Men in Black (22 page)

Democratic legal scholar Michael Gerhardt wrote, “By requiring only a simple majority of the Senate to approve a nominee, the Constitution sets a low threshold for confirmation relative to virtually all other significant legislative action, which must satisfy much stiffer procedural requirements….” He added, “As a practical matter, the requirement of a bare majority of the Senate for confirmation means that smaller factions cannot thwart a presidential nomination in the absence of special Senate procedures empowering individual senators, or some special subset, with the necessary authority.”
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Clearly the framers did not intend for a small cadre of senators, at the command of a handful of radical groups, to hold sway over the nation’s judicial confirmation process. And they certainly didn’t intend for a filibuster to be used to block a president’s judicial appointments. Indeed, the Constitution provides only a few specific instances in which a super-majority vote is required:

 

• “The Concurrence of two thirds” of either the House or the Senate is required to expel a member of Congress under Article I, Section 5.
  
• “No Person shall be convicted” by the Senate in an impeachment trial “without the Concurrence of two thirds of the Members present,” according to Article I, Section 3.
  
• Legislation can be enacted over presidential veto if “two thirds” of each House approves, pursuant to Article I, Section 7.
  
• The president is authorized to ratify treaties only if “two thirds of the Senators present concur,” under Article II, Section 2.
  
• Congress may propose amendments to the Constitution “whenever two thirds of both Houses shall deem it necessary,” according to Article V.
  
• Under the Fourteenth Amendment, Congress is authorized, “by a vote of two-thirds of each House,” to restore the right of federal service to rebels who, having previously sworn allegiance to the United States as a federal or state officer, subsequently supported the Confederacy during the Civil War.
  
• Under the Twenty-fifth Amendment, Congress may determine “by two-thirds vote of both Houses” that “the President is unable to discharge the powers and duties of his office.”
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Past Senates, regardless of which party was in the majority, have understood the framers’ intent. The Senate occasionally rejected nominees, but senators held enough respect for the Constitution that to resort to a filibuster—especially as a repeated tactic, as Democrats use it today—would have been unimaginable.

The president can counter Democrats’ efforts by appointing judges when the Senate is not in session. By doing so, he would be exercising his power under Article II of the Constitution to make recess appointments. Article II provides, in part, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” The purpose of the recess appointments clause is to ensure that the government can function smoothly even when Congress is not in session. The terms of recess-appointed judges are only temporary—they serve for one year—but the president is free to make subsequent recess appointments. Recess appointments to the federal judiciary are not unprecedented. According to a recent federal court, there have been more than 300 recess appointments to the federal judiciary.
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In fact, President Bush recently used this authority to counter Democratic stonewalling. He appointed William Pryor to the Eleventh U.S. Circuit Court of Appeals and Charles Pickering to the Fifth U.S. Circuit Court of Appeals when the Senate was not in session. Shortly thereafter, Pryor’s recess appointment was challenged in the Eleventh U.S. Circuit Court of Appeals by, among others, Ted Kennedy. It ruled that the president had acted within his constitutional authority.
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The court stated, “We are not persuaded that the President exceeded his constitutional authority in a way that causes Judge Pryor’s judicial appointment to be invalid. We conclude that Judge Pryor may sit with this Court lawfully and act with all the powers of a United States Circuit Judge during his term of office.”
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If Senate Democrats continue to use the filibuster to obstruct the president’s judicial nominees, he should make more aggressive use of the recess appointment power to defeat this unconstitutional strategy.

The Republican majority in the Senate can also utilize what has been described by its critics as the so-called “nuclear” option. As described by Capitol Hill columnist Byron York, “The [nuclear scenario] envisions Republicans using parliamentary maneuvers either to declare the Democratic filibusters…unconstitutional, or to decide that the Senate rules forbid the minority party from using the filibuster in cases of judicial nominations. In either case, the scenario goes, a simple majority of 51 votes could then be held to uphold the parliamentary ruling. Then, the Senate could move on to a final confirmation vote for both nominees.”
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To his credit, President Bush has repeatedly criticized the filibuster attack:

President Bush has also stated that, “[A] minority of senators continued to filibuster highly qualified judicial nominees who enjoy the support of a majority of senators. These obstructionist tactics are unprecedented, unfair, and unfaithful to the Senate’s constitutional responsibility to vote on judicial nominees.”
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He has called upon the Senate to abandon these devices: “Every judicial nominee should receive an up-or-down vote in the full Senate, no matter who is President or which party controls the Senate. It is time to move past the partisan politics of the past, and do what is right for the American legal system and the American people.”
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The fiercest battle will come if President Bush has the opportunity to nominate someone to the Supreme Court. Court observers expect at least one of the current justices of the Supreme Court to retire, and it’s likely to be Chief Justice William Rehnquist, due to his unfortunate struggle with thyroid cancer. Radical outside groups such as the Alliance for Justice, People for the American Way, and NARAL will vehemently oppose any originalist—or anyone who doesn’t embrace their activist agenda—nominated to the Supreme Court. This battle will make all past judicial confirmation battles pale in comparison. And the reason is simple: The extreme left has scored few victories at the ballot box. They must rely on the tyranny of an activist judiciary to advance their policy agenda.

