Thursday, April 21, 2005

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:

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.

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