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The judgeship wars are resuming. President George W. Bush has renominated most of the judicial candidates blocked in the last Congress, the Senate Democrats are again planning to filibuster, and Senate Majority Leader Bill Frist is threatening to invoke the “nuclear option” of banning filibusters for judicial nominees. If he succeeds, the Senate’s role in our constitutional system of checks and balances will be seriously undermined. The judiciary constitutes an independent third branch, a fundamental and indispensable element of our checks and balances system. It is designed to keep Congress within constitutional bounds and the president and his administration within the limits of the law. Judges have the ability to strike down the actions of both branches of government, and the political branches have little recourse other than the cumbersome process of constitutional amendment. It is thus imperative that both the president and the Senate concur about which individuals are to be entrusted with such extreme power. As explained by Sen. Robert Griffin (R-Mich.), leader of the 1968 filibuster against Justice Abe Fortas’ nomination to be chief justice, the Constitution gives the president “only half the power [to appoint judges], and we have the other half, and we ought to assert ourselves.” Even with executive branch nominees, the Constitution does not trust the president. Having lived under the unilateral actions of George III, the Framers granted the president only “half the power” to appoint such officers, and this applies even to members of the Cabinet; the constitutional exception for appointment without the Senate’s consent is limited to those lower-level officials considered constitutionally “inferior.” The Senate’s rejection of the president’s choices was intended to be a serious possibility, and senators of both parties have turned down executive branch nominees, at times with filibusters. For example, Republicans used filibusters to block President Bill Clinton’s choice of Sam Brown to head the delegation to the Conference on Security and Cooperation in Europe and of Dr. Henry Foster to be surgeon general. In 1959, Democrats prevented Adm. Lewis Strauss from becoming secretary of commerce. Nevertheless, when presidents nominate officers for their administration, presidents have a presumption in their favor. The officers will serve to carry out the president’s policies, and the president usually is free to dismiss them if dissatisfied with their performance. The federal judiciary, however, is not part of a president’s administration. Federal judges are not the president’s people, and no presumption of acceptance whatsoever attends the president’s judicial nominations. FOR LIFE Moreover, judges have more power today than ever before. Federal administrative, statutory, and constitutional law affect every aspect of our daily lives, to which the ever-expanding federal court dockets attest. To ensure the just resolution of these disputes, the Constitution grants federal judges life tenure so that they will be independent and impartial. This, of course, also makes them unaccountable. Judges also are serving for longer time periods than they did in the days of George Washington and John Marshall. Between the early 1800s and 2003, increasing longevity raised the average judge’s tenure from about 15 years to 24 years, according to a study by Yale professor Judith Resnik. And judges appointed in their 40s or 30s — as more than a few have been — may serve for much longer. In light of these decades on the bench, there should be no doubt about a judicial candidate’s qualifications. Whatever misjudgments or mistakes were made in the confirmation process cannot be undone. Even if new information casts serious doubt on a nominee’s fitness, the decision to confirm is irreversible. For example, would the Senate have confirmed Jay Bybee to the U.S. Court of Appeals for the 9th Circuit if senators had seen his Aug. 1, 2002, memo advocating a very narrow definition of torture? Once brought to light, that memo was quickly repudiated. Yet even given what we now know about his role in the abuse of detainees, Judge Bybee remains untouchable. Granting such unaccountable authority to someone for that long fits uneasily in a democracy. The United States is the only democracy in the world that grants to judges life tenure without mandatory retirement age. Within our borders, only Rhode Island has a comparable provision to the federal system. This irreversible longevity and accompanying lack of accountability distinguish judicial confirmations from virtually all other Senate actions. Legislation can be amended or repealed. Sooner or later, executive appointees leave office, voluntarily or involuntarily. But so long as judges stay on “good behavior” (which in practice means avoiding only the most-egregious misconduct) they are beyond reach for life, no matter how unfit they turn out to be. Respect for the rights of the minority in the judicial appointment process is especially needed when the same party controls both the presidency and the Senate. In such circumstances, unrestricted Senate debate is the only check, since the Senate majority will routinely confirm whomever the president appoints. As former Senate Majority Leader Howard Baker (R-Tenn.) wrote in 1993, destroying the right to filibuster “would topple one of the pillars of American Democracy: the protection of minority rights from majority rule. The Senate is the only body in the federal government where these minority rights are fully and