Four years and four months ago, the Supreme Court of the United States, in a bitterly divided 5 to 4 decision, issued an unsigned opinion that the majority cautioned should never be used as a precedent for any subsequent case anywhere in the federal court system.
Their ruling conferred the presidency on a candidate who had lost the popular vote, and it inflamed partisan passions that had already been aroused by the long and hard-fought election campaign. I couldn't have possibly disagreed more strongly with the opinion that I read shortly before midnight that evening, December 12, 2000. But I knew what course of action best served our republic.
Even though many of my supporters said they were unwilling to accept a ruling which they suspected was brazenly partisan in its motivation and simply not entitled to their respect, less than 24 hours later, I went before the American people to reaffirm the bedrock principle that we are a nation of laws, not men. "There is a higher duty than the one we owe to a political party," I said. "This is America and we put country before party." The demonstrators and counter-demonstrators left the streets and the nation moved on -- as it should have -- to accept the inauguration of George W. Bush as our 43rd president.
Having gone through that experience, I can tell you -- without any doubt whatsoever -- that if the justices who formed the majority in Bush v. Gore had not only all been nominated to the Court by a Republican president, but had also been confirmed by only Republican Senators in party-line votes, America would not have accepted that court's decision.
Moreover, if the confirmation of those justices in the majority had been forced through by running roughshod over 200 years of Senate precedents and engineered by a crass partisan decision on a narrow party line vote to break the Senate's rules of procedure then no speech imaginable could have calmed the passions aroused in our country.
As Aristotle once said of virtue, respect for the rule of law is "one thing."
It is indivisible.
And so long as it remains indivisible, so will our country.
But if either major political party is ever so beguiled by a lust for power that it abandons this unifying principle, then the fabric of our democracy will be torn.
The survival of freedom depends upon the rule of law.
The rule of law depends, in turn, upon the respect each generation of Americans has for the integrity with which our laws are written, interpreted and enforced.
That necessary respect depends not only on the representative nature of our legislative branch, but also on the deliberative character of its proceedings. As James Madison envisioned, ours is a "deliberative democracy." Indeed, its deliberative nature is fundamental to the integrity of our social compact. Because the essential alchemy of democracy -- whereby just power is derived from the consent of the governed -- can only occur in a process that is genuinely deliberative.
Moreover, it is the unique role of the Senate, much more than the House, to provide a forum for deliberation, to give adequate and full consideration to the strongly held views of a minority. In this case, the minority is made up of 44 Democratic Senators and 1 Independent.
And it is no accident that our founders gave the Senate the power to pass judgment on the fitness of nominees to the Judicial branch. Because they knew that respect for the law also depends upon the perceived independence and integrity of our judges. And they wanted those qualities to be reviewed by the more reflective body of Congress.
Our founders gave no role to the House of Representatives in confirming federal judges. If they had believed that a simple majority was all that was needed to safeguard the nation against unwise choices by a partisan president, they might well have given the House as well as the Senate the power to vote on judges.
But they gave the power instead to the Senate, a body of equals, each of whom was given a term of office -- 3 times longer than that of a representative -- in order to encourage a reflective frame of mind, a distance from the passions of the voters and a capacity for deliberation. They knew that the judges would serve for life and that, therefore, their confirmation should follow a period of advice and consent in which the Senate was an equal partner with the executive.
Alexander Hamilton, in Federalist # 78, wrote that the "independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill-humors which the arts of designing men... have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
When James Madison introduced the Bill of Rights, he explained that "independent tribunals of justice will consider themselves... the guardians of [these] rights, ... an impenetrable bulwark against every assumption of power in the legislature or executive."
So, it is not as a Democrat but as an American, that I appeal today to the leadership of the majority in the Senate to halt their efforts to break the Senate's rules and instead protect a meaningful role in the confirmation of judges and justices for Senators of both parties. Remember that you will not always be in the majority, but much more importantly, remember what is best for our country regardless of which party is temporarily in power. Many of us know what it feels like to be disappointed with decisions made by the courts. But instead of attacking the judges with whose opinions we disagree, we live by the rule of law and maintain respect for the courts.