“There is in all a strong disposition to believe that anything lawful is also legitimate. This belief is so widespread that many persons have erroneously held that things are ‘just’ because the law makes them so.”

Frédéric Bastiat, 1850
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T
he Supreme Court is abusing and subverting its constitutional role. It has chosen to become the unelected, unassailable social engineer of American society. The sad truth is that the other branches of government have been complicit in the Court’s power grab.

Article III of the Constitution gives Congress the authority to create lower courts under the Supreme Court. Congress also has the authority to determine the original and appellate jurisdiction of the lower courts and, within limits, the original and appellate jurisdiction of the Supreme Court.
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The president has the authority to nominate candidates to the federal bench who take office with the advice and consent of the Senate.
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The House of Representatives can impeach judges and the Senate can try and remove them, including Supreme Court justices.
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The elected branches can use these constitutional powers to correct the imbalance created by a federal judiciary that has used “judicial review” to undermine the Constitution and the framework of our government.

The last serious effort to rein in the Supreme Court—President Franklin Roosevelt’s “court packing” scheme of the 1930s—was an attempt to change the Court’s direction by expanding its size. Since the Constitution is silent about the number of justices who serve on the Court, its membership is determined by federal legislation. Congress set the original number at six, and after some fluctuation, the Court has been made up of nine justices since 1869. Roosevelt, whose New Deal agenda had been stymied by the Supreme Court, wanted the power to name additional justices who would be sympathetic to his proposals. This blatantly political effort had mixed results.

In March 1937, shortly after the start of his second term, Roosevelt used his ninth “fireside chat” from the White House to rouse the public against the Supreme Court. He told his listeners:

The president added that the Supreme Court and the lower federal courts were blocking his New Deal legislation because so many of the justices and judges were old and feeble. Roosevelt proposed legislation giving the president power to appoint new justices for every justice who stayed on past the age of seventy, up to a total of six new justices. The president could also add judges to lower federal courts if the judges didn’t retire at seventy.
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Nevertheless, Congress and the American public were skeptical. Roosevelt’s own vice president, John Nance Garner, a former speaker of the House and longtime member from Texas, broke with the president over the plan and worked actively against it.
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Chief Justice Charles Evans Hughes even wrote to Senator Burton K. Wheeler (a liberal Democrat and a leading opponent of the plan) to contradict the president’s claims that the Court was over-burdened and that additional justices would alleviate that condition. “An increase in the number of justices of the Supreme Court…would not promote the efficiency of the court. It is believed that it would impair the efficiency so long as the court acts as a unit. There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and more judges to deride.”
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The otherwise loyal Democrat leadership in both houses rejected the president’s rationale for “fixing” the court, and ultimately the legislation never made it through either the House or the Senate. Roosevelt’s personal prestige was seriously damaged by his attempt to “reform” the Supreme Court.

In the long run, however, Roosevelt got what he wanted: One of the four “conservative” justices
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(Willis Van Devanter) announced his retirement, and the two swing votes on the Court (Charles Evans Hughes and Owen Roberts) began to vote in favor of the New Deal legislation that came before the Court. When he died in office on April 12, 1945, Roosevelt had appointed a total of eight Supreme Court justices.
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In the framers’ perspective, the chief method for controlling judges was impeachment. Article II, Section 4 of the Constitution provides for the removal of the president, vice president, and “civil Officers” such as justices “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
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There have been sixteen impeachments to date—one associate justice of the Supreme Court (Samuel Chase, 1804, acquitted, a precedent that has discouraged further impeachment proceedings against Supreme Court justices), eleven federal judges,
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one senator (William Blount, charges dismissed, 1799), one Cabinet official (Secretary of War William Belknap, acquitted, 1868), and two presidents (Andrew Johnson, 1868, acquitted; Bill Clinton, 1999, acquitted).

Chase’s case resulted in a fundamental redefinition of the constitutional mechanism of impeachment. The Jeffersonian Republicans (swept into power in 1800) charged Chase, a federalist appointed by President John Adams, with numerous abuses of discretion in his conduct of a treason trial
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and in the trial of publisher James Callendar, who had allegedly violated the Sedition Act.
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Charges were brought by the House after the Republicans, under the leadership of Thomas Jefferson, gained power as a result of the election of 1800.
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With regard to the treason trial, Chase was charged with conducting “himself in a manner highly arbitrary, oppressive, and unjust.”
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He was accused of “delivering a written legal opinion tending to prejudice the jury against the defendant before defense counsel had been heard”
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and denying the defense counsel the right to cite English common-law authorities and U.S. statutes.
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It was further claimed that Chase prevented the defendant’s counsel from addressing the jury concerning applicable federal law and violated Virginia law in his rulings during the trial.
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In the Callendar case, Chase allegedly seated an individual on the jury who had already declared his determination that the defendant was guilty.
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The trial in the Senate—presided over by Vice President Aaron Burr—was considered one of the first “show” trials in the nation, with Jefferson applying behind-the-scenes pressure for Chase’s conviction. Nonetheless, Chase was acquitted of all charges.
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According to Chief Justice William Rehnquist, in his account of the trial:

