The newly permalink-enhanced Sultan of Snark, Mickey Kaus, touches on a crucial point in explaining why he believes filibusters are more, not less, appropriate for judges rather than legislation:
In the post-Warren era, judges don’t just have tenure, they have almost uncheckable anti-democratic power. The constitution has been durably politicized in a way the Framers didn’t anticipate. Practically every legislative issue can be–and is–phrased in constitutional terms (e.g., as a case of “rights”). Activist Democratic judges would start by supervising the fine points of democratically-passed abortion laws, trimester-by-trimester, and take off from there. Activist Republicans would overturn laws approved by the elected Congress when they don’t sufficiently affect interstate commerce. The only hope, given these dueling tribes of activists, is that in the Senate’s confirmation deliberations each faction will cancel out the extremes of the other, Bork-style, resulting in either the confirmation of a) a principled non-activist or b) a mushy middle-of-the-road consensus candidate. The filibuster can force such a compromise.
(Emphasis added). Much of the problem with the filibuster debate has been the “pox on both houses” tendency of commentators to treat liberal and conservative judges as if they were two sides of the same coin. They are not. As a practical political matter, I understand well that if you eliminate the filibuster for Republican judicial nominees (which I’ve advocated doing on a more limited scale), you can’t well get it back for Democratic ones, although when Republicans hold a Senate majority during a Democrat’s turn in the White House you always retain the option of voting judges down. But in discussing the merits of the two sides’ competing visions of the Constitution*, Republicans need to make it clearer that conservative judges should be given an easier path to confirmation than liberal judges, and for precisely the reason Mickey identifies.
Because the fact is, conservative judges are pro-democracy in ways that liberal judges are not. The core ideology of people like Justice Scalia is the idea that judges need to rest their rulings on a foundation of democratic legitimacy – to draw their power solely from the express consent of the governed – rather than from some higher law never expressly enacted by the people in any form. By and large, this means not striking down legislative enactments if one can’t find clear evidence that the people previously spoke to the issue in the Constitution itself.
Specifically, liberal judicial decisions have tended to take issues away from the democratically elected branches: on abortion, the death penalty, same-sex marriage, euthanasia, etc., it’s liberals who argue that the Constitution removes choices from federal and state governments, even when it is clear that the people, in ratifying the constitutional provision in question, never consented to such expressions of judicial power. The list of such decisions is too long to recount here, but includes the especially undemocratic movement towards deriving authority from international law (in which the consent of the governed is irrelevant, and accountability impossible).
Counter-examples of conservative “activism,” by contrast, generally tend at most to reallocate powers among the various branches of government rather than rule them out of the democratic sphere entirely. When the Supreme Court tells Congress that something like the Violence Against Women Act exceeds the commerce power, it leaves the people’s representatives in the states with plenary authority to legislate in that area. When the Court limits the ability to sue states in federal court under the 11th Amendment – probably the most controversial area of Rehnquist Court “activism” – it leaves the people’s representatives in the states with the ability to accomplish the same ends in state court, or through alternative state-law remedies, if that is what they want. By contrast, the Dormant Commerce Clause cases, which restrict state power, generally leave Congress with the ability to enact nationwide economic policy. If the Court had struck down the Independent Counsel statute, as Justice Scalia proposed, there would still be special prosecutors (as there are again today). And, of course, if the Court were to overturn Roe v. Wade, many states would go ahead and repeal their old statutes banning abortion.
Where there have been a few legitimate counter-examples of conservative judges pushing to limit the scope of democratic governance in the way commonly done by judicial liberals, they have been in the heartland of express constitutional provisions: protecting freedom of political speech during elections (the campaign finance reform cases), preventing government from making preferential distinctions on the basis of race (the affirmative action cases), recognizing an individual right to bear arms or requiring just compensation for government takings of property. There are fair arguments over the original meaning of such provisions, but judicial conservatives can hardly be accused of making up the Fourteenth Amendment’s concern with race discrimination.
(Of course, at this point, some liberal readers will no doubt complain about Bush v. Gore, which is often cited as an example of activism. Bush v. Gore was a unique case, of course, and I won’t revisit all the arguments I made about it here, here, here and here. But recall that (1) the Supreme Court in that case did nothing to limit the authority of the Florida Legislature or Florida’s executive branch; the decision was strictly limited to striking down a judicial remedy derived after the fact without a basis in statute; (2) the Court actually sided with the people’s elected representatives in Florida, specifically the Secretary of State, who was given statutory responsibility over the matter; and (3) the Court’s conservatives wanted to resolve the case on the basis of an express Constitutional command, in Article II, that left the final say to the Florida Legislature. You have to work awfully hard to distort this into a decision taking power from the elected and accountable representatives of the people).
In short, when confirming judges, the first question should always be this: is this person, on the bench, likely to remove power from its legitimate source, the consent of the governed? Of course, there will be hard questions about how to read what the Constitition and statutes are meant to say. But the clear track record shows that judicial conservatives of the Scalia/Thomas type can be trusted to err on the side of democracy; judicial liberals can not, and should therefore be regarded as the greater danger to democratic self-government. And O’Connor/Kennedy-style “mushy middle-of-the-road consensus candidates,” as Kaus puts it, are as likely as not to join the liberals, in addition to joining in some “activist” conservative-leaning decisions, thus making everyone unhappy. The fact that the appointment and confirmation process is the only way short of impeachment (which I, as a practicing lawyer, oppose for all the reasons identified by Ted Olson) to ensure that the bench is filled with people who respect the need to draw power from the consent of the governed is precisely why filibustering conservative judges is particularly misguided and illegitimate.
UPDATE: To clarify a point noted in the comments: my point here is, there may well be an argument for filibustering liberal judges on grounds that they are likely to exercise “uncheckable anti-democratic power,” but that argument just doesn’t fly for conservative judges.
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