A mini-constitutional crisis in Bush's America

Towards the end of the tragic life of Terri Schiavo, the Republican Leader of the US Congress, Mr Tom DeLay, issued a stark warning to the federal judiciary. Previously, with the encouragement of President Bush, the Congress had passed emergency legislation to permit the Federal District Court of Appeal to hear further argument about whether Ms Schiavo should have her life support discontinued. The federal courts, however, had refused to re-open the issue.

In response Mr DeLay stated bluntly, at one point, that if the Courts would not make appropriate decisions, the judges should be impeached. At another, he said that ‘they would be held responsible’. When pressed he elaborated by stating that ‘we set the jurisdiction of the courts, we set up the courts, we can unset them.’

When the President distanced himself from these remarks, Mr DeLay modified them a little. ‘Of course I believe in judicial independence’, he said, while at the same time reasserting the view that it was within the rights of the Congress to rein in the courts.

Thanks to Peter Nicholson

‘Sometimes I get a little more passionate, particularly during the moment and the day that Terri Schiavo was starved to death. Emotions were flowing.’ Mr DeLay, like the President, is a born-again Christian. He was clearly unhappy that the courts had refrained from making a decision ‘in favour of life’.

In the past few weeks emotions have been flowing again in the US Senate, not just about this issue but also, in consequence, about the whole question of judicial nominations.

In the US, judicial nominees are required to appear before the Senate Judiciary Committee prior to their appointment to answer questions about their attitudes and approach to judging. Normally, in a spirit of bi-partisanship, the Committee members then forward the nomination to the Senate itself with a recommendation that the nominee be appointed. The vote is then a formality and is most often unanimous.

Recently, however, Senate Democrats have blocked the appointment of ten of President Bush’s judicial nominees. They have, however, confirmed more than 200. Although in a minority, the Democrats can block appointments by the use of the filibuster, a crude but effective method that involves senators prolonging debate on the nomination indefinitely. A filibuster can be broken, but only if a majority of sixty of the Senate’s 100 members agrees. This then ensures that there is a measure of bi-partisanship in every appointment. Since judges are appointed to high-ranking positions for life, some measure of bi-partisanship seems more than appropriate and the tradition that the Senate will proceed in bi-partisan fashion has become a recognised constitutional convention.

All this is now falling apart. The Democrats have opposed the ten nominees principally because they regard their judgments as having been ideologically driven. It is precisely because they have been ideologically driven that the Bush administration wishes to appoint them. The Democrats have employed the filibuster successfully. The Republicans have now sought to override it by employing what has been called the ‘nuclear option’.

Under the nuclear option, judicial nominees would be entitled to an up and down vote on the floor of the Senate. In other words, the 60:40 rule would be abandoned, filibusters could be broken by a simple majority and a simple majority would suffice for judicial appointment. This would represent a dramatic break with constitutional tradition.

Since the formation of the Union, that tradition has held that the Senate should proceed wherever possible by consensus. It is a civilised convention that has served, among other things, to curb the excesses of Presidents and parties from both sides of politics. It has also played a substantial role in the protection of minorities. While it may seem remarkable to an Australian onlooker, the consensus tradition in the Senate has, for the most part, been observed. It is one of the more appealing aspects of US parliamentary government. This check on overweening power is now at risk. Once the convention is broken, of course, there will be no return.

These developments are undesirable enough in themselves. But matters have been made worse by the entry into the debate of questions of faith. The evangelical right has embarked upon a concerted campaign to dismantle the judicial filibuster. Focus on Family Action, the political arm of a Christian conservative group which opposes judicial filibusters, is running newspaper and television advertisements intended to sway the votes of nineteen senators in fourteen states. Much as it might amaze more moderate and secular Australians, the campaign has picked up speed. And it constitutes a warning.

Senator Bill Frist, the Republican leader of the Senate and a presidential aspirant, courted substantial criticism recently for participating in an evangelical rally in which the Democrats were denounced as being ‘against people of faith’ for blocking judicial nominees. At this same rally — to which Dr Frist by his participation had given tacit endorsement — Dr James Dobson, founder of Focus on the Family, called the Supreme Court ‘unaccountable’, ‘out of control’, and ‘a despotic oligarchy’. And this is a Court seven of whose nine members have been appointed by Republican administrations. Dr Dobson accused the Justices of a campaign to limit religious liberty because, consistent with the separation of church and state, they had denied religious organisations an entitlement to direct government funding.

