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Politics : GOPwinger Lies/Distortions/Omissions/Perversions of Truth -- Ignore unavailable to you. Want to Upgrade?

To: American Spirit who wrote (45690)	5/10/2005 2:50:23 PM
From: JeffA	Read Replies (2) \| Respond to of 173976

February 8, 2005 It would save the Constitution... By Bruce Fein Filibustering federal judicial nominees to thwart a Senate floor vote on confirmation violates the Appointments Clause of the Constitution. The power to appoint “judges of the supreme court,” with the advice and consent of a simple Senate majority, is entrusted to the president under Article 2, Section 2, Clause 2. A filibuster that hikes that threshold to a supermajority of 60 encroaches on that executive prerogative in violation of separation of powers. In contrast, filibusters against legislation, an Article 1 power of Congress, honors both that separation and the Founding Fathers’ fear of mutable lawmaking. Accordingly, a Senate majority should vote unconstitutional and thus unenforceable the filibuster rule as applied to Supreme Court or other federal judicial nominees. The issue may soon be forced by the anticipated retirement of the ailing chief justice of the United States, William Rehnquist. Article 1, Section 5, Clause 2 empowers each house to “determine the rules of its proceedings.” But that power cannot override sister constitutional provisions commanding equal dignity. For example, a rule that refused to count the votes of black or female senators would flagrantly violate the equal-protection component of the Fifth Amendment. It would be null and void. Similarly, a Senate rule may not encroach on the constitutional powers of the president. As James Madison elaborated in Federalist 48, no branch of government “ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.” To filibuster a judicial nominee for the sole purpose of preventing confirmation by a simple Senate majority is to sabotage the president’s constitutional power to appoint. The filibuster requires the president (and a Senate majority) to bypass candidates who embrace the judicial philosophy they were elected to champion in favor of “the least common denominator.” In other words, the likes of Justices Oliver Wendell Holmes, Louis D. Brandeis and Antonin Scalia would have been replaced by plain vanilla nominees if a Senate filibuster had loomed. The constitutional power of a president to refashion the federal judiciary in accord with popular sentiments would be frustrated. That executive opportunity is neither novel nor worrisome. President George Washington filled the Supreme Court will all Federalists. And Rehnquist amplified in his most recent state of the federal judiciary address: “President [Franklin D.] Roosevelt … eventually won the war to change the judicial philosophy of the Supreme Court. He won it the way our Constitution envisions such wars being won — by the gradual process of changing the federal judiciary through the appointment process. … During his entire tenure as president, FDR appointed seven associate justices and one chief justice” much more sympathetic to the New Deal. Custom also speaks volumes about the unconstitutionality of the filibuster as applied to judicial nominees. Until the last Congress, it had never been employed to defeat a president’s candidate who enjoyed simple majority support. Associate Justice Abe Fortas’s nomination as chief justice in 1968 was filibustered for four days, but the purpose was not to block forever a floor vote. It uncurtained amid cascading revelations of ethical improprieties that were changing Senate sentiments. Fortas requested the withdrawal of his nomination after only 45 Senators voted to invoke cloture. He resigned in May 1969 after additional proof of monumental ethical shortcomings. The Founding Fathers rejected a supermajority threshold for Supreme Court confirmations because a single justice among several was not thought sufficiently pivotal to constitutional interpretation. But supermajorities were expressly required to ratify treaties, expel a member, override a veto, propose a constitutional amendment or convict a president of an impeachable offense. In discussing the power to appoint in Federalist 76, Alexander Hamilton assumed a simple Senate majority hurdle for confirmation would be sufficient to foil executive-branch mischief. Filibustering legislation is sharply distinguishable from filibustering judges. Article I crowns Congress with “all legislative power.” A filibuster against legislation constitutes self-restraint in lawmaking that eschews encroaching on the powers of any other branch. Moreover, as amplified at several points in The Federalist Papers, the Founding Fathers embraced several obstacles to the enactment of legislation, including bicameralism and a qualified veto, because they were fearful that legal inconstancy would deter investment and upset private expectations. Legislative filibusters work hand in glove with that constitutional goal, further fortifying their constitutionality. In sum, the Senate would honor the Appointments Clause and its own traditions without jeopardizing time-honored filibustering of legislation by voting unconstitutional and unenforceable an expected Democrat filibuster of President Bush’s nominee for chief justice. Fein was associate deputy attorney general under President Reagan. He is a constitutional lawyer and international consultant at Bruce Fein & Associates and The Lichfield Group.