitutional about what the GOP is doing as the judicial filibuster does not, in any way, infringe on the constitution.

It reminds me of the term "voodoo" economics. That's what George H.W. Bush called Ronald Reagan's "trickle down" economic theory during the 1980 Republican Presidential Primaries (of course, "H.W." Converted in time to become the VP nominee later that year.)

Semantical arguments aside, the GOP has yet to give a rationale for why this change is necessary. By anyone's estimate, all it would do is get seven of President Bush's nominations through that couldn't currently. Each of those were nominations the President knew would not receive bipartisan support as they were rejected in his first term. Instead, all this change does is make it easier for this President (and future ones) to nominate partisan judicial activist.

What's even more disgusting is that Frist & Co. Used Senate rules to SINGLE-HANDEDLY deny Clinton nominees the right to a Senate floor vote, and even, in some cases, a committee hearing. Indeed, if the GOP genuinely believes the U.S. Constitution REQUIRES the Senate give each and every Presidential judicial nominee and "up-or-down" vote by the whole Senate, then why are they just getting rid of the filibuster? What the GOP does not discuss changing is the rule that gives the Senate Judiciary Committee jurisdiction over each and every one of the President's judicial nominations, nor is the GOP discussing getting rid of the Rules of the Senate which allow the Senate Judiciary Chairman from holding hearings on the nomination or allow the committee to decide not to allow a nomination to go forward to the entire Senate. Why keep the Senate Judiciary Committee but get rid of the filibuster, especially when it's been the committee and its processes which has historically blocked more judicial nominations than filibusters?

In the end, how long is the GOP's new-found "fairness" doctrine going to last when the Democrats take over both the White House and Senate? Or hell, just either of those?

The Ohio Bar

Given the number of steps it takes to become a lawyer (at least in Ohio), it's amazing there are so many damn many of the them. As I am 27 days from being "hooded," I thought I'd recap the "Rube Goldberg"-like manner in which one suddenly finds themselves whoring themselves as a lawyer to pay off a crushing debt load. Some of these are required by the Ohio Supreme Court, others are just things they wanted just for the hell of it:

1) Be @ least 21 years old. It's bad enough that our profession has a high incidence of alcohol abuse. We can't tolerate encouraging it at such a young age.

2) Earn a bachelor's degree from an accredited college or university. Apparently something about that extra two years makes you professional. I wonder, if you took four years to get an associates, could you challenge this rule under the Equal Protection Clause? The even dumber part of this rule is that you have to have the degree before law school. Personally, if you can finish your degree while passing through your first year, you should get an automatic spot on law review.

3) You have to take the LSAT, a test that has never had any application to the study of law. However, as a member of Moot Court, I have had to use my LSAT skills in law school to create a seating chart for a banquet and assign teams and schedule them for various competitions, so the LSAT logic puzzles have come in handy. If I read anymore, I'm sure the Reading Comprehension would come in handy. Especially, before I could use Brief-It on Westlaw.

4) Get two people to write a letter of recommendation for you so that the Admissions Committee has something besides just your personal statement to laugh their asses off.

5) Choose your law schools. Go with the strata of safe, medium, and "my parents will just be proud Harvard wrote me back." I applied to every law school except Ohio Northern. I thought I had standards.

6) Rob a bank because you just realized that you have no money for 13 different law school applications. Try to forge Harvard's letterhead for Mom and Dad.

7) Wait for law schools to recover their collective breath and decide if you're worth three years of massive tuition increases.

8) Try not to kill yourself when you get "wait-listed" at Cleveland State and begin to wonder what Ohio Northern would have done to you.

9) Find an apartment near the third-tier school you only applied to because it was free to apply on-line, which you did at work (and then got complemented for how hard you were working lately).

10) As you pack, find you are pulled off a wait-list from a school striving to drop to the third tier.

11) Hellish 1L year, but now you're set for Law Review!

12) Try out for Moot Court and pray.

