[Mb-civic] Mr. Smith Comes to Washington

[ean at sbcglobal.net]

Published on Saturday, January 28, 2006 by CommonDreams.org
Mr. Smith Comes to Washington
by Paul Savoy
 
http://www.commondreams.org/views06/0128-21.htm

"Dad always used to say the only causes worth fighting for were the 
lost causes."
– Jimmy Stewart as Senator Jefferson Smith in "Mr. Smith Goes to 
Washington."

How many senators does is take to launch a filibuster? If you said 41, 
you’d be wrong. It takes only one.

The term, filibuster, from a Dutch word meaning "pirate," describes a 
hallowed tradition of unlimited debate in the Senate based on the 
principle that any senator has the right to talk his head off for as long 
as he wants on any issue. That is, until at least 60 senators vote to 
shut him up.

In the classic Frank Capra film, "Mr. Smith Goes to Washington," 
Jimmy Stewart, playing freshman Senator Jefferson Smith, carries on 
a one-man filibuster for more than 23 hours until he passes out from 
exhaustion. Smith, an idealistic senator from an unnamed state, reads 
from the Declaration of Independence, and summons his colleagues to 
get up there with that Lady of Liberty on top of the Capitol Dome and 
take a stand against "compromise with human liberties."

Senator John Kerry, in announcing that he and Senator Edward 
Kennedy would participate in a filibuster against the confirmation of 
Judge Samuel Alito, said, "It’s not ‘Mr. Smith Goes to Washington.’ . . . 
It takes more than two or three people to filibuster successfully."

At least five other Democrats have announced their support for the 
filibuster: Senate Minority Leader Harry Reid, Assistant Minority Leader 
Dick Durbin, Dianne Feinstein, and Hillary Rodham Clinton. But, in 
trying to block the confirmation, each of these senators may have to be 
a "Senator Smith" to succeed in demonstrating the danger a Justice 
Alito would pose to civil rights and civil liberties.

Judiciary Committee Chairman Arlen Specter has defended Judge 
Alito’s refusal to answer specific questions from Democratic senators 
aimed at showing the American people just how frightening a Justice 
Alito would be. The distinguished senator from Pennsylvania has 
declared that the nominee "has answered questions as far he could 
go." Judge Alito said it would not be "appropriate" for a judicial 
nominee to express his views on issues that might come before him if 
he were appointed to the Court. Well, it turns out that Judge Alito and 
Senator Specter are wrong. Who says? The Supreme Court. That’s 
who says.

In 2002, the Supreme Court, in Republican Party of Minnesota v. 
White, 536 U.S. 765, declared that it is not only proper for a judicial 
candidate to express his views on disputed legal issues -- the First 
Amendment guarantees him the right to do so. In an opinion written by 
Justice Antonin Scalia, and joined by then-Chief Justice Rehnquist, 
and Justices O’Connor, Kennedy, and Thomas, the Court concluded 
that a Minnesota canon of judicial conduct which prohibited a 
candidate for judicial office from announcing his position on abortion 
rights and other controversial issues violated his right to freedom of 
speech under the First Amendment.

The Minnesota decision yields three fundamental constitutional 
principles:

First, a judicial nominee has a First Amendment right to express his 
specific legal views on controversial issues even if they are likely to 
come before him should he be confirmed.

Second, a necessary corollary of the nominee’s right to express his 
views is the right of the people and their representatives in the Senate 
to know them. This right entitles the people to know not only a 
nominee’s judicial philosophy or general legal views, but, according to 
the Court in the Minnesota case, how those views are "exemplified by 
application to a particular issue of construction likely to come before 
[the] court -- for example, whether a particular statute runs afoul of any 
provision of the Constitution."

Third, and most important, in the absence of specific answers to 
senators’ questions about a nominee’s views, his confirmation would 
be a violation of the Constitution’s Article II requirement that the 
Senate exercise its "Advice and Consent" function in an informed 
manner. This implication from the Court’s Minnesota decision, as 
Justice Ruth Bader Ginsburg explained in her dissent, is clear: "[B]y 
the court’s reasoning, the reticence of prospective and current federal 
judicial nominees dishonors Article II, for it deprives the President and 
the Senate of information that might aid or advance the decision to 
nominate or confirm."

The Court specifically rebuffed the kinds of arguments Judge Alito’s 
supporters have made in defense of his refusal to answer questions 
about whether he believes Roe v. Wade should be overruled, or if the 
President acted unlawfully when he ordered electronic eavesdropping 
on Americans without a warrant. Announcing his views, Alito’s 
defenders argue, would compromise his impartiality. They say that a 
preconceived view about the law would make a judge less open-
minded in deciding particular cases.

Resoundingly rejecting this argument, Justice Scalia, writing for the 
majority in the Minnesota case, said, "A judge's lack of predisposition 
regarding the relevant legal issues in a case has never been thought a 
necessary component of equal justice, and with good reason. For one 
thing, it is virtually impossible to find a judge who does not have 
preconceptions about the law."

