Skip to comments.Tyranny of the minority
Posted on 06/01/2003 4:25:21 PM PDT by Jim Robinson
Tyranny of the minority
Judicial crisis: More than two years into the Bush presidency, filibustering Democrats are engaged in an unprecedented effort to keep the full Senate from giving its advice and consent on judicial nominations. The result: Depleted federal appeals courts offer only piecemeal justiceBy Lynn Vincent
AFTER SEN. JOHN CORNYN (R-Texas) moved to Washington last December and unpacked his suitcases, he learned freshman lawmakers aren't the only ones carrying baggage. The Senate was changing hands, from Democratic to Republican control. And though Mr. Cornyn, a former Texas attorney general and Supreme Court justice, was no stranger to conflict, the entrenched bitterness that marked 18 months of Senate gridlock over President Bush's judicial nominations surprised even him.
"I had no illusions that the Senate was a bipartisan wonderland," Sen. Cornyn told WORLD, "but I was truly amazed at just how fractured the judicial confirmation process was."
That may be because this confirmation breakdown has disintegrated well beyond standard partisan payback. Yes, Democrats' consent to 124 of Mr. Bush's nominees has been excruciatingly slow; and yes, that may be retaliatory torpor for GOP foot-dragging on Clinton nominees.
But now more than 750 days have passed for some of Mr. Bush's first "class" of 11 federal-court appointments. Compare that with the previous three presidents' first 11 appeals-court nominees, who were confirmed in an average of 81 days, with none taking more than 202 days, according to Concerned Women for America (CWA) legal analyst Tom Jipping. Further, the Senate has confirmed just 53 percent of appeals-court nominees during Mr. Bush's first two years in office, compared to over 90 percent during the same period for Presidents Clinton, Bush I, and Reagan. And in March, Democrats deployed a parliamentary weapon never before used by a partisan minority to kill a president's judicial appointments: They launched filibusters to block full-Senate votes on two Bush nominees.
Now it appears Democrats will try to make those filibusters permanentand add two or three more. In the process, critics charge, they are subverting the Constitution, forcing piecemeal justice in understaffed courts, and exerting politically driven, minority control over the composition of the federal bench.
The Constitution gives the Senate "advise and consent" power over presidential appointments to federal judgeships: A simple majority of senators must "consent" toor vote to confirma nominee in order for that judge to take office. But since March, Senate Democrats have voted eight times to block the full Senate from voting on appeals-court nominees Priscilla Owen, a Texas Supreme Court justice, and Miguel Estrada, a Washington, D.C., attorney in private practice. This, though a majority of the full Senate has indicated that it would vote to confirm both nominees.
"For the first time in American history, a minority of Senators is using the filibuster ... to replace majority rule with minority rule," Mr. Jipping explained in a report last month: "That is, a minority seeks to defeat judicial nominations the majority would otherwise approve."
In a Rose Garden speech on May 9, 2003, the two-year anniversary of the Owen/Estrada nominations, Mr. Bush called the Senate delays "a disgrace."
"Highly qualified judicial nominees are waiting years to get an up-or-down vote from the United States Senate... while partisans search in vain for reasons to reject them," Mr. Bush said. "The obstructionist tactics of a small group of senators are setting a pattern that threatens judicial independence."
Heritage Foundation senior legal fellow Todd F. Gaziano believes the issue boils down to a fundamental clash of judicial philosophies: While most conservatives believe the law should operate independently of politics, many liberals believe that law is simply politics by other means. "Liberal activists believe the courts should engage in legislation from the bench," Mr. Gaziano said. "Some even say that's all judges really can do, and that anyone who says the Founding Fathers believed otherwise is either naïve or stupid."
For legislators who believe in judicial activism, a sympathetic federal appeals-court judge is a special prize, since they often get the last word on laws affecting such cultural hot-buttons as abortion, affirmative action, and free speech. Justice Owen and Mr. Estrada both are pro-life conservatives. Liberal Democrats may see case law like Roe vs. Wade hanging in the balance, and would rather keep appeals-court judgeships empty than fill them with jurists whose cultural and political views don't match their own.