This in turn has raised the spectre, at least under the present administration, of judicial nominees being selected in part on the basis of some explicit or implicit test of religious observance. It is sincerely to be hoped that no such idea gains significant political traction. But there is already more than a suggestion that it has.

These Congressional and judicial developments led the New York Times recently to state in an editorial that:

Apart from confirming an unwholesome disrespect for traditional American values like checks and balances, the assault on judges is part of a wide-ranging and successful Republican campaign to breach the wall between church and state to advance a particular brand of religion. No theoretical exercise, the program is having a corrosive effect on policymaking and the lives of Americans.

John Danforth, a former Republican Senator and ambassador to the UN, and a minister of religion, declared recently that his party was becoming a political arm of the religious right. He called it a formula for divisiveness that ultimately threatened the party’s future.

How is it, then, that ten judicial nominees could have provoked a constitutional crisis of this order? Are they worth it? Clearly the Bush administration thinks so. Recently, the Republicans in the Senate have brought forward two nominees in particular to advance their argument that the filibuster is being used in cavalier fashion. Both nominees are women, one is black as well, and both have been judges of State courts for several years. So far so good.

Justice Priscilla Owen, however, appears to be reluctant to enforce the law when it does not match her ideology. This is particularly so where cases involve some moral dimension. So, for example, in a dissent in an abortion case, she sought to re-interpret Texas law to make it more difficult for teenagers seeking abortion to obtain a recognised exemption from a requirement that they notify their parents. This led Alberto Gonzales, now President Bush’s Attorney-General but then a fellow member of the Texas Supreme Court, to remark that she had engaged in an unconscionable act of judicial activism.

Justice Owen has openly and consistently favoured big business, among other things deciding in favour of corporations including Enron (which incidentally funded her campaign for appointment). In other cases she has decided in favour of an insurance company that wrongly refused to cover a woman’s heart surgery bills, and protected a carmaker against a suit by a teenager paralysed in an accident.

The second nominee, Justice Janice Rogers Brown, is renowned for making ideological statements in the course of her judgments. She described the New Deal, for instance, as the ‘triumph of our socialist revolution’. Justice Brown appears to have been a consistent opponent of minorities and a consistent supporter of the interests of commerce. In an age discrimination case, she was the lone dissenter against a sacked 60-year-old employee, warning that his reinstatement would have a detrimental impact on the stability of the business community. She contended, contrary to established law, that age discrimination is ‘the unavoidable consequence of that universal leveller, time.’

These ideological perorations may have been forgivable had the Justices demonstrated in the general run of cases an outstanding level of judicial competence. But it does not appear that they have.

For the sake of nominees such as these, then, the balance of power between the executive, the legislature and the judiciary is being upset, a two-centuries-old constitutional convention is at significant risk and a bitter dispute about the proper relationship of judges to faith has been ignited.

A few moderate Republican senators, realising that the fundamental character of the Senate may be altered permanently and for the worse, appear now ardently to be seeking a compromise. Without it, as the Republican Chair of the Senate Judiciary Committee has said recently, the result will be ‘the harmful crimping of minority rights in a proud deliberative body’ and ‘a dark, protracted era of divisive partisanship’. The neo-conservative administration appears not to care.

And the judges are worried too. Recently, Justice Anthony Kennedy of the US Supreme Court, a Reagan appointee, appeared before the Senate Judiciary Committee to answer questions about the Court’s budget requests. It was not long before the Committee’s questioning turned to the nature of constitutional interpretation and the proper criteria for judicial appointment and impeachment. I was watching the hearing at the time.

A pained expression came across the Justice’s face. And he quietly said the following:

Senators, every year we receive visits from judges from around the world. I have to tell you that the thing they admire most about our system is judicial independence. They think, for this reason, that we have the best judicial system in the world. And we have. They want to emulate it. It would be a tragedy, a tragedy, if at the very time that others seek to adopt our proud tradition of independence, we were to begin to resile from it.

Amen to that.