Sunday, January 29, 2006

Where are the Mr. Smiths In Washington?

Mr. Smith Comes to Washington
By Paul Savoy
Common Dreams

Saturday 28 January 2006

Dad always used to say the only causes worth fighting for were the lost causes.

- Jimmy Stewart as Senator Jefferson Smith in "Mr. Smith Goes to Washington."
How many senators does is take to launch a filibuster? If you said 41, you'd be wrong. It takes only one.

The term, filibuster, from a Dutch word meaning "pirate," describes a hallowed tradition of unlimited debate in the Senate based on the principle that any senator has the right to talk his head off for as long as he wants on any issue. That is, until at least 60 senators vote to shut him up.

In the classic Frank Capra film, "Mr. Smith Goes to Washington," Jimmy Stewart, playing freshman Senator Jefferson Smith, carries on a one-man filibuster for more than 23 hours until he passes out from exhaustion. Smith, an idealistic senator from an unnamed state, reads from the Declaration of Independence, and summons his colleagues to get up there with that Lady of Liberty on top of the Capitol Dome and take a stand against "compromise with human liberties."

Senator John Kerry, in announcing that he and Senator Edward Kennedy would participate in a filibuster against the confirmation of Judge Samuel Alito, said, "It's not 'Mr. Smith Goes to Washington.' . . . It takes more than two or three people to filibuster successfully."

At least five other Democrats have announced their support for the filibuster: Senate Minority Leader Harry Reid, Assistant Minority Leader Dick Durbin, Dianne Feinstein, and Hillary Rodham Clinton. But, in trying to block the confirmation, each of these senators may have to be a "Senator Smith" to succeed in demonstrating the danger a Justice Alito would pose to civil rights and civil liberties.

Judiciary Committee Chairman Arlen Specter has defended Judge Alito's refusal to answer specific questions from Democratic senators aimed at showing the American people just how frightening a Justice Alito would be. The distinguished senator from Pennsylvania has declared that the nominee "has answered questions as far he could go." Judge Alito said it would not be "appropriate" for a judicial nominee to express his views on issues that might come before him if he were appointed to the Court. Well, it turns out that Judge Alito and Senator Specter are wrong. Who says? The Supreme Court. That's who says.

In 2002, the Supreme Court, in Republican Party of Minnesota v. White, 536 U.S. 765, declared that it is not only proper for a judicial candidate to express his views on disputed legal issues - the First Amendment guarantees him the right to do so. In an opinion written by Justice Antonin Scalia, and joined by then-Chief Justice Rehnquist, and Justices O'Connor, Kennedy, and Thomas, the Court concluded that a Minnesota canon of judicial conduct which prohibited a candidate for judicial office from announcing his position on abortion rights and other controversial issues violated his right to freedom of speech under the First Amendment.

The Minnesota decision yields three fundamental constitutional principles:

First, a judicial nominee has a First Amendment right to express his specific legal views on controversial issues even if they are likely to come before him should he be confirmed.

Second, a necessary corollary of the nominee's right to express his views is the right of the people and their representatives in the Senate to know them. This right entitles the people to know not only a nominee's judicial philosophy or general legal views, but, according to the Court in the Minnesota case, how those views are "exemplified by application to a particular issue of construction likely to come before [the] court - for example, whether a particular statute runs afoul of any provision of the Constitution."

Third, and most important, in the absence of specific answers to senators' questions about a nominee's views, his confirmation would be a violation of the Constitution's Article II requirement that the Senate exercise its "Advice and Consent" function in an informed manner. This implication from the Court's Minnesota decision, as Justice Ruth Bader Ginsburg explained in her dissent, is clear: "[B]y the court's reasoning, the reticence of prospective and current federal judicial nominees dishonors Article II, for it deprives the President and the Senate of information that might aid or advance the decision to nominate or confirm."
The Court specifically rebuffed the kinds of arguments Judge Alito's supporters have made in defense of his refusal to answer questions about whether he believes Roe v. Wade should be overruled, or if the President acted unlawfully when he ordered electronic eavesdropping on Americans without a warrant. Announcing his views, Alito's defenders argue, would compromise his impartiality. They say that a preconceived view about the law would make a judge less open-minded in deciding particular cases.