13) 2L First Semester: Try to improve your grades so you don't have to go wherever you worked last summer. File your application to Register as a Candidate for the Ohio Bar. Start referring yourself as "the Candidate" and regret moving around so much, having so many jobs at places that don't exist anymore, and every parking/speeding ticket you've ever got. Go to your Character and Fitness Review and spend five minutes talking about a $10,000 credit card you were given in undergrad when you had no money that you (surprisingly) were also unable to repay.

14) Realize your GPA and Rank is well set and cannot be moved that far up, thus dooming your job prospects. Suddenly, you realize anything over an "F" gets you to graduation just the same.

15) Pray against "F"s for three straight semesters.

16) In August of your 3L Year, take the Multistate Professional Responsibility Exam (MPRE) a sixty-question multiple-choice exam of the ABA's Code of Professional Responsibility since you need to know all about the ethical code your state DOES NOT follow. Some claim this test is necessary as a requirement for the bar to ensure ethical lawyers (even though you need only 35 points above missing every question to pass in Ohio, and Ohio shares the highest required score!) I think all it does is let lawyers know which rules they are breaking. Whether they break them or not has nothing to do with how seriously they took a test they could study one night, miss almost half of the questions, and still pass.

17) Keep praying for those "D-"s.

18) File your Application to Take the Bar Exam which is nothing more than an update of your application to become "the Candidate." Realize that you now keep the Ohio Supreme Court more in touch with your life than your own family.

19) GRADUATE! Take time to appreciate the time left you have with your classmates as it is the last time you'll see them until the PMBR starts in two days, and then BARBRI, and during the Bar, and the Bar Induction Ceremony, and CLEs, and whenever you just sue the pants off their clients.

20) Pay private companies nearly $3,000 to teach you in a month and half what you just paid nearly $60,000 to learn for the last three years.

21) Take the Bar.... start regretting aiming for those "D-"s.

22) Wait from August until November to find out if you passed. Call your mom weekly to remind her you haven't learned anything yet.

23) Take the oath of office, the easiest thing you did to get closer to becoming a lawyer since turning 21.

24) Take the 12-hour, required CLE for New Lawyers on Dec. 15 in Columbus so that you can keep your license longer than a year.

25) Now, you may call yourself a lawyer. Of course, once you find a job.

Thursday, April 21, 2005

What's the Difference?

Before people send tons of comments about how I'm wrong in my first post, first explain something to me. What is the intellectually honest argument to be made that getting rid of the judicial filibuster is a good idea, but that we should keep the appointment and legislative filibuster?

After all, if the Senate Democrats are going to be allowed to filibuster the next U.S. Ambassador to the U.N. (if Chairman Lugar can ever twist enough of his colleagues arms to even hold a vote on the matter), then why shouldn't they be allowed to use a filibuster against a federal judicial nominee? After all, if it's the constitutional argument that the advise-and-consent clause doesn't require a supermajority of 60 argument for one, doesn't that argument also apply to the others?

There is only one reason to explain the discrepancy: the GOP leadership is more interested in getting their ideologically judges in as opposed to appointing qualified judges who aren't supported by narrow ideological special-interest groups.

Here's the article where Sen. Majority Leader Frist claims only the judicial filibuster is on the chopping block: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2005/04/19/national/w094640D57.DTL.

I've never been a fan of the cliche "slippery slope" argument. It's the kind of overused rhetoric notorious in Moot Court competitions or classroom discussion. Almost everything can be described as a slippery slope if you wanted. But in this instance, what prevents the GOP from whittling away the rights of the minority in the Senate even further? Frist has no answer. Normally, courts avoid sliding down the slope by drawing a clear line that has a rational articulable basis for making a distinction. Here?

So for those of you who think the Democrats are wrong to insist that a filibuster should continue to be available for judicial nominees, I ask you: how are filibusters bad for judicial and not other nominees? And why should the Senate get rid of some filibusters, but keep others like the legislative filibusters? And what's so dangerous about requiring positions with life-time appointments to receive bipartisan support (i.e.- at least 5 Democratic votes)? Is it really THAT hard? Bush's No Child Left Behind Act, tax cuts, and other legislative achievements strongly suggest it's not that hard.

