July 26, 2005

Supreme DecisionsThe Supreme Court and the Rule of Law

It's all over the news: talk about senate filibusters and federal court nominations. And now comes the big showdown: President's Bush's anticipated nominee for the Supreme Court.

After Justice Sandra Day O'Connor announced her retirement from the Supreme Court, Senator Barbara Boxer (D-CA) declared, "The filibuster is on the table. It has been on the table for 200 years."

What is one to make of all the rhetoric? How do we sort through the verbal wrangling to get to the real issue concerning judicial confirmations? Worldview analysis provides us with a wider perspective.

Senate Rules

In all of U.S. history no nominee to the U.S. Supreme Court has ever been filibustered. Contrary to Senator Boxer's assertion, the filibuster is a more recent addition to Senate rules. The filibuster's origin dates to the 1850s, and since then has been subject to numerous modifications. Current rules require a 60-vote "super-majority" to end a filibuster and allow a vote to take place.

Moreover, a simple majority of 51 votes is all that has ever been required for judicial confirmations. The Constitution specifies when more than a simple majority is required for special business, such as with treaties, veto override, etc. The Constitution does not require a super-majority for the confirmation of a judicial nominee.

Regarding the current use of the filibuster for judicial nominations, Senator Orin Hatch has written, "These unprecedented and unfair filibusters are distorting the way the Senate does business . . . [T]hese new Democratic filibusters are designed to prevent, rather than secure, an up or down vote and to ensure that targeted judicial nominations are defeated rather than debated."[1]

Original Intent

The Constitution provides the following directives regarding the nomination and confirmation process: "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court and all other Officers of the United States . . . " [2]

The Constitution could not be clearer. The nomination is made by the president alone. The Senate is to give its advice and consent-not demand ideological purity. How do we know this to be the case? The men who originally wrote those words have provided us with a commentary on their original intent.

Alexander Hamilton, who pledged his life in signing the Declaration of Independence, also was one of the architects of the new federal constitution. With two other colleagues, Hamilton wrote the Federalist Papers, a series of newspaper articles defending the ratification of the constitution. In his essay number 76, Hamilton explained the founder's intention regarding judicial nominations. He wrote, "It is not likely that [the Senate's] sanction would often be refused where there were not special and strong reasons for the refusal." [3] Hamilton went on to clarify that the advice and consent clause was intended to provide a check upon a president who would appoint his brother, or engage in favoritism, or reward family connections or personal benefactors-nothing more.

And this has been the tradition of the Senate since its inception. For example, in 1993 President Bill Clinton nominated Ruth Bader Ginsburg to the Supreme Court. While there were no doubts the former A.C.L.U. lawyer was extremely liberal, Republican senators respected the President's judicial nominating powers granted by the U.S. Constitution and allowed her confirmation to go through in 42 days. The Republicans at the time believed the political beliefs of a judicial nominee are not disqualifiers, and politics must take a back seat to civility.

And yet, in more recent years, a Senate minority of Democrats is using the filibuster to prevent a vote on highly qualified judges, like Bill Pryor or Miguel Estrada, an able Hispanic lawyer whose nomination had to be withdrawn, and Janice Brown, an African-American judge from California. The grounds for opposition is not what the constitutional framers intended; they simply do not like what these judges believe.

Until Miguel Estrada withdrew his nomination, every circuit court nominee subjected to a cloture vote ultimately received an up-or-down vote in the Senate; all gained confirmation. Before 2003, no judicial nomination with clear majority support was ever defeated by a filibuster.

This effort to filibuster judicial nominees is offensive to the original intent of the Constitution for another reason. America's founders, working from a biblical worldview of the Fall, designed a system of checks and balances so that no one branch of government would have power over the other. However, in recent months a minority in the Congress is holding hostage judges named to the court. This is a fundamental assault on an independent judiciary and, thus, violates the principle of the balance of powers.

Constitutional Option

While other options to end filibustering of judicial nominees have been considered, the last option at this point is the "constitutional option."

The "constitutional option" is fittingly named because it invokes the Senate's constitutional duty of "Advice and Consent." It has been referred to as the "nuclear option"[4] because Democrats have sworn to "shut down" all legislative business within the Senate (with 41 votes they can stop any bill) if it is used to require up-or-down votes for judicial nominees.

According to the Family Research Council, the "constitutional option" would work like this: a judicial nominee is brought before the Senate and "unanimous consent" is requested for a vote on the nominee, upon which a senator will offer an objection. A "point of order" is then requested by a Republican, who asks for a "ruling by the Chair" whether a filibuster is constitutionally permissible for judicial nominations. When the presiding Chair, Vice President Dick Cheney, declares the filibuster unconstitutional, Democrats will appeal the Chair's decision; a motion to "table" the appeal will be brought to order, requiring 51 votes to sustain the "tabling" motion and, in essence, the Chair's decision. The U.S. Senate is constitutionally vested with the authority to determine its own rules of procedures, thereby providing a constitutional remedy to a constitutional crisis.[5]

If the majority in the Senate does not break the unconstitutional filibustering of those in the minority, then the Senate will be unable to confirm judges whose judicial philosophy seeks to uphold the rule of law, thus endangering our Constitutional Republic.

Being Salty

Jesus called his followers the "salt and light" of society. If the political process has become tasteless and dark, it is not the fault of the politicians as much as it is because Christians have withdrawn their morally preserving influence. Therefore, we must let our voices be heard if we are to fulfill our role of Christ's Ambassadors.

Write or call your state senators and urge them to leave partisan political wrangling behind and fulfill their duties according to the Constitution by allowing a vote on all judicial nominations. For contact information regarding your senators, go to the Family Research Council's website: http://www.frc.org and click on "Contact Elected Officials."

  1. http://www.nationalreview.com/comment/hatch200501120729.asp, (accessed July 8, 2005).
  2. U.S. Constitution, Article II, Sect. 2.
  3. http://federalistpapers.com/federalist76.html, (accessed July 9, 2005).
  4. This term originated with the Republicans, though they quickly abandoned it for the more accurate language of "constitutional option."
  5. Talking Points: Solving the Judicial Nomination Crisis, (accessed July 8, 2005).

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