[Mb-civic] Filibustering the Truth

[ean at sbcglobal.net]

  http://www.commondreams.org/views05/0305-29.htm
  	
Published on Saturday, March 5, 2005 by The Nation
Filibustering the Truth
by Judd Legum and Christy Harvey
 

The greatest impact of George W. Bush's second term will likely be from his 
judicial nominations, including the appointment of one or more Justices to the 
Supreme Court. The President's selections will have long-lasting effects on all 
aspects of American life, including our health, our freedoms and our privacy. 
Senate conservatives, led by majority leader Bill Frist, have already launched a 
determined campaign to insure that any potential opponents are silenced--
principally by attacking the Senate's most effective tool, the judicial filibuster. A 
closer look shows right-wing arguments for doing so are based on a series of 
myths about the Constitution, history and the right wing's own conduct.

Myth 1: Judicial filibusters are unconstitutional. Frist and other Republicans 
adamantly argue that efforts to challenge Bush's judicial nominees via filibuster 
are unconstitutional. This past November Frist said, "After much debate and 
compromise, the Framers concluded that the President should have the power 
to appoint. And the Senate should confirm or reject appointments by a simple 
majority vote. This is 'advice and consent.'"

Frist and company love talking about the Constitution and what the Framers 
intended. But they should get their facts straight. There is nothing in the 
Constitution requiring the Senate to "confirm or reject appointments by a 
simple majority vote." The Appointments Clause of the Constitution requires 
the consent of the Senate before judicial nominees are appointed. The Rules 
of Proceedings Clause gives the Senate the power to determine the method of 
consent. It doesn't matter how many times Frist says it: There is no 
requirement for the Senate to confirm or reject a nomination. No vote means 
no consent: And that's OK.

In 2003 Judicial Watch, a conservative advocacy group, filed an ultimately 
unsuccessful lawsuit against the Senate, claiming that the judicial filibuster 
was unconstitutional. Although no text supports its argument, Judicial Watch 
argued that it's implied that the Senate's "advice and consent" power must be 
exercised by a simple majority vote, because it's consistent with the "ordinary 
principle of majority rule." Nice try, but that position is actually antithetical to 
the intent of the Framers, who were careful to make sure the majority didn't 
always rule. James Madison wrote in The Federalist Papers that "measures 
are too often decided, not according to the rules of justice and the rights of the 
minor party, but by the superior force of an interested and overbearing 
majority." The Senate was created, in part, to prevent the problems associated 
with the tyranny of the majority.

The real culprit here is Bush, who has ripped the "advice" out of "advice and 
consent." He has stubbornly refused to substantively communicate with any 
senators who oppose his nominees. When the Senate fails to confirm his 
nominees, Bush just reappoints them or, worse, bypasses the Senate 
altogether and installs them on the bench during a recess. This kind of toxic 
environment makes judicial filibusters more likely.

Myth 2: Judicial filibusters are unprecedented. Republicans insist that judicial 
filibusters never happened before. Frist put it this way: "In February 2003 the 
minority radically broke with tradition and precedent and launched the first-ever 
filibuster of a judicial nominee who had majority support." In truth, no one 
should understand the legitimacy of judicial filibusters better than Bill Frist. On 
March 9, 2000, Frist participated in a filibuster of Richard Paez, President 
Clinton's nominee to the Ninth Circuit. When confronted about his vote late 
last year, Frist claimed he filibustered Paez for "scheduling" purposes. Not 
true. A press release by former Senator Bob Smith titled "Smith Leads Effort to 
Block Activist Judicial Nominees" plainly states that the intent of the filibuster 
was to "block" the Paez nomination.

In fact, Paez was only one of at least six filibusters Republicans attempted 
during the Clinton years. Senator Orrin Hatch and others argue that these 
filibusters don't count because they ultimately weren't successful in blocking 
the nominees. All that proves, however, is that Clinton's nominees were 
moderate enough to secure sixty votes. It also suggests the remedy to Bush's 
problem: Stop nominating extremist judges to the federal bench.

Myth 3: Republicans have the moral high ground. According to Republicans, 
their opposition to judicial filibusters is motivated by a nonpartisan commitment 
to law and decorum. Frist said Republicans in the Senate "are the stewards of 
rich Senate traditions and constitutional principles that must be respected." 
Frist talks a good game. In reality, Republicans aren't motivated by a desire to 
protect the hallowed pages of the Constitution. Rather, right-wing zealots have 
shown themselves ready to do anything--and everything--to force through their 
judicial nominees while blocking those of their opponents. One of the more 
egregious examples of dirty tricks occurred in 2002-03, when Republican 
staffers from the Judiciary Committee hacked into Democratic computers and 
stole hundreds of files. Fifteen of those confidential memos, which detailed 
Democratic strategies for fighting the most extreme Bush judicial nominees, 
were then leaked to friendly conservative media outlets like the Washington 
Times, columnist Bob Novak and the Wall Street Journal editorial page.

That wasn't the first time Republicans contaminated the judicial nomination 
process. During the Clinton years, they used a slew of questionable legislative 
ploys to smother judicial nominations quietly while in committee. One favorite 
tactic: In 1994 Senator Hatch added language to the Senate rules for 
confirming nominees. His objective: to allow a single senator to easily--and 
secretly--block nominations from leaving committee. It worked. Judge Marsha 
Berzon's nomination was secretly stymied for more than two years. (Senator 
Bob Smith finally admitted his role.) The nomination of Judge Ronnie White, 
who had bipartisan support in the Senate, languished in committee for almost 
two and a half years. Judge Helen White waited four years for a hearing; she 
never got one. This behind-the-scenes scheming proved to be so popular, 
Republicans were able to block more than sixty of Clinton's nominations. (To 
no one's surprise, as soon as Bush took office, Hatch abandoned this 
procedure, allowing nominees to sail through.) The bottom line: While a 
filibuster requires at least forty-one Senators on board to block a nominee, 
under Republican leadership, it took only a single dissent.

Myth 4: Filibusters are more appropriate for legislation than judges. Hatch 
claims that filibusters of judicial nominations are unacceptable. However, 
"filibusters of legislation," he argues, "are different." He's got it backward. Yes, 
the filibuster plays an important role in protecting minority interests when it 
comes to legislation. But unfair laws can be overturned or amended at any 
time. If minority interests are trampled, the aggrieved parties can take their 
case to the American people and set the country down a new path. Federal 
judges, however, are nominated for life. Those confirmed by this Congress will 
be issuing important rulings long after the current group of politicians is history. 
These judges should not be hard-line ideologues for the controlling political 
party. They should be acceptable to a broad range of Americans. In other 
words, if a judicial nominee can't secure sixty votes in the Senate, he or she is 
not a good choice for the federal bench.

Bush may make the nominations, but federal judges interpret the law for all 
Americans. Members of the Senate have the responsibility to use every tool 
they have to make sure the right judges are confirmed. There is no reason that 
taking a hard look at every nominee precludes a civil, substantive and 
productive process. But the first step toward ending the acrimony over judges 
in Washington is putting a stop to Frist's partisan propaganda campaign.

Copyright © 2005 The Nation

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"In times of universal deceit, telling the truth is a revolutionary act."
   ---   George Orwell


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