| I am speaking, of course,
of the continued Republican attempts to do away with
the filibuster in the Senate (as to judicial nominees
that the Republicans charge Democrats are holding
hostage).
Before dealing with the content of the debate, however,
it is worth pointing out that, as with so many other
issues, American public opinion is against the right
wing Republicans leading the charge. A recent poll
conducted at the end of April by the Washington Post
and ABC News found that Americans as a whole do not
favor changing the filibuster rules, by a factor of
two to one. The Republicans surveyed split on the
proposed changes virtually half and half, with solid
majorities of Democrats (eight in ten) and independents
(seven in ten) against the proposed modifications.
This, however, is not keeping Senate Majority Leader
Bill Frist from continuing his ill-advised maneuver
to change Senate procedure. Lately Frist has taken
up the battle for one specific judicial nominee, Priscilla
Owen. She was one of three ultra-reactionary female
nominees, along with Carolyn Kuhl and Janice Rogers
Brown, that Bush trotted out in the fall of 2003 in
his now-familiar stratagem: Democrats must confirm
right-wing extremists or be charged with sexism and
racism. Yet Owen still seems an odd choice to have
become, 18 months later, the leading figure that Frist
trumpets, such as when he singled her out during a
speech broadcast to the so-called “Justice Sunday”
rally of right-wing churches on April 25, or another
speech on the 28th.
Owen is a perplexing selection as a poster-woman
for the uber-right’s destroy the judiciary campaign
because, of the handful of judges whose nominations
have been affected by Senate filibusters, she may
be the most unappealing on the basis of her record.
She is such a judicial extremist that even conservative
Republicans often don’t support her—in
the most ironic case, Attorney General Alberto Gonzales,
who served with Owen on the Texas Supreme Court, singled
her opinions out in eleven of his dissents, decrying
her “unconscionable act of judicial activism,”
in one case.
Owen won her spot on the Texas Supreme Court in
1994 (an elected position) by using that old White
House friend Karl Rove as a campaign consultant. From
her first days on the bench, Owen went out of her
way to engage in the type of judicial legislating
with which Republicans are forever charging Democrats—in
one of the most controversial cases, trying to make
it even harder for minors to have abortions in Texas
than the Texas Legislature wrote into the law at issue
before her. It was in that case that Gonzalez, a conservative
Republican with right-wing credentials sufficient
for him to have filled John Ashcroft’s shoes,
wrote a scathing opinion detailing his horror at the
unprincipled way in which she approaches the law.
Owen is not held in high esteem by her peers—the
most recent American Bar Association survey of Texas
jurists showed that more (47%) deem her performance
on the bench “poor” as compared to any
other judge in the state, with particularly terrible
marks with regards to whether she is, “Impartial
and open-minded with respect to determining the legal
issues.” She has won zero support among Democrats
in the Senate, and is not a favorite of many Senate
Republicans as well. She is the first nominee to ever
be rejected by the Senate Judiciary Committee, and
then re-nominated by the president—so Frist’s
characterization that a Democratic filibuster is keeping
her from office is plainly erroneous; Owen would not
even be up for nomination again if Bush wasn’t
grimly and doggedly determined to force her through
the confirmation process, “advice and consent”
be damned.
Speaking of the Senate’s constitutionally-mandated
duty to provide advice and consent with regards to
judicial nominations, I suppose now is as good a time
as any to point out that even the damage Priscilla
Owen could wreak upon the fabric of the nation’s
laws in an appellate post would be nothing compared
to the harm that a similar judge could inflict if
placed on the Supreme Court. And that, make no mistake,
is the real target of the filibuster debate. Chief
Justice Rehnquist is expected to retire from the bench
this spring or summer, and whoever replaces him will
wield extraordinary power over the Supreme Court.
It is widely speculated that Bush’s top choices
to elevate to Chief Justice are the two most conservative
Justices; Antonin Scalia and Clarence Thomas. Both
would have difficulty obtaining Senate approval, particularly
Thomas. And perhaps the most tooth-and-nail fight
will come when Justice Sandra Day O’Connor retires,
again expected before 2008—since O’Connor
provides the crucial “moderate” swing
vote on so many issues, the right is committed to
replacing her with a reactionary zealot. If the filibuster
is taken away, Bush will be free to ramrod another
brazen ideologue like Thomas or Owen into a position
with breathtaking importance.
Frist and the rest of the hardline Republicans seem
to have forgotten that the last time a filibuster
was used to prevent promoting a sitting Supreme Court
Justice into a newly-vacant Chief Justice position,
it was Republicans who wielded it; in 1968 against
President Lyndon B. Johnson’s nomination of
Abe Fortas. But who wants to let a little history
get in the way of naked political thuggery? Frist’s
attempts to characterize the filibuster as an extremist
measure that goes against the American way of democracy,
after all, ignore its long and justified history.
It is not, as Frist proposes, a method to allow a
handful of extremist politicians to force their opinions
upon the rest of the legislature—with today’s
cloture rules, at least 41 Senators must hold together
to keep a filibuster going. A substantial plurality
of Senators is hardly the harshly antidemocratic institution
Frist thunders against. In fact, in 1995, when Democratic
Senators Tom Harkin and Joe Lieberman proposed similar
changes to those Frist champions now, many of the
Republicans currently supporting the transformations
fought passionately against them.
It is true that the filibuster is technically anti-majoritarian.
But the very structure of our government is anti-majoritarian
in countless ways: the very Senate itself, with two
Senators given to every state regardless of population;
the Constitution’s prohibitions on majority-enacted
laws that violate freedom of religion or speech, or
equal protection; the super-majorities needed to amend
the Constitution; the independence of the judiciary,
with life terms of unelected judges determining in
a very real way the laws under which all Americans
live; the staggered elections of Senators; the electoral
college; the super-majority required for conviction
in impeachment; the very separation of powers between
three branches of government in which checks and balances
frequently delay or halt measures that, at one point,
had majoritarian support. America is not a pure democracy,
and that is a good thing. It is because we believe
in the rights of a minority, and even of an individual,
that the Constitution limits the political power of
the majority, even if 99% of Americans might want
to take protected freedoms away from the other 1%.
Bill Frist insists that getting rid of the filibuster
only in the cases of judicial nominees such as Priscilla
Owen is the democratic thing to do. If you believe
that America should be run by national referendum,
then perhaps he’s right. But if Frist really
wanted to effectuate the tyranny of the majority,
he’d resign his post in the more undemocratic
of the national legislature’s chambers and spend
his time campaigning against the Constitution. Like
all demagogues, Frist only supports absolute majority
rule when he is in the majority. Like the hypocritical
oligarchs who seek to own America, Frist is happy
to use the Constitution when it benefits him, but
ready to trash the Constitution when it obstructs
his will. This is the lesson that each generation,
each voter must re-learn: the Constitution can only
protect us if we protect the Constitution.
Dara
Purvis can be reach each Monday on Raw Story. You
can also visit her on the web at www.darapurvis.com.
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