The Lichfield Group

President George W. Bush’s judicial agenda is sinking because of his refusal to expend political capital and to risk legislative crumbs to crush the Democrat filibustering of his intellectually gifted nominees.

Chief Justice William H. Rehnquist’s probable retirement in June makes the President’s persistent inactivity over judicial filibusters alarming. His pledge to appoint Justices in the mold of Associate Justices Antonin Scalia and Clarence Thomas will be thwarted if 60 votes are required to obtain a floor vote on Supreme Court nominees. Democrats successfully employed the filibuster during Bush’s first term to stymie confirmation votes on ten talented appellate court nominees without provoking the President to twist arms in the Senate to overcome the obstructionist tactic. That same unmasterly inactivity has marked the beginning of Bush’s second term.

University of Colorado Professor Ward Churchill should be discharged for his signature intellectual lunacies. They blur the distinction between the reasoning of Socrates and the propaganda of Joseph Goebbels. As a role model for impressionable students, Professor Churchill’s ravings against the United States gyrate between catastrophic and disastrous. Further, he has no business amplifying his dementia by wearing the mantle of a state university. Hyde Park corners are available to host his twisted speech.

According to United States District Court Judge Joyce Hens Green in In re Guantanamo Detainee Cases (January 31, 2005), war is akin to a collective criminal prosecution. Thus, captured enemy aliens held at Guantanamo Bay are crowned with a right to counsel with access to classified information and a right to suppress coerced confessions to challenge their status as enemy combatants. The due process clause of the Fifth Amendment, Judge Green tacitly insisted, demands that the United States risk second editions of the 9/11 abominations from erroneous releases and a boosting of enemy morale to avoid a wartime injustice to a single suspected alien terrorist.

This op-ed column appeared in the February 8, 2005 edition of The Hill.

Filibustering federal judicial nominees to thwart a Senate floor vote on confirmation violates the Appointments Clause of the Constitution.

The power to appoint “judges of the supreme court,” with the advice and consent of a simple Senate majority, is entrusted to the president under Article 2, Section 2, Clause 2. A filibuster that hikes that threshold to a supermajority of 60 encroaches on that executive prerogative in violation of separation of powers. In contrast, filibusters against legislation, an Article 1 power of Congress, honors both that separation and the Founding Fathers’ fear of mutable lawmaking.

As Supreme Court Justice and Nuremberg prosecutor Robert Jackson lectured in Terminiello v. Chicago (1949), the Bill of Rights is not a suicide pact. To protect its reputation and educational mission, the University of Colorado would leave the First Amendment undisturbed if it discharged Professor Ward Churchill. His wild likening of the 9/11 victims to Adolph Eichmann’s complicity in genocide and moral defense of the terrorists wretches are reasonably likely to impair faculty harmony, alumni support, recruitment of students, community relations, and sacred scholastic standards that teach students to cherish reason and to repudiate propaganda reminiscent of arch-Nazi Joseph Goebbels. These prospective evils are sufficient to justify denying Professor Churchill the state university’s platform and prestige to amplify his ravings with public resources. Freedom of speech does not shoulder the state with an obligation to subsidize.