Over the past several weeks, we have seen unprecedented attacks on the independent judiciary by leading members of the Republican majority. Most of the public, however, may have missed earlier efforts of the majority to "capture" the courts through the arguable abuse of both legislative and executive authority. These attempts by the administration and Republicans in Congress threaten to debase permanently the courts and undermine the stability of our legal system for mere short-term political gain. As was apparent from the message of Justice Sunday - a nationally televised Christian conservative political rally, the right-wing of the Republican party has made the appointment of judges the latest battle ground in the raging "culture" wars. The telecast's participants accused Democrats of using the filibuster to keep judges of a certain faith off the bench and essentially tarred their opponents as the enemies of God. The participation of Senator Frist in this event is troubling because the implication that any party or any senator would impose a litmus test against people of faith is not only wholly inaccurate, but irresponsible.In reality, this debate is over the nature of our democracy and respect for the independent federal judiciary. For 200 years, the Senate has used the filibuster to protect the rights of the minority in Congress and prevent intensely divisive legislation from passing. The filibuster is part of a series of Senate rules designed to encourage compromise and protect our democracy from being captured by one party or faction controlling all the branches of government, precisely the situation we have today. With the administration's changes in longstanding consultative policies, the filibuster represents the final option in oversight by the legislative minority in the Senate. From the beginning, this administration closed the review process by eliminating pre-nomination review by the American Bar Association and consultation with the opposition party on appellate court nominations, as had been the policy of the Clinton administration. These decisions all but guaranteed controversy around certain nominations and politicized the process. When you evaluate the record, it would seem that the administration should have little complaint. Senators have used the filibuster to block only 10 of President Bush's most extreme nominees and 204 have been confirmed. President Clinton's nominees faced a far different fate at the hands of these same senators, who used the tactics that they today propose to abandon. As a result of Republican obstructionism, 81 vacancies were left unfilled at the end of the Clinton administration, including 26 vacancies on the courts of appeals. The heaviest weight of these tactics fell on women and minorities. By the close of 1999, every nominee who was subjected to obstructionist hurdles, such as multiple Senate Judiciary Committee Hearings, was a woman or person of color. The bipartisan Constitution project of Georgetown University revealed that minority candidates for federal judgeships were twice as likely not to be confirmed as their white counterparts. Senator Jesse Helms, for example, blocked each of the four African-American judges nominated to integrate the Fourth Circuit Court of Appeals, and Missouri Supreme Court Justice Ronnie White was the victim of a racial double standard by former Senator and Attorney General John Ashcroft. Moreover, several other highly qualified women and minority nominees waited up to four years for a vote by the Senate. In the face of this apparent discrimination, there was never a suggestion that Senate rules be changed to remedy this disparity. Arguments that the proposed modification of the filibuster rule would erase its tainted racial history completely lack credibility because those authoring the change lack clean hands with respect to the issue.The level of partisanship aimed at the federal courts over the last several years clearly threatens to undermine the institution. Judges already battered by controversies over pay, Congressional investigations and threats of impeachment over unpopular decisions have cried foul. Further, over 350 editorial boards, former Republican Senators, columnists and lawyers of every ideological stripe, and organizations from across the political spectrum have appealed to the Senate to step back from the "nuclear" brink on judicial nominations. The leaders in the Senate must come together to find a solution that will assure both that fair and responsible judges fill vacant judicial seats and that the filibuster remains available for use during the most extreme situations. If we expect people of integrity to lead our courts, the time has come for reason to prevail over partisanship. John Conyers, Jr.May, 2005
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John Conyers, Jr., is the second most senior person serving in the U.S. House of Representatives. He is also the ranking Democrat on the House Committee on the Judiciary and a founding member of the Congressional Black Caucus.