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Jewish World Review May 12, 2003 / 10 Iyar, 5763

Nat Hentoff

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The president can stop Democratic filibustering


http://www.NewsandOpinion.com | It's doubtful the names Miguel Estrada and Priscilla Owen would be a part of any lunch counter or barroom conversation. Senate Democratic filibustering of these presidential nominees to federal circuit judgeships is of little interest outside of Washington, D.C. -- even though the Democratic power grab that these nominees are a part of is not authorized by the Constitution.

Many Americans hardly know most, if any, of the names of the federal district of circuit judges in their areas. Yet, the great majority of cases before these judges, often affecting the lives of many of us, are decided in these lower courts. The Supreme Court chooses to hear only a few more than 70 cases a year.

In fact, how many citizens know anything about how extensive the Democrats' obstruction of the confirmation process is? For example: This is the first time in American history that circuit court judges (a level just below the Supreme Court) have been filibustered. The Constitution authorizes a majority of Congress to "advise and consent" to the president's choices, but these filibusters are requiring 60 votes -- more than a 51-49 majority -- to allow the entire Senate to vote up or down on the nominees.

It is up to the president to follow Thomas Jefferson's advice: "I know," Jefferson said in an 1820 letter to William C. Jarvis, "(there is) no safe depositary of the ultimate powers of society, but the people themselves; and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power."

Just as a principal used to be the head teacher in a school, so a president -- when he recognizes the national need to educate the people on an issue that affects the entire country -- becomes the head teacher of the United States. I am old enough to remember how effective Franklin D. Roosevelt was in that role. My family, like many others, never missed one of his conversations with us on the radio.

Similarly, George W. Bush can redeem the constitutional confirmation process for federal judges by going on prime-time television and challenging the Senate's Democratic leadership to show where in the Constitution they find the right to filibuster these nominations.

The president would do well to also point to the times when the Senate Judiciary Committee itself -- when either Republicans or Democrats are in the majority -- has refused to even hold hearings, or to send nominees to the floor, for votes by the entire Senate. Article II, Section II of the Constitution says clearly that the president nominates "by and with the Advice and Consent of the Senate." Not the advice and consent of the Senate Judiciary Committee alone.

And in No. 76 of the Federalist Papers -- a collection often cited by the Supreme Court as a reliable road map to the Constitution -- Alexander Hamilton says plainly that the "advice and consent" responsibility is to be exercised by "an entire branch of the legislature" -- not just by a single committee. Hamilton also warned about "the spirit of cabal and intrigue" that can be attendant on getting nominations confirmed.

A glaring current example of intrigue under Senate rules -- but not the rule of the Constitution -- was the move in March by the two Democratic senators from Michigan -- Carl Levin and Debbie Stabenow -- to block every Bush nominee to the federal judiciary from Michigan, including four circuit court selections. Under the "blue slip" rule, a home state senator can try to kill a nomination and, now, these senators want to do it wholesale.

The president, on prime-time television, should also challenge Democratic Senate Minority Leader Tom Daschle, who says of his party's blocking of Judge Pricilla Owen to a circuit court seat that "her record is so egregious that we have no choice but to filibuster." The core of Democratic opposition to Owen is her record on being conscientious about the right of parental consent to abortion by teen-agers. But, in recent polls, the majority of Americans, including Democrats, approve of parental consent. Are they being "egregious"?

Sen. Charles Schumer, a leading member of the Democratic posse, says he and his colleagues filibuster out of respect "to the sacredness of the Constitution and what the Senate is all about." And the zealous Schumer says he has actually read the Federalist Papers, and also presumably, the Constitution.

I do not believe that most Americans would support filibustering of judicial nominees, whether done by Democrats or Republicans, if they had the constitutional facts -- and if they realized that this ideological crusade by the Democrats could result in Supreme Court decisions that would obstruct parts of the Constitution.

The president should give them those constitutional facts, because Charles Schumer and the other Democrats on the Judiciary Committee do not.


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JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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