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Wednesday, May 04, 2005

Geoffrey Stone on Filibusters of Judicial Nominees

A legal eagle’s view somewhat similar to mine.

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The American Constitution Society (ACS) blog has a posting that supplements and roughly parallels views expressed in Filibusters and Constitutional Principle.

The posting reads in part:

“Sunday?s Chicago Tribune features an op ed by American Constitution Society Board of Directors Member Geoffrey Stone entitled ? A `nuclear’ attack on the Constitution :  Changing the Senate’s filibuster rules a dangerous option.?  Stone is a law professor at the University of Chicago and the author of ” Perilous Times: Free Speech in Wartime .”

“Stone traces the history of the filibuster:
It is useful to go back to the beginning. At the Constitutional Convention in 1787, the framers clearly intended the Senate to play an active role in giving its advice and consent to judicial nominations. Indeed, until the very last day of the convention, the framers had assigned the power to nominate judges to the Senate, rather than the president. They were concerned that an overbearing executive might exercise undue authority if granted the power to nominate federal judges, who would serve for life. It was only on the final day of the convention that the framers decided that it would be too unwieldy for a multimember body to make nominations and reluctantly assigned the responsibility of nomination to the president.

“That the Senate would play an aggressive role in reviewing judicial nominations was evident from the earliest days of the Republic. George Washington’s nomination of John Rutledge as chief justice of the U.S. Supreme Court was rejected by the Senate because of opposition to his stance on Jay’s Treaty. During the 19th Century, the Senate refused to confirm 25 percent of all Supreme Court nominations.

“..... In a government determined to avoid “capture” by any faction and designed to protect minority as well as majority interests, our entire government’s structure of checks and balances is deliberately premised on countermajoritarian procedures [such as filibusters].

“.... The filibuster was first used to block a judicial nominee in 1881, when it was invoked against Rutherford B. Hayes’ nomination of Stanley Matthews to the U.S. Supreme Court. (Matthews was eventually confirmed.) From 1950 to 2000, the filibuster was used at least 17 times in the context of judicial nominations….

“..... The greatest threat to American democracy is the risk of capture. It was this danger that worried the framers most. The nightmare scenario is a moment in time in which one faction gains control of the White House, the Senate, the House and the judiciary, then uses that dominance to redesign the processes of government to ensure its perpetuation in power.”

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