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Friday, Apr. 27, 2001

As the term of the Supreme Court heads toward its end in June, rumblings about retirements have increased. From the Drudge Report to the New York Times, speculation about new vacancies abounds.

Meanwhile, in anticipation, a distinguished constitutional scholar and Yale law professor, Bruce Ackerman, has called upon the Senate to withhold its advice and consent for any and all Supreme Court nominations by President George W. Bush. Ackerman’s proposal has created a bit of buzz in Washington, and when, a few days ago, it was editorially embraced by the Boston Globe, I starting thinking about its viability.

In the February 12 issue of The American Prospect, Professor Ackerman concurs with Justice John Paul Stevens’ assertion in Bush v. Gore that the Court's ruling short-circuiting the electoral process has shaken "the nation's confidence in the judge as an impartial guardian of the rule of law." For Professor Ackerman this raises the question of how the nation should respond to the Court's betrayal of trust.

Ackerman says that the normal check on a rogue Supreme Court is the next presidential election. But with Bush v. Gore, the conservative Court majority has "conspired to eliminate this check." These justices should not be permitted to orchestrate the philosophy of their successors. Therefore, "the Senate should refuse to confirm any nominations offered up by President Bush."

Ackerman claims that it would not cripple the Court to have one or more standing vacancies — even for several years — for the Court can operate "perfectly well without its full complement." He notes that the Court only renders some 80 decisions a year, which could still be handled with two or even three vacancies on the Court.

Ackerman also invokes a historical precedent for his proposal. In 1865, the Reconstruction Congress passed a law providing that retiring justices could not be replaced by Andrew Johnson, who assumed the presidency following the assassination of President Lincoln. Ackerman says that "[b]y the time Johnson left the White House in 1869, the Court was reduced to seven members." When the duly-elected President Grant assumed office, the power to fill the vacancies was restored.

How Democrats Could Implement the Ackerman Suggestion

There is nothing in the Constitution, nor is there any other law, that requires the Senate to confirm any nomination. To the contrary, many lower federal court nominations have been defeated by the Senate’s refusal to take action. Most recently, the Republican-controlled Senate refused to act on thirty-nine judicial nominations — for federal district and circuit court vacancies — submitted by President Clinton. It would be difficult to find a stronger precedent for the Democrats to cite in support of their refusal to act on President Bush's high court nominees, if and when they should arise.

The Democrats, however, are not in control. So preventing the Republicans from confirming any and all of President Bush's Supreme Court nominees will require a blocking action. Granted, the Democrats, who have equal membership with Republicans on the Senate Judiciary Committee, could tie up nominations in committee for a while. But there are parliamentary procedures that could bring any nomination to the Senate floor for a vote. Thus, only a filibuster could assure that the nominations are blocked.

The United States Senate considers itself the world's greatest deliberative body because it permits unlimited debate — which means that, in effect, more than a simple majority is required when a substantial number of Senators oppose a matter, for the opponents can block the vote by simply debating forever.

Senate rules, however, no longer require the endless debate, or filibuster, to actually be undertaken; rather, the threat alone will do the job. It takes the vote of 60 Senators to invoke "cloture" and stop the debate. Thus, it would require the commitment of 41 Democratic Senators to implement something akin to professor Ackerman's proposal, for that would be the number needed to invoke cloture.

Why Ackerman’s Proposal Should Be Rejected

The Boston Globe found that no Senator had embraced Ackerman's proposal, although a number of "people in high places" have expressed interest. The Globe also reported telling comments by Senate minority leader Tom Daschle, who said he would mount a filibuster if necessary: "I would work to prevent a vote if needed to stop an extremist from reaching the Supreme Court," Daschle recently told the Globe.

Democrats, then, have already committed to blocking far right nominees. Given this strong stance, there is no real need for a blanket advance rejection of all nominees, even those who hold moderate views. The existing procedures are more than adequate protection for the nation, with a Senate split 50/50.

Senator Daschle has said that any high court nominee leaning hard right will need the votes necessary to break a filibuster. If any Supreme Court nominee, whatever his or her views, can muster 60 votes — and break a filibuster — that nominee deserves to be confirmed. Many of our greatest justices have been confirmed with much less than a 60 percent approval by the Senate. For example, Louis Brandies mustered only 49 percent and Charles Evans Hughes only 54 percent.

The more I thought about Professor Ackerman's interesting proposal, the more I realized that the Democrats must reject the recommendation. While the thought is not without its genius, in the real world it is too inventive by half.

For one thing, adopting Ackerman’s proposal would require the Democrats to act like Republicans. It has been the Republicans who have undertaken government by inaction — by refusing to do what voters sent them to Washington to do.

For example, it was the Nixon Administration that impounded funds — refusing to spend money that the Congress had appropriated for programs that Nixon did not like. It was Speaker Newt Gingrich who shut down the federal government by refusing to agree to a budget the Republicans did not like. It has been the Republican-controlled Senate that refused to act on judicial and other nominations. Democrats should refrain from following these precedents, and decline to govern by shrieking, shrinking, skirting, and subterfuge.

Recent History Suggests Bush Will Lose At Least Two Nominees

In 1994, political scientist John Anthony Maltese looked at the Supreme Court confirmation process and found that between 1789 and 1994, presidents had made 149 Supreme Court nominations. Though seven years have passed since the study was done, it is still quite instructive.

Strikingly, the rejections have become much more frequent since 1968, when Senate Republicans employed the first filibuster to defeat Associate Justice Abe Fortas from becoming chief justice. Maltese concluded that the failure rate has increased with the growing recognition "of the profound effect that Supreme Court appointments can have on public policy."

In 1968, presidential candidate Richard Nixon made the Supreme Court a focus of his campaign. Nixon politicized the selection process with his pledge to appoint only "strict constructionists" to the Court. The Senate rejected two of Nixon's strict constructionists — judges Clement Haynsworth and Harrold Carswell.

Candidate Ronald Reagan also made the Supreme Court a part of his presidential campaign, and the Senate rejected two of his nominees — judges Robert Bork and Douglas Ginsburg.

Now it may be the turn of candidate George W. Bush, who said in his campaign that he would appoint justices like Antonin Scalia and Clarence Thomas, who were appointed by his father. In the unlikely even that the president can find nominees that fit his criteria and still assemble 60 votes, then he will succeed. But if past is prologue, the Senate will likely reject a least two of his nominees, or more, until he selects a moderate for the high court.

Though I thank Professor Ackerman for the provocative suggestion, this outcome — in which nominees are not embargoed completely, but are instead whittled down so only moderates pass muster— will, if it occurs, be the right one.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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