The revision of the filibuster rule in the United States Senate with respect to nominations and appointments has received media attention, but not nearly enough.  This is one of the most radical and significant changes we have seen in the operation of our federal government since the dawn of the Republic. Yet hold this thought for a moment. 

Federal judges, as you know, are appointed for life.  Once they are in office, they are generally there for many years.  William O. Douglas served as an associate justice on the U.S. Supreme Court for over 36 years.  As his tenure drew to a close, the reality became clear to all that, not only had his body weakened, his cognitive faculties had deteriorated as well. Sadly, in the immediate aftermath of his judicial retirement, he was still under the impression that he could continue in the Court’s deliberations. Chief Justice Warren Burger commented, “Bill is like an old firehouse dog, too old to run along with the trucks, but his ears prick up just the same.” 

“Wild Bill,” as his biographer Bruce Allen Murphy referred to him, was not the only one who stayed too long. Hugo Black continued on the Court following a debilitating stroke and was hopelessly cantankerous.  John Harlan was reluctant to retire after 17 years although he was nearly blind and reading at a glacial rate of approximately 150 words per minute. The list of big-name justices who overstayed their welcome is almost indefinitely extensible. The obvious point is that those who are appointed to powerful political positions for life are not generally prone to give them up. 

And, make no mistake about it; the Court has always been political. To argue otherwise, as some commentators do, suggests an appalling ignorance of the institution’s history or just plain dishonesty.  In Marbury v. Madison (1803), for example, the Court utilized a case over which it admittedly had no jurisdiction in order to advance its signature doctrine of judicial review.  Think about it for a moment: there is an astonishing, breathtaking power grab involved in predicating the Court’s authority to declare a law unconstitutional on a case over which it admittedly had no jurisdiction.  

In Dred Scott v. Sanford (1856), the Taney Court was champing at the bit to legalize Negro slavery once and for all throughout America, and had no qualms about usurping the power of Congress and, by implication, the American people in order to do it.

In Lochner v. New York (1905), the Court reached into the State of New York to strike down a statute regulating the number of hours that bakers could work. Outrageous? Of course! Except for the fact that the majority of the Court was eager to implement “social Darwinism” into law, there was no explanation for this grievous overreaching. 

In Brown v. Board of Education of Topeka (1954), the unanimous opinion of the Court outlawing racial segregation in public schools hardly bothered with legal reasoning and the rule of precedent, but was instead little more than a transparent political announcement. Chief Justice Earl Warren was the author of the opinion, but usually his habit was one of instructing his clerks to write his opinions after of course informing them which side he wanted to win. 

In Mapp v. Ohio (1961), the Court decided that the Fourteenth Amendment prohibited State courts in a criminal prosecution from admitting evidence obtained by unreasonable search and seizure.  You may be wondering what the problem is with this result. The answer is, “Nothing, except that the Court accepted the case in order to review another issue; specifically,  whether the possession or control of obscene material is consistent with the rights of free thought and expression assured against State action by the Fourteenth Amendment.”  The case as accepted, briefed, and argued was understood by all the players to be controlled by the First Amendment, although the Court’s holding had nothing to do with that Amendment at all. “How can this be explained?” you ask.  Might it be that the majority of the justices were determined to effect a cataclysmic change in the evidentiary rules by which States conduct criminal prosecutions and did not care how ruthless they were in accomplishing the feat?  

Roe v. Wade (1972), in which the Court held in part that a State cannot proscribe abortions during the first trimester of a woman’s pregnancy, fits nicely into the tradition of illicit Supreme Court power and abnegation of self-restraint. One may enthusiastically favor a woman’s right to choose whether to have an abortion, but this is not the issue.  The issue is who defines this “right” and its limits, if any? Should State legislatures which are directly accountable to the people define them, or should an unelected group of nine attorneys in black robes appointed for life do so? 

In recent years judicial selection has been intensely politicized.  This is because the awareness has deepened in the American consciousness that courts have grown increasingly disposed to throw judicial restraint to the wind and to act as legislatures. The Senate’s filibuster rule has compelled the President to appoint judges who are acceptable to the opposing party. Granted, mistaken impressions often prevail when examining an individual’s record for judicial office, but at least there has been, since Robert Bork’s nomination in 1987, a painstaking, even captious, consideration of a nominee’s credentials. Senators, convinced that the nominee would be too much (or insufficiently) activist, were free to vote accordingly and even to use their power to block the appointment. This reality tended to moderate the President’s selection of judges. Judicial nominations, to be successful, required a consensus in the Senate. As I’ve pointed out in previous blogs, this consensus has disappeared. The body is more polarized than at any time since the years immediately preceding the Civil War. 

Senate Majority Leader Harry Reid, who is undoubtedly doing the bidding of President Obama, has set aside the filibuster rule with respect to judicial nominations and other appointments. The result almost certainly will be that those who are left-wing activists will be appointed to high judicial office on the strength of a simple majority vote in the Senate. The only procedural safeguard that may thwart this result will be the traditional “blue slip” practice of securing the home-state senator’s approval before proceeding with a nomination. The 47 federal judicial positions currently vacant are mostly in red states. It will be interesting to see what will happen to the nominations if and when home-state senators withhold their approval. My frank guess is that this will be another spoke eliminated from the traditional wheel of America’s democratic process. 

One change necessitates another.  Federal judges should, instead of receiving lifetime tenure, be appointed subject to strict term limits. Ten years of service on the federal bench, especially at the appellate level, is long enough.  For the American people to amend the Constitution in this respect will imply (1) that they understand courts are political, but (2) that they still wish to insulate them from election concerns and “majoritarian tyranny,” while being unwilling to write them a blank political check. 

The judiciary is no longer, if it ever was, the weakest branch of government. It has, in notable respects, become the most powerful branch, while simultaneously being the most unaccountable to the people. Supreme Court decisions have consequences on American life that are culturally far-reaching and spiritually profound.  It is time for the people to take a hard look at where we have come politically and to make the necessary Constitutional adjustments. 

November 28, 2013