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No to a Far-Right Court: Use Filibusters

November 11, 2002|Erwin Chemerinsky and Catherine Fisk | Erwin Chemerinsky and Catherine Fisk are visiting professors at Duke Law School.

With Republicans in control of the Senate, President Bush will try to fill the federal courts with judges from the far right. He has long made it clear that he wants to appoint conservative judges in the mold of Supreme Court Justices Antonin Scalia and Clarence Thomas.

For the last two years, the Democrats have blocked the president's most conservative nominees in the Senate Judiciary Committee. Now that the Republicans have captured the Senate, the Democrats no longer control the committee. They have only one way to check the president's ability to pack the federal courts and they must use it: the filibuster.

There is ample precedent for filibusters of presidential nominations to executive and judicial positions. In fact, Republicans frequently used them during Democratic administrations.

During the Clinton presidency, Republicans successfully filibustered and blocked the nomination of Henry Foster for surgeon general.

In 1968, South Carolina's Sen. Strom Thurmond filibustered to stop the confirmation of Justice Abe Fortas to replace Chief Justice Earl Warren and Judge Homer Thornberry to succeed Fortas.

Democratic senators must use the filibuster now to block the most conservative of President Bush's judicial nominees for the lower federal courts. Also, it is likely that a justice or two may resign from the Supreme Court during the remainder of the Bush presidency.

Democrats must use the filibuster, and the threat of the filibuster, to ensure that a new justice is not a conservative from the same school as Scalia and Thomas.

An enormous amount is at stake in the judicial confirmation process. A change in two votes on the Supreme Court could mean the overruling of Roe vs. Wade and a woman's right to reproductive choice. In the years ahead, federal courts will be deciding crucial questions concerning the federal government's power to provide remedies for civil rights violations, including employment discrimination based on race and gender.

Also, the federal courts are the essential and only check against excessive government interference with individual rights in the name of the war against terrorism.

Indeed, in every area of personal freedom, from freedom of speech to privacy, American law and policy will depend on the composition of the courts.

Because the Supreme Court decides only about 75 cases a year, and hears fewer than 2% of the cases in which review is requested, who sits on the federal Court of Appeals is crucial.

During the Clinton presidency, one of us was informed by the White House counsel's office that he was being considered for an appointment to the U.S. Court of Appeals. Ultimately, he was told that he could not be appointed because it was thought that his public support for affirmative action and reproductive freedom made him too liberal to be confirmed by a Republican-controlled Senate.

If outspoken liberals were unacceptable judicial nominees during the Clinton administration, then extreme conservatives are equally unsuitable now.

Courageous Democrats in the Senate must announce their intent to use the filibuster to prevent a conservative takeover of the federal courts that could last long beyond our lifetimes.

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