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.

He has studiously refrained from interceding with irresolute Republican Senators to declare judicial filibusters an unconstitutional encroachment on the President’s power to appoint under Article II, section 2, with simple majority approval in the Senate. (Legislative filibusters affect only the exclusive legislative powers of Congress. They are undisturbing to the Constitution’s separation of powers). In contrast, Democrats have vocally committed to invoking the filibuster to block any Bush nominee bearing Scalia-Thomas trappings.

At present, the Senate sports 55 Republicans, 44 Democrats, and 1 independent. By himself, Senate Majority Leader Bill Frist (R. Tenn.) has been unable through exhortation or cajolery to assemble 51 votes to declare judicial filibusters unconstitutional and thus unenforceable. Approximately ten Republicans are loath to risk the threatened venom of their Democrat colleagues by destroying the last Democratic Party dike against the 2004 elections. A modicum of bipartisanship and comity is pivotal to moving forward on any Senator’s agenda. The reluctant Republicans insist that the Supreme Court and subordinate federal tribunals are worth sacrificing to maintain Senate harmony and fraternity on other matters.

President Bush seems to agree. During his confirmation hearing, Attorney General Alberto Gonzalez declared the Department of Justice would remain aloof from judicial filibusters. The President himself has resisted working hand-in-glove with Majority Leader Frist to confront wavering Republicans or Red State Democrats with carrots and sticks depending on their votes in favor or against filibustering knavery. Bush apparently reasons that steamrolling Democrats over the federal judiciary would forfeit needed bipartisan support for pioneering social security change, tort reform, energy legislation, a Clean Sky program, and companion mundane laws; that the appointment of judges is too marginal to the nation’s destiny to gamble his legislative ambitions; and, that the President has no constitutional business tampering with an internal Senate rule.

But the Constitution withholds any official role for the President in proposing amendments or legislation. Yet Bush has openly urged Congress to adopt same-sex marriage, flag desecration, and victims’ rights amendments. He routinely prepares legislation for introduction by friendly Senators or Representatives. Moreover, the judicial filibuster directly encroaches on the express appointment power of the President by tightly circumscribing the universe of confirmable nominees. That makes a President’s intervention with the Senate over filibustering judges more constitutionally compelling than over amendments or legislation.

In addition, federal judges serve for life. Their influence over constitutional doctrines that defeat popular majorities is incalculable, for example, executive detention of suspected enemy combatants, police searches and seizures, church-state relations, abortion, illegal aliens, environmental protection, affirmative action, discrimination based on gender or sexual orientation, campaign finance laws, political association, and protection of private property. President Franklin D. Roosevelt appointed New Dealer William O. Douglas to the Supreme Court in 1939. His freestyle approach to constitutional interpretation, epitomized by his “penumbras and emanations” creed in Griswold v. Connecticut (1965), was still exerting strong influence when he retired in 1975 during President Gerald Ford’s administration. Indeed, Griswold was the foundation stone of the outlandish 1973 Roe v. Wade abortion decree.

Judicial philosophy is decisive in the overwhelming percentage of non-trivial cases. The Massachusetts Supreme Judicial Court relied on language in the Massachusetts Constitution indistinguishable from that in the United States Constitution or sister State Constitutions in discovering a right to same-sex marriage. In addressing the constitutional rights of Guantanamo Bay detainees in light of the Supreme Court’s decision in Rasul v. Bush, two federal district judges in the District of Columbia reached opposite conclusions. The Supreme Court recognized a constitutional right to homosexual sodomy in Lawrence v. Texas (2003). The precedent was interpreted by a federal judge in United States v. Extreme Associates, Inc. (January 20, 2005) to eliminate public morality as justification for infringing on private adult sexual conduct, including the purchase of obscenity. In contrast, a federal district judge in Utah concurrently held that Lawrence cast no shadow over polygamy laws.

President Bush’s greatest second term accomplishment would be to pack the federal judiciary from top to bottom with Scalia-Thomas clones. He promised no less in decisively defeating Senator John Kerry (D. Mass.). In contrast, his legislative initiatives will either take long years before enactment, like social security, or are trivial compared to shaping the constitutional philosophy of the Supreme Court and lower courts for the indefinite future, like damage caps in medical malpractice litigation.

President Bush should cross the Rubicon, and fight to end judicial filibusters with every weapon in his political arsenal.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.