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"Justice - What's Ahead?" - Remarks to the New York Law School Shainwald Lecture

Location: Washington, DC

June 1, 2005


(As Prepared for Delivery)

I'm grateful to Ken Feinberg for that generous introduction. As you all know, Ken did a brilliant job as Special Master of the 9/11 Victim Compensation Fund. He's a model of the familiar slogan of the Army Air Corps in World War II -- "The difficult we do immediately; the impossible takes a little longer." Many of us feel Ken would be the perfect Special Master for the Senate these days. I'm grateful to Sybil Shainwald as well. She's a remarkable public interest lawyer herself, and a benefactor of so many good causes, including this important series of lectures in tribute to her husband Sidney. He, too, devoted his professional life to the public interest through his many years of work for Consumers Union. I also thank your Dean and President, Rick Matasar for inviting me to be here today, and for enabling the law school to be such a vital and responsive institution in so many fields, and for encouraging the school and its graduates to be active in advancing the public good. The subject of my remarks today is "What's Ahead," but history is really what I came to talk about-- how the future will look upon what happened in Washington last month. For May 2005 in the United States Senate was one of those special times when we could sense history actually happening around us. We felt that some day, 50 or a hundred years from now, a future historian would be trying to sense what it was like back in 2005, when the nuclear war over the filibuster reached . . . whatever it was we reached last week. Some of us felt a little like the way President Kennedy felt in October 1962 when he first heard that the Soviet ships had turned back during the Cuban Missile Crisis. But was it the end of the war? A truce in the war? Or just a lull in the on-going battles of the war? During the past week, we have heard all those descriptions, and we can only guess what will come next. Let me at least give you this participant's view so far: The Senate has 55 Republicans and 44 Democrats and one Independent, a former Republican who now usually votes with Democrats. The Constitution specifically gives the Senate the power to make its own rules. And one of those rules makes it completely clear that it takes 60 Senators to shut off debate on legislation, on a treaty, on a nomination -- on anything except a rules change, which takes 67 votes. When I first arrived at the Senate in the 1960's, party lines were less rigid, and civil rights was the most divisive issue. Many Republicans were as progressive as any Democrats, and many Democrats were as retrogressive as any Republicans. The Republican leader, Everett Dirksen of Illinois, was indispensable in producing the votes needed to shut off debate on the landmark civil rights legislation of those years. It's a different world in today's Senate, where party-line voting is much more common. The partisanship came to a boil over President Bush's judicial nominations, when it became clear that the President had delegated the selection of key lifetime appellate judgeships to the most ideologically extreme elements of his constituency, and demanded that all Republican Senators toe the line. For Democrats, our only effective response was the filibuster, and though it had acquired a bad reputation when it was used to delay civil rights legislation in the first 60 years of the 20th century, it was still central to the essence of the Senate. The role the framers of the Constitution gave us was to be a moderating influence on the House of Representatives and the White House, the parts of the government most likely to move with the shifting winds of public opinion. The Senate is the heart of the system of checks and balances they built to protect the country against both the pressures of transitory popular opinion, and the overreaching of a popular President. The framers had lived as subjects of a tyrannical monarch with absolute power, and after winning their independence, they wanted to make sure that the new nation never faced that prospect again. They embodied that assurance in a strong Senate, with six-year, overlapping terms, compared to two-year terms for the House of Representatives and a four-year term for the President. And they gave us special powers, including joint power with the President over judicial appointments. To make sure that federal judges are independent, the framers gave them lifetime appointments and prohibited any reduction in their pay. During much of the Constitutional convention, to make judges completely independent of the President, the framers planned to give the Senate the sole power to appoint judges. But in a last minute compromise, they divided the power between the President and the Senate, allowing the President to nominate judges, but requiring the Senate's advice and consent before they could take their seats on the courts. In the two centuries that followed, numerous battles erupted over the nomination of particular judges. But the nearest precedent to the current impasse took place over President Franklin Roosevelt's court-packing plan in the 1930's, where the very conservative Supreme Court of that era was consistently holding major parts of FDR's New Deal unconstitutional. Roosevelt proposed legislation to expand the number of justices, so that he could put more liberal views on the Court. In a sense, his plan was the nuclear option of its time and the Senate refused to accept it. The impasse was eventually resolved when, just as the debate reached its most intense, one of the sitting justices changed his views of the constitutional power of the President and Congress. The crisis eased, and the action of the justice became known as "the switch in time that saved nine." In recent