Post-Gazette Editorial – 4/7/05

This page was last updated on April 10, 2005.

No nukes / To end the filibuster would be a huge mistake; Editorial; Pittsburgh Post-Gazette; April 7, 2005.

I don’t know if ending the judicial nominee filibuster is a good thing or not, but I had to address the editorial’s laughable “logic.”

If you’ve been following this issue, you know it’s about eliminating the ability to filibuster a judicial nominee. There is no proposal to eliminate completely the filibuster. Liberals, though, tend to want us to believe it’s about completely eliminating the filibuster.

Below is a detailed critique of the subject editorial.

4/10/05: Below I mentioned why I believed the editorial failed to describe why Abe Fortas was filibustered for promotion to Supreme Court Chief Justice in 1968. I just learned something else the editorial failed to note, and I forgot. Due to financial improprieties after his original appointment as Associate Justice, Justice Fortas resigned in early 1969.

As I’ve noted elsewhere in my critiques, what is not reported is as important as what is reported.

“Congressional Quarterly, the highly respected, nonpartisan chronicler of government and politics, recently devoted the cover of its magazine, CQ Weekly, to a provocative subject: Whether conservatives are really conservative anymore. It noted that a movement that began as respectful of traditions and institutions is now more interested in using federal power to get results.”

[RWC] If CQ or the PG believe the conservative movement “began as respectful of traditions and institutions,” I believe they are woefully ignorant and/or deceitful. Indeed, the movement we refer to today as “conservative” is also referred to as “classical liberalism.” That’s because at the time of the movement’s birth – the late 1700s, I believe – it was referred to as liberalism. Given the status quo were kingdoms and other dictatorships, what we now call conservatism was anything but “respectful of traditions and institutions.” Today’s liberals hijacked the term liberalism for themselves sometime during the late 1800s/early 1900s.

“The catalyst of the magazine’s focus was the case of Terri Schiavo, in which Congress and President Bush with a fine disregard for conservative principles combined to try to get the federal courts to intervene in one state’s -- and one family’s -- business. But another example of conservatives being disrespectful of traditions is looming -- and it also involves judges.

“President Bush has been frustrated because some of his judicial nominations have been blocked in the U.S. Senate. This is not a new complaint, because President Bill Clinton had a similar problem. In his case, it was because Republicans considered his nominees too liberal and used their strength to keep them bottled up, although none were filibustered.”

[RWC] The editorial avoids a point by saying “some of his [President Bush] judicial nominations have been blocked.” In reality, not all appointments are equal. The threatened Democrat filibusters were for “influential” appointments that could have led to the judge’s future nomination for the Supreme Court. Judges who interpret the Constitution based on what it says – not on what they want it to say – scare the daylights out of liberals.

“During the Bush years, Democrats have resisted some of his judicial nominees for being too right-wing -- a fair complaint in a few cases. Ten of Mr. Bush’s appellate nominees were filibustered, Yet, [sic] at the same time, the Senate approved 204 of his nominations for the federal bench.”

[RWC] Note the editorial didn’t identify the “few cases” and provide evidence to support the claim. The editorial also didn’t define what it considers “too right-wing.” Remember, the PG concedes it’s “generally liberal on social issues.” To liberals, you are a “right-wing” judge if you interpret the Constitution based on what it says, not on what you want it to say.

“Emboldened by his re-election victory, Mr. Bush is in no mood to compromise, even though he has gotten 95 percent of what he wanted. He has provocatively renominated seven of his thwarted judicial candidates. Senate Republican leader Bill Frist has threatened to end the filibuster so that Mr. Bush’s choices can be confirmed without any parliamentary interference. Sen. Frist would do this with the so-called nuclear option.”

[RWC] “Emboldened?” Isn’t President Bush keeping a campaign promise? Isn’t this what elected politicians are supposed to do?

“In the American system of checks and balances, the filibuster occupies an important position. It is a 200-year-old Senate tradition that has allowed a minority to apply a brake on majority rule. (This is the maneuver used by the fictional Sen. Jefferson Smith in the famous film ‘Mr. Smith Goes to Washington.’)”

[RWC] I wonder why the editorial had to mention a fictional filibuster to justify its position – not. The reason is simple. The editorial could not afford to mention Senate Democrats used the filibuster in an attempt to derail the 1964 Civil Rights Act. The filibuster failed when Republicans delivered the votes needed to force cloture. Yeah, the filibuster has a glorious history.

“It now takes 60 votes to cut off a filibuster, but under the nuclear option a simple majority would be required. Why would Republicans contemplate changing a Senate rule to set aside a practice that has served the republic well since its earliest years?”

[RWC] The editorial fails to note both the House and Senate originally had this provision. If my history is correct, the House eliminated from its rules what we now call the filibuster in the mid-1800s. If giving the minority the ability to impose its will on the majority is such a good thing, why doesn’t the editorial lobby to have it reinstated in the House? Isn’t the minority imposing its will on the majority what dictatorships and kingdoms are all about?

“Frustration only explains part of it. Contrary to recent claims, Republicans have used the filibuster for judicial nominations themselves -- for example, they did so in 1968 to oppose President Lyndon Johnson’s attempt to elevate Supreme Court Justice Abe Fortas to become chief justice.”

[RWC] There’s a good reason the editorial didn’t mention why Republicans filibustered Mr. Fortas. Based on his actions as a sitting justice, he had no business remaining on the Court, let alone becoming Chief Justice.

Here’s an excerpt from the Senate web site on the issue.

“Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam.”

Based on this behavior, I don’t believe Mr. Fortas should have remained an associate justice, let alone be promoted to Chief Justice. Can you imagine the justifiable uproar we’d have today if we learned a Supreme Court justice regularly attended White House staff meetings, briefed the president on secret Court deliberations, and, on behalf of the president, pressured legislators to support Bush administration policies? The same group who defends Mr. Fortas’ appointment are the same folks today talking about an independent judiciary.

“It may be that this is all about lowering the bar before a Supreme Court nomination comes along. But mostly it seems to be contemplated because of hubris: They want to do it because they can. The Republicans who now rule can’t seem to imagine ever being in the minority again, the attitude once of smug Democrats.”

[RWC] What lowering of the bar? It’s always required only a simple majority of senators to approve a nomination. The editorial wants us to believe approval required 60 votes.

“That should be a warning to them. In the ups and downs of American politics, the filibuster has been a bulwark against excess in every season. If the nuclear option is exercised, bitter divisions will roil politics for a generation. Might does not make right, and conservatives will come to regret abandoning their old respect for tradition.”

[RWC] “The filibuster has been a bulwark against excess in every season?” Does the PG consider the 1964 Civil Rights Act to be “excess?”