An Open Letter to Sen. Lincoln Chafee

I sent this off to Sen. Chafee's office this morning

Dear Sen. Chafee:

With President Bush’s nomination of Pricilla Owen to the U.S. Court of Appeals for the Fifth Circuit now before the Senate, the long-expected showdown over the issue of permanent minority judicial filibusters seems imminent. You have indicated that you will not support a move to end judicial filibusters. That, of course, is your right. But perhaps you can take the time to explain to your constituents why you have chosen to join the Democrats in defending a practice that is at best obstructionist, and at worst, unconstitutional.

Opponents of changing the Senate rules regarding permanent minority judicial filibusters have launched what can only be called a campaign of misinformation, if not disinformation. You, of course, know that most of what the Democrats are saying on this issue is simply false. You know this because you have access to one of the finest research organizations in the world, the Congressional Research Service (CRS).

Here are some of the things you know to be true, but perhaps your constituents don’t. First, the Constitution is very clear in delineating when a supermajority is required. Two-thirds of both houses of Congress are required to amend the Constitution, which amendment must then be approved by the legislatures of thee-fourths of the states. Two-thirds of both houses are necessary to override a presidential veto. Two-thirds of the members of each house must vote to expel a member. A two-thirds vote of the Senate is necessary to convict an individual impeached by the House. And two-thirds of the Senate are required for consent to ratification of a treaty. No such supermajority is required to approve presidential nominees.

Indeed, Article II, Section 2, Clause 2 of the Constitution provides an illuminating juxtaposition of the Senate roles in both treaty-making and appointments:

"[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law…"

The clear sense of the language of this clause indicates that appointments require only a majority of Senators to provide the necessary advice and consent in the case of nominees, as opposed to approving treaties.

Second, you know that the Democrats’ claim that the proposed rule change undoes 200 years of precedent is nonsense. They get away with this by conflating the use of the filibuster to block legislation and its use to block judicial nominees. As you must know, the “200 years of precedent” refers to the former, not the latter.

From 1789 to 1806, a simple majority could end debate on a motion before the Senate. The rule change in 1806 permitted unlimited debate in the Senate that could be ended only by “unanimous consent” but the use of the legislative filibuster was rare until the end of the nineteenth century. In 1917, the Senate adopted the first cloture rule, Rule XXII, which provided for ending a debate by a vote of two-thirds of the senators present and voting. In 1975, the rule was amended to allow cloture by a vote of three-fifths of the Senate—which is why the current threshold for ending a filibuster is 60.

But again, this applied to legislation, not appointments. As former Minnesota Senator Rudy Boschwitz recently observed:

"For more than 200 years, just one judicial nominee was defeated by filibuster -- Abe Fortas in 1968 in extraordinary circumstances that are not comparable to the current situation. For more than 200 years, no minority leader ever organized a judicial filibuster. For more than 200 years, the Senate operated on the understanding that a majority of senators was entitled to carry out its constitutional obligation to advise and consent on federal judges. But now the Democratic leadership has cast aside Senate tradition to usurp the president's appointment power against nominees not meeting the minority's ideological benchmarks or litmus tests."

In other words, it is the Democrats’ use of the filibuster to block President Bush’s judicial nominees that is unprecedented.

You must also know that the claim by Democrats that 60 Clinton judicial nominees were “filibustered” by blue slips, holds, or other procedural devices, and that numerous other nominees in the 19th and 20th centuries were filibustered, is false. Here’s what Stuart Taylor, a Senior Non-Resident Fellow of the Brookings Institute and columnist for Newsweek had to say in the May 7 issue of The National Journal:

"It is … misleading for Democrats and liberal groups to claim that there are ample precedents for this filibuster-forever tactic. Their trick is to count as "filibusters" even genuine debates and short-term stalls that ended in cloture votes and confirmation.

"The fact is that only one judicial nominee in our history (Abe Fortas) has even arguably been blocked by the filibuster-forever tactic that Senate Democrats have used since 2003 to block 10 majority-supported Bush judicial nominees. (Three of the 10 have withdrawn.)

"And even the 1968 filibuster of then-Justice Fortas's nomination to be Chief Justice of the Supreme Court is a pretty weak precedent. That was a real floor debate, over ethical missteps as well as judicial philosophy. It lasted only a little more than a week. Then, President Johnson, having lost a cloture vote, withdrew the nomination at Fortas's request. This decision came amid damaging disclosures that might have led to defeat in an up-or-down vote."

No matter what the Democrats may claim, you certainly know that successful cloture votes, generic delays or blockages, or “blue slips” and holds are not the same as permanent minority judicial filibusters.