I am genuinely dismayed and deeply concerned by the recent actions of some Republican leaders to undermine the rule of law by demanding the Senate be stripped of its right to unlimited debate where the confirmation of judges is concerned, and even to engage in outright threats and intimidation against federal judges with whom they philosophically disagree.
Even after a judge was murdered in Atlanta while presiding in his courtroom, even after the husband and mother of a federal judge were murdered in Chicago in retaliation by a disgruntled party to a failed lawsuit -- even then -- the Republican leader of the House of Representatives responded to rulings in the Terri Schiavo case, by saying ominously: "The time will come for the men responsible for this to pay for their behavior."
When the outrage following this comment worsened Rep. DeLay's problems during the House Ethics scandal, he claimed that his words had been chosen badly, but in the next breath, he issued new threats against the same courts: "We set up the courts. We can unset the courts. We have the power of the purse."
In previous remarks on the subject, DeLay has said, "Judges need to be intimidated," adding that if they don't behave, "we're going to go after them in a big way."
Moreover, a whole host of prominent Republicans have been making similar threats on a regular basis.
A Republican Congressman from Iowa added: "When their budget starts to dry up, we'll get their attention. If we're going to preserve the Constitution, we must get them in line."
A Republican Senator from Texas directly connected the "spate of courthouse violence lately" to his view that unpopular decisions might be the explanation. "I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions, yet are unaccountable to the public, that it builds and builds to the point where some people engage in violence."
One of the best-known conservative political commentators has openly recommended that "liberals should be physically intimidated."
The spokesman for the Republican chairman of the House Judiciary Committee said: "There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary." Misunderstanding?
The Chief of Staff for another Republican senator called for "mass impeachment" by using the bizarre right-wing theory that the president can declare that any judge is no longer exhibiting "good behavior," adding that, "then the judge's term has simply come to an end. The President gives them a call and says: 'Clean out your desk. The Capitol police will be in to help you find your way home.'"
The elected and appointed Republican officials who made these dangerous statements are reflecting an even more broadly-held belief system of grassroots extremist organizations that have made the destruction of judicial independence the centerpiece of their political agenda.
Tony Perkins, leader of the Family Research Council, who hosted a speech by the Senate Majority Leader last Sunday, has said, "There's more than one way to skin a cat, and there's more than one way to take a black robe off the bench." Explaining that during his meeting with Republican leaders, the leaders discussed stripping funding from certain courts, Perkins said, "What they're thinking of is not only the fact of just making these courts go away and recreating them the next day, but also de-funding them." Congress could use its appropriations authority to just "take away the bench, all of its staff, and he's just sitting out there with nothing to do."
Another influential leader of one of these groups, James Dobson, who heads Focus on the Family, focused his anger on the 9th circuit court of appeals: "Very few people know this, that the Congress can simply disenfranchise a court. They don't have to fire anybody or impeach them or go through that battle. All they have to do is say the 9th circuit doesn't exist anymore, and it's gone."
Edwin Vieira (at the "Confronting the Judicial War on Faith" conference) said his "bottom line" for dealing with the Supreme Court comes from Stalin: "He had a slogan, and it worked very well for him whenever he ran into difficulty: 'no man, no problem.'"
Through their words and threats, these Republicans are creating an atmosphere in which judges may well hesitate to exercise their independence for fear of Congressional retribution, or worse.
It is no accident that this assault on the integrity of our constitutional design has been fueled by a small group claiming special knowledge of God's will in American politics. They even claim that those of us who disagree with their point of view are waging war against "people of faith." How dare they?
Long before our founders met in Philadelphia, their forebears first came to these shores to escape oppression at the hands of despots in the old world who mixed religion with politics and claimed dominion over both their pocketbooks and their souls.
This aggressive new strain of right-wing religious zealotry is actually a throwback to the intolerance that led to the creation of America in the first place.
James Madison warned us in Federalist #10 that sometimes, "A religious sect may degenerate into a political faction."
Unfortunately the virulent faction now committed to changing the basic nature of democracy now wields enough political power within the Republican party to have a major influence over who secures the Republican nomination for president in the 2008 election. It appears painfully obvious that some of those who have their eyes on that nomination are falling all over themselves to curry favor with this faction.
