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As you consider a decision that will have monumental and long-standing consequences for our nation, we urge you to demonstrate respect for the rule of law and to persuade your Party's leaders to retreat from the reckless course they have taken.
As lawyers, the signers of this letter have been instilled with a deep appreciation for the importance of the rule of law. It is from this perspective that we write to urge you to reject Senator Frist's plan to undermine the independence of our federal courts.
To turn the Senate's awesome responsibility of independent advice and consent on judicial nominations into a tightly-controlled, one-party exercise is to undermine a pillar of democracy. By all appearances, it is a blatant attempt to clear a path for filling America's courts with judicial nominees who, as House Leader Tom DeLay suggested of judges who dared to defy his wishes in the Terry Schiavo case, will "answer for their behavior."
While Senator Frist and others have sought to distance themselves from this intimidation, we believe there is only one way for you to truly distinguish your position from such disregard for constitutional principles. Senators, we urge you to stop your party from moving forward with its "nuclear option" proposal.
The Senate's role as a check on judicial appointments is at the core of its advice and consent power. This power has been an important bulwark of an independent judiciary which both parties have used throughout our nation's history as a check on lifetime appointments. In fact, Republican Senators have filibustered nominees of Democratic Presidents, and also used their "blue slip"; and "hold" prerogatives under President Clinton to prevent consideration of far more nominees than have been blocked under President Bush (then took away those prerogatives once they obtained control of all branches of government). Many Republican Senators, including Senate Judiciary Chairman Hatch, have strongly defended the Senate's role in the past.
As attorneys and legal scholars, we recognize that our founding fathers created a well-designed system of checks and balances and separation of powers among the three branches of government. As expressed by James Madison in The Federalist No. 10, both the Senate and the judicial branch were designed to protect "the rules of justices and the rights of the minor party" from the unrestrained power of "an interested and overbearing majority." To override this protection for the narrow ideological agenda of some elements within the Republican Party would represent a telling abuse of power -- and a striking disregard for the Constitution and democratic process.
We urge you to stand up now and put the interests of our democratic system ahead of shortsighted partisanship. America is counting on your wisdom and your leadership in the days ahead.
Sincerely,
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