Thursday, September 29, 2005

Roberts, filibusters and Judicial "activism"

John Roberts has been sworn in as the 17th chief justice today. It doesn't come as much of a surprise, really. He wasn't horrific and probably a pretty sound replacement for Rehnquist. If I had a vote, I'd have supported him. Democrats lost this battle back in November 2004.

Of course, the next big fight in Washington will be over Sandra Day O'Connor's replacement. Call it the Battle of the Bench 2005 (v 2.0). There has been a lot of speculation about the replacement. My gut is that even though President Bush's approval ratings are in the high 30s and the Republican Congress is quickly joining him down there, the President will pick someone much further to the right of O'Connor. When President Bush does that, should the Democrats filibuster?

I have two thoughts about the filibuster.

The first is that it appears to be an important way to ensure minority rights over majority tyranny, but I understand the argument that the party elected to the majority should be able to establish its legislative agenda.

My second is that if you are going to abolish the filibuster on philosophical grounds, it must be abolished across the board. Not just for judicial nominations, but also for legislation. That is the only way to be consistent, honest and not hypocritical. While in the short term Republicans will pack the courts with justices, the history of the filibuster has been one that has blocked progressive legislation A LOT more than conservative ones.

Yet, again that isn't what Bill Frist has promised. Instead he has said, "The Frist-Miller reforms would be a civil, constructive and cooperative way to end the filibuster of judicial nominees." (emphasis mine) which goes to show that the Republican Party is Pharisetical on this. This is simply a play to Dobson et al for future support and thanks for previous voter turnout. This isn't for the good of all America.

The problem is that Dobson et al are so far out of the mainstream for support that they have begun to circumvent our democratic processes. Dobson et al have given up on getting laws passed because they just don't have the support. There has been little movement on their pet issues. President Bush has declared the gay marriage amendment dead, abortion restrictions have stalled, faith-based initatives have been chronically underfunded. Now Dobson et al want to co-opt the same process they say the godless secularists have been using for 20 years to force America to adopt horribly liberal policies like outlawing the death penalty for minors, rights of communities to regulate pollution and ensuring equal protection for all citizens before the law.

Dobson and Tony Perkins believe that Congress should simply get rid of courts they don't like. "Very few people know this, that the Congress can simply disenfranchise a court," Dobson said. "They don't have to fire anybody or impeach them or go through that battle. All they have to do is say the 9th Circuit doesn't exist anymore, and it's gone."

Socially-conservative Christians have framed this as a war against people of faith. "Justice Sunday" was the culmination of that effort. The belief is that judges are granting rights from the bench that legislators never invisioned or wanted. Dobson has compared the Surpeme Court to the Klu Klux Klan. Dobson et al claim massive "judicial activism" within our 3rd branch of government, but that seems strange when GOP-appointed judges already control 10 of 13 appeals courts. This idea of judicial activism is extremely overblown. By their very nature, judges have to make calls on the specific versus the abstract. They aren't radicals or racists, they are real people trying to make the notional concrete.