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It’s All About the Power
[June 15, 2003]

By S. M. Oliva

The Supreme Court is just one week away from concluding its 2002-2003 Term, and the talk in Washington is not centered around the court’s looming opinions on affirmative action and corporate speech, but on whether one or more justices will announce their retirement before the Court heads home for an abbreviate summer recess.

Retirement talk is hardly new, especially with the current court, which has stayed together longer than any nine-justice group. Since Stephen Breyer replaced Harry Blackmun in 1994, there hasn’t been a vacancy on the Court, despite numerous false starts almost every June for the last nine years. Eventually there will of course be a retirement—Chief Justice William Rehnquist is 78 and Justice Sandra Day O’Connor has been mulling over retirement since the 2000 election—but at this particular moment there is no court vacancy.

That hasn’t stopped the political planning, however. A group of Senate Democrats, and their interest group allies, are preparing to oppose President Bush’s eventual nominee to fill a still-hypothetical vacancy. We don’t know who exactly the president will nominate, but as they said in the movie “Airplane!,” that’s not important right now. The fight over the next Supreme Court nominee will be cloaked in ideological pretense, but ultimately it will be about nothing more than the raw exercise of power. The sooner people understand this, the sooner we’ll be able to actually confirm a nominee.

In the past year, Democratic senators have filibustered two judicial nominees, Miguel Estrada and Priscilla Owen, both nominated by the president to sports on the circuit courts of appeal. Prior to these acts, there was no precedent for filibustering an intermediate appellate court nominee. It simply wasn’t done. Indeed, as a matter of parliamentary law, filibustering a presidential nominee has always been highly suspect. A president is usually given the benefit of the doubt on his nominations; after all, one can’t reasonably expect 100 senators to collectively decide the identity of a nominee, only to judge whether the president’s choice is constitutionally fit for office.

But reason has little application in questions of exercising raw power. In one sense, President Bush is a victim of his and his party’s political success. Republicans hold majorities in both houses of Congress, the White House, as well as a majority of appointments on the current Supreme Court. This irritates Democratic partisans to no end, acutely so because of the unusual Supreme Court-refereed finish to the 2000 election. Some Democratic elitists argue Bush has no right to nominate any Supreme Court justice because of the 2000 election. I doubt this position is shared among the rank-and-file Democrats, or even the Democratic senators who are filibustering the Estrada and Owen nominations, nor need it be. For most Democrats, there is no need for pretext to oppose Bush; that he is a Republican and holds power they seek is sufficient cause.

Sen. Charles Schumer, New York Democrat, is the unofficial opposition leader on judicial nominees. On the surface, Schumer’s explanation for filibustering judicial nominees sounds plausible—ideology matters. As Schumer explains it, the Senate must examine a judicial nominee’s ideology. Nothing wrong with that. In fact, Schumer’s position has certain honest elements to it. For years we’ve been warned about imposing “litmus tests” on nominees without critically assessing whether such tests have merit. And even if you disagree with the leftist ideology of Schumer, one could reasonably argue that he was elected by New York’s voters to represent that ideology in making decisions. Thus, Schumer is logically, if not rationally, justified in opposing Bush nominees solely on ideological grounds.

The problem is, for all his talk of ideology, Schumer in reality cares little for it. If ideology were the core issue, Schumer would let Estrada and Owen come to a vote on the Senate floor, where he and his colleagues would simply vote their ideological position and be done with it. One does not filibuster two relatively insufficient appellate court nominees solely to preserve ideological purity. The ideology pretext also falls when one examines the records of Estrada and Owen and finds no “smoking gun”—a paper trail of ideological pornography, a la Robert Bork. Indeed, put to a blind ideology test, it’s doubtful the typical leftist could pick Estrada or Owen out of a Vast Right-Wing Conspiracy lineup.

Estrada and Owen are merely targets of convenience for Schumer and company. Both were targeted for their race and gender, respectively. Since the Democratic Party exists largely as a coalition of race and issue groups, Democratic officeholders must offer a periodic sacrifice upon the altar of “group rights.” Estrada is a Hispanic who doesn’t subscribe to the leftist Hispanic agenda. Ditto Owen for women. With the right amount of spin, opposing these nominees becomes a principle in itself: Democrats want women and minorities on the courts, but not the “wrong” kind of woman or minority.

This leads to the filibuster issue. Schumer justifies preventing Estrada and Owen from coming to a vote on the grounds they are “extreme” nominees who are not entitled to a vote. There is, of course, no objective definition of “extreme,” and that’s precisely why Schumer uses it. To simply call someone an extremist is a sign that you’re unwilling to debate them on the merits. Hence the filibuster. Contrary to leftist spin, these filibusters are not an effort to preserve debate rights and obtain more information, but precisely the opposite: Democrats don’t want to debate these nominations at all, because they know they have no case on the merits.

Democrats have no direct power over the branches of government, so they have resorted to wielding their remaining weapon—obstruction—in order to maintain their political viability. The Democrats are backed into a corner, hence they come out swinging in a struggle to survive.

What’s remarkable is not that Democrats are filibustering, but that Republicans are putting up with it. They have the power, but are too timid to use it. Although the filibuster is ensconced in Senate rules, the filibuster as applied here is a complete violation of every basic principle of parliamentary law. The minority has no right to obstruct the majority without debate or discussion. It would be justified as a matter of law for the Republican senators, by majority vote, to end the filibuster and bring Estrada and Owen to a vote. There would be a few days of howling from the Democrats (and the New York Times), but that would be all. Rationally, even the Democrats know what they’re doing is wrong, and that only Republican reluctance is allowing them to continue.

So why are the Republicans pussyfooting around? Because they’re conservatives. And conservatives don’t challenge institutional traditions unless utterly provoked. The filibuster is allowed to remain under Republican rule because, well, that’s simply how things have always been done. Right and wrong matter little when your primary value is upholding the status quo.

Now, if the Democrats were to filibuster a Supreme Court nominee, that would likely provide enough provocation to convince the Republicans to put an end to things once and for all. At that point, the Republicans would know that failure to act would compromise, if not destroy, their own political power, and thus jeopardize their hold on the White House as well as Congress.

So as the potential drama of a contested Supreme Court nomination draws near, remember that in the end, ideas won’t matter at all. Power is the name of the game. That’s unfortunate, of course, because a debate over judicial ideology and principle is sorely needed in this country. But so long as the filibuster remains acceptable practice in the U.S. Senate, there is a greater chance of confirming Robert Bork as chief justice than there is holding a rational debate on the merits of judicial ideology.


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