specifically protected.” Moreover, the Senate has never been a majoritarian institution, nor was it intended to be. The provision in the Constitution for two senators per state guarantees that. Senate rules and practices reaching back to the first Congress have allowed extended debate by one or a few senators. When challenged about their exercise of this practice, many senators have responded as did then-Sen. Bob Smith (R-N.H.): “Don’t pontificate on the floor of the Senate and tell me that somehow I am violating the Constitution . . . by blocking a judge or filibustering a judge that I don’t think deserves to be on the circuit court. . . . That is my responsibility. That is my advise and consent role, and I intend to exercise it.” And despite his current strictures against judicial filibusters, in 2000 Sen. Frist joined 13 other Republicans in filibustering Richard Paez’s nomination to the 9th Circuit. A cloture vote cut off the filibuster, but only because of a pre-existing agreement between the then-majority and minority leaders. The failed Paez filibuster also shows that a successful filibuster can no longer be mounted by a “little group of willful men” in President Woodrow Wilson’s words. Rule changes allow other Senate business to continue while a filibuster is in progress, and now it takes 41 senators to block action. This is a large minority, which may in fact represent a majority of the electorate in terms of numerical population. The filibuster thus ensures that controversial matters will pass only with clear majority approval. A ROADBLOCK OF ONE Complaints about allowing a minority of the Senate to prevent a vote on a judicial nominee seem particularly unpersuasive when viewed in the full context of how the Senate has handled judicial nominees. Despite limitations on filibusters, it is still possible for individual senators to block nominations. For example: • Committee chairs. Because judicial nominations must first be heard by the Judiciary Committee and then voted upon, the committee chair can block a nominee by simply refusing to hold a hearing on a nominee or delay it indefinitely. Even if the nominee gets a hearing, the chairman can refuse to schedule a committee vote. As Judiciary Committee chairman during the Clinton presidency, Orrin Hatch (R-Utah) used this power many times. • Blue slips. Upon taking over the Judiciary Committee chairmanship in 1995, Sen. Hatch reinstated the “blue slip” system that the Democrats had dropped. As he formally notified senators in 1998, “no further proceedings will be scheduled [by the Judiciary Committee] until both blue slips have been returned by the nominee’s home state senators.” Until recently, senators of both parties frequently used this power to kill a nomination. • Anonymous floor holds. Even if a nominee is voted out favorably, any individual senator can postpone a Senate floor vote indefinitely by putting a “hold” on that nominee. These holds are usually honored, and the identity of the senator is rarely disclosed. In 2003, Sen. Hatch unilaterally dropped the blue-slip rule and the requirement that at least one minority party member agree to a vote on a nominee if any senator on the Judiciary Committee objects to holding a vote. In 2004, Sen. Frist abandoned the “Strom Thurmond” rule, whereby the Senate does not consider judicial nominees after the presidential nominating conventions. After this string of rule changes, Democrats have few options. One is to stop cooperating on other matters. Because so much of Senate business depends on unanimous consent for procedural measures, such as waiving the reading of bills, even a single senator can effectively bring the entire body to a halt. The other option is to filibuster. As former Senate Republican Whip Alan Simpson of Wyoming put it, when justifying a filibuster that he led in 1993, if “you stiff the minority in committee . . . you know what they are going to do.” NUCLEAR FALLOUT Arguments about the harm to congressional business from filibusters are not compelling. A legislative filibuster, which Sen. Frist would still permit, can indeed be very harmful. That was true of the filibusters against civil rights legislation, which blocked vitally needed federal action against racial discrimination. But no such harm can occur from a filibuster that blocks a judicial nomination, for there are always more candidates for so coveted a position. If the president wishes, he can still fill the judicial vacancy with another eminently qualified candidate who is acceptable to the whole Senate. Nor is there a current problem because of an unusually large number of vacancies. With the confirmation of 166 district judges and 35 circuit judges from 2001 to 2004, the crisis of judicial vacancies created during the Clinton presidency has been resolved. If Sen. Frist goes nuclear, the tactic will not long be limited to judicial nominations, despite Frist’s reassurances. If the president and his allies badly want a piece of legislation that is being filibustered, the temptation to use the nuclear option again will be irresistible. Impasses and stalemates are common in government, particularly in a system of checks and balances. Normally, these lead to negotiation and compromise, but Bush and his party do not seem interested in such give-and-take. But the pendulum does swing, and no party rules forever. Herman Schwartz is a professor of law at American University Washington College of Law and the author most recently of Right Wing Justice: The Conservative Campaign to Take Over the Courts (2004).

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