Those of us who like classic movies remember fondly the filibuster scene in "Mr. Smith Goes to Washington". In it, Jimmy Stewart rises to speak in the Senate against a corrupt bill then being considered by the Senate. He refuses to yield the floor until the public learns the truth. He stands there for hours, fighting for a just cause, until he finally falls to the floor in exhaustion.
That is the historic and romantic view of a filibuster; one brave individual standing against a wrong, no matter how powerful it may be. In the Senate today, however, that romantic process has been coarsened. Today, a brave Senator is not required to stand before the public and explain his or her position for all to accept or reject. Today, one need not risk exhaustion or ridicule in defense of a principle.
No, all that is required is that a Senator notify the leadership in private that a measure will be filibustered. That measure then goes into a category that will require 60 votes to pass, not the simple majority the Constituion requires. Other business then goes on as if nothing happened.
This is today's filibuster--painless obstructionism.
As we approach the mid-term elections in November 2006, the press is reporting that the Senate Democrats are again preparing to use filibusters to block highly qualified nominees to the Federal bench. The politics are clear. But, the press doesn't bother to explore the more important question of why are they fighting so desperately?
The Supreme Court is the least democratic element of our government. The justices are appointed for life and are shielded from the political considerations that influence every other Federal official. The law is whatever five of the justices say it is. But, in theory, the powers granted to the government by the people are enumerated in the Constitution. The Judiciary determines whether a law is consistent with the Constitution. In doing so, the courts are supposed to be bound by it just as much as everyone else. If judges are free to amend the Constitution as they wish, the Court is then bound only by the individual conscience and ideology of the Justices. Just as the ancient kings were answerable only to God, an unbound Judiciary is free of earthly constraints.
Throughout our history, many have been tempted to bypass the slow, frustrating process of building a consensus for policy in the Congress and just impose it by dictate from the Court. Since the New Deal, generally liberal justices have expanded the Constitution to find new rights and powers in various emanations and penumbras of that document. This legislation from the bench has been supported by legal scholars who speak and write of an "evolving" document that must be "interpreted" for modern times.
Having worked so hard to stretch the Constitution, weaken its limits on the Court, and to justify this role with legal scholarship, the liberal organizations that have benefited for so long now live in fear that the weapon they have created will be used against them. For, if it is appropriate for liberal justices to impose their conscience, isn't it equally appropriate for conservative justices to impose theirs? The stakes are high, and the Senate Democrats know it. This is one issue that they believe that they cannot loose, and survive. Do not expect compromise in the Senate.
Stating the issue as whether a President should have the right to have his own nominees on the bench implies that the judiciary should be partisan. It should support whatever party is in power. If that ever becomes accepted, we will no longer be a nation governed by law, but just another country in which justice is only what the ruling elite says it is.
Whether the current nominees before the Senate are appointed or not, the Democrats will loose their fight to keep the courts the sole preserve of liberal activism. Conservative judges will be appointed. I just hope that the Republicans do not use this as an opportunity for payback and continue the effort to free the courts from the Constitution. We must fight for the principle that the Judiciary interprets the Constitution, it doesn't rewrite it to its own purpose.
The outcome of this issue will shape our country for generations to come.
That is the historic and romantic view of a filibuster; one brave individual standing against a wrong, no matter how powerful it may be. In the Senate today, however, that romantic process has been coarsened. Today, a brave Senator is not required to stand before the public and explain his or her position for all to accept or reject. Today, one need not risk exhaustion or ridicule in defense of a principle.
No, all that is required is that a Senator notify the leadership in private that a measure will be filibustered. That measure then goes into a category that will require 60 votes to pass, not the simple majority the Constituion requires. Other business then goes on as if nothing happened.
This is today's filibuster--painless obstructionism.
As we approach the mid-term elections in November 2006, the press is reporting that the Senate Democrats are again preparing to use filibusters to block highly qualified nominees to the Federal bench. The politics are clear. But, the press doesn't bother to explore the more important question of why are they fighting so desperately?
The Supreme Court is the least democratic element of our government. The justices are appointed for life and are shielded from the political considerations that influence every other Federal official. The law is whatever five of the justices say it is. But, in theory, the powers granted to the government by the people are enumerated in the Constitution. The Judiciary determines whether a law is consistent with the Constitution. In doing so, the courts are supposed to be bound by it just as much as everyone else. If judges are free to amend the Constitution as they wish, the Court is then bound only by the individual conscience and ideology of the Justices. Just as the ancient kings were answerable only to God, an unbound Judiciary is free of earthly constraints.
Throughout our history, many have been tempted to bypass the slow, frustrating process of building a consensus for policy in the Congress and just impose it by dictate from the Court. Since the New Deal, generally liberal justices have expanded the Constitution to find new rights and powers in various emanations and penumbras of that document. This legislation from the bench has been supported by legal scholars who speak and write of an "evolving" document that must be "interpreted" for modern times.
Having worked so hard to stretch the Constitution, weaken its limits on the Court, and to justify this role with legal scholarship, the liberal organizations that have benefited for so long now live in fear that the weapon they have created will be used against them. For, if it is appropriate for liberal justices to impose their conscience, isn't it equally appropriate for conservative justices to impose theirs? The stakes are high, and the Senate Democrats know it. This is one issue that they believe that they cannot loose, and survive. Do not expect compromise in the Senate.
Stating the issue as whether a President should have the right to have his own nominees on the bench implies that the judiciary should be partisan. It should support whatever party is in power. If that ever becomes accepted, we will no longer be a nation governed by law, but just another country in which justice is only what the ruling elite says it is.
Whether the current nominees before the Senate are appointed or not, the Democrats will loose their fight to keep the courts the sole preserve of liberal activism. Conservative judges will be appointed. I just hope that the Republicans do not use this as an opportunity for payback and continue the effort to free the courts from the Constitution. We must fight for the principle that the Judiciary interprets the Constitution, it doesn't rewrite it to its own purpose.
The outcome of this issue will shape our country for generations to come.
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