It isn't that Senate Democrats have only just concluded this. Liberals like Charles Schumer (D-N.Y.) have long supported the idea that ideology should influence, even drive, judicial confirmations. They just didn't say it out loud. But with all three branches of government under GOP control, and a Bush 2004 reelection victory seeming to be on the horizon, "activist Democrats are apoplectic," Mr. Gaziano said. "Their world is crumbling." No better time to be brazen than now.
When Democrats controlled the Senate, log-jamming conservative judges was easier: The Senate Judiciary Committee, headed by Vermont liberal Patrick Leahy, delayed nominations, or simply refused to send them to the full Senate for a vote. Then, in November 2002, voters swept Democrats into the minority and Orrin Hatch (R-Utah) assumed the Judiciary Committee chairmanship. That forced Mr. Leahy's party to use the filibuster as its ideological last stand.
Another theory on Senate Democrats' strategy is that they're thinking long-term: Appeals-court judgeships are generally considered stepping-stones to the U.S. Supreme Court. Since pundits believe that President Bush will nominate female and minority candidates to the one or two high-court seats likely to open up during his presidency, Democrats may be trying keep such candidates off the federal appeals bench. That would explain why they recently confirmed conservative Judge Jeffrey Sutton (who is white and male), while continuing to strangle the nominations of Mr. Estrada and Ms. Owen.
A third "theory" is more of a political reality: The judicial confirmation process, because it is increasingly politicized, is heavily influenced by special-interest money. NARAL: Pro-Choice America (formerly known as the National Abortion Rights Action League) contributed more than $492,000 to candidates during the 2002 election cycle, 91 percent to Democrats.
The group's president, Kate Michelman, recently made it clear what she wants in return: "I fully expect pro-choice senators to filibuster any nominee who does not affirm a woman's constitutional right to choose." (Justice Owen, who believes a minor girl's parents ought to know when she's having an abortion, did not meet this standard. She is "emblematic of the extreme nominees that this president has attempted to foist on the American people," Ms. Michelman said.)
When the American Bar Association evaluated her fitness for the federal bench, it awarded Justice Owen its highest mark, a unanimous rating of "well-qualified." Three Democrats who served with her on the Texas Supreme Court endorsed her nomination, as did 15 past presidents of the Texas bar. Mr. Estrada, nominated for D.C. Circuit Court of Appeals, served in the Justice Department under presidents from both political parties, has argued 15 cases before the U.S. Supreme Court, and also earned a unanimous "well-qualified" rating from the American Bar Association.
Still, a relatively small minority of the U.S. Senatein one vote as few as 39has effectively disqualified both candidates from the federal bench, by blocking the full Senate from voting on their nominations. According to Senate rules, 60 votes are required to "invoke cloture," or end a filibuster, and force a vote. Since March 2003, Senate Majority Leader Bill Frist (R-Tenn.) has filed a record six motions to invoke cloture on Mr. Estrada's nomination, and two to invoke cloture on Justice Owen's nomination. Each time, between 52 and 55 senators, a simple majority, voted to end the debate. Yet, the filibuster continues.
As Sen. Zell Miller (D-Ga.) explained in a Wall Street Journal op-ed, "the Senate is the only place I know where 59 votes out of 100 cannot pass anything because 41 votes out of 100 can defeat it.... Try explaining that at your local Rotary Club or to a constituent in the Wal-Mart parking lot.... You can't because it stands democracy on its head."
Sen. Miller is one of only three Senate Democrats to break ranks and vote to end Estrada/Owen filibusters. The others are Bill Nelson (D-Fla.) and John Breaux (D-La.). Sen. Miller is co-sponsoringwith Texas' Sen. Cornyn, Sen. Frist, and otherslegislation that would change the Senate's rules on cloture, reducing the number of required votes from 60 to 51, through a step-down process. Just one problem though: It takes 67 votes to change the rules.
Sen. Frist told WORLD the filibusters "have already had, and will continue to have, a terrible effect on the separation of powers. They challenge the deference we historically give the president on judicial nominations and they rewrite the Constitution to deny each senator their constitutional right of advice and consent."
They also harm the judiciary. After Mr. Bush chastised Senate Democrats from the Rose Garden on May 9, Sen. Leahy, the Judiciary Committee's ranking Democrat, fired back. "The Republican myth of a 'judicial crisis' is punctured by the facts, which show the lowest judicial vacancy rate in 13 years."
