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CounterPunch
November
26, 2002
A Good Tool for the Good Fight
In Defense of the Filibuster
by JOANNE MARINER
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.
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