Over two hundred years ago, a man who wrote under the name of Publius was hunched over his desk one evening. He was attempting to convince New Yorkers to ratify the proposed United States Constitution. After a moment of thought, he dipped his quill into the ink and wrote the following: The President “is to nominate, and by and with the advice and consent of the Senate, to appoint . . . judges of the Supreme Court.”
Publius, of course, was the pen name used by three of our nation’s founders when they wrote the eighty-five newspaper essays now known as the Federalist Papers. Among the authors was Alexander Hamilton, who wrote essay number 76, from which I just quoted. These fading words on a yellowed document reveal that what a handful of U.S. senators are doing today is a constitutional travesty.
Democratic senators have for months been filibustering judges chosen by President Bush to serve on the federal courts. If the full Senate were allowed to vote on these fine judges, they would easily be confirmed. But a hostile minority is using the filibuster tactic to prevent such a vote — purely for ideological reasons.
In so doing, they are behaving as if the Senate is supposed to have equal say with the president in deciding who sits on the court. That is nonsense.
The Constitution could not be clearer. The nomination is made by the president alone. The Senate is to give its advice and consent — not demand ideological purity. Alexander Hamilton explained the intent in his essay number 76. “It is not likely,” he wrote, “that [the Senate’s] sanction would often be refused where there were not special and strong reasons for the refusal.”
The advice and consent clause, Hamilton continued, was intended to provide a check upon a president who would, say, appoint his brother, or engage in favoritism, or reward family connections or personal benefactors — nothing more.
And yet, today a Senate minority is using the filibuster to prevent a vote on highly qualified judges, like Bill Pryor or Miguel Estrada, an able Hispanic lawyer who was nominated and had to be withdrawn, and Janice Brown, an African- American judge from California. And the grounds for opposition is not what the constitutional framers intended; it’s ideological. They just do not like what these judges believe.
This filibuster should offend us for another reason. America’s founders, informed by their Christian understanding of the Fall, provided for a system of checks and balances so that no one branch of government would have power over the other. But today a minority in the Congress is holding hostage judges named to the court. This is a fundamental assault on an independent judiciary and, thus, a violation of the balance of powers.
The Senate is debating this week whether to change its rules so that a simple majority could confirm a judge. That would prevent nominees from being filibustered. This is the only way we will have judges who interpret the law instead of making it up.
Please pick up your phone and call your senators: Jam the Capitol switchboard. The rules must be changed to avoid the hijacking of the Constitution. And then, ask your neighbors to do the same. Let them know that the “unfit characters” Hamilton described two centuries ago are not President Bush’s nominees, but those who are trying to upend the Constitution.