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.