They are the ones demanding the destructive constitutional confrontation now pending in the Senate. They are the ones willfully forcing the Senate leadership to drive democracy to the precipice that now lies before us.
I remember a time not too long ago when Senate leaders in both parties saw it as part of their responsibility to protect the Senate against the destructive designs of demagogues who would subordinate the workings of our democracy to their narrow factional agendas.
Our founders understood that the way you protect and defend people of faith is by preventing any one sect from dominating. Most people of faith I know in both parties have been getting a belly-full of this extremist push to cloak their political agenda in religiosity and mix up their version of religion with their version of right-wing politics and force it on everyone else.
They should learn that religious faith is a precious freedom and not a tool to divide and conquer.
I think it is truly important to expose the fundamental flaw in the arguments of these zealots. The unifying theme now being pushed by this coalition is actually an American heresy -- a highly developed political philosophy that is fundamentally at odds with the founding principles of the United States of America.
We began as a nation with a clear formulation of the basic relationship between God, our rights as individuals, the government we created to secure those rights, and the prerequisites for any power exercised by our government.
"We hold these truths to be self-evident," our founders declared. "That all men are created equal, that they are endowed by their creator with certain inalienable rights..."
But while our rights come from God, as our founders added, "governments are instituted among Men, deriving their just power from the consent of the governed."
So, unlike our inalienable rights, our laws are human creations that derive their moral authority from our consent to their enactment-informed consent given freely within our deliberative processes of self-government.
Any who seek to wield the powers of government without the consent of the people, act unjustly.
Over sixty years ago, in the middle of the Second World War, Justice Jackson wrote: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."
His words are no less true today.
The historic vulnerability of religious zealots to subordinate the importance of the rule of law to their ideological fervor was captured best in words given by the author of "A Man for All Seasons" to Sir Thomas More.
When More's zealous son-in-law proposed that he would cut down any law in England that served as an obstacle to his hot pursuit of the devil, More replied: "And when the last law was cut down and the devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast-man's laws, not God's -- and if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then?"
The Senate leaders remind me of More's son-in-law. They are now proposing to cut down a rule that has stood for more than two centuries as a protection for unlimited debate. It has been used for devilish purposes on occasion in American history, but far more frequently, it has been used to protect the right of a minority to make its case.
Indeed it has often been cited as a model for other nations struggling to reconcile the majoritarian features of democracy with a respectful constitutional role for minority rights. Ironically, a Republican freshman Senator who supports the party-line opposition to the filibuster here at home, recently returned from Iraq with an inspiring story about the formation of multi-ethnic democracy there. Reporting that he asked a Kurdish leader there if he worried that the majority Shiites would "overrun" the minority Kurds, this Senator said the Kurdish leader responded "oh no, we have a secret weapon.... [the] filibuster."
The Senate's tradition of unlimited debate has been a secret weapon in our nation's arsenal of democracy as well. It has frequently serves to push the Senate-and the nation as a whole-toward a compromise between conflicting points of view, to breathe life into the ancient advice of the prophet Isaiah: "Come let us reason together"; to illuminate arguments for which the crowded, busy House of Representatives has no time or patience, to afford any Senator an opportunity to stand in the finest American tradition in support of a principle that he or she believes to be important enough to bring to the attention of the nation.
In order to cut down this occasional refuge of a scoundrel, the leadership would cut down the dignity of the Senate itself, diminish the independence of the legislative branch, reduce its power, and accelerate the decline in its stature that is already far advanced.
Two-thirds of the American people reject their argument. The nation is overwhelmingly opposed to this dangerous breaking of the Senate's rules. And, so the leadership and the White House have decided to call it a crisis.
In the last few years, the American people have been told on several occasions that we were facing a dire crisis that required the immediate adoption of an unusual and controversial policy.
In each case, the remedy for the alleged crisis was an initiative that would have been politically implausible at best -- except for the crisis that required the unnatural act they urged upon us.
First, we were told that the nation of Iraq, armed to the teeth as it was said to be with weapons of mass destruction, represented a grave crisis that necessitated a unilateral invasion.
Then, we were told that Social Security was facing an imminent crisis that required its immediate privatization.
