Professor Juan Cole, straying from his regular beat of the Middle East, writes eloquently on Frist's "nuclear option" and the "advice and consent" from the Senate required to approve certain Executive and all Judicial nominees of the President:
US Constitution:
Article 2, Section 2, Clause 2: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court . . ."
The senators have to consent. In the case of the presidents' treaties (which affect their prestige and often policies much more than a mere judicial appointment) there even has to be a 2/3s majority in concurrence. Such a supermajority is not required for the appointments, but there is clearly no presumption that the president should be deferred to by the senate. The president should be consulting beforehand, which would have made consent easier to obtain. The issue isn't the filibuster. The issue is the independence of the Senate and of the judiciary. The question is whether we have 3 branches of government, or only one. Cass Sunstein puts it well:
"It may be granted that the Senate ought generally to be deferential to Presidential nominations involving the operation of the executive branch . . . The case is quite different, however, when the President is appointing members of a third branch. The judiciary is supposed to be independent of the President, not allied with him. It hardly needs emphasis that the judiciary is not intended to work under the President. This point is of special importance in light of the fact that many of the Court's decisions resolve conflicts between Congress and the President. A Presidential monopoly on the appointment of Supreme Court Justices thus threatens to unsettle the constitutional plan of checks and balances."
Let me start with my agreement with Professors Cole and Sunstein. There can be no doubt that nominations to the Judiciary are different for just the reasons they state. The Judiciary is the third branch of government. In Federalist 78, Hamilton wrote:
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power[1]; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."[2] And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
Now where I disagree with Professor Cole: First, the filibuster is central to this dispute. Why? Because it is the filibuster, the zealously guarded Senate tradition, that ensures the drive for consensus in choosing judges not beholden to one faction or the other. Norm Ornstein of AEI, an expert on the Congress, has driven this point home time and time again. The filibuster is no mere procedural technicality. It is intended to force consensus.
I also disagree with Professor Cole on his description of the Advice and consent function. I do not agree that the Senate should impose its own criteria for the selection of judges. This is a power that resides with the President, and has been traditionally viewed in this manner. Thus, the Senate's insistence in judges of its choosing would be utterly inappropriate in my estimation.
So what should be the proper criteria? Very simple. The Senate should establish the range of parameters from which the President can make his/her choice of judges. Let's assume for the sake of argument that the qualifications of particular nominees is not in issue, as it generally is not for most judicial nominees. It has been generally agreed that ideology ALONE cannot describe these parameters. But rather radical ideology combined with a lack of judicial temperament can make a judicial nominee unacceptable.
When Republicans were blocking over 60 Clinton judicial nominees, their objections were almost without fail based on ideological objections, not objections of judicial temperament. Of course many GOP failures to provide "up or down votes" were based only on naked partisanship.
Are Democratic objections to the Bush judicial nominees based solely on ideology? They are not. Indeed, they are mostly based on objections to radical ideology COMBINED with stunning absences of judicial temperament. The two notable cases of course are Priscilla Owen and Janice Rogers Brown. I have written on these two nominees before:
Justice [Janice Rogers] Brown's disdain for government runs so deep that she urges "conservative" judges to
invalidate legislation that expands the role of government, saying that it "inevitably transform[s]... a democracy ... into a kleptocracy." Following her own "pro-activist" advice, Justice Brown - always in dissent - uses constitutional provisions or defies the legislature's intent to restrict or invalidate laws she doesn't like, such as California's anti-discrimination statute (which she condemns as protecting only "narrow" personal interests), hotel development fees intended to preserve San Francisco's affordable housing supply, rent control ordinances, statutory fees for manufacturers that put lead-based products into the stream of commerce, and a false advertising law applied to companies making false claims about their workplace practices to boost sales. Justice Brown's colleagues on the court have repeatedly remarked on her disrespect for such legislative policy judgments, criticizing her, in different cases, for "imposing ... [a] personal theory of political economy on the people of a democratic state"; asserting "such an activist role for the courts"; "quarrel[ing]... not with our holding in this case, but with this court's previous decision ... and, even more fundamentally, with the Legislature itself"; and "permit[ting] a court ... to reweigh the policy choices that underlay a legislative or quasi-legislative classification or to reevaluate the efficacy of the legislative measure.
Judge Priscilla Owen - who may be the judicial nominee that Senate conservatives use to trigger the nuclear option - is widely opposed because of her judicial activism. Upon her nomination, several Texas papers weighed in. Here are some excerpts:
Austin-American Statesman, 4/29/03: "[O]wen is so conservative that she places herself out of the broad mainstream of jurisprudence. She seems all too willing to bend the law to fit her views, rather than the reverse."
The Houston Chronicle, 5/12/03: "Owen's judicial record shows less interest in impartially interpreting the law than in pushing an agenda...a justice who has shown a clear preference for ruling to achieve a particular result rather than impartially interpreting the law. Anyone willing to look objectively at Owen's record would be hard-pressed to deny that."
San Antonio Express, 7/21/02: "Once competency is established, the most important qualification for a judge is commitment to following the law as it is written - regardless of personal philosophy. Justice Priscilla Owen is clearly competent, but her record demonstrates a results-oriented streak that belies supporters' claims that she strictly follows the law...The Senate should not block a judicial nominee simply because he or she is more conservative or more liberal than the Senate's majority party. It also should not engage in petty personal attacks. But concerns about Owen go to the heart of what makes a good judge...When a nominee has demonstrated a propensity to spin the law to fit philosophical beliefs, it is the Senate's right - and duty - to reject that nominee.
95% of President Bush's judicial nominees have been confirmed. Democrats have opposed the other 5% for sound reason. These percentages are at or above the historic confirmation rate of judicial nominees for all of our Presidents. Yet the GOP is affronted by any dissent to their rule, willing to trash 200 years of tradition and history and trigger the Frist "nuclear option."
And make no mistake, there is no going back once this is done. The extreme, radical and destructive nature of this step cannot be overemphasized. We are at a precipice and the Republicans are certainly willing to take the country over the edge - unless a sufficient number of patriotic GOP Senators are willing to say no to the extremists in control of today's Republican Party.
