April 25, 2005

The Filibuster...Continued

Marc has a posting on a most important subject: The ongoing Senate filibuster by Democrats over President Bush's judicial nominations.

Here are additional information sources that elaborate further on the multitude of issues behind this unprecedented action.

Wendy Long comments on Filibuster Myth-Busters:

Myth No. 1:Filibuster of judges is a sacred tradition.

Fact:...The current obstruction of judges is no "traditional" filibuster: it is the first time in more than 200 years that either party has filibustered to keep judges with majority support off the federal bench.

Myth No. 2: Mr. Bush's nominees are being treated no differently than other presidents' nominees.

Fact: In the last Congress, 10 of the president's 34 appellate nominees were filibustered — the lowest confirmation rate since FDR. Democrats mask their sabotage of these nominees by citing the confirmation rate of judges to federal courts overall — an irrelevant statistic, because the federal courts of appeal make final rulings on most issues of constitutional law....

Myth No. 3: The Senate has a "co-equal" role with the president in judicial nominations.

Fact: The Constitution expressly gives the president — and only the president — the power to nominate federal judges. All the Senate can do is say "yes" or "no" to the president's choices...It does not give Senators — and a minority of Senators at that — the power to insist on judges who suit their own ideology.

Myth No. 4: The current filibuster is about "free speech."

Fact: Historically, the filibuster has given senators in the minority a chance to speak on the Senate floor before the majority rushes to pass a bill. But the current filibuster is not about the right to speak out. It is about blocking judges. These nominees have been pending for months — some for years. There has been, and remains, ample time to speak about them...

Myth No. 5: The filibuster protects "the right of the minority" to veto nominees.

Fact: The Constitution requires two-thirds vote for certain things. Appointing judges is not one of them. So the basic principle of democracy applies: The majority decides. The filibuster of judicial nominees turns majority rule on its head, because 41of 100 senators can keep a judge off the bench without ever even voting.

A liberal minority needs federal judges to advance their agenda...because they can't win these issues at the ballot box. Mr. Bush promised to nominate judges who will apply the law as written and stay out of politics...

The American people want senators to do the job our tax dollars pay them to do...

Law Professor Bainbridge cites a very informative study by the Economist here that further challenges a long-standing liberal argument and leads him to point out that:

Democrat obstructionism has meant that GWB's circuit court judges have been confirmed at a lower rate than those of any other modern President. Does this justify invoking the nuclear option? I still worry that abolishing the filibuster will come back to haunt us...

Read the posting to see both the data from the Economist and their additional reporting.

Professor Bainbridge goes on to comment in another posting entitled The Imperial Judiciary about the real policy issue at stake here:

As anyone who's been paying attention knows, the courts have morphed into super-legislatures imposing their own policy preferences on a host of cultural hot button issues that are properly within the legislative sphere...

The question for conservatives ought not to be whether we fight back. By indulging themselves in deciding political issues, judges - and especially the justices of the Supreme Court - have become legitimate fodder for the political process, as I've observed before. The question thus is how we fight back, since the fight has been thrust upon us.

Unfortunately, very few conservatives are handling this problem with anything remotely resembling nuance or skill...

Bainbridge then observes how recent comments by Tom DeLay and Ted Olson don't cut it. The latter two gentlemen are not helping the conservative cause with their latest public statements.

Power Line's John Hinderaker offers a commentary on the liberal beliefs and policy objectives that motivate judicial activism, concluding with these comments:

The left makes no secret of its intentions where the Constitution is concerned. It wants to change it, in ways that have nothing to do with what the document actually says. It wants the Constitution to enshrine its own policy preferences--thus freeing it from the tiresome necessity of winning elections. And how will the Constitution be changed? Through a constitutional convention, or a vote of two-thirds of the state legislatures? Of course not. The whole problem, from the liberal perspective, is that they can't get democratically elected bodies to enact their agenda. As one of the Yale conference participants said: "We don't have much choice other than to believe deeply in the courts--where else do we turn?" The new, improved Constitution will come about through judicial re-interpretation. It only awaits, perhaps, the election of the next Democratic president.

