Right wing Republicans are ratcheting up their efforts to force the Senate to approve 10 judicial nominees who have thus far been blocked by Democrat led filibusters. The move now is to alter the Senate rules to ban filibusters, a movement led by the Christian right conservatives. This past weekend saw a broadcast on Christian TV and radio called "Justice Sunday, Stopping the Filibuster Against People of Faith" and featured, among others, a speech by Senator Frist.
First off, as a person of faith myself, let me get this off my chest. HOW DARE YOU! A church is a place to worship God, not a platform for politicians to corrupt and co-opt the Word of God for their own purposes! The pastor of Highview Baptist Church in Louisville, Kentucky, from which the show was telecast, should be fired. We Christians need to start standing up for the truth and stop allowing the politicians to abuse our faith and our God. I've written more on this from a Christian point of view
elsewhere.
I have bought into this argument in the past, before I got some of the information straight. The right-wingers portray this as a crisis and epidemic. It is not. Of the 215 judicial nominees brought up by the president, 205 have been approved by the Senate without recourse to filibuster. Only 10 of these nominees have been blocked. (That's compared to the
61 the Republicans blocked during the Clinton years through other procedural maneuvers.) It is hard, then, to argue that the nation faces a looming crisis.
Interestingly, both the left- and right- wingers argue the same essential point. They are both against "judicial activism", which is basically deciding things from the bench they disagree with. But there is a valid point here. The men and women appointed to these judgeships are appointed for life with little accountability for their decisions once they are approved. The law is whatever the judges say it is. There is tremendous power there to basically issue laws by judicial decree. Conservatives would argue this is what happened in
Roe v. Wade and in the Massachusetts Supreme Court decision to require gay marriage: a small group of judges bypassed the democratic process and decreed some laws.
On the general point, I would have to agree. The judiciary fundamentally has three options to choose from when answering questions about a law.
- yes, it is constitutional
- no, it is not constitutional
- none of the above, i.e. the constitution has no guidance so the decision is left to the democratic process and the will of the people
Increasingly it seems that third option is disappearing. Show me where in the constitution the founders addressed abortion or gay marriage. They didn't, so both should have been left to the will of the people expressed through the democratic process. Instead, the courts decided they had to provide an answer, and there is no appeal of their answer short of constitutional amendment, which is designed to happen rarely.
Because of the tremendous power instilled in the judiciary, and the fact that these judges will be there for life, great caution must be taken when considering nominees to the bench. Therefore, it is not unreasonable to have a procedural check on the power of the majority party to address concerns about specific nominees. Certainly this opens the door to abuse of that check, but that is something we have to live with in a democracy. Any of the checks and balances designed by the founders in the Constitution can be abused. But the idea that the nation should err on the side of caution and restriction is sound. So the right to filibuster should be maintained.