Patterico's Pontifications

4/25/2005

L.A. Times: Fighting Judicial Filibusters an “Attack on the Judiciary”

Filed under: Dog Trainer,Judiciary — Patterico @ 6:30 am



In an Orwellian attempt to turn all logic on its head, the L.A. Times editorial page portrays the attempt to eliminate filibusters of judicial nominations as an attack on the judiciary, on par with Latin American governments’ bribery of judges:

The region to the south, where authoritarian leaders have more often than not been the rule, continues to have a hazy attachment to the rule of law. Ecuadorean President Lucio Gutierrez was ousted by legislators Wednesday. He came to grief partly because he was seen as a tool of the International Monetary Fund, but also because of the turmoil surrounding his dismissal of Supreme Court judges. Then there’s Peruvian President Alejandro Toledo, who is clinging to power but seeing his popularity plummet as a result of scandals, including the revelation that a top aide apparently tried to bribe judges. Meanwhile, presidential hopeful and Mexico City Mayor Andres Manuel Lopez Obrador has been charged with abuse of authority and is embroiled in controversy about whether politicians should have to obey the judiciary.

Sure, DeLay & Co. are not attempting to bribe judges, and they are cloaking their assault on “activist judges” in religious overtones. But the result is the same. DeLay says he wants to hold Supreme Court Justice Anthony M. Kennedy, a Reagan appointee, accountable for citing international laws in a recent majority opinion. And DeLay and his counterpart in the Senate, Bill Frist, are working to eliminate the filibuster for judicial nominations. Meanwhile, evangelical Christian leaders are looking for ways to strip funding from the courts of judges they don’t like.

These attacks on the judiciary threaten the constitutional separation of powers that has long allowed this nation’s government to function more effectively than those of some of its neighbors.

Wow.

I bow to no person in my disgust for the gutless and unprincipled Anthony Kennedy, who never picks up his judicial pen without first holding his index finger to the wind. Kennedy is far better at judging the trends of elite opinion than he is at judging cases. Nevertheless, I disagreed with DeLay’s inartful suggestion — for which DeLay has since apologized; didn’t you hear that, Times editors? — that Kennedy and his ilk could possibly face impeachment for their judicial decisions.

But to compare DeLay’s comment to bribing judges in South America is such rank nonsense it hardly merits a rebuttal.

However, that silliness pales in comparison to the breathtaking rhetorical ploy of calling the nuclear option an attack on the judiciary. President Bush is trying to fill several vacancies in our federal appellate courts. A majority of the Senate stands ready to confirm his appointees. A minority of Senators uses a parliamentary trick to create an obstacle to these appointments. And now the Republicans’ stated intention of taking away the Democrats’ ability to use that trick is an attack on the judiciary?

What’s more bizarre is the editorial’s reliance on William Rehnquist to make its point:

Perhaps no one has expressed this more clearly than conservative Chief Justice William H. Rehnquist in his traditional year-end report on the federal courts: “The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction.”

Fair enough as regards threats of impeachment, but Rehnquist’s report does not sanction the use of the judicial filibuster to block judicial appointments. If anything, Rehnquist suggests that it is necessary for a President’s appointments to be confirmed, if a majority of Senators approve, as that is the Constitution’s way of ensuring that federal judges are subject to the popular will:

If judges cannot be removed from office for judicial decisions, how can we be certain that the Judicial Branch is subject to the popular will? The answer to that question may be found in President Franklin Roosevelt’s clash with the Supreme Court of the 1930s. The Court had invalidated legislation FDR thought was essential to restore the country to prosperity during the Great Depression. Roosevelt, and an overwhelmingly Democratic Congress, faced a Court that had for 30 years been reading into our Constitution a doctrine of “freedom of contract” which was hostile to social legislation, and had adopted a very limiting view of congressional authority under the commerce clause.

In FDR’s view, the Court had become a roadblock to the progressive reforms needed in the nation, and he planned to use his immense political resources to bring the Court into step with the President and Congress. In February 1937, Roosevelt proposed a plan to “reorganize” the Judicial Branch, but the crux of his proposal was that the President would be empowered to appoint an additional six Justices to the Court and thereby enlarge the Court’s membership up to a total of 15.

Roosevelt’s true aim, of course, was to “pack” the Court all at once to produce a majority sympathetic to the New Deal. Despite his huge majorities in both Houses of Congress, however, the bar, the press, and eventually public opinion began to rally against the proposal, and it was defeated.