As a result of Chase’s acquittal, the limited and extraordinary power of Congress to impeach and remove a judge from his post has been denuded to the point where a judge or a justice must act in a flagrantly illegal fashion before that conduct would be considered beyond the Constitution’s “good behavior” standard as it is currently interpreted. But I believe the framers intended impeachment to be a practical limitation on the scope of judicial conduct (as well as, of course, the conduct of all “federal officers” who abuse the authority of their office or fail to follow the dictates of the Constitution). We don’t necessarily have to carry it to the point made by Representative (and later president) Gerald Ford, when he declared, during debate on the prospective impeachment of Justice William O. Douglas, that “an impeachable offense is whatever a majority of the House of Representatives say it is.”
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But there is considerable merit in recognizing that it would not compromise the independence of the federal judiciary to treat egregious abuse of judicial authority as a “high crime” worthy of impeachment and removal from office. Knowingly doing harm to the Constitution, in my view, is not the sort of “good behavior” the framers envisioned justifying continuance in office.

Congress also possesses the constitutional authority to change the methods by which judges are disciplined, short of impeachment and removal. In 1980, Congress enacted a law that created a process for removing and/or substituting new federal judges because of disability or misconduct.
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The act allowed the chief justice of the United States and a majority of the members of the judicial council in a given federal circuit to attest to a specific judge’s inability to perform his duties. If the president agrees with the findings, he can appoint an additional judge to that circuit. When the original judge dies, retires, or is removed from office, the original judge’s position is not filled.

The same law also created a procedure for the filing of complaints of misconduct, short of impeachment, against the judges who sit on lower federal courts. The chief judge can investigate the complaint or appoint a judicial committee to do so. The committee reports to the judicial council of the circuit, which can then either ask the accused judge to voluntarily retire, direct the chief judge to not assign cases to him, censure or reprimand him, or inform the Judicial Conference of the United States.
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The Judicial Conference either takes action on its own or recommends to the House of Representatives that the judge in question be impeached.
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There are several problems with this judicial discipline system, especially from a public-accountability viewpoint. There is no transparency to the process. Complaints against judges are not published anywhere, nor is there any requirement that records of any evidence gathered to evaluate a complaint be published, nor are there set standards or procedures for handling complaints. Each federal judicial district establishes its own procedural rules, and the standards differ in each district.
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Judicial councils and the Judicial Conference are not required to conduct public hearings on a complaint.
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There is also no requirement that judges, judicial councils, or the Judicial Conference report to any governmental body about the results of investigations or deliberations.

Furthermore, as a practical matter, these methods for removing judges are ill-suited for a systemic reform of the judiciary. If impeachment by Congress has failed as a method to curb the judiciary’s power grab, it is foolish to think that a process initiated and controlled by judges would effect anything other than minor changes.
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Probably more potent and practical than the removal of individual judges and justices is Congress’s power to limit the Supreme Court’s jurisdiction. In 1996, for instance, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act. This act gave exclusive authority to the Immigration and Naturalization Service (INS) to determine whether an immigrant will be granted asylum, without the right to appeal to the courts.
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There have been other recent cases of Congress enacting limitations on judicial review. The judiciary’s ability to alter prison conditions was restricted in the 1996 Prison Litigation Reform Act.
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The Antiterrorism and Effective Death Penalty Act limits the number of habeas corpus petitions inmates can make to federal courts.
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And in July 2004, the House of Representatives passed the Marriage Protection Act, which, if enacted, would limit the judiciary’s jurisdiction in determining the constitutionality of the Defense of Marriage Act.
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The practical problem of limiting judicial review is that it requires appropriate language to be included in each piece of legislation, and the courts themselves must be willing to abide limitations on their power.

This concern is a real one. The case of the late Representative Adam Clayton Powell is an egregious example of the Court inserting itself into a dispute that, under the clear mandate of the Constitution, should have been left exclusively to Congress. Article I, Section 5 of the Constitution empowers each house of Congress to determine the qualifications of its members.
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Yet, in 1969, the Supreme Court ruled that the House could not exclude Powell as a member.
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The House had found that Powell had falsified financial information, causing fraudulent expense and payroll payments to be made to himself, several of his employees, and his wife.
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Chief Justice Earl Warren, writing for the majority, declared, “Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such adjudication may cause cannot justify the courts avoiding their constitutional responsibility.”
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Impeachment, lesser forms of discipline, and legislative limits on judicial jurisdiction are not, however, systemic solutions to judicial abuse. I believe the independence of the judiciary to legitimately exercise its constitutional role can be preserved, and the unconstitutional influence of the federal courts somewhat curtailed, if the Constitution were amended to limit judges to fixed terms of office.