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Democrats and federal judges

The filibuster

The Democratic filibuster of the vote to confirm judicial nominees is a story that I, admittedly, have not been following too closely. And this probably indicates a big victory for the Democrats, because if I haven’t been paying attention, then most voters haven’t been either. Today’s Sunday New York Times doesn’t even seem to have any articles about the filibuster.

An article published by the AP on Saturday, Democrats Rip GOP on Judicial Talkathon, was all I could find.

[California Senator Barbara] Boxer, delivering the Democrats' weekly radio address, said the Wednesday-Friday talkfest boiled down to a waste of time and money. She noted the expense of keeping lights burning and Senate staff and security on the payroll throughout the stint.

I don’t expect her to say anything good about the Republicans, but I should add that it takes two sides to hold a filibuster, not one. It’s the Democrats who are being obstructionist and taking advantage of rules of procedure to prevent a vote on the issue, so if anyone is to be blamed for the expenses of the filibuster, it should be the Democrats.

But Boxer said Republicans overlooked the fact that the Senate has confirmed 168 Bush nominees and blocked only six of "the most extreme" in their conservative views.

Another way of spinning that is that the overwhelming majority of Bush’s nominees didn’t offend the Democrats that much. But if filibustering is a dirty trick, then it doesn’t excuse the conduct if the dirty trick was only used on six appointees and not all 168.

Furthermore, there is no definition of “extreme views.” It seems that the majority of our elected Senators would choose to confirm the nominations, so the views can’t be that “extreme”. Probably, these judges would allow state legislatures more authority in passing laws that Democrats don’t want to see passed. So the Democratic definition of “extreme” includes views endorsed by the majority of some state legislatures.

Boxer said Democrats would rather have used that time finishing work on a veterans bill, raising the minimum wage, completing highway and transit legislation that would create 800,000 jobs and passing a manufacturing-jobs bill.

All they had to do was let the vote happen, and they could have done that. Although, if you ask me, we are often better off when Congress doesn’t pass any new legislation.

The historical perspective: FDR’s Court packing scheme

This filibuster is certainly not the dirtiest trick ever used by Democrats when it comes to the federal courts. That honor would be long to the attempts by President Franklin D. Roosevelt to pack the Supreme Court in the 1930s.

That matter is part of American history that I assumed every educated American knew about, but I was sadly disappointed to discover that a co-worker in his twenties, with a graduate degree, had never heard of this chapter of American history.

The story behind the Court packing attempt is that the Supreme Court ruled that various New Deal legislation passed by Congress in the 1930s was unconstitutional because it violated the principle of enumerated powers. Article I Section 8 of the U.S. Constitution grants to Congress specific enumerated powers, and the Tenth Amendment states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

FDR’s wished that the Constitution would grant Congress the power to do anything it wanted unless specifically prohibited by the Constitution. This was an interpretation that Alexander Hamilton himself warned against in Federalist Paper 84. He wrote:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

What has come to pass is exactly what Hamilton presciently predicted. Although FDR was not successful in getting Congress to increase the number of justices on the Supreme Court, it is usually forgotten that FDR got to appoint eight justices to Supreme Court (on account of him holding office for four terms), and every single one of his appointees voted his way on the issue of Congressional powers.

U.S. legal history may have been very different had the Republicans used the same dirty tricks as the Democrats when it comes to federal judicial nominees.

posted Sunday, November 16, 2003

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