Posted Nov. 12, 2003
Federal judges have tremendous power to influence Americans’ lives by the way they interpret our laws and Constitution. In the second half of the 20th Century, the federal government took action to protect civil rights, to clean up polluted air and water, to address the poverty and inequality that kept America from living up to its ideals. The courts played an important role in that progress.
But now there is a movement to turn back the clock - to fill the courts with judges who would restrict government’s ability to protect individuals and promote the common good. That movement is being led in part by lawyers affiliated with the Federalist Society, who now hold key positions in the White House and Justice Department and are playing a major role in the selection of judicial nominees. A federal judiciary dominated by the legal philosophy of Supreme Court Justices Antonin Scalia and Clarence Thomas would lead to a major retreat from legal and social justice progress in civil rights enforcement, privacy and reproductive rights, religious liberty, environmental protection, worker rights, consumer safety and health, and more.
Supreme Court justices, of course, have the final say on interpreting the law and Constitution. The U.S. Supreme Court, however, issued fewer than 90 decisions last year. In more than 99 percent of federal cases, the appeals courts have the final say on issues affecting millions of Americans. Every year these courts decide thousands of cases that affect Americans’ daily lives, and determine the kind of country our children and grandchildren will inherit.
Only a handful of President Bush’s judicial nominations have faced concerted opposition, and an even smaller number have been filibustered by Senate Democrats. All of these nominees have had public confirmation hearings at which they were given the opportunity to answer senators’ questions about their troubling judicial philosophy and public record, which was not the case for the large number of Clinton nominees who were prevented by GOP senators from even having a hearing or vote in committee.
People For the American Way and other public interest organizations have released detailed analyses of nominees’ records, examining such topics as their judicial philosophy and propensity for right-wing judicial activism. For more information, see www.pfaw.org/go/independent_judiciary.
The Senate’s advise and consent role and the filibuster as a check on majority power
The Constitution gives the Senate a co-equal role with the president in approving federal judges. It is the Senate’s responsibility to carefully consider the nominees that come before it, not to act as a mere rubber stamp for the president’s nominees.
Never in our history as a nation have we authorized a simple majority to force a vote in the Senate on a judicial nomination or any other matter. The Senate was designed to be the more deliberative body, where extended debate would be a check on potential abuses by the party in power. That historic Senate role has been championed by conservatives in the past. In 1993 George Will wrote, “[T]he Senate is not obligated to jettison one of its defining characteristics, permissiveness regarding extended debate, to pander to the perception that the presidency is the sun around which all else in American government – even American life – orbits.”
The current situation – with one party dominating the White House and Congress in spite of a narrowly divided national electorate – demonstrates why our constitutional framework was designed as a system of checks and balances. The filibuster is now the only tool that Senate Democrats have at their disposal to try to force the administration and the Republican Senate majority to engage in bipartisan consultation and cooperation on judicial nominations.
The only other option would be to stand aside while the administration abuses its power in order to fill the federal courts with judges who are eager to reverse decades of legal precedent and social justice progress. That would be a devastating dereliction of senators’ duty to their constituents and to the American people and an abdication of their constitutional advise and consent responsibility. If a demand for 60 votes is legitimate with respect to legislation that future Congresses can revisit, it is even more appropriate when considering lifetime appointments to powerful positions on the federal judiciary.