True, the combined vacancy rate among district and circuit courts is only about 5.5 percent. But regional appeals courts suffer a 12 percent vacancy rate, with some courts lacking as many as one in four of their judges. For example, four of 16 seats are open on the 6th Circuit, while the D.C. Circuit has three vacancies on a 12-judge court. The Judicial Conference of the United States has classified as "judicial emergencies" 15 of 18 open seats that could be filled by nominees waiting for Senate confirmation.
That classification enables courts to operate under emergency rules that try to bridge gaps in staffing. In some circuits, according to Mr. Gaziano, the vacancy crisis "has already passed the point at which oral arguments are canceled and judges must spend less time on those that are held."
These problems prompted Sen. Cornyn to piece together a "fresh start" coalition of the Senate's 10 freshmennine Republicans, plus Mark Pryor of Arkansas, the only freshman Democrat. The goal: Grab the attention of the upper chamber's Old Guard, put a lid on simmering feuds, and, maybe, jumpstart the confirmation process.
On April 30, the coalition sent a letter to the Senate leadership. "None of us were parties to any of the reported past offenses, whether real or perceived," the freshmen wrote in part. "None of us believe that the ill will of the past should dictate the terms and direction of the future. Each of us firmly believes the United States Senate needs a fresh start."
The appeal was not enough even to crack the Owen/Estrada filibusters. Within a week of receiving the letter, Senate Democrats voted four more times to block floor votes on the nominations. Sen. Pryor, the lone freshman Democrat, voted with his party all four times.
With appeals to conscience failing, the GOP is considering less genial options to bust the filibusters, but Sen. Frist is reluctant to use them. "Some of these [options] have been referred to as 'nuclear,' but as I see it, the filibusters themselves were a nuclear option," he said. One strategy involves a politically divisive procedure to change the Senate's standing rules, a tactic reportedly tried only twice in Senate history, the last time in 1975 by then-Vice President John D. Rockefeller. Mr. Frist said he prefers instead to seek cloture reform, which he sees as "a nonpartisan solution."
President Bush also has options to bust the confirmation gridlock. He could, Mr. Gaziano explained, announce his intention to call the Senate back into special session if they do not act on a sufficient number of his nominees by the next recess. He could also fill the longest-standing judicial vacancies with recess appointments in a way that would allow the Senate to displace a recess appointee any time it acts to confirm a regular one.
Meanwhile, Senate Democrats have hinted they might filibuster other Bush picks, including U.S. District Court judge Charles Pickering and Los Angeles Superior Court judge Carolyn Kuhl, both appeals-court nominees. The danger, Mr. Gaziano said, is that soon "only those who behave as political ideologues will be appointed. These are the seeds the Senate [minority] is sowing now."
© 1996 - 2003 WORLD Magazine.
1. What would the Dems do if the Republicans were doing this? Maybe the answer to this question should be our response.
2. Ronald Reagan would already have gotten this issue before the public more effectively than Bush has.
1) Robert Bork
2) Kenneth Starr
3) Ann Coulter
Senator Bingaman sent a 2,000-word obfuscation of his obstruction which I debunked by phone, fax and email.
The Constitution cites seven matters requiring a super majority--and advice and consent is not one of them.
February 14, 2001
Bork, Robert H. The Tempting of America: The Political Seduction of the Law. Touchstone: New York, 1991.
Review by Gregory A. Caldeira in the American Political Science Review (Vol. 85 Issue 3 Sept. 1991. Pages 984-989).
In The Tempting of America, Robert Bork tries to explain why the United States Constitution should be interpreted by the "original understanding" of the people who wrote it and of the people who they had written it for. He feels that too many decisions by the Supreme Court, whether they were right or wrong, are based on the justices view of the policy and not on what is written in the Constitution. The justices tend to rule based on their morals and political views than on constitutional grounds even in some of the most important cases in American history. Bork describes the moment when a judge realizes that his political opinions, his moral values and his view of justice about the case before him is not part of the Constitiution the "moment of temptation". At this point he must choose between his own personal views and the "American form of government". If the judge gives into this temptation, Bork feels that he is ruling in an area where only a legislator should. Bork gives many examples of how justices in the Supreme Court have done ruled based on their own personal convictions and not on anything in the Constitution. To better explain all of this to the reader Bork divided his book into three parts dealing with smaller parts of the larger issue. In Part I, Bork focuses on various Supreme Court decisions that show the politicization of the court and how it has progressed in modern times. Part II deals with the various theories of how judges who deal with constituitonal issues should rule. In Part III, he discusses his own personal experience as President Reagan's nominee to the Supreme Court and all of the battles that occurred due to his nomination and led to his not being confirmed at all.
