WASHINGTON — This should be the week that Senate Republicans begin closing off the judicial filibuster, and not a moment too soon. Majority Leader Bill Frist has let the matter fester long enough for the nation to see what’s going on. The desperation of the Democrats who continue to block the president’s appellate court nominees is palpable.
What better evidence than Minority Leader Harry Reid’s assault last Thursday on Michigan Appeals Court Judge Henry Saad, up for a seat on the Sixth Circuit since 2001: “All you need to do is have a member go upstairs and look at his confidential report from the F.B.I., and I think we would all agree there is a problem there.” No evidence, just smear, against a man who’s served since 1994. Would the president have nominated Saad not once but three times if there were a problem? Yet Judge Saad languishes, along with others nominated years ago.
To fully appreciate what’s going on here, however, we have to go back quite a ways. Conservative Republicans are portrayed today as being upset with the federal courts. Many are, to be sure, but that’s far from universally true, and it certainly isn’t true historically, as we look for the roots of the current situation.
In the grand constitutional design, federal courts exist mainly to secure liberty, because that’s what the Constitution does, especially since ratification of the Civil War Amendments crafted by the heavily Republican 39th Congress. Courts are supposed to keep Congress within its enumerated ends and to ensure that both federal and state governments respect our rights, whether enumerated in the Constitution or not. They’ve never done that consistently, of course, but as the independent, non‐political branch, courts are charged with enforcing the Constitution’s restraints on power.
Over the years, both parties have chafed under those restraints, and lashed out at the courts accordingly. But the first sustained, systematic attack came from New Deal Democrats, outraged that the Supreme Court was ruling their programs unconstitutional, sometimes 9–0. Finally, in 1937, Roosevelt threatened to pack the Court with six new members. The infamous scheme failed on the surface, but the Court got the message. It began essentially “rewriting” the Constitution — removing limits on Congress’s power, to make way for the modern welfare state, and politicizing the Bill of Rights.
That’s when, on a grand scale, politics trumped law, the constitutional law of limited government. And it’s never been the same since. With the floodgates opened, it soon became a majoritarian (or, just as often, special interest) free‐for‐all, with winners claiming the democratic “high ground” — as if that’s what the Constitution were about. Liberty and limited government gave way to majoritarian democracy.
For many years Democrats dominated that game. But when their political agenda lost in the legislature, as it sometimes did, they turned to the courts — often rightly, as with civil rights, but not always, as with abortion. Beginning in the 1960s, however, that combination of political and judicial “activism” gave rise to the conservative makeover of the Republican Party. Part of the Republican reaction, the libertarian part, stood against the Democrats’ big‐government agenda as such. But another part, the conservative part, largely accepted the New Deal’s democratization of the Constitution, especially as the party started to gain politically. This part focused more narrowly on “activist” courts as impediments to a conservative political agenda.
That often uneasy Republican alliance eventually came to dominate politically, of course, first with Ronald Reagan, then with the Republican takeover of Congress in 1994. As it did, Democrats were increasingly unable to achieve their agenda through the political branches, so they came to rely more and more on the courts. And that’s why, especially after George W. Bush was elected in 2000 — facilitated by the Supreme Court, ironically — the battle for the courts has become so intense. Democrats have nowhere else to go.
Not surprisingly, then, they’re fighting to the death. Barely a month after the Court decided Bush v. Gore, for example, 554 liberal professors from 120 law schools condemned the Court in a full‐page ad in the New York Times. Many urged Democratic senators not to fill any Supreme Court vacancy, should one occur, until after the 2004 elections. Then, when control of the Senate switched to the Democrats after Jim Jeffords became an Independent in May 2001, the Democratic stall on appellate court nominees began. Of the 11 nominees Bush put forward that month (2 were Democratic holdovers), 8 still hadn’t had even hearings, much less votes, by the time the 2002 elections rolled around. When the Democrats lost the Senate in that election, they turned to filibusters. And that’s where we’ve stood ever since.
After the Democrats lose this battle, as they will, the focus will shift to the more civilized battle within the Republican Party and to the question whether the courts will give us the democratic constitution the New Deal Court invented, or the constitution of liberty the Founders set in motion. That will be one to watch.