Reading Room

Sinking Judicial Agenda
by Bruce Fein
The Washington Times
February 22, 2005

President George W. Bush's judicial agenda is sinking because of his refusal to expend political capital and to risk legislative crumbs to crush the Democrat filibustering of his intellectually gifted nominees.

Chief Justice William H. Rehnquist's probable retirement in June makes the president's persistent inactivity over judicial filibusters alarming. His pledge to appoint justices in the mold of Associate Justices Antonin Scalia and Clarence Thomas will be thwarted if 60 votes are required to obtain a floor vote on Supreme Court nominees. Democrats successfully employed the filibuster during Mr. Bush's first term to stymie confirmation votes on 10 talented appellate court nominees without provoking the president to twist arms in the Senate to overcome the obstructionist tactic. That same unmasterly inactivity has marked the beginning of Mr. Bush's second term.

He has studiously refrained from interceding with irresolute Republican senators to declare judicial filibusters an unconstitutional encroachment on the president's power to appoint under Article II, section 2, with simple majority approval in the Senate. (Legislative filibusters affect only the exclusive legislative powers of Congress. They are undisturbing to the Constitution's separation of powers). In contrast, Democrats have vocally committed to invoking the filibuster to block any Bush nominee bearing Scalia-Thomas trappings.

At present, the Senate sports 55 Republicans, 44 Democrats, and 1 independent. By himself, Senate Majority Leader Bill Frist, Tennessee Republican, has been unable by exhortation or cajolery to assemble 51 votes to declare judicial filibusters unconstitutional and thus unenforceable.

About 10 Republicans are loath to risk the threatened venom of their Democrat colleagues by destroying the last Democratic Party dike against the 2004 elections. A modicum of bipartisanship and comity is pivotal to moving forward on any senator's agenda. The reluctant Republicans insist the Supreme Court and subordinate federal tribunals are worth sacrificing to maintain Senate harmony and fraternity on other matters.

President Bush seems to agree. During his confirmation hearing, Attorney General Alberto Gonzalez declared the Justice Department would remain aloof from judicial filibusters.

The president himself has resisted working hand-in-glove with Mr. Frist to confront wavering Republicans or Red State Democrats with carrots and sticks depending on their votes in favor or against filibustering knavery. Mr. Bush apparently reasons that steamrolling Democrats over the federal judiciary would forfeit needed bipartisan support for pioneering Social Security change, tort reform, energy legislation, a Clean Sky program, and companion mundane laws; that the appointment of judges is too marginal to the nation's destiny to gamble his legislative ambitions; and that the president has no constitutional business tampering with an internal Senate rule.

But the Constitution withholds any official role for the president in proposing amendments or legislation. Yet Mr. Bush has openly urged Congress to adopt amendments dealing with same-sex "marriage," flag desecration, and victims' rights. He routinely prepares legislation for introduction by friendly senators or representatives. Moreover, the judicial filibuster directly encroaches on the express appointment power of the president by tightly circumscribing the universe of confirmable nominees. That makes a president's intervention with the Senate over filibustering judges more constitutionally compelling than over amendments or legislation.

In addition, federal judges serve for life. Their influence over constitutional doctrines that defeat popular majorities is incalculable " for example, executive detention of suspected enemy combatants, police searches and seizures, church-state relations, abortion, illegal aliens, environmental protection, affirmative action, discrimination based on gender or sexual orientation, campaign finance laws, political association, and protection of private property.

President Franklin D. Roosevelt appointed New Dealer William O. Douglas to the Supreme Court in 1939. His freestyle approach to constitutional interpretation, epitomized by his "penumbras and emanations" creed in Griswold vs. Connecticut (1965), was still a strong influence when he retired in 1975 during the Ford administration. Indeed, Griswold was the foundation of the outlandish 1973 Roe vs. Wade abortion decree.

Judicial philosophy is decisive in the great majority of nontrivial cases. The Massachusetts Supreme Judicial Court relied on language in the Massachusetts Constitution indistinguishable from that in the U.S. Constitution or sister state constitutions in discovering a right to same-sex "marriage."

In addressing the constitutional rights of Guantanamo Bay detainees in light of the Supreme Court's decision in Rasul vs. Bush, two federal district judges in the District of Columbia reached opposite conclusions. The Supreme Court recognized a constitutional right to homosexual sodomy in Lawrence vs. Texas (2003). The precedent was interpreted by a federal judge in United States vs. Extreme Associates, Inc. (Jan. 20, 2005) to end the public morality justification for infringing on private adult sexual conduct, including buying obscenity. In contrast, a Utah federal district judge concurrently held Lawrence cast no shadow over polygamy laws.

President Bush's greatest second-term accomplishment would be to pack the federal judiciary from top to bottom with Scalia-Thomas clones. He promised no less in decisively defeating Sen. John Kerry, Massachusetts Democrat.

In contrast, his legislative initiatives will either take long years before enactment, like Social Security reform, or are trivial compared to shaping the constitutional philosophy of the Supreme Court and lower courts for the indefinite future, like damage caps in medical malpractice litigation.

Mr. Bush should cross the Rubicon and fight to end judicial filibusters with every weapon in his political arsenal.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.