If the idea of a constitutional right to government-funded child care, "adequate" recreation, and $80,000 in cash seems outlandish, remember that these concepts are no more eccentric than the idea of a right to abortion was, prior to Roe v. Wade. As a law school exercise in 1972, my class was charged with trying to formulate an argument for a constitutional right to abortion. We were stumped. None of us could think of one. A few months later, the "right" to abortion was born.

So Republicans are right to put top priority on the president's ability to get a vote on his judicial nominations. Liberal interest groups have flatly declared their intention to filibuster any nominee to the Supreme Court whom they regard as conservative. The stakes couldn't be higher.

The liberal objectives are discussed in a JunkYardBlog commentary:

...The point Professor Reynolds accidentally makes is this: The judiciary's power is now subject to the whims of whoever happens to wield the gavel. His whims lead him one way, but the current justices’ whims lead them another. Without the all but ignored Constitution as an exclusive framework, there is now no fixed principle to decide what is and is not valid and relevant law. Far be it from me to lecture a law professor, but isn’t that what the Constitution is for?...

The GOP has failed so far to make the truth of the matter stick, which is that the Senate Democrats are essentially applying a religious test to nominees to the bench. That test is centered on the abortion issue, and the Democrats are concentrating their filibuster fire on 10 nominees known to be, among other things, pro-life, and being pro-life just happens to comport with orthodox Catholic and Protestant teachings, and is also an offense to those unelected radical leftists who control the Senate Democrats like puppets on a string. Ergo, the religious test, which is something the Constitution expressly forbids…

If you want to better understand the culture war drivers underlying judicial politics, read the second "More" section in the JunkYardBlog posting and follow the links.

When Cathy Young attempts to say that any Democratic party hostility to religious judicial nominees does not amount to religious bigotry, Professor Bainbridge puts forth a powerful counter-argument which is commented on by Democracy Project.

In contrast, a previous Anchor Rising posting offers a conservative view of the philosophical issues at stake here and another Anchor Rising posting notes "It is only through the 'messiness' of a reasoned public discourse that a broad societal consensus can be achieved on major issues. Judicial activism short-circuits that process, to the detriment of our democratic institutions and habits."

Here are some additional pieces on this debate from the Left (Colbert King, Rev. Gaddy of The Interfaith Alliance) and the Right (Professor Knippenberg, Professor Knippenberg, Power Line, Democracy Project, Reform Club, Hunter Baker of the Reform Club).

This has led to the latest news: David Broder editorial, Family Research Council on Justice Sunday, Bill Frist comments at Justice Sunday, GOP Stressing Constitution, Frist & Reid at Work on Deal.

I agree with Marc that the Democrats have framed, owned and led the debate on the filibuster issue. The Republicans have done a miserable job making the legitimacy of their case to the public with Frist and the Senate Republican leadership looking wimpy, political, and unprepared for prime time.

Another Anchor Rising posting provides some perspective on the secular/religious divide:

I believe I speak for many Americans who, while personally religious, are inclined to be tolerant of those who disagree with us. Yet the intolerance toward the worldviews of many people of faith exhibited by liberal fundamentalists, as they aggressively push their political agenda, has only polarized the public debate and weakened the fabric of civil society. Richard John Neuhaus has described the core of this intolerance in the following way:
The conflict in American public life today then is not a conflict between morality and secularism. It is a conflict of moralities in which one moral system calls itself secular and insists that the other do likewise as the price of admission to the public arena. That insistence is in fact a demand that the other side capitulate...

This demand for the capitulation of their opponents is at the heart of liberal fundamentalism, is delivered to philosophical opponents in a highly condescending manner, and is largely unreported in the mainstream media.

It is worth reiterating that the growth of the so-called "religious right" was largely a response to the attempts by liberal fundamentalists to grossly redirect public policies and the broader public debate in ways never seen before. Putting the public focus strictly on the religious right and not on the liberal fundamentalists is a clever, and so far successful, ploy to control the public debate.

