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Show Filibustering the Filibuster: A Reexamination of the Legislative Role in Establishing A Fair Judiciary Adam Reiser A second thesis is that the filibuster's use as a tool for the minority to block judicial nominations is not in the best interest of American Government. It proposes a constitutional amendment that would require a 60-vote standard for all judicial confirmations as a potential "filibuster fix." This paper also reviews the separation of power, the structure and history of the judicial confirmation process, and more recent events in the Senate that have brought the "fili' buster pot" to a boil. Because judicial confirmations directly involve all three branches of government, it is appropriate to begin a survey of the judicial confirmation process by examining the renowned, yet delicate separation of power in American government. Separation of Power French philosopher Montesquieu is widely credited with outlining the doctrine of separation of power. Montesquieu not only declared the necessity of separating the legislative from the executive, but also contended "there is no liberty" if the judiciary power is not separated from the legislative and the executive (Montesquieu, 1734, p. 152). However, Montesquieu, whose theories evolved from studying the English constitution in the early 18th century, could only moderately gauge the complications of separating power. Nearly 180 years ago Frenchman Alexis De Tocqueville noted an absence of centralized authority as a primary mechanism in maintaining a system of governmental balance: In the United States the majority, which so frequently displays the tastes and the propensities of a despot, is still destitute of the most perfect instruments of tyranny... The majority has become more and more absolute, but has not increased the prerogatives of the central government; those great prerogatives have been confined to a certain sphere; and although the despotism of the majority may be galling upon one point, it cannot be said to extend to all... when the central government which represents that majority has issued a decree, it must entrust the execution of its will to agents over whom it frequently has no control and whom it cannot perpetually direct (De Tocqueville, 1831, 1:15:16).2 As De Tocqueville has noted, American democracy remains balanced because no branch of government is ever intentionally allowed to usurp power past the scope of its appointed authority. While the judicial branch may interpret laws, it has no power to pass or enforce them; while the legislative branch may pass laws, it has no power to execute or interpret them; and while the executive branch may enforce laws, it has no power to pass or interpret them. This system prevents any branch of government from hording excess power and gives life to James Madison's admonition, "The powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by 2Denotes volume, chapter, and page number. the others" (Madison, 1788). In the early days of the country, the legislative branch was viewed as superior to the executive and judicial. From 1774 to 1781, the legislative branch had to perform all the actions of government; there was no executive or judicial branch (Fisher 1981, p. 2). The spirit of legislative superiority continued as the Constitution took shape. As Madison noted: The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments (Madison, 1788). Such legislative superiority, combined with increased executive power as the country sought to distance itself from the "executive-less" and ineffective Articles of Confederation, left the judiciary being viewed as the weakest of the three branches by many of the founding fathers. Said Alexander Hamilton: The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power (Hamilton, 1788b). Further, many of President George Washington's original Supreme Court appointees declined the nomination, feeling they could have a more significant impact investing their energies into other branches of government. This early judi' cial "inferiority complex" seems to have triggered a long jour' ney of defining and redefining what the judicial role really is in the separation of power. A Fair, Independent, and Empowered Judiciary Much of the judicial theory of the United States is reflected in carefully constructed symbolism at the entrance of the Supreme Court. On the left of the steps leading into the building sits a female figure, entitled The Contemplation of ]ustice. She is blindfolded, representing that justice doesn't discriminate against those who come before her. On the right sits a male figure entitled The Guardian or Authority of \jjm>-Sixteen marble columns support the foundation. On the architrave above is written "Equal Justice Under the Law-Each of these symbols teaches that above all other public bod' ies, the judiciary has a unique obligation to maintain a stan' dard of fairness in all of its practices. However, because government is replete with opposing views, conflicting personalities, and differing ideologies) thoughtful judicial observers recognize a fair judiciary is a*1 independent judiciary. The legal community aggressively 60 |
