Republican Senators have hijacked Senate business this week, now extending their endless debate to 39 hours over the issue of 4 ideologues who President Bush nominated to be federal judges.
The Republicans continue to harp that the Democrats are not allowing them to exercise their constitutional duty by continuing to threaten filibusters on the nominations of these four judges. As I've said before, this is ridiculous. If anything, the Republicans are refusing to perform their constitutional duties by hijacking 39 hours of Senate business to whine about four ideologically agenda driven judges who are not fit to sit on the federal bench.
I wrote about one of those judges, Janice Rogers Brown, a few weeks ago. The others aren't much better, but they aren't the real story here.
The real story is separation of powers. You see, filibusters are a check on majoritarian rule. They allow the minority party (or as one Senator put it today, even a minority of one) to stand up for those who are not represented in the Senate. The Framers of the Constitution, quite aware of how majoritarian rule worked in England under King George III were very concerned about making sure that our federal system had appropriate checks and balances.
These checks and balances can be seen everywhere in our government. Congress passes a law, but if the President doesn't like it, he can veto it. If the law is unconstitutional, the judiciary can invalidate it. For especially important pieces of business, supermajorities are called for in the Constitution, such as approving treaties. The more I think about it, the more I am convinced that the Framers would have called for a supermajority to approve judicial nominations if they had any idea that the federal judiciary would grow as vast and as wide as it did. For you see, when it comes to judicial nominations, the only check on that process is the advice and consent of the Senate.
This process is the only check, of course, on all nominations of the President through his Article II powers which the Senate is charged with advising and consenting on; however, the other nominations under this clause are all temporary positions, such as Cabinet officers and ambassadors, who serve until the current Executive decides to ask them to resign, which in most cases, is when there is a change in the occupants of the White House.
Federal judges are different, Judges appointed pursuant to Article III are appointed for life. And as we often forget, they have a tremendous amount of power in reviewing and either endorsing or invalidating federal and state legislation as well as their duty to interpret the Constitution and the laws. Court of Appeals judges, in many situations, have as much power as the 9 Justices of the Supreme Court, because an enormous percentage of cases never reach the Supreme Court, so the Court of Appeals is the final word on the case or controversy.
To suggest that the Framers of the Constitution, concerned with the ability of a majority to squelch dissent and pursue their agenda without appropriate checks and balances, would be pleased to hear that a small majority in the Senate, and a ideologically driven President, were attempting to hijack the federal judiciary with appointees who favorably comment on thoroughly discredited precedent, is laughable at best. They would be furious with this turn in our constitutional democracy.
The advice and consent process used to work smoothly with both parties and the President meeting about and discussing federal judicial nominees. This has not been the case under the current Administration. If the President refuses to live up to his constitutional duty to seek the Senate's advice, then more power to the wonderful Senators who are standing up to him and his lackeys in the Senate.
If you have a free moment, I highly suggest you turn on C-SPAN 2 and watch part of the debate tonight; it's scheduled to run through 9 a.m. tomorrow morning as of now. You'll see Republicans whining about judicial nominees who they think have a constitutional right to an up or down vote (they don't) and Democrats whining about Republicans who are ignoring the 3 million Americans who have lost their job in the past 3 years and the 41 million plus Americans who do not have health insurance. That's a pretty easy distinction - should we worry about 3 million Americans without jobs, or 4 judicial nominees who have jobs, and want promotions. This is the distinction between the parties today, and how the Republicans continue to manage to pretend they care about the average American is beyond me, as is how the average American believes them.
Update: Apparently, former Nixon White House counsel John Dean agrees with me. Thanks to Kicking Ass for the heads up.