Quoting from an earlier opinion by Rehnquist regarding the Supreme 
Court itself, Scalia continued: "Since most Justices come to this bench 
no earlier than their middle years, it would be unusual if they had not 
by that time formulated at least some tentative notions that would 
influence them in their interpretation of the sweeping clauses of the 
Constitution and their interaction with one another."

"Indeed, even if it were possible to select judges who did not have 
preconceived views on legal issues," Scalia declared, "it would hardly 
be desirable to do so." Quoting Rehnquist again, Scalia wrote: "Proof 
that a Justice's mind at the time he joined the Court was a complete 
tabula rasa in the area of constitutional adjudication would be evidence 
of lack of qualification, not lack of bias." The "blank mind" argument, 
Scalia quipped, "contemplates a federal bench filled with the unfit."

A discussion by a judicial candidate of his constitutional views is not 
the same as a promise to produce a particular result. While Justice 
Scalia indicated that "pledges or promises" remain unprotected by the 
First Amendment, his opinion for the Court makes clear that it is 
perfectly proper for a judicial candidate to go beyond a discussion of 
his judicial record or his methodology for deciding cases, and to say, 
for example, whether he believes the Constitution protects a woman’s 
right to an abortion, or whether he would overrule Roe.

Although the Minnesota case articulated a right of a judicial candidate 
to express his views in the context of a process of electing judges, the 
Court’s First Amendment rationale necessarily extends to the federal 
system of nomination and confirmation, and, as a necessary corollary, 
to the people’s right to know the views of a candidate or nominee. In 
an election, a judicial candidate has a First Amendment right to 
announce his legal views because under our judicial system, the 
Supreme Court explained, judges not only find the law and apply it; 
they often "make law themselves" or "set aside the law enacted by the 
Legislature." Therefore, citizens need to know how a candidate is likely 
to change the law by overruling precedent or invalidating statutes or 
executive orders. This power of judicial lawmaking exists whether a 
judge is elected directly by the people, or nominated by the President 
and confirmed by the people’s representatives in the Senate. In both 
cases, the people have a right to know what kind of imprint a candidate 
or nominee is likely to make on judge-made law.

To be sure, Judge Alito remained free not to state his views. However, 
as Senator Feinstein pointed out during the confirmation hearings, if a 
nominee chooses to remain silent, senators are entitled to vote against 
him for this reason and this reason alone. This may thrust the nominee 
on the horns of a dilemma, but he cannot escape it by pleading judicial 
ethics. "[I]f you say one thing, you upset my friends and colleagues on 
that side. If you say the other, you upset those of us on this side. But 
the people are entitled to know."

A CNN/USA Today/Gallup poll conducted after the confirmation 
hearings shows that 54 percent of the American people support Judge 
Alito’s appointment. But when asked about their support if they 
became convinced Alito would overturn Roe, opinions dramatically 
shifted: from 54 percent in favor, to 56 percent against his 
confirmation.

The people’s "right to know" is therefore central to the confirmation 
process. So, it is hard to understand why Democratic senators on the 
Judiciary Committee were not trumpeting the Supreme Court’s 
Minnesota decision from the Capitol Dome. Whatever the reason, the 
effect has been to keep the people in the dark about a constitutional 
right to know a nominee’s legal views.

The "Advice and Consent" function of the Senate mandated by Article 
II of the Constitution means informed consent. For too long, trying to 
understand how a nominee would shape the fate of millions of 
Americans has been like reading tea leaves. Today, in light of the 
Minnesota decision, senators would be violating their constitutional 
duty under Article II if the Senate were to vote on Judge Alito’s 
nomination without more information about how he is likely to decide 
some of the most momentous issues of our time.

The prospect of an unconstitutional confirmation gives rise to 
"extraordinary circumstances" -- the standard agreed upon by a 
bipartisan group of 7 Republican and 7 Democratic senators (the so-
called Gang of 14) to justify a filibuster.

To defeat a "cloture" motion to end debate, supporters of a filibuster do 
not actually have to gather 41 votes to defeat the motion; they merely 
have to persuade enough colleagues to simply abstain from voting so 
that filibuster opponents do not achieve the 60 votes required for 
cloture. For example, a 59-29 vote to end debate, with 12 senators 
abstaining, would not be sufficient to carry a cloture motion, and Judge 
Alito’s nomination could not be brought to an up-or-down vote.

The abstention option provides the necessary cover for Democratic 
senators who do not want to participate in a filibuster, but who can be 
persuaded to at least refrain from denying colleagues the Senate’s 
more than 200-year-old privilege to speak on an issue for as long as a 
senator wishes. Respecting that privilege is imperative when, as here, 
a filibuster is conducted to (1) inform the American people of their First 
Amendment right to know a nominee’s views, and (2) honor a 
senator’s duty under Article II to block a judicial appointment that would 
be unconstitutional.

No answers should mean no confirmation.

Paul Savoy is a former prosecutor and professor of constitutional law, 
and a past dean of the John F. Kennedy University School of Law.

Copyright 2006 by Paul Savoy

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