Opponents of ending judicial filibusters point to the clause in Article I, Section 5 of the Constitution stating that “Each House may determine the rules of its proceedings.” This is true, but there are two constitutional issues here. The first is the degree to which one Senate can bind future Senates with its rules. The second is the impact of Senate rules on the powers of the other branches.

While senators are understandably reluctant to disturb precedent, it is ludicrous to believe that a procedural rule, once instituted, should stand forever. Rule XXII, after all, disturbed the precedent that had stood since 1806 (Rule XXII was passed, by the way, not by a supermajority but by a simple majority). Sen. Robert Byrd, now an opponent of ending judicial filibusters, made this point on Jan. 15, 1979:

"This Congress is not obliged to be bound by the dead hand of the past … The first Senate, which met in 1789, approved 19 rules by a majority vote. Those rules have been changed from time to time … So the Members of the Senate who met in 1789 and approved that first body of rules did not for one moment think, or believe, or pretend, that all succeeding Senates would be bound by that Senate … It would be just as reasonable to say that one Congress can pass a law providing that all future laws have to be passed by two-thirds vote. Any Member of this body knows that the next Congress would not heed that law and would proceed to change it and would vote repeal of it by majority vote."

Would that Sen. Byrd still accepted the unassailable logic of this statement today.

While the Constitution permits each house to determine its own rules, logic dictates that a Senate rule governing its internal proceedings that limits the constitutional power of another branch is unconstitutional. Senator Chafee, do you believe that the Senate can reduce the number of votes necessary for consent to ratification of a treaty? If not, how can you believe that Senate Democrats can de facto change the number of votes necessary to confirm a presidential nominee, as they have by use of the judicial filibuster? To do so would seem to indicate that you believe the Senate has an amending power that constitutional scholars have not yet discovered!

Your Democratic allies claim that judicial filibusters are necessary because Republicans control both the White House and the Senate. But one or another party has often controlled both, yet filibustering judicial nominees was unheard of until used against President Bush’s nominees in his first term. As Sen. Boschwitz asks, “Has every Senate in American history been wrong constitutionally and traditionally?” As Abraham Lincoln, the man whose namesake you are, well understood, if a party does not like the makeup of the judiciary, it changes it by winning elections.

The Democrats claim that they are holding the line against the “extremists” that President Bush wishes to nominate to the federal bench. You cannot possibly believe that Pricilla Owen and Janice Rogers Brown are extremists. If you do, then the word no longer has any meaning.

But let’s look at the kind of judge that the Democrats believe acceptable. On May 5, 1994, President Clinton nominated district judge H. Lee Sarokin to the U.S. Court of Appeals for the Third Circuit. Senator Patrick Leahy (D-VT) called him “a judge of proven competence, temperament, and fairness” and “an excellent choice.” Consider a sterling example of this competent, temperate, and fair judge’s jurisprudence: Kreimer vs. Bureau of Police for the Town of Morristown. In this case, Sarokin ruled that the New Jersey town’s public library couldn’t enforce its written policies to expel a homeless man who regularly engaged in offensive and disruptive behavior and whose odor was so offensive that it prevented the library patrons from using certain areas of the library and prohibited library employees from performing their jobs.

According to a memo posted in the Congressional Record of 12 September, 1994 by Sen. Orrin Hatch, the Third Circuit, which reversed Kreimer, also criticized Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent.”

Sen. Hatch also observed that the New Jersey Law Journal had reported that Sarokin “may be the most reversed federal judge in New Jersey when it comes to major cases” and that a broad range of police and victim’s groups announced their opposition to his nomination. But while Republicans voted against him, they did not filibuster his nomination and a mere five months after he was nominated, the Senate confirmed him.

The press routinely describes you and other liberal Republicans as “courageous” when you oppose the policies of your party. But since Rhode Island is the most Democratic state in the Union, it does not take much courage for you to vote with the Democrats, as you often have done. Again, this is your right, but real courage in this case would be to stand with constitutional principle—indeed, with the Constitution itself—and vote to end permanent minority judicial filibusters. You could justify your decision to Rhode Islanders by invoking the wisdom of two prominent Democrats: Sen. Ted Kennedy (D-MA), who said in 1998 that “We owe it to Americans across the country to give these nominees a vote. If our Republican colleagues don’t like them, vote against them. But give them a vote;” and Sen. Barbara Boxer (D-CA) who said in 1997 that “It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.”

I myself prefer the wisdom of the country music philosopher, Aaron Tippin: “you’ve got to stand for something, or you’ll fall for anything.” Sen. Chaffee, please stand for something in this case—stand for constitutional principle.
Mac Owens*
Newport

*Mac Owens is a contributing editor to National Review Online and Anchor Rising. He has taught undergraduate and graduate courses on Congress and the Presidency at Catholic University in Washington DC and URI. He served on a Senate staff for nearly four years.