Many people realize that it is very hard to stay objective when dealing with issues that affect your personal beliefs. Even with this realization, a majority of people think that judges especially those on the Supreme Court should be objective no matter what and rule according to what is written in the Constitution. Some of the most crucial cases, and most controversial as well, though were not based on constitutional grounds whatsoever but the moral and political views of the justices sitting on the Supreme Court at the time. With this in mind, it is hard to figure out what the limits of judicial power truly are and what they should be. Many of the modern judges are considered revisionists, which means that they rule more on their values than on what is written in the Constitution. The time period in which various decisions were made also influence the justices' view. The values fifty years ago are radically different than those of today. This can make a law that was constitutional back then unconstitutional today. These factors have molded various state and federal laws as well as the United Constitution.
Many decisions by the Supreme Court have drastically changed the landscape of the United States. One for instance was Dred Scott vs. Sandford. In this landmark case the Court ruled that even though Dred Scott, a slave, had been taken into a non-slave state and then to non-slave federal territory, was still the property of his owner. Chief Justice Roger Taney wrote in his opinion: "The rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprive of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." Taney had pretty much said that slaveholding was legal anywhere in the United States even in the states and territories where there were laws against it. Taney, a Southerner, used his personal view of how slavery was beneficial to the Southern economy to justify his prejudice against blacks and his decision against giving Dred Scott his freedom. The justice who dissented even noticed that "No particular clause of the Constitution has been referred to ...".
When justices use their own personal values to rule on cases they can overturn a ruling that had been previously made. Brown vs. Board of Education did just that. The Court ruled that the laws that segregated public schools in various states violated the equal protection clause of the fourteenth amendment. In 1896 with the ruling in Plessy vs. Ferguson, segregation was considered legal if all facilities were separate but equal. The decision in the Brown case overturned this long standing statute. While the opinion dealt with the fourteenth amendment it was obvious that there were other issues other than constitutional rights being dealt with. The justices' view that segregation was wrong was the predominant factor in this decision. While Bork did not feel that in itself was wrong, he felt that the opinion should have reflected more of the values of the Constitution than other factors that were more feeble than what they should have been in a case like this. Many landmark decisions have had opinions that were based on some flimsy interpretation of the Constitution. The justices of the Supreme Court should have tried to find a way to balance their personal views with the ideals of the Constitution, if they had, their published opinions of ground-breaking cases could have been more persuasive.
Bork also presents how the way our nation was founded on two conflicting ideas has led to various views on they are to be reconciled. Judges especially have to figure out the medium between tyranny of the majority and tyranny of the minority. There are various understandings of how the judicial branch is supposed to handle this. The "original understanding" is that judges are supposed to apply the Constitution according to the values of the ones who wrote and ratified it. This view is hardly ever used in modern courts because it is considered "outside the mainstream". Some of the objections that Bork presents to the "original understanding" are that the "original understanding" is unknowable, the Consitution must change with society, that there is no valid reason why the living should be ruled by the dead, the Constitution is not law, and that this philosophy involves judges in political choices. Bork feels that these objections though do not override the viability of this philosophy and that the other more popular views are not viable whatsoever.
The two other main philosophies that are believed today are liberal constitutional revisionism and conservative constitutional revisionism. Both rely on judges making decisions based more on values than constitutional grounds. Bork feels that both are impossible because they involve major moral choices that can not be justified by the Constitution. He feels that those are fatal flaws and that only the "original understanding" theory should be used when dealing with a constitiutional conflict.
Anyone who knows the background of Robert Bork knows that he was President Ronald Reagan's nominee for the Supreme Court in 1987. Almost immediately after his nomination was announced, the backlash against him began. He was deemed a racist, a sexist and a crazy right-wing extremist. In his final part of The Tempting of America he discusses his experiences and his and his opponents justifications of what occurred. While the charges against him were very extreme and that a lot of his opinions had been exaggerated, many took them at face value. This led to him to not be confirmed by the Senate. Bork feels that in hindsight many of his detractors now realize that they were being over-zealous and that he probably should have been confirmed. One would think that he would hold an extraordinarily large grudge against them but it doesn't come off that way in his book.
