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When George W. Bush was asked about the federal judiciary during the 2000 presidential campaign, he cited Antonin Scalia and Clarence Thomas as the Supreme Court justices he most admired. “I don’t believe in liberal, activist judges,” he later explained. “I believe in strict constructionists, and those are the kind of judges I will appoint.”
Not without good reason, Bush’s preference for Scalia and Thomas was considered highly revealing. The two most right-wing members of the Supreme Court, Scalia and Thomas stand out as the court’s most zealous opponents of abortion rights, most unquestioning supporters of capital punishment, and most explicit advocates of resurrecting limitations on federal power that date back to the pre-New Deal era. And, inevitably, both Scalia and Thomas were members of the five-vote Supreme Court majority that ensured that Bush gained the presidency.
Scalia, whose judicial opinions refute the assumption that right-wing judges are not “activist,” was the author of the Supreme Court ruling that struck down parts of the Brady handgun legislation. Thomas, who has a similarly odious string of court opinions to his credit, is perhaps even better known for his concurrences and dissents.
On those occasions where Thomas finds it necessary to write separately–to give full and undiluted expression to his views–it is typically to press for some radical limitation on basic rights. Hence his 1992 dissent in an Alabama prison case, in which he argued that the Eighth Amendment only applies to sentencing decisions and is of no help to inmates facing physical abuse at the hands of their jailers.
Ditto for Thomas’s 1994 concurrence in a Georgia case involving racial discrimination in political representation, in which he attacked the 1965 Voting Rights Act. And more of the same in a chilling duo of cases, decided in 2001 and 2002, in which Thomas expressed support for enforcing the death penalty even though juries were never informed that the defendant would be ineligible for parole if given a life sentence.
That Scalia duplicates and Thomas clones might end up filling federal court vacancies is thus a topic of enormous consequence. While a democratic Senate acted as a safeguard against this possibility–witness the rejection of nominee Priscilla Owen, who had been named for a seat on the U.S. Court of Appeals for the Fifth Circuit–that protection is now gone.
From now on, with the incoming Republican majority in the Senate, it will take a Democratic filibuster to prevent the confirmation of President Bush’s most extreme judicial nominees. But it must be emphasized that in such dire cases, a filibuster–by which a minority of forty-one senators can block an appointment to the bench–is justified, reasonable and necessary.
History of the Filibuster
The filibuster has a long history in the Senate, not all of it honorable. During the nineteenth century, after the abolition in 1806 of a procedure known as the previous question motion, a single obstinate senator could hold up legislation endlessly by filibustering.
It was only in 1917 that the Senate adopted Rule 22, establishing a procedure by which a supermajority could invoke cloture and end a filibuster. As currently written, the rule requires that sixty senators vote in favor of cloture for the vote to succeed.
Given the difficulty of distinguished extended debate on bills from real filibusters, it is not known exactly how many times the filibuster has been used. It is undisputed, however, that the use of the filibuster increased dramatically in the second half of the twentieth century, as did reliance on cloture votes to end filibusters.
According to a 1995 survey published in the Brookings Review, there was an average of one filibuster per Congress in the 1950s, eleven per Congress in the 1970s, and nineteen per Congress in the 1980s. The 1991-92 Congress, the last one counted in the survey, saw a total of thirty-five filibusters.
But frequency is only one measure of the filibuster’s use; equally significant is the purposes for which it has been employed. In the 1950s, during the country’s long and arduous effort to enact legal protections for civil rights, the filibuster was the nearly exclusive purview of Southerners seeking to block such legislation.
In recent decades, in contrast, the filibuster has proved to be a versatile tool, used in a many different circumstances. Most notably, for present purposes, it has been employed by Republicans and Democrats alike in efforts to block the confirmation of judicial and executive branch appointees.
Although no judicial nominee for a lower court appointment has ever been rejected due to a filibuster, the mere threat of filibustering may have moderated the appointments process by encouraging the nomination of less extreme candidates.
At the Supreme Court level, a few prominent filibusters have failed, but one was successful. Abe Fortas, nominated by President Lyndon Johnson to head the Supreme Court, was defeated by a Republican filibuster in 1968 because of his activist stand on civil rights issues. After his supporters failed to win a cloture vote, Fortas’s nomination was withdrawn.
The Necessary and Legitimate Filibuster
Currently, there are almost eighty vacancies within the federal judiciary, and another twenty or so will probably open up over the course of the coming year. Perhaps more significantly, both Chief Justice William H. Rehnquist and Associate Justice Sandra Day O’Connor are expected to retire in the near future.
With forty-nine Democrats in next year’s Senate, the votes exist, in theory, to win a cloture vote on a filibuster, and thus to block a judicial nominee. But whether the option is possible in purely practical terms–it obviously is–does not settle the question of whether it is a legitimate method of handling an objectionable nominee.
The use of the filibuster is undemocratic, and unquestionably so, to the extent that democracy is equated with simple majority rule. But if democracy is seen as a more complex process in which minorities, too, deserve a voice–and which even recognizes that public officials who belong to a political minority may nonetheless represent majority views on certain issues–then filibusters may have a legitimate role to play.
Because of its potent nature, the filibuster is a means not simply of counting heads, but of assessing the intensity of views on a given subject. Simply put, the use of the filibuster raises the stakes in a debate, signaling to the public that an issue, or a nominee, is worth getting exercised over.
An obstructive filibuster, unsupported by popular opinion, is obviously a dangerous game. Were the Democratic minority to start cavalierly holding up Republican legislation and blocking Bush administration nominees who do not fall into the extremist category, it would likely pay a heavy price in the next elections.
Because the potential costs of an incautious filibuster are so obvious, the Democrats have opted not to filibuster even in situations where the temptation to employ the tactic must have been strong. (To cite a recent example: there was no filibuster during the battle to confirm Attorney General John Ashcroft, an extremist by any measure, although if the anti-Ashcroft contingent had held together, the appointment could have been blocked.)
But an extremist judge, even more so than an extremist attorney general, merits a defensive filibuster. Unlike members of the executive branch, who leave office with the President who nominated them, if not before, members of the federal judiciary are there for life. Indeed, through the jurisprudential doctrine of stare decisis, a judge or justice’s repugnant views may far outlast his or her own tenure in the judiciary.
If the ugly legacy of the most objectionable rulings of the 1940s Supreme Court is not enough to remind Democratic Senators of the need to act as a moderating force against far right judicial nominees, they should consider the many fundamental issues with which the courts are currently grappling: racial discrimination, abortion, the line between security and privacy in the fight against terrorism, the death penalty, and environmental regulation, among others.
No More Scalias
To mount a filibuster, in the face of a likely cloture vote by the opposing side, is a daunting task. Even with extremist nominees, moreover, such an effort may not succeed. Indeed, the last time that a filibuster over a Supreme Court nomination was terminated with a cloture vote was in 1971, when William H. Rehnquist was named as associate justice to the Court.
The Senate may not be able to block every far right extremist that President Bush tries to appoint to the judiciary. But if another Rehnquist is to join his brethren on the Supreme Court–or another Scalia, or another Thomas–the Senate’s moderate members should at least put up a good fight.
JOANNE MARINER is a human rights lawyer. She lives in New York.