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By AndrewHyman Posted in Fillibuster — Comments () / Email this page » / Leave a comment »

Cokie Roberts and her husband Steve had a very partisan op/ed published fittingly in the Decatur Daily Democrat recently. Their email address appeared at the end, so I sent them a response, which they kindly acknowledged, and then I told them that I was posting an edited version of my response here.

To Cokie Roberts and Steven V. Roberts:

I would like to comment about your recent op/ed piece titled, "In judicial picks, will Bush unite or divide?" which appeared in the Decatur Daily Democrat on March 4, 2005.

You argue that, when a vacancy occurs, President Bush should pick up the phone, talk to the Senate Democrats, and find a Supreme Court nominee who is "acceptable" to the Democrats. But when has a president ever bowed to the wishes of the Senate MINORITY in making judicial appointments? The only time I know of where a president deferred to a Senate minority was when President Clinton consulted with Senator Hatch regarding Ruth Ginsburg and Stephen Breyer (and therefore did not nominate Bruce Babbitt). That incident was highly unusual, and it's obvious that Senator Leahy and his fellow Democrats would not defer today in any way remotely like Senator Hatch and his fellow Republicans did with respect to Clinton. It's worth bearing in mind that the framers of the Constitution purposely placed the nomination power and responsibility squarely with the president, because they did not trust a numerous body like the Senate to make responsible nominations. Only after someone is nominated does the Senate have a constitutional role of advice and consent.

President Bush might or might not be wise to listen to whatever the Democrats have to say about nominees, but you go one step further and say that he should nominate people "acceptable" to the Dems. Why? Because the Dems have hijacked the Senate with the first-ever filibusters of appeals court nominations? Because of Senator Reid's completely ignorant comments about Justice Thomas?

What you're really getting at is that you personally don't want "archconservatives" like Antonin Scalia and Clarence Thomas to be appointed to the courts ever again.

You say that changing the filibuster rule would severely damage the system of checks and balances that is the very core of the country's democratic structure. On the contrary, a vitally important check and balance is now being destroyed by the Democrats: traditionally, presidents have generally been able to appoint judges (especially when the same party controls the Senate) sharing the presidents' respective judicial philosophies, so that in the long run the only surviving judicial precedents are those that are firmly based on the objective or widely-accepted meaning of the law. Under your proposal, judges will have to be selected from a much narrower pool of candidates; and, they will not have to worry that their judicial opinions must persuade their colleagues or their successors, because their colleagues and their successors will all be cut from the same cloth. Your plan represents a radical shift from the past, and will bring us ever closer to judicial oligarchy.

In 1968, Republicans AND Democrats used a so-called filibuster with respect to Associate Justice Abe Fortas, who was Lyndon Johnson's choice for chief justice. Why did you not mention the many Democtrats who filibustered against Fortas? Could you perhaps be trying to mislead your readers?

And the purpose of that so-called Fortas filibuster was to prevent debate from being prematurely cut off, rather than to perpetually stall in order to kill the nomination. As you well know, the debate on the floor of the Senate lasted a grand total of four days, until Fortas withdrew of his own volition. He himself said in his withdrawal letter that he could ultimately have obtained an up-or-down vote on the merits. The Republican leader (Everett Dirksen) said that his mind was "still open," and that cutting off debate would therefore be premature while there were further issues that needed "exploration." The Fortas debate was real, rather than fake as it is now; Senators were actually opening their mouths and conversing with each other. As you must know, Fortas only obtained 45 votes for cloture (to 43 against), which was far short of a simple majority of the full Senate. The only reason that a cloture vote occurred at all was because LBJ wanted Fortas to get a slim majority vote to save face; Joe Califano has explained that LBJ already planned to withdraw the nomination long before the cloture vote, when LBJ learned that Fortas had indirectly received $15,000 from businessmen who could one day come before the Court. No Senator threatened to filibuster for "all the hours in the universe" as the Democrats now threaten. The Fortas situation is also different from the present situation in that his was a Supreme Court nomination, and moreover there was no vacancy yet because Earl Warren was still seated (also, the nomination of Associate Justice Fortas would not have given Fortas any more voting power than he already had). You have completely mischaracterized what happened in 1968.

During the Clinton presidency, SOME of the same Republicans who are now so incensed at Democratic tactics did indeed shelve dozens of judicial nominees. They didn't use a formal filibuster because they didn't have to. You know why they didn't have to? Of course you do: the Republicans were then in the MAJORITY, a small detail which you conveniently hide from your readers.

Sen. John McCain (R-Ariz.) did recently say to writer Jeffrey Toobin that, "We Republicans are not blameless here. For all intents and purposes, we filibustered Clinton's judges, by not letting them out of committee." But as Professor Mark Tushnet has written, "There's a difference between the use of the filibuster to derail a nomination and the use of other Senate rules --- on scheduling, on not having a floor vote without prior committee action, etc. --- to do so. All those other rules . . . can be overridden by a majority vote of the Senate . . . whereas the filibuster can't be overridden in that way." Would you say that Tushnet is right on this point, or McCain? Of course you know Tushnet is right.

During Bush's first term, you write, several hundred judicial appointments sailed through the Senate, but 10 were blocked by the Democrats, and it's those 10 that really alarm the White House. You completely ignore that the Democrats have targeted appellate court nominees, whereas your statistics include district court judges. During his first term, Bush had the lowest appellate confirmation rate of any modern president: 69% (compare that to Bill Cinton's 74% including two Supreme Court justices). You have completely slanted your statistics to fool your readers.

You say that the great test of democracy is not majority rule, but the protection of minority rights. Let's be honest: you support majority rule when it suits you, and oppose it when it might enhace the positions of people with whom you disagree. For example, you would undoubtedly oppose legislation giving a minority of Supreme Court justices power to veto any exercise of judicial review (i.e. striking down a statute). If such legislation came to a vote in Congress, both of you would undoubtedly be howling from the rooftops that it violates majority rule.

You write that the Republican Senate majority is trashing minority rights in the U.S. Senate. If the Republicans allow one year of debate on each and every nominee, that would be trashing the rights of the minority? Please, give me a break. You know as well as I do that the Republicans would be delighted if debate were limited to one year on nominations, so that finally there could be a vote on the merits. What you want is to eliminate the rights of the majority, have debate last for centuries and millennia, and completely hand over all of the majority's rights to the minority.

You say that the Republicans who think changing the filibuster rule is a clever idea should remember that no majority is permanent. Well, seeing as how the Republicans have NEVER used a perpetual filibuster to defeat a judicial nominee (the Fortas filibuster having lasted all of four days), why would the Republicans ever want to conduct an endless filibuster of a nominee? The only reason I can think of is to get revenge for what the Democrats are now doing.

By the way, are you both aware that less than 12% of our population is represented by 42 Senators? And you want those 42 Senators to be able to veto any nomination to the Supreme Court, the Cabinet, and even the Vice Presidency. What an unwise form of government you are promoting.

Sincerely,

Andrew Hyman

NOTE: The Tushnet quotation comes from an exchange on a listserv for constitutional law professors. Professor Tushnet was responding to an argument that filibusters were no different from such procedures as allowing committee chairs to hold nominations back from committee votes, and Tushnet was pointing out that there was indeed a difference.