Bork deals with the idea that judges need to rule by the Constitution and not just by their morals and political views. If they are going to rule that way, they need to find a way to back it up convincingly in the Constitution. According to Bork the only viable theory dealing with the interpretation of the Constitution is the "original understanding" in which the judge rules based on what the framers of the Constitution originally wanted. That view, at least at this juncture in American history, is almost obsolete. The judiciary is ruled by the theories of revisionism where they make decisions based on their personal morality and political alignment. In closing Bork wrote: "Those who made and endorsed our Constitution knew man's nature, and it is to their ideas, rather than to the temptations of utopia, that we must aske that our judges adhere." Whenever a judge is on the brink of succumbing to the temptation, they to step back and re-evaluate if the decision they are about to make is going to based on their personal views or on the United States Constitution.
Perhaps he should read it now and then. We need judges who will follow the Constitution, not make law.
Remember Chuckie, the center of the Country is the Founding Fathers and the Constitution, so the Republicans and Dems are both to the left of where we should be.
From everything that I've read, this 1975 example was successful and it was primarily Democrats who lead it and voted for it. It changed the number of votes needed to invoke cloture from 2/3 (66) to 3/5 (60). Current Senators who voted for it include Byrd, Kennedy, Biden, Inoyue, Leahy.
It didn't happen overnight. It took a series of procedural votes over several months. The exact same thing can happen on the proposed filibuster rule change. All that it takes is some guts by the Republicans.
It is said that some Republicans are currently reluctant to try it but given one or more new filibusters, they may change their mind. I suspect that if we see a Supreme retire in July, another filibuster may arise and that just may be the straw that stiffens the Republicans' spines (to quote a mixed metaphor).
All judicial rulings are law. All judges make law, that's their job. We need judges who will make constitutionally sound judicial law rather than judicial law based on questionable and controversial precedents. I know I'm splitting hairs, but it's an important hair to split.
Actually, since we're splitting hairs, let's be exact. Judges interpret laws, in their constitutional role. Only when a judge extends the law (in any direction) according to his or her personal bias do they "make" law.
The essence of a strict constructionist is a determined will to interpret the acts of congress according to the explicit letter and clear intent of the governing document - the constitution itself. For example, there is no explicit "right to privacy" enumerated in the constitution or its amendments, so therefore there is rightfully no federal protection for abortion.
Another example is the use of the words "of the people" in the first and second amendments. In both cases, it clearly means the individual citizens of the United States, but the liberalistas want it to mean citizens with regard to the first amendment, but then to mean the states with regard to the second amendment.
One more point, and then I'll hush. Those powers not enumerated to the federal government in the constitution were explicitly remanded to the states. That's why there is so much "interstate commerce" garbage cited as the basis for federal regulations and laws. The libs are deathly afraid of getting constitutionally literate judges who don't "legislate from the bench" because the courts are the one bastion of (illegitimate) legislative power the libs truly have in their back pocket.
The dynamic tension between the federalism of Hamilton and the dispersed powers of Jefferson is a marvel, yin and yang for Yankees.
The Federalist Papers of Hamilton, Madison and Jay is such carefully cultivated an underlayment for the Constitution it makes clear context and meaning.
Clearly the left uses the courts to achieve socialism when it cannot attain electoral advantage in the executive or intellectual advantage in the legislative.
Auras and penumbras to the contrary notwithstanding, the Constitution of the United States is the bulwark of the Free World--not some hallucination from the ramparts of quota queen Gunier or Ruth Bader-Meinhoff.
And Ann Coulter demonstrates constitutional scholarship beyond All the Perjurer's Men in High Crimes and Misdemeanors, Regnery, 1998.
It is obvious to all beyond the Newspeak of the leftist propaganda machine that constitutionalists are dangerous to the dialectical march of Communism.
The aim of the left from Hitlery to the ACLU, from PETA to People for the American Way, is to rule by diktat, with the Constitution reduced to the meaningless impotence of the Soviet or Cuban or Chinese constitutions.
Here's to Professor Walter E. Williams: "To those who believe in a living constitution let me say, let's you and me play poker and the rules be living."