years, President Bush began overreaching in selecting nominees to key federal courts and Senate Republicans gave their lock-step support. The filibuster became the only realistic way for Senate Democrats to assert "advice and consent" power. We used the method extremely sparingly, on only 10 of his most blatantly extreme judicial nominations, allowing 210 others, most of whom we would not have selected ourselves, to be approved by the Senate. To get some idea of the modesty of our resistance, consider that Republican Senators blocked over sixty of President Clinton's judicial nominees through various methods of preventing a Senate vote. Repeatedly, President Bush rejected our clear advice to select new nominees, and insisted on the ones he had already submitted. He gave two of them recess appointments, although at least one was done in a way that was probably unconstitutional. After the 2004 election gave him a larger number of Republican Senators, he re-nominated most of those we had already declined to approve, and developed a far-out parliamentary strategy to circumvent the filibuster. The Republican mantra became, "every judicial nominee has a right to an up-or-down vote" on the Senate floor. They threatened that if the filibusters continued, they would arbitrarily change the rules of the Senate to require only 51 votes to cut off debate, not the 60 now required. That strategy was quickly dubbed "the nuclear option," because of the massive damage it would do to the Senate as the place in government where the principle of majority rule had been softened by the framers to prevent the majority from riding roughshod over the minority. To justify the strategy, Republicans claimed that a Senate vote on a judge was constitutionally required. But when pressed, Senate Majority Leader Bill Frist agreed that there was no such provision in the Constitution. Since Republicans themselves had used various strategies to block dozens of Clinton nominees from receiving votes, few took their "constitutional" argument seriously, although it was repeated incessantly. The next GOP argument was that there was no precedent for using filibusters against judicial nominations. The Senate debate rules make no distinction between judicial nominations and other matters, and the Republican filibuster of the nomination of Abe Fortas in the 1960's proved the argument was false, although it too was constantly and shamelessly repeated. Our argument was that the Constitution is simple and direct: the President's nominations need the Senate's consent, and if he does not get it, for whatever reason, the nomination fails. That has been the rule for over 200 years, and every Republican knew that. Most important of all, in order to change the Senate rule requiring 60 votes to cut off debate, the current rule requires that an even larger majority -- 67 votes, is needed to stop debate and move to a vote on the rules change itself. The Senate has such a rule because it is not and has never been a majoritarian institution. Its own structure, with 2 Senators from each state, regardless of size, was a fundamental commitment by the framers to prevent tyranny by the majority. The ability of a strong minority in the Senate to be heard, and heard as long as necessary to make its point, or even to prevent action at all, enabled the Senate to maximize its role in the system of checks and balances, to be the final brake when the House of Representatives or the White House was at risk of being too extreme. That role of the Senate is especially important when it is fulfilling its obligation to protect the independence of the courts from a President who is attempting to pack the courts with ideological clones of his most extreme adherents. Republicans knew that if they obeyed the rules, they did not have the 67 votes needed to change the rules, so they decided to break the rules by insisting that a majority of 51 could abolish the filibuster rules. With the Vice President on hand to break a 50-50 tie, they said they would need only 50 Senate votes. In doing so, they would have rendered the minority in the Senate as powerless as the minority in the House, where the party in power gives the minority party almost no say in what legislation passes, or even what amendments can be voted on. The "nuclear option" would cause a far-reaching transformation in the Constitutional role of the Senate, destroying the system of checks and balances that the framers relied on to keep the nation from veering off-course. It would allow an aggregation of power not seen since King George was our monarch. It would allow Republicans who already control the White House, the House of Representatives, and to a large extent the Senate, to bring the courts to heel as well. It would be a modern demonstration of the truth that power corrupts, and absolute power corrupts absolutely. Not all Republicans were eager to take this unprecedented step. They felt the end they supported did not justify the means they were being asked to use to reach it. Principled dissent began bubbling up in the Senate Republican caucus and among former Republican Senators respected by their current colleagues. Other Republicans took a pragmatic view. They recognized that the pendulum of politics could swing, and install a new Democratic majority in their place, and they would not want that majority to have unlimited power. When the full story of the Senate's recent nuclear standoff is written, we may well find that over a dozen, and perhaps two dozen, Republicans, had serious doubts about where their leadership was leading them. And so negotiations began that led to the bipartisan agreement last week in which seven Democrats agreed to be especially selective in their support for filibusters, and seven Republicans agreed not to support the nuclear option. Their votes alone could decide the outcome of any filibuster, or of any attempt