Note that both conservative and liberal organizations have come out in support of the Senate Democrats. While I'm no fan of "slippery slopes," one can hardly claim they are being unreasonably paranoid. If the Senate does get rid of the judicial filibuster, would anyone bet that a threat of a filibuster of U.N. nominee John Bolton would not lead to an attempt to another Senate rule change?

Something tells me Vegas won't open up a line on this issue.

Activist Judges and the Right to Filibuster

President George Bush has submitted over 200 nominations to the federal judiciary since being elected in 2000. Of those, the Senate Democrats have said that they would block the nomination of ten. The rest have been voted and approved, most with wide bipartisan support. After winning re-election, President Bush decided to re-nominate seven of the ten nominees that the Democrats (and yes, even some Republicans) had objected.

Now the GOP Senate leadership is considering undertaking the "nuclear option" of revising the standing rules of the Senate to prevent the use of the filibuster for judicial nominations. The reason they say they are doing this is that it's "unconstitutional" for a minority of Senators to prevent an up-or-down vote on these nominations. According to the GOP, the Constitution doesn't require a supermajority for the confirmation of judges by the Senate in its role to provide "advice and consent" to such nominations. The supermajority exists only because it currently takes 60 votes to invoke cloture, thus ending debate and stopping a filibuster.

Throughout the life of this Republic, the Senate has allowed the use of the filibuster for judicial nominations. As President George Washington once remarked to Thomas Jefferson, the Framers created the Senate to serve as a "saucer" to cool the hot tea of the fickelness and passions of the people and the House of Representatives. In fact, Senate Majority Leader Frist himself has supported the use of the filibuster in judicial nominations in the past. See: http://www.dailykos.com/storyonly/2005/4/19/113052/604.

So why get rid of the filibuster rule? The GOP says the federal court system is overworked with too many cases and too few judges. Furthermore, they say the judiciary is run amok with liberal judicial activists who are making laws from the bench and need to be brought back into line with more conservative judges. I won't bother much with the first point since nearly 200 of the President's judicial nominations have been approved overwhelmingly.

The second contention is perhaps one of the most intellectually dishonest political statements outside of the President's social security plan. As reported in the Los Angles Times and The Christian Science Monitor, among other media outlets, 94 of the 162 active-duty judges in the federal circuit appellate courts are REPUBLICAN nominees. Ten of the 13 circuits have a clear majority of Republican nominees. And of course, the Republicans have nominated a clear majority of the justices currently in the U.S. Supreme Court.

So what's really wrong with the filibuster for some Republicans? It's not that Democrats are preventing them from appointing Republican nominations. It's what kind of Republican nominees Democrats are able to prevent by using the filibuster rule: activist, socially conservative judges.

Tom DeLay doesn't want to end judicial activism. He just wants it to be his kind of activism. Consider the latest case that DeLay and company have attempted to hoist onto the Altar of Liberal Judicial Activism: Terri Schiavo. In that case, a majority of the judges that heard that case were either elected as, or appointed by, Republicans. In order to get the result that DeLay says they should have the federal judges would have to become activist in the highest order. First, they would have to adopt a liberal philosophy as to how to derive legislative intent and depart drastically from Scalia's neo-textualism where a statute says what it says it says, no more or less. Then, they would have to recognize Congressional power on end-of-life issues (something Scalia in Curran said was strictly a State issue), and create an unheard of and previously unrecognized substantive due process right that Congress appeared to expressly disapprove.

Indeed, if one is interested in ending judicial activism, then the filibuster is your greatest tool, not your biggest obstacle. Judges are appointed for life, so the debate and consideration in the appointment process is the best time to identify ideological activist judges and prevent their appointment. The best way to limit judicial activism is to have an approval process that requires the support of a broad political spectrum, not a process that permits an appointment from a strict party-line vote.

Democrats aren't being obstructionist, nor are they asserting anything prohibited by our Constitution. Our Republic has survived 200 years, a brutal civil war, and countless threats foreign and domestic, all while judicial appointments have been subject to the filibuster rule.
If the GOP wants judicial nominations that are free of ideological activism, then requiring broad bipartisan support should be their goal, not the opposite.