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Jewish World Review May 29, 2001 / 7 Sivan, 5761

Nat Hentoff

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Bipartisan Senate arrogance -- YOU can search the notes James Madison took on the deliberations during the making of the Constitution in Philadelphia; you can read every word of that document; and you can read the Federalist Papers, which set forth the reasons for each provision of the Constitution. But you will not find any basis for one or two -- or any -- senators having the power to veto a judicial nomination by the president -- any president.

Yet when George W. Bush began to send his federal-court nominations to the Senate (where Vermont Sen. James Jeffords recently changed the balance) to get its "advise and consent," that body's then-minority leader, Tom Daschle, initially stated unequivocally: "We will insist that both senators representing a state have the ability to sign off on that nominee -- or it won't go anywhere."

Republican senators, too, have blocked nominees, sometimes not even giving them a hearing. But, as Stanford University historian Jack Rakove, author of " "Original Meanings: Politics and Ideas in the Making of the Constitution" ", (PAPERBACK) has written in The New York Times: "The authors of the Federalist Papers -- James Madison, Alexander Hamilton, and John Jay -- identified the legislature as the most dangerous branch of government, and sought to insulate judges from legislative control, the better to enable them to check its excesses."

The point man for the Senate Democrats in vetoing the president's judicial nominations is Sen. Charles Schumer of New York. He was interviewed by Sidney Zion, who is one of the few columnists who is an expert on the Constitution. Zion, a former prosecutor, is the legal affairs reporter for The New York Times. Before an apparent retreat by his party, Schumer told how the Democrats use the "blue slip," a system by which senators from an individual state can block judicial nominees from their state by returning a blue slip to the chairman of the judiciary committee. Schumer brazenly said: "We're dealt the hand we get. It's the system, and I'm not saying it's democratic, but the Bush administration is hell-bent to load up the lower federal courts with right-wingers, who will damage abortion rights, affirmative action and civil rights. The blue slip can stop this as nothing else can."

The Republicans, too, can block a future Democratic president's nominees by wielding their blue slips. Clearly, as Sidney Zion writes, "the Constitution gives the Senate the power to 'advise and consent' to judicial nominations. The Senate -- not one or two senators" from one state.

In this crucial respect, the legislature is indeed the most dangerous branch, whichever party is in the majority in the Senate. But in the equally crucial matter of individual liberty, so is the present Supreme Court when -- as in Gail Atwater v. City of Lago Vista -- the majority of the Court has given the police a license to conduct unreasonable searches in direct violation of the Fourth Amendment. This is a long step backward toward Colonial times, to the days when British officials arbitrarily invaded American homes and businesses. The British searches and seizures were one of the causes of the American Revolution. And the Supreme Court justice who wrote this dangerous decision is the decidedly non-conservative David Souter.

As for the dangers inherent in the executive branch, we need only reflect on William Jefferson Clinton's manifold abuses of the Constitution. One of the worst of these was his evisceration of habeas corpus, the oldest right of the English-speaking peoples. In this he collaborated with a bipartisan Congress. A prisoner, when he has exhausted all his state-court appeals, now has only one year to find a federal judge who will agree to review the fairness of his trial and sentence.

All our branches of government can be dangerous. That's why it's essential for the Senate to provide a full, fair hearing on each of the president's judicial nominees. The nominees' public records should be examined, and they should be questioned on the constitutional basis for their views on the law.

But even though the Democrats seemed to abandon their threat of vetoes as Sen. Jeffords contemplated leaving the Republican Party, The Washington Times reported that "if a home-state senator does object to a nomination and it is not resolved through consultation, Sen. Schumer suggested that the unified Democratic caucus would block the nomination in the (judiciary) committee."

James Madison was not able to envision a United States whose senators would so recklessly discard their oath to protect the Constitution by engaging in undemocratic, bully-boy politics.

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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