Now we are told that the federal judiciary is facing a dire crisis that requires us to break the rules of the Senate and discard the most important guarantee of the deliberative nature of Senate proceedings.
As with the previous "crises" that turned out to be falsely described, this one too cannot survive scrutiny. The truth is that the Senate has confirmed 205 or over 95% of President Bush's nominees. Democrats have held up only ten nominees, less than 5 percent. Compare that with the 60 Clinton nominees who were blocked by Republican obstruction between 1995 and 2000. In fact, under the procedures used by Republicans during the Clinton/ Gore Administration, far fewer than the 41 Senators necessary to sustain a filibuster were able to routinely block the Senate from voting on judges nominated by the president. They allowed Republican Senators to wage shadow filibusters to prevent some nominees from even getting a hearing before the Judiciary Committee. Other nominees were victims of shadow filibusters after receiving a hearing and were not allowed a committee vote. Still others were reported out of committee, and not allowed a vote on the Senate floor.
To put the matter in perspective, when President Clinton left office, there were more than 100 vacant judgeships largely due to Republican obstructionist tactics. Ironically, near the end of the Clinton-Gore administration, the Republican chairman of the Senate Judiciary Committee said: "There is no vacancy crisis and a little perspective clearly belies the assertion that 103 vacancies represent a systematic crisis."
Comically, soon after President Bush took office, when the number of vacancies had already been reduced, the same Republican committee chairman sounded a shrill alarm. Because of the outstanding vacancies, he said, "We're reaching a crisis in our federal courts."
Now, the number of vacancies is lower than it has been in many years: 47 vacancies out of 877 judgeships -- and for the majority of those vacancies, the President has not even sent a nominee to the Senate. Yet still, the Republican drive for one-party control leads them to cry over and over again: "Crisis! Crisis in the courts!" It is hypocritical, and it is simply false.
Republicans have also claimed quite disingenuously that the filibustering of judicial nominees is unprecedented. History, however, belies their claim. I served in the Senate for eight of my 16 years in Congress -- and then another 8 years as President of the Senate in my capacity as Vice President. Moreover, my impressions of the Senate date back to earlier decades -- because my father was a Senator when I was growing up.
From that perspective, I have listened with curiosity to some of the statements made during the current debate. For example, I have heard the Senate Majority Leader, who is from my home state and should know better, say that no Court nominee has ever been filibustered before the current president's term. But I vividly remember not only the dozens of nominees sent to the Senate by President Clinton who were denied a vote and filibustered by various means, I also remember in 1968 when my father was the principal sponsor of another Tennessean -- Abe Fortas -- who was nominated to be Chief Justice by President Lyndon Johnson. Fortas was filibustered and denied an up or down vote. The cloture vote was taken on October 1, 1968. When it failed by a vote of 45-43, President Johnson was forced by the filibuster to withdraw the nomination.
My father's Senate colleague and friend from Tennessee, Howard Baker, said during that filibuster, "On any issue, the majority at any given moment is not always right." And no Democrat would take issue with that statement, then or now. It is part of the essence of the U.S. Senate.
This fight is not about responding to a crisis. It is about the desire of the administration and the Senate leadership to stifle debate in order to get what they want when they want it. What is involved here is a power grab -- pure and simple.
And what makes it so dangerous for our country is their willingness to do serious damage to our American democracy in order to satisfy their lust for total one-party domination of all three branches of government. They seek nothing less than absolute power. Their grand design is an all-powerful executive using a weakened legislature to fashion a compliant judiciary in its own image. They envision a total breakdown of the separation of powers. And in its place they want to establish a system in which power is unified in the service of a narrow ideology serving a narrow set of interests.
Their coalition of supporters includes both right-wing religious extremists and exceptionally greedy economic special interests. Both groups are seeking more and more power for their own separate purposes. If they were to achieve their ambition -- and exercise the power they seek -- America would face the twin dangers of an economic blueprint that eliminated most all of the safeguards and protections established for middle class families throughout the 20th century and a complete revision of the historic insulation of the rule of law from sectarian dogma. One of the first casualties would be the civil liberties that Americans have come to take for granted.
