The Lichfield Group

This article appeared in the May 16, 2005 issue of Roll Call.

Contrary to what Nan Aron writes in “What’s Wrong With President Bush’s Gang of Seven” (Guest Observer, May 10), the controversy over judicial filibusters is not about President Bush’s nominees. Senate Democrats and private groups are constitutionally entitled to assail them as unfit. Under the First Amendment and the Speech or Debate Clause, Democrats may seek to persuade a Senate majority to reject a candidate, as they did with Supreme Court nominee Robert H. Bork. Indeed, Senate Majority Leader Bill Frist (R. Tenn.) offered them on April 28, 2005, a minimum of 100 hours of debate for each of Bush’s judges. Minority Leader Harry Reid (D. Nev.) summarily scorned the offer. Neither the Constitution nor democratic theory, however, empowers a political minority to thwart a Senate confirmation vote to avenge its inability to convince a majority. Tolerating rule by the minority turns government by consent of the governed on its head.

As Thomas Jefferson explained: “The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of society as enounced by the majority of a single vote as sacred as if unanimous is the first of all lessons of importance, yet the last which is thoroughly learnt. This law, once disregarded, no other remains but that of force, which ends necessarily in military despotism.” The legitimate way for Democrats to defeat Bush’s judicial nominees is by capturing control of the Senate, an opportunity that arrives like clockwork every two years. That has been the understanding and practice for more than two centuries. In 1986, for example, President Ronald Reagan elevated Associate Justice William Rehnquist to Chief Justice and appointed Antonin Scalia as Associate Justice with a Republican Senate. The twin appointments generally dismayed Democrats. Their dejection found expression not in judicial filibusters but rather in regaining control of the Senate, whereupon they rejected the 1987 nomination of Bork. President Franklin D. Roosevelt appointed eight Supreme Court Justices and more than 80% of the entire federal judiciary. Virtually all were stalwart New Dealers who had championed FDR¹s infamous court-packing legislation. Republicans bowed to the political will of the nation on judges, and eschewed obstructionist tactics in favor of rebuilding the party. Ms. Aron¹s tocsin against Bush’s judges has proven unconvincing because it is counterfactual, incredulous, and insincere. Texas Supreme Court Justice Priscella Owen, for example, is indicted as “so extreme, insensitive, and politically motivated,” as to have provoked criticism from conservatives and colleagues, even Attorney General Alberto Gonzalez, an erstwhile Justice who served with Owen in Texas. But this indictment is preposterous. The liberally inclined American Bar Association unanimously awarded Justice Owen its premier “well qualified” rating. Democratic Senator Patrick Leahy (VT) has acclaimed the ABA as the “gold standard” of judicial vetting. Democratic Senator Charles Schumer (NY), a stentorian detractor of Bush’s judges, has vouched for Owen’s impeccable abilities: “I don’t think there is any question about your legal excellence. You have had a distinguished academic and professional career.” In November 2000, Justice Owen predictably was endorsed in her re-election bid by every major newspaper in Texas, and attracted a staggering 84% of the vote. Ms. Aron faults Justice Owen for allegedly ignoring a Texas law enabling mature minors to bypass parents and obtain an abortion with court permission. But the Justice sustained a judicial bypass in several cases. She parted company with then-Justice Gonzales in one instance of bypass over whether deference should be showed to a trial judge¹s fact-finding regarding maturity. Ms. Aron falsely asserts that Gonzalez decried Owen¹s dissent as an “unconscionable act of judicial activism.” The Attorney General has expressly and repeatedly denied that canard. He testified during his confirmation hearing: “My comment about an act of judicial activism was not focused at Judge Owen; it was actually focused on me. What I was saying in that opinion was that, given my interpretation of what the legislature intended. It would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome.” Ms. Aron faults Justice Owen for voting to dismiss a case for improper venue and against liability of an employer for a tort committed by an independent contractor. Both opinions were grounded in basic Texas law. Aron’s insincere opposition reaches its apogee in her weeping over the fear that Owen will be a “results-oriented” jurist. Is this believable coming from an organization whose icons include Chief Justice Earl Warren and Associate Justices William Brennan, William O. Douglas, and Harry Blackmun? All of four celebrated “penumbras,” “emanations,” “fairness,” and “evolving standards of decency” as their lodestars, and demoted the Constitution to no more than an extra in a Cecile B. DeMille extravaganza. As Justice Oliver Wendell Holmes remarked about freedom of speech, the best test of Ms. Aron’s views on Bush¹s judges are their ability to succeed in the marketplace of ideas. In this case, that means on the floor of the Senate.

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