Resoundingly rejecting this argument, Justice Scalia, writing for the majority in the Minnesota case, said, "A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law."

Quoting from an earlier opinion by Rehnquist regarding the Supreme Court itself, Scalia continued: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another."

"Indeed, even if it were possible to select judges who did not have preconceived views on legal issues," Scalia declared, "it would hardly be desirable to do so." Quoting Rehnquist again, Scalia wrote: "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." The "blank mind" argument, Scalia quipped, "contemplates a federal bench filled with the unfit."

A discussion by a judicial candidate of his constitutional views is not the same as a promise to produce a particular result. While Justice Scalia indicated that "pledges or promises" remain unprotected by the First Amendment, his opinion for the Court makes clear that it is perfectly proper for a judicial candidate to go beyond a discussion of his judicial record or his methodology for deciding cases, and to say, for example, whether he believes the Constitution protects a woman's right to an abortion, or whether he would overrule Roe.

Although the Minnesota case articulated a right of a judicial candidate to express his views in the context of a process of electing judges, the Court's First Amendment rationale necessarily extends to the federal system of nomination and confirmation, and, as a necessary corollary, to the people's right to know the views of a candidate or nominee. In an election, a judicial candidate has a First Amendment right to announce his legal views because under our judicial system, the Supreme Court explained, judges not only find the law and apply it; they often "make law themselves" or "set aside the law enacted by the Legislature." Therefore, citizens need to know how a candidate is likely to change the law by overruling precedent or invalidating statutes or executive orders. This power of judicial lawmaking exists whether a judge is elected directly by the people, or nominated by the President and confirmed by the people's representatives in the Senate. In both cases, the people have a right to know what kind of imprint a candidate or nominee is likely to make on judge-made law.

To be sure, Judge Alito remained free not to state his views. However, as Senator Feinstein pointed out during the confirmation hearings, if a nominee chooses to remain silent, senators are entitled to vote against him for this reason and this reason alone. This may thrust the nominee on the horns of a dilemma, but he cannot escape it by pleading judicial ethics. "[I]f you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know."

A CNN/USA Today/Gallup poll conducted after the confirmation hearings shows that 54 percent of the American people support Judge Alito's appointment. But when asked about their support if they became convinced Alito would overturn Roe, opinions dramatically shifted: from 54 percent in favor, to 56 percent against his confirmation.

The people's "right to know" is therefore central to the confirmation process. So, it is hard to understand why Democratic senators on the Judiciary Committee were not trumpeting the Supreme Court's Minnesota decision from the Capitol Dome. Whatever the reason, the effect has been to keep the people in the dark about a constitutional right to know a nominee's legal views.

The "Advice and Consent" function of the Senate mandated by Article II of the Constitution means informed consent. For too long, trying to understand how a nominee would shape the fate of millions of Americans has been like reading tea leaves. Today, in light of the Minnesota decision, senators would be violating their constitutional duty under Article II if the Senate were to vote on Judge Alito's nomination without more information about how he is likely to decide some of the most momentous issues of our time.

The prospect of an unconstitutional confirmation gives rise to "extraordinary circumstances" - the standard agreed upon by a bipartisan group of 7 Republican and 7 Democratic senators (the so-called Gang of 14) to justify a filibuster.

To defeat a "cloture" motion to end debate, supporters of a filibuster do not actually have to gather 41 votes to defeat the motion; they merely have to persuade enough colleagues to simply abstain from voting so that filibuster opponents do not achieve the 60 votes required for cloture. For example, a 59-29 vote to end debate, with 12 senators abstaining, would not be sufficient to carry a cloture motion, and Judge Alito's nomination could not be brought to an up-or-down vote.

The abstention option provides the necessary cover for Democratic senators who do not want to participate in a filibuster, but who can be persuaded to at least refrain from denying colleagues the Senate's more than 200-year-old privilege to speak on an issue for as long as a senator wishes. Respecting that privilege is imperative when, as here, a filibuster is conducted to (1) inform the American people of their First Amendment right to know a nominee's views, and (2) honor a senator's duty under Article II to block a judicial appointment that would be unconstitutional.

No answers should mean no confirmation.


Paul Savoy is a former prosecutor and professor of constitutional law, and a past dean of the John F. Kennedy University School of Law.


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