Rep. John Conyers, Jr., on Judicial Nominations, Partisanship and Preserving the Filibuster
... this debate is over the nature of our democracy and respect for the independent federal judiciary. For 200 years, the Senate has used the filibuster to protect the rights of the minority in Congress and prevent intensely divisive legislation from passing. The filibuster ... protect[s] our democracy from being captured by one party or faction controlling all the branches of government, precisely the situation we have today.
EXCLUSIVE BUZZFLASH GUEST EDITORIAL
Over the past several weeks, we have seen unprecedented attacks on the
independent judiciary by leading members of the Republican majority. Most
of the public, however, may have missed earlier efforts of the majority
to "capture" the courts through the arguable abuse of both legislative
and executive authority. These attempts by the administration and Republicans
in Congress threaten to debase permanently the courts and undermine the
stability of our legal system for mere short-term political gain.
As was apparent from the message of Justice Sunday - a nationally televised
Christian conservative political rally, the right-wing of the Republican
party has made the appointment of judges the latest battle ground in the
raging "culture" wars. The telecast's participants accused Democrats
of using the filibuster to keep judges of a certain faith off the bench
and essentially tarred their opponents as the enemies of God. The participation
of Senator Frist in this event is troubling because the implication that
any party or any senator would impose a litmus test against people of
faith is not only wholly inaccurate, but irresponsible.
In reality, this debate is over the nature of our democracy and respect
for the independent federal judiciary. For 200 years, the Senate has used
the filibuster to protect the rights of the minority in Congress and prevent
intensely divisive legislation from passing. The filibuster is part of
a series of Senate rules designed to encourage compromise and protect
our democracy from being captured by one party or faction controlling
all the branches of government, precisely the situation we have today.
With the administration's changes in longstanding consultative policies,
the filibuster represents the final option in oversight by the legislative
minority in the Senate. From the beginning, this administration closed
the review process by eliminating pre-nomination review by the American
Bar Association and consultation with the opposition party on appellate
court nominations, as had been the policy of the Clinton administration.
These decisions all but guaranteed controversy around certain nominations
and politicized the process.
When you evaluate the record, it would seem that the administration should
have little complaint. Senators have used the filibuster to block only
10 of President Bush's most extreme nominees and 204 have been confirmed.
President Clinton's nominees faced a far different fate at the hands of
these same senators, who used the tactics that they today propose to abandon.
As a result of Republican obstructionism, 81 vacancies were left unfilled
at the end of the Clinton administration, including 26 vacancies on the
courts of appeals.
The heaviest weight of these tactics fell on women and minorities. By
the close of 1999, every nominee who was subjected to obstructionist hurdles,
such as multiple Senate Judiciary Committee Hearings, was a woman or person
of color. The bipartisan Constitution project of Georgetown University
revealed that minority candidates for federal judgeships were twice as
likely not to be confirmed as their white counterparts.
Senator Jesse Helms, for example, blocked each of the four African-American
judges nominated to integrate the Fourth Circuit Court of Appeals, and
Missouri Supreme Court Justice Ronnie White was the victim of a racial
double standard by former Senator and Attorney General John Ashcroft.
Moreover, several other highly qualified women and minority nominees
waited up to four years for a vote by the Senate. In the face of this
apparent
discrimination, there was never a suggestion that Senate rules be changed
to remedy this disparity. Arguments that the proposed modification of
the filibuster rule would erase its tainted racial history completely
lack credibility because those authoring the change lack clean hands
with
respect to the issue.
The level of partisanship aimed at the federal courts over the last several
years clearly threatens to undermine the institution. Judges already battered
by controversies over pay, Congressional investigations and threats of
impeachment over unpopular decisions have cried foul. Further, over 350
editorial boards, former Republican Senators, columnists and lawyers of
every ideological stripe, and organizations from across the political
spectrum have appealed to the Senate to step back from the "nuclear"
brink on judicial nominations. The leaders in the Senate must come together
to find a solution that will assure both that fair and responsible judges
fill vacant judicial seats and that the filibuster remains available for
use during the most extreme situations. If we expect people of integrity
to lead our courts, the time has come for reason to prevail over partisanship.
John Conyers, Jr.
May, 2005
A BUZZFLASH EDITORIAL
John Conyers, Jr., is the second most senior person serving in the U.S. House of Representatives. He is also the ranking Democrat on the House Committee on the Judiciary and a founding member of the Congressional Black Caucus.