Reid: No Filibusters of Extreme Supreme Court Nominees
President Bush will have breakfast this morning with the top Republican and Democrat from the Senate and its Judiciary Committee as part of the advise and consent process the Constitution requires for court nominees. We already have some interesting news, though: Senate Democratic Leader Harry Reid has said that he does not expect a filibuster of even an “extreme” nominee.
President Bush is consulting face-to-face with four top senators about the Supreme Court vacancy, but the lawmakers suspect they’ll leave without learning the names on Bush’s short list. While the president has held telephone conversations with the four senators before, Bush’s breakfast with the four Tuesday is their first meeting in person about the vacancy. “The president is not prejudging anything,” White House press secretary Scott McClellan said Monday, adding that Bush and his advisers have reached out to more than 60 senators. “He wants to hear what their views are and hear what they have to say as we move forward on a Supreme Court nominee.” But if the meeting is like the phone calls, Bush isn’t going to share his favorite candidates.
Bush is meeting with Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee; Sen. Patrick Leahy of Vermont, the ranking Democrat on the committee; Senate Majority Leader Bill Frist, R-Tenn.; and Democratic Leader Harry Reid of Nevada. Reid and Leahy say they appreciate the conversations that they’ve had with Bush, but they say the onus is on the president to smooth the way for a nominee by alerting Democrats to his thinking.
“I won’t consider it a disappointment if he doesn’t give us names,” Reid said. “But we’ve got to have some idea of what he expects from us, and give us some idea of what we can expect to see from him.” Leahy said he hopes the meeting is a step toward even more consultation between the White House and the Senate. “There are potential candidates who would unite Americans and those who would divide us,” Leahy said. “Meaningful consultation is more than checking off a box. It means a real dialogue that can help the president find a good nominee who could have overwhelming bipartisan support.”
Reid said several senators had suggested names to the White House, but it’s important that Bush share names too. The Nevada senator said he does not anticipate that Democrats will filibuster a Bush nominee whom they consider extreme. But he added, “I’m not going to shy away from making sure that we have adequate time to explain our position if the president doesn’t follow through on a consensus” nominee.
Although acrimony has marked most of the even somewhat controversial hearings over the past several years, it certainly doesn’t have to be that way. Antonin Scalia and Ruth Bader Ginsburg, well known as a strong conservative and liberal, respectively, had easy confirmations not that long ago.
There are many reasons for the more rancorous atmosphere in Congress: an increasingly polarized electorate, the gerrymandering of districts to create seats safe for one party, the coarsening of the public discourse generally, and so forth. But a large part of the explanation is the changed nature of the High Court itself. As, Scalia observed in his dissenting opinion in Planned Parenthood v. Casey with respect to the majority’s concern about the large demonstrations that greet abortion cases:
How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law, but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it.
What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text […] then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.
Given that the Courts have politicized themselves, it’s small wonder that the elected politicians treat them as if they are political actors.