President Roosevelt lost this battle in Congress, but he 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. Although Roosevelt appointed no Justices during his first term, in his second term he nominated and the Senate confirmed five, producing a Court that was much more sympathetic to the New Deal. During his entire tenure as President, FDR appointed seven Associate Justices and one Chief Justice. In this way, our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials.

So according to Chief Justice Rehnquist, federal judges’ lifetime tenure must be balanced by the ability of the public to make its will known through the appointment and confirmation process. Filibusters of judicial nominations, which have no purpose other than to thwart the popular will, are the true attack on our Constitutional system.

William Shakespeare said:

The devil can cite Scripture for his purpose.

So too can the L.A. Times cite Rehnquist for its purpose. But, like the devil’s citation of Scripture, their quotation must be taken out of context to fit the argument.

22 Responses to “L.A. Times: Fighting Judicial Filibusters an “Attack on the Judiciary””

  1. “But to compare DeLay’s comment to bribing judges in South America is such rank nonsense it hardly merits a rebuttal”

    Of course. Now, the internet comment, that one just merits astonishment and “whaaaaa….”

    actus (0f2616)

  2. As I note on Interocitor, the filibuster of judicial nominations is not exactly a hoary and revered Senate Tradition, having been used only once in the nation’s history, in an extreme case.

    But reading things like this Times article, one would think Frist is tampering with the very foundations of the Republic. Shameless shilling.

    Kevin Murphy (6a7945)

  3. Outside the Mainstream?
    One of the points I think have been overlooked in the argument over judicial appointment filibusters is just how seldom filibusters have been used. Democrats are always claiming that Republicans do the same thing, and have blocked judges that they…

    The Interocitor (ca7e8c)

  4. Bush Selected, Not Elected is also an attack on the judiciary.

    Where is the news ?

    Neo (7136ee)

  5. You have to laugh at how incompetent the GOP is in managing this issue. They could have made the front-page issue how the Dems were blocking a vote. But instead they get all giddy with excitement over their new power and gloat all day about what they might do. Then they are perceived as a party on a mission to destroy all filibusters. Why even bring it up until the Dems are actively blocking a judge’s confirmation vote?!

    Ladainian (91b3b2)

  6. Ten years ago the Democrats thought it would be a good idea to use a incremental legislative process to neuter the filibuter.

    Mr. HARKIN:
    I know it is a tough vote. It will be a tough vote for Senators to come here and to vote to give up a little bit of their personal power, their personal privileges that they have here. I mean, I have a lot of power. One Senator has a lot of power under the present filibuster rules. I think for the good of this institution and for the good of this country we have to give up a little bit of our privilege and a little bit of our personal power for the good of this country. I do not blame Republicans for using the rules as they did last time. They used it fairly.
    excerpt from “AMENDING PARAGRAPH 2 OF RULE XXV (Senate – January 05, 1995)”

    There is nothing here about attacking the Judiciary, or stopping debate, rather it is cast in terms of giving up personal Senatorial power.
    The LAT doesn’t tell me the Republicans were going to vote to give up personal power. They apparently want to give up the power to not vote on Judicial nominees that have been sent to the Senate floor.

    Neo (7136ee)

  7. Why even bring it up until the Dems are actively blocking a judge’s confirmation vote?!

    They didn’t. The Dems have been actively blocking votes on several judges for quite some time now.

    Patterico (08c813)

  8. That is just not true. Frist is more interested in talking bullshit to church groups than getting judges approved. What vote are the Dems filibustering today, Monday? If there is one, why hasn’t Frist overruled the filibuster already today?

    Ladainian (91b3b2)

  9. All stable dynamic systems require feedback.

    Rehnquist’s suggestion that justices should have unaccountable secure tenure is wrong. As we see, once justices abuse their position, like any other official, there must be a mechanism to remove them for bad conduct or performance.

    We have that mechanism in impeachment. It should be used much, much more often.

    Paul Deignan (fb29af)

  10. “The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction.”

    And when they don’t? What then Rehnquist? Should we just throw up our hands and start all over from scratch?

    No. There is the provision of impeachment that was meant to be used specifically for the eventuality that all people are corruptible. Supreme court justices are not cut from any different cloth than any other citizen. They may imagine themselves as gods–all the more reason to impeach them now.

