Nuking the Filibuster?


The hypocrisy of politicians (okay, they’re only human, eh?) is never more remarked than in the stances they take at various times in their public “service,” rarely if ever as the result of the maturing process constantly increasing wisdom but practically always purely for reasons of expediency. Take the interesting cases of Democrat Senators Tom Harkin, Joe Lieberman, Ted Kennedy, and John Kerry, pretender to the presidency and probably future contender for same (if he can figure out precisely why he couldn’t remember where he was on Christmas Day 1968, whether in Cambodia or maybe in Shangri-La). These four worthies, along with 15 other democrat senators responding to a bill introduced by Harkin and Lieberman, voted in 1995 to end ALL filibusters, not just the ones endemic to judicial appointments, which is the approach reasonably requested by Majority Leader Frist currently. Indeed, in the Congressional Record of 20 February 1975 may be noted comprehensive statements by Kennedy and Senator Bobby Byrd relative to the Senate never being bound by rules of a previous Senate, one such being the cloture rule, which was changed at that time by a simple majority.

Now, the collective nose of the Senate democrats, including those mentioned above, is out of joint because they fear this Senate will do just what the Senates of 1917 and 1975 did, namely, introduce and revise the cloture rule, respectively, by a simple majority vote. Go figure. Naw, don’t bother to figure – just mark it down to a hypocrisy so blatantly thick that it can be cut with a knife. It’s all about possible, more likely, probable, nominees that President Bush will hand up with regard to the Supreme Court, such nominees possibly, or again, probably, being culled from nominees the president has already handed up for Appellate Court slots and which Senate democrats are denying a vote through the “cloture rule,” never mind that the Constitution provides for an up-or-down vote, notwithstanding any “rule” the Senate has. In fairness, both parties have engaged in collective hypocrisy over the years but have had the good sense not to apply the “cloture rule” to judicial nominees. The temper tantrums thrown by the democrat incumbents are an indication of their fundamental distrust of constitutional government of, by, and for the people. In other words, special interests are their game.

There are at least two schools of thought on the matter with regard to democrat intransigence: (1) Bush nominees to the Supreme Court may alter the landmark Roe vs. Wade decision of 1973 giving federal approval to abortion on demand, or (2) Their intransigence emanates solely from the fact that Bush won the election last year and is fueled primarily by disappointment/hatred. Probably a bit of both is operative, the last being particularly noticeable in their hateful treatment in advise-and-consent hearings of both Attorney General Gonzales and UN-Ambassador nominee John Bolton. The 1973 Roe/Wade matter was handled by only two of the current Supremes, Chief Justice Rehnquist, who opposed the ruling, and Justice Stevens, who approved it. The vote was overwhelmingly in favor, 7-2. Bolton, a tough, no-nonsense, legendarily blunt longtime public servant is probably a victim of the hate component, although there can be little doubt that UN honchos tremble at the thought of someone actually demanding that they get their house in order.

The whole matter is reminiscent of the shenanigans of President Roosevelt in his attempt to pack the court in 1937. Being handed 5-4 defeats by the SC on some of his programs on a regular basis, he decided on a legislative ploy almost sure to be enacted by a Congress boasting a democrat majority of 75-17 (filibuster-proof) in the Senate and a laughable 333-89 in the House. FDR’s remedy: There would have to be a justice-in-tandem appointed for every sitting justice age 70 or over, an immediate pickup of six justices to be nominated and presented to a Senate boasting far more than the 64 votes necessary for cloture to shut down a filibuster at that time, if any republican senator had even thought of filibustering a judicial nominee. The plan stank so badly that even FDR’s own party turned on the president, never mind that it included far more votes than necessary in Congress to pass anything he wanted.

Many current SC decisions are of the 5-4 variety, just as was the case in 1937. FDR complained that the majority of justices had been appointed by republican presidents and that he hadn’t appointed even one justice since taking office in 1933. Apparently, his beef was not that judges were not active enough, but that they were not “with it” with regard to the “modern” times. By contrast, judges all over the nation today are attempting to make law (get with it) by judicial fiat, notwithstanding their clear-cut violations of existing law. Unless this is changed, and if not while things are being sorted out, the judicial machinery will be sabotaged, since judges are to interpret but not make law. So, strict constructionists are needed at least at the top in order to see that judges in the Appellate Courts who make idiotic decisions are reversed. For example, the Ninth Circuit (lunatic fringe?) in the western end of the nation is reversed 75 % of the time when its cases go before the Supreme Court.

Ironically perhaps, seven of the nine sitting judges were appointed by republican presidents – Souter (1990) and Thomas (1991) by President George H.W. Bush; Stevens (1970) and Rehnquist (1972) by President Nixon; Scalia (1982), O’Connor (1981), and Kennedy (1988) by President Reagan. Ginsberg (1993) and Breyer (1994) were appointed by President Clinton. Rehnquist was appointed Chief Justice in 1986 by President Reagan. All of the appointing presidents were elected to two terms. Therein lies an anomaly if there are those who insist that judges are predictable ideologically in making their decisions; otherwise, it would be expected that there would be far more 7-2 decisions on particularly significant matters than those approved or disapproved by 5-4 votes. Perhaps the most surprising of the justices with respect to his unpredictability is Justice Souter.

Four of the justices – Ginsberg, Stevens, Rehnquist, and O’Connor – are well over 70 years of age, and Stevens and Rehnquist are 85 and 80, respectively. Four are in their late 60s – Souter, Breyer, Scalia, Kennedy. Justice Thomas is 56, by far the youngest. It is not unreasonable to suspect that President Bush will have the opportunity to appoint at least two constructionist judges (if this can be determined) to the Supreme Court. Without question, he has 10 appointees to Appellate Courts ready now for action in the Senate. It seems apparent that democrats would much rather have judges decide critical matters than be forced to sometimes make unpopular but necessary laws, such as those regarding same-sex marriage, for instance, or abortion.

In any case, it will be interesting in the next few days to see if the democrats understand the thinness of the ice upon which they are treading in denying a president the right to have his appointees given a fair hearing and a vote of approval or disapproval. They have already broken a precedent of long standing in filibustering judicial nominees. It will be in their best interests to realize that they some day will be in the majority and have the same privilege they are now denying the majority party, which seems not to be afraid of nuking the cloture/filibuster man-made “rule of the Senate” and taking their chances in the future.