to use the nuclear option. Their agreement had four basic parts: First, the 7 Democrats agreed to vote to end a filibuster on three extreme pending nominees, but reserved the option to support a filibuster on two other such nominees. Second, on future nominations, the 7 Democrats agreed that the filibuster should be supported only under "extraordinary circumstances," a standard left to each one's own discretion. Third, in return, the 7 Republicans agreed to oppose the nuclear option for the rest of this Congress -- that is, until the next Congress convenes in January 2007. Fourth, emphasizing the "advice" part of the advice and consent requirement of the Constitution, all 14 Senators urged the President to consult with members of the Senate, both Democratic and Republican, before submitting judicial nominations. When I first heard about the agreement, I was disappointed, since we strongly opposed the three nominees who were given a green light for confirmation. As a result of the agreement, one of them, Priscilla Owen, has already been confirmed, despite repeated criticism from President Bush's own Attorney General, when he served with her on the Texas Supreme Court, that she was a "judicial activist" who invented law to reflect her own extreme ideology, The second, Janice Rogers Brown, is outspoken against the New Deal, and against regulation of business, and has even criticized senior citizens as persons who "cannibalize" their grandchildren by expecting Social Security in their old age. The third pending nominee, William Pryor, opposes the Voting Rights Act, the Americans with Disabilities Act, and other progress long since accepted by most citizens. He also has serious ethical problems which the Senate Judiciary Committee has refused to investigate adequately. The dust is still settling on the agreement, and it is impossible to predict even its short-term prospects, since further controversial nominees to the Courts of Appeals are pending, and a possible Supreme Court vacancy is on the horizon, perhaps as early as the end of this month. Your own New York Law School graduate and poet laureate, Wallace Stevens, offers some guidance in a situation like this one, in his book of essays, "The Necessary Angel," published in 1951. He said; "Imagination is the power that enables us to perceive the normal in the abnormal, the opposite of chaos in chaos." So we must ask ourselves: Was what happened in the Senate last month the normal, or the abnormal? Was it chaos, or the opposite of chaos? I hope it will turn out to be a triumph of the imagination in the service of public interest, a triumph of the normal over the abnormal. I hope historians will be able to say that the opposite of chaos arose out of chaos. Even though last week the agreement was never voted on, and even though it was never subscribed to by a majority of the Senate, it stands for now as a significant monument to the best of the Senate, and a strong legacy for the Senate's future. It reflects the vital fact that we who happen to be Senators now do not own the institution or its powers. We are guardians of a trust established 218 years ago for the benefit of the nation and its people, a trust that has served the nation well ever since. The agreement reminds us that we cannot, and must not, squander the precious legacy entrusted to us by our ancestors. We cannot, and must not, surrender any part of the powers which they gave us, and which have become essential to the nation's vitality and resilience. The 14 signers of the agreement spoke for all of us, not so much in the immediate details of the way they broke the Senate impasse, but in their reaffirmation of 200 years of precedent and tradition -- the normality of the United States Senate, where debate and deliberation and negotiation and compromise have always been paramount. Instead of the chaos of broken rules and broken comity, we had the opposite of chaos: an explicit confirmation that the filibuster -- a uniquely Senatorial instrument for achieving thoughtful compromise -- is permissible and legitimate for judicial nominations, in circumstances where an overreaching Executive needs restraint by the Senate. And we had normality in the compact's clear counsel to the President that the phrase advice and consent is not optional -- it is a command that still resonates across the years. If the President wishes our consent, he must first seek and consider advice from the broad spectrum of opinion among Senators who have the power to consent to his nominations, or to withhold their consent. There is a certain poetic quality to the agreement itself. Lovers will not recite it in the moonlight. But if it survives the imminent storm and becomes firmly established in years to come, lovers of freedom and democracy, and the Senate and America, will find meaning and inspiration in its words and guidance. In a society under the rule of law, where precedent is so important, where stare decisis widely governs how we live, that is no small achievement. I hope I am correct that we have all been witnesses to a consequential moment of the nation's history, where we came to the brink of a constitutional precipice and were pulled back by two centuries of tradition and trust, and by 14 courageous men and women. They helped us to see ourselves through the eyes of those who first set this nation on its amazing journey, and who set enduring guidelines to prevent those who now steer the ship of state from steering it onto the rocks. The story of Benjamin Franklin's comment to a Philadelphian he met as he left the Constitutional Convention is much quoted, and is apt again now: "Dr. Franklin, what kind of government do we have?" she asked. "A republic, Madam," he replied, "if you can keep it." We have just lived through another of those times he had in mind, and I hope we have kept it.

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