Indeed, the first nominee they've sent to the on-deck circle has argued throughout her legal career that America's self-government is the root of all social evil. Her radical view of the Social Security system, which she believes to be unconstitutional, is that it has created a situation where, in her words: "Today's senior citizens blithely cannibalize their grandchildren."
This family of 7 judicial fanatics is now being stopped at democracy's gates by 44 Democratic Senators, led by Sen. Harry Reid, and a small but growing number of Republican Senators who have more independence than fear of their party disciplinarians. If the rules of the Senate are broken and if these nominees should ever be confirmed, they would, as a group, intervene in your family's medical decisions and put a narrow version of religious doctrine above, not within, the Constitution. They have shown by their prior records and statements that they would weaken the right to privacy and consistently favor special interests at the expense of middle class America by threatening the minimum wage, worker & consumer protections, the 40-hour workweek, your right to sue your HMO, and your right to clean air and water.
Because of the unique lifetime tenure of federal judges, their legitimacy requires that they be representative of a broad consensus of the American people. Extremist judges so unacceptable to a large minority of the Senate clearly fall outside this consensus.
Yet today's Republicans seem hell-bent on squelching the ability of the minority in this country to express dissent. This is in keeping with other Republican actions to undercut the legislative process.
And in the filibuster fight they are doing it with utter disregard for the rule of law so central to our democracy. There is, of course, a way to change the rules if they so choose -- and that is to follow the rules.
When they decide instead to break the rules and push our democracy into uncharted, uncertain terrain, the results are often not to the liking of the American people.
That's what happened when they broke precedents to pass special legislation in the Terri Schiavo case -- by playing politics with the Schiavo family tragedy. And, the overwhelming majority of Americans in both political parties told the President and the Congress that they strongly disagreed with that extremist approach.
And now, all of the new public opinion polls show an overwhelming majority of the American people are opposed to this current effort to cripple the United States Senate's position in our constitutional framework by destroying the principle of unlimited debate. But, the congressional Republican leadership and the White House are so beholden to the extremists that they feel like they have to do what they say.
One reason that the American people are upset about what the Republican party is doing, is that while they are wasting time on their extremist agenda, they are neglecting issues like the crisis in the cost and availability of health care, the difficulty middle class families are having in making ends meet, etc.
Our founders understood that there is in all human beings a natural instinct for power. The Revolution they led was precisely to defeat the all-encompassing power of a tyrant thousands of miles away.
They knew then what Lord Acton summarized so eloquently a hundred years later: "Power tends to corrupt and absolute power corrupts absolutely." They knew that when the role of deliberative democracy is diminished, passions are less contained, less channeled within the carefully balanced and separated powers of our Constitution, less checked by the safeguards inherent in our founders' design-and the vacuum left is immediately filled by new forms of power more arbitrary in their exercise and derived less from the consent of the governed than from the unbridled passions of ideology, ultra-nationalist sentiments, racist, tribal and sectarian fervor -- and most of all, by those who claim a unique authority granted directly to them by the Almighty.
That is precisely why they established a system of checks and balances to prevent the accretion of power in any one set of hands -- either in one individual or a group because they were wary of what Madison famously called "factions."
Yet today that is precisely what a small group of radical Republicans is trying to do. And they threaten a fundamental break with a system that has served us well for 230 years and has served as a model for the rest of the world.
In the words of columnist George Will, "The filibuster is an important defense of minority rights, enabling democratic government to measure and respect not merely numbers but also intensity in public controversies. Filibusters enable intense minorities to slow the governmental juggernaut. Conservatives, who do not think government is sufficiently inhibited, should cherish this blocking mechanism."
Senator McCain echoed Will's sentiments, reminding his conservative colleagues, "We won't always be in the majority... and do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?"
The rules and traditions of the Senate all derive from this desire to ensure that the voice of the minority could be heard. The filibuster has been at the heart of this tradition for nearly the entire 230 years of the Senate's existence. Yet never before has anyone has felt compelled to try to eliminate it.
The proposal from the Senate majority leader to abolish the right of unlimited debate is a poison pill for America's democracy. It is the stalking horse for a dangerous American heresy that would substitute persuasion on the merits with bullying and an effort at partisan domination.
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