Strategy to break the bench logjam
Bruce Fein
"Paris is well worth a mass." Henry IV of Navarre thus explained his olive branch to Catholics in ending France's gruesome religious wars. President George W. Bush and Republican senators should consider a corresponding gesture towards Senate Democrats over the confirmation of judicial nominees before resorting to a so-called "nuclear" option — a pulverization of the filibuster when deployed to defeat nominees who enjoy the support of a Senate majority. In recognition that Senate Republicans thwarted scores of President William Jefferson Clinton's nominees by masterly inactivity tantamount to filibusters, Mr. Bush and the Senate Republican leadership should compensate for that politically and constitutionally misguided history. They should agree to fill 10-20 percent of the next 50 judicial vacancies with Clinton nominees who failed to obtain a Senate vote.
Republicans have nothing to fear from such magnanimity. The doctrines they celebrate generally dominate the constitutional landscape in the Supreme Court, for example, in the fields of racial or ethnic preferences, church-state relations, federalism, and powers of the police and prosecutors. President Ronald Reagan's meticulously devised and brilliantly executed plan to populate the federal bench with trenchant thinkers and writers scornful of Great Society enthusiasms proved a stupendous success. Foiled Clinton nominees who might be selected under a 10-20 percent compensation formula, in contrast, fell within the customary range of mediocrity unlikely to convince others or to disturb the status quo.
But if the Republicans have little to fear from appointing a modest number of Democrat judges, they also have little to gain in the short run. The Constitution and the votes are on their side. The Democrat-inspired filibusters of Bush nominees Miguel Estrada and Priscilla Owen are unprecedented. Both bear impeccable credentials according to the Committee on the Federal Judiciary of the liberal leaning American Bar Association. The filibusters are not to inform or enlighten senators, but to scuttle a vote because confirmation would be certain. To concede compensatory appointments of Democrat judges to obtain a bipartisan consensus to eliminate filibustering over judicial nominees would also smack of capitulation to blackmail. Moreover, Democrats, not Republicans, inaugurated unmerciful confirmation tactics with their outrageous and counterfactual laceration of Supreme Court nominee Robert H. Bork, the most intellectually garlanded and gifted candidate since Chief Justice Charles Evans Hughes.
But statesmanship that subordinates partisan advantage to the nation when a constitutional abyss approaches carries its own reward. Republicans need to think not only of the living but of the dead and those yet to be born in contemplating whether to risk partisan political vendettas reminiscent of the Montagues and Capulets. The Constitution will capsize in the long run without a modicum of procedural consensus and goodwill between the parties.
There seems little doubt that Senate Republicans could reduce Democrat obstructions to Mr. Bush's judicial nominees to rubble. At present, Senate Rule XXII requires 60 votes to invoke cloture and compel a floor vote. The nuclear option would amend the rule with a simple majority cloture threshold for judicial nominations; and, it would muscle aside an anticipated Democrat filibuster to thwart the amendment irrespective of Rule XXII by insisting that the Constitution empowers a simple Senate majority to prevail in the confirmation of judges under the Appointments Clause enshrined in Article II, section 2, clause 2. All Senate rules are subordinate to constitutional commandments. A rule which voided the votes of female senators, for example, would be unenforceable. Similarly, any rule which blocks a simple Senate majority — the constitutional standard of the Appointments Clause — from asserting its will in judicial confirmations is likewise unconstitutional and void.
Longevity of Senate filibuster rules is no defense. The Supreme Court has held unconstitutional the legislative veto, restrictions on the president's power to remove executive officers, political patronage, and federal common law despite equally hoary histories. Neither is President Bush's insistence on appointing judges sporting uniform philosophical stripes an excuse for filibustering. He was elected to do just that. Judicial appointments were a centerpiece of his campaign against Al Gore, just as President Franklin D. Roosevelt made the Supreme Court a target of disparagements in defeating Alf Landon in 1936. The Senate and the nation bowed to FDR's appointments of eight fervid New Dealers to the Supreme Court, all sympathetic to his ill-starred court-packing fiasco. President Bush deserves the same political deference.
The filibuster also subverts the Founding Fathers' preference for controversial brilliance over the lowest common denominator in judicial appointments. Its use would have shipwrecked the 1916 appointment of Justice Louis D. Brandeis. His glittering contributions to constitutional thinking have been unexcelled, ranging from freedom of speech to privacy to federalism. Yet his bold challenges to orthodoxies occasioned opposition to his appointment by the President of the American Bar Association, Elihu Root, former President William Howard Taft, former Attorney General George Wickersham, former head of the NAACP, Moorfield Story, President of Harvard University, A. Lawrence Lowell, and the New York Times.
Republicans are destined to triumph in the battle of the federal judiciary. But wouldn't an Appomattox peace with the Democrats be better for the country than the Carthaginian variety?
Bruce Fein is general counsel for the Center for Law and Accountability, a public interest law group headquartered in Virginia.
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