Majority Fools? (MoJo / filibuster)

[struggle4progress]

By Bradford Plumer
May 16, 2005

As Senate Majority Leader Bill Frist insists that this is the week—no, really, this is the week—that Republicans flout Senate rules and take away the Democrats' ability to filibuster President Bush's judicial nominees, the new buzzword among conservatives is "fairness". It's only "fair," scream the pages of the National Review, that the president's picks for the court get an up-or-down vote. But what, pray tell, is so intrinsically "fair" about an up-or-down vote? No one seems able to say.

Let's cut the crap. Frist's "nuclear option," as former Majority Leader Trent Lott first dubbed it, has nothing to do with making the confirmation process more "fair" and everything to do with placating an increasingly agitated religious right. It's a power ploy, and no sense pretending otherwise. If John Kerry were president, Republicans would be bottling up his nominees—as they did to over 60 of Bill Clinton's picks—or, failing that, launching their own filibusters as a "fair" way to combat Kerry's "extremist" judges. And liberals would be decrying the maneuver, as they have traditionally done. So whatever; we're all hypocrites. The interesting question, then, is this: If Frist does in fact have the votes to push the red button and go nuclear—and it's still not clear that he does—who wins in the long term, and what will it mean for the future of the judiciary?

The strongest argument for the judicial filibuster is that it forces presidents to pick moderate judges. Recall that Bill Clinton, faced with a hostile Republican Congress that had already scuttled many of his judicial picks, decided to play it safe with his Supreme Court picks and went with Ruth Bader Ginsburg and Stephen Breyer. Both liberal, yes, but ultimately not very radical. According to a study by former Solicitor General Seth Waxman, if one defines "judicial activism" as a willingness to strike down state and federal laws, then Ginsburg and Breyer are in fact the two most restrained justices on the court. If you don't like activist judges, the case for the judicial filibuster seems strong.

But Republicans, of course, have nothing against judicial activism, regardless of what Tom DeLay might say about a judiciary "run amok." Indeed, one of the nominees that Democrats have vowed to filibuster, Janice Rogers Brown of the California Supreme Court, has long declared her contempt for judicial precedent, notably writing in one opinion, "If our hands really are tied, it behooves us to gnaw through the ropes." Many conservative and libertarian legal scholars, like Randy Barnett of Boston University, believe that the mark of a good judge is whether he or she has a consistent method of reading the constitution: Barnett prefers "originalism," which—much like President Bush's "strict constructionism"—holds that judges should stick with what the clauses in the Constitution were originally intended to mean. A 60 vote hurdle, one could argue, would be biased against consistent "originalists" and in favor of judges who just muddle through cases, satisfying as many interest groups as possible. <snip>

http://www.motherjones.com/commentary/columns/2005/05/frist_filibuster.html