Reid’s Filibuster Power Play Is a Blow to American Constitutional System

by John Yoo

Democrats just made the next Miguel Estrada a Supreme Court justice.

Republicans will remember that in 2003 Democrats filibustered a Senate vote to confirm Miguel Estrada to the federal appeals court in Washington, D.C. Commonly known as the second most important court in the land because of its jurisdiction over the seat of the federal government, that court serves as a farm team for the Supreme Court. Estrada was superbly qualified: Columbia College, Harvard Law School, Harvard Law Review. Sound like anyone?

But unlike our current president, Estrada also had the very best of legal experience. He clerked for top federal judges, including Justice Anthony Kennedy of the U.S. Supreme Court, held elite positions in the Justice Department (where he argued many times before the Supreme Court and lower courts), and co-headed the appellate practice of a major national law firm. In the interests of full disclosure, he also represented me in my successful battles with the Obama Justice Department, but that’s another story.

What could Democrats possibly have against Estrada? His problem was his skin color.  Not only was he a smart conservative lawyer, but he was also Hispanic. Liberal groups urged Democratic senators to block him because he was a “Latino” who would be difficult to block for future elevation to the nation’s highest court. Democrats publicly admitted that he was “politically dangerous” because he was an “attractive candidate” without a judicial record.

With the support of only 44 senators, Democrats used the filibuster seven times to stop any vote on Estrada. Without that procedural device, Estrada would almost certainly have become the nation’s first Hispanic judge on the D.C. Circuit and then the Supreme Court.  Yet yesterday Senate Democrats changed the rules that allowed them to hide their racial reasons for opposing Estrada. Upending a rule almost as old as the republic, Majority Leader Harry Reid led the Democratic caucus in the Senate to eliminate the filibuster rule for the confirmation of federal judges and cabinet officers.

There will be, and should be, accusations that Senator Reid and his fellow Democrats are hypocrites. Some of the very same Democratic senators, most notably Reid and Senator Dick Durbin, who manned the ramparts to defend the filibuster to block George W. Bush’s judicial nominees, have flipped 180 degrees without any sense of shame. They will be, and should be, criticized for their lack of respect for the American political traditions of full debate and deliberation and of the rights of the minority. They will be, and should be, attacked for politicizing the federal bench. With Obamacare going down in flames, Democrats want to ensure that their strangulating regulation of the economy at least gets a free pass from Obama-appointed judges to the D.C. Circuit, where three nominees await confirmation.

And the shoe will soon be on the other foot. Democrats seem to believe that the political fates only favor them. But when Republicans regain the presidency and manage to elect 51 senators, which they inevitably will, they will appoint anyone they choose to the federal judiciary. The next Republican White House will not just be able to appoint Estrada to the D.C. Circuit, but it will implant the next generation of conservative intellectual leaders on the bench. And unlike the days when the Reagan and Bush administrations had to search far and wide to find Robert Bork, Antonin Scalia, Clarence Thomas, and Samuel Alito, today conservatives have a deep bench of legal superstars to appoint. The end of the filibuster rule will allow President Ted Cruz in 2016 to dispense with worries about “confirmability” and select judges likes those whom President Ronald Reagan elevated before Democrats first deployed the filibuster against nominees: Judges Richard Posner, Frank Easterbrook, Laurence Silberman, Douglas Ginsburg, and J. Harvie Wilkinson, among others. And while this rule change now only applies to judges below the Supreme Court, now that the dam has burst on Senate rules, what will prevent that from being changed too?

As someone who has participated in the inner workings of judicial nominations both for the executive branch and the Senate, I predict that Democrats will end up the losers in this chess game. They depend far more on the courts to advance policies that cannot get through the democratic process. But at the same time, their obsession with diversity forces them to seek other qualities in their appointments than just intellectual and legal excellence. Unburdened with such fine attention to skin color or gender, Republicans have appointed and will appoint their sharpest minds to the bench. Eliminating the filibuster allows Republicans to appoint those who, before, were too controversial because of their intellectual views.

The biggest loser, however, will not be Democrats or Republicans, but the American constitutional system. Like several other parts of the Obama administration’s political program, the filibuster’s end sacrifices unique constitutional and political features of the American government for short-term political