Our challenge as a country is to recognize that dueling fundamentalists of both the left and right diminish the opportunity for reasoned debate in America on the great issues of our day - and that does no one any good.

The significance of all this for the future of our country is brought home by a quote from Dr. Roger Pilon of The Cato Institute shared in an earlier Anchor Rising posting:

In the end, however, no constitution can be self-enforcing. Government officials must respect their oaths to uphold the Constitution; and we the people must be vigilant in seeing that they do. The Founders drafted an extraordinarily thoughtful plan of government, but it is up to us, to each generation, to preserve and protect it for ourselves and for future generations. For the Constitution will live only if it is alive in the hearts and minds of the American people. That, perhaps, is the most enduring lesson of our experiment in ordered liberty.

Neither the filibuster nor the so-called "nuclear option" are in the best interests of ordered liberty. But no one should lose sight of the fact that the "nuclear option" would not be under consideration by Republicans if there had not been an unprecedented obstruction by Democrats that blocks voting on judges who would win appointment with a majority of votes on the Senate floor.

The filibuster conflict is really about two major issues:

First, will the citizens of this land speak up and insist that the Senate return to historical practices that have sustained and reinforced ordered liberty?

Or, will we continue to destroy the Constitutional fabric of our country by having to resort to increasingly more extreme options? If so, will the citizens punish electorally the Senators who refuse to honor precedent and the tradition of liberty in America?

Second, can our country rediscover true tolerance toward people of faith in a way similar to what George Weigel wrote?

That is why John Paul relentlessly preached genuine tolerance: not the tolerance of indifference, as if differences over the good didn't matter, but the real tolerance of differences engaged, explored, and debated within the bond of a profound respect for the humanity of the other. Many were puzzled that this Pope, so vigorous in defending the truths of Catholic faith, could become, over a quarter-century, the world's premier icon of religious freedom and inter-religious civility. But here, too, John Paul II was teaching a crucial lesson about the future of freedom: Universal empathy comes through, not around, particular convictions.

Or, will we continue to slide down the slippery "Will to Power" slope whose consequences George Weigel and Richard John Neuhaus share with us?

...freedom detached from moral truth - the "freedom of indifference" that dominated the high culture of the triumphant West - [is] inevitably self-cannibalizing.

Freedom untethered from truth is freedom's worst enemy. For if there is only your truth and my truth, and neither one of us recognizes a transcendent moral standard (call it "the truth") by which to adjudicate our differences, then the only way to settle the argument is for you to impose your power on me, or for me to impose my power on you.

Freedom untethered from truth leads to chaos; chaos leads to anarchy; and since human beings cannot tolerate anarchy, tyranny as the answer to the human imperative of order is just around the corner. The false humanism of the freedom of indifference leads first to freedom's decay, and then to freedom's demise...

If law and polity are divorced from moral judgment...all things are permitted and...all things will be done...When in our public life no legal prohibition can be articulated with the force of transcendent authority, then there are no rules rooted in ultimacies that can protect the poor, the powerless and the marginal...

Will we leave a proud legacy for our children or not? The choice is ours.


Further perspectives on the filibuster are offered by: Steven G. Calabresi, William Kristol, Duncan Currie, Hugh Hewitt, Power Line, Power Line, RealClearPolitics via LibertyFiles, Wall Street Journal (which notes "Once upon a time in America, such policy disputes were settled in elections or with votes in Congress. But in today's permanent political combat, Senators wage guerrilla warfare against the executive."), Linda Chavez, David Brooks, Patrick Buchanan, Joseph Farah, Nat Henoff, Charles Krauthammer, David Limbaugh, David Limbaugh, Pete duPont, Shannen W. Coffin, John Leo, and Peter Kirsanow.


Additional opinions are offered here by Byron York, Ramesh Ponnuru & Robert George, Power Line, Power Line, Power Line, Peter Lawler, Greg Abbott, Rich Lowry. Andrew McCarthy, Charles Krauthammer.