    Rehnquist lack of imagination and faith in himself is the very same corrupted thinking of all dictators. The judiciary is not an independent creature by design. It is a product of the cooperation of the elected branches; it is not a creature unto itself.

    Democracies rely on laws that are clearly interpretable by the electorate. When the judiciary chooses to pervert that common understanding into a tool of its own desire, that judiciary should be censured by the people for which the laws exist to serve.

    The time is long past to impeach these judges for the preservation of our democracy and Constitution.

    Paul Deignan (fb29af)

  11. That is just not true. Frist is more interested in talking bullshit to church groups than getting judges approved. What vote are the Dems filibustering today, Monday? If there is one, why hasn’t Frist overruled the filibuster already today?

    Maybe it’s a quibble over the definition of “actively” — or maybe you’re just glossing over the history, in which numerous judges were filibustered last term. I don’t want to get into a semantic argument; the point is that the Dems have already blocked several judges, and with the renomination of most of them, we are headed for the same situation.

    So you think it would have been politically wise not to say a word about this, and spring it on the Dems the second the first re-nominated judge came up for a vote?

    I’m not sure I understand the point.

    I think they have waited too long, personally — but I always figured they were just waiting for the Supreme Court battle. It’s looking less and less like that’s the case.

    Patterico (08c813)

  12. “I think they have waited too long, personally – but I always figured they were just waiting for the Supreme Court battle. It’s looking less and less like that’s the case. ”

    It was rather inopportune to wait till DeLay got all snippy with judges ruling in a way he doesn’t like, using the internet, and in general the whole unpopular congressional attempt to overturn a long judicial process.

    actus (ebc508)

  13. Impeachment is precisely the right remedy for judicial usurpation. See Others Rob You With A Fountain Pen

    pbswatcher (1f2eac)

  14. Actus, I have no idea what you are talking about when you refer to overturning “a long judicial process.”

    The filibustering of judicial nominees was never done before 2003.

    Bostonian (0198d8)

  15. Bostonian, that’s not quite right. It was done once before, and AFAIK, only once.

    Xrlq (c51d0d)

  16. As an Edmund Burke conservative (be careful what you change because of the Law of Unintended Consequences), I have no inclination to change a 150-year old rule. On the other hand, the politicization of this confirmation of justices thing has gotten out of hand. Archconservative Antonin Scalia was approved by the Senate 96-0 in 1986 and ultraliberal Ruth Bader Ginsberg 97-3 in 1993.

    Such consensus is impossible today. Obviously, something’s gone very wrong.

    If the filibuster is used routinely instead of only in extraordinary cases, there will no choice but to dispense with it.

    tvd (212f87)

  17. “Actus, I have no idea what you are talking about when you refer to overturning “a long judicial process.””

    Schiavo.

    actus (0f2616)

  18. WE HAVE VERY INDECISIVE SENATORS
    That would be the kindest answer to Tood Zywicki’s question about the continued filibuster against judicial nominees: . . . Is there still some debate going on with respect to Justice Owen, for instance, whose nomination has now been pending…

    Pejmanesque (2ae9b5)

  19. The LAT on the Filibuster, Again
    Yesterday (“DeLay’s Banana Republic”) they denounced Tom DeLay, in part for urging removal of the Democratic judicial filibuster. Today the LAT declares Nuke the Filibusterurging the elimination of all filibusters. The filibuster is a reactionar…

    Local Liberty (a8d754)

  20. Schiavo.

    Are you really still PO’d about that? For crying out loud, the woman is dead. Why are those who opposed trying to save her more angry than those of us who wanted to save her?

    McGehee (acc74b)

  21. Commenters 9, 10 & 13: Impeachment would be fine by me as a remedy, but Jefferson tried it with Supreme Court Justice Samuel Chase and failed. That failure haunts us today. Subjecting judges to retention elections, as a plurality of states do, would be a better solution.

    Karl Maher (3501e1)

  22. “Are you really still PO’d about that? For crying out loud, the woman is dead. Why are those who opposed trying to save her more angry than those of us who wanted to save her?”

    I’m not particularly PO’ed. I’m just with the majority that thinks that congress was improperly attacking the judiciary, and thus when I hear ‘republicans’ and ‘judges’ the association isn’t so good. Thats why its a rather inopportune moment, even if they have nothing to do with each other.

    actus (0f2616)


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