The Lichfield Group

This article appeared in the April 18, 2005 issue of the Florida Daily Business Review

Senator Bill Nelson (D. Fla.) confronts a choice between courage and cravenness over judicial filibusters. The Constitution, political custom, and prudence clamor for the courage to oppose obstructing judicial confirmations for the sake obstruction. . Revolutionary doctrines, partisan loyalty, and recklessness beckon for a craven submission to Senate Democrat insistence on frustrating confirmation of President George W. Bush’s judicial nominees. During the last Congress, Senate Democrats filibustered 10 appellate nominees to prevent confirmation votes on the Senate floor. They have threatened the same wretchedness in the 109th Congress, including nominees to the Supreme Court.

Article II, section 2 of the Constitution entrusts the appointment of federal judges to the President, subject to confirmation by a simple Senate majority. Senate custom for more than two centuries eschewed filibustering judges, as opposed to legislation, as an encroachment on the President’s power to appoint. Filibusters dramatically shrink the universe of viable candidates available to the President by hiking the necessary Senate consensus from a simple majority to 60. The impact of that hike on the Supreme Court is staggering—the difference between the lucid and principled jurisprudence of defeated Supreme Court nominee Robert H. Bork, compared with the opaque and Zen-Buddhist-like rulings of his successor nominee, Justice Anthony Kennedy.
A right to filibuster to prevent judicial confirmations is a wildly revolutionary doctrine. It would empower the Senate to refuse to vote on any judicial nominee, and thus frustrate the establishment of an independent judiciary empowered to confine the Congress and the President within constitutional bounds.
The Senate also resisted judicial filibusters to promote intellectual brilliance on the Supreme Court to detect and to overthrow erroneous precedents. Otherwise, constitutional doctrines would soon resemble a petrified forest. As Justice Oliver Wendell Holmes admonished, nothing is more revolting than for a rule of law to persist because of blind imitation of the past, even when the reasons for its origination have long since lapsed. But all new ideas, no matter how profound and prophetic, generate resistance. A substantial percentage of the Supreme Court’s greatest opinions by Holmes and Justice Louis D. Brandeis were penned in dissents, which later became the majority view. Filibusters militate against pioneering judicial dazzle and in favor of backward-looking mediocrity necessary to secure universal Senate support.
The Senate Democrat arguments celebrating judicial filibusters are ill-reasoned and unpersuasive. Yet Senator Nelson has remained reticent and agnostic about the matter.
Minority Leader Harry Reid (D. Nev.), and time-worn peacock Robert Byrd (D. W.Va.) have claimed that judicial filibusters are necessary to protect the free speech rights of Senators to dissent and to foil hasty action by the majority. But the claim is specious. Senate Majority Leader Bill Frist (R. Tenn.) has repeatedly offered Senate Democrats to accept whatever debate ceiling they specify to criticize Bush’s nominees and to argue against confirmation, followed by a floor vote. The offers have been uniformly rebuffed by the Senate Democrat leadership. The rebuffs substantiate that the sole reason for the Democrat filibusters is to prevent the majority from confirming President Bush’s nominees because their arguments in opposition have proven unpersuasive.
Contrary to Senators Reid and Byrd, the filibuster is not necessary to protect minorities or a separation of powers. The House of Representatives has been as much if not more sensitive to minority rights as the Senate without a filibuster privilege. Indeed, the Senate abused the filibuster for ugly decades to prevent enactment of anti-lynching or civil rights laws to end Jim Crow. Senator Byrd himself filibustered against the landmark 1964 Civil Rights Act. Further, the Supreme Court and subordinate federal courts daily safeguard the minority by enforcing the Bill of Rights and companion constitutional provisions against legislative and executive bodies. Equal state representation in the Senate blunts the power of a numerical majority, as does the Electoral College in choosing the President. The Founding Fathers fashioned the Constitution to slow the majority, but not to paralyze, as the filibuster does.
Senator Nelson should renounce the blind partisanship of Reid and Byrd and their threats to wreak havoc in the Senate if judicial filibusters are ended. The Senator would earn a chapter in Profiles in Courage by emulating Kansas Republican Edmund Ross who voted for the Constitution and against his party to exonerate President Andrew Johnson of specious impeachable offenses. He should insist that judicial filibusters be ended for all time, irrespective of which party occupies the White House. He should further insist on the right of the Senate minority to a generous time ceiling to debate Supreme Court nominees, comparable to the Bork and Justice Clarence Thomas nominations.
In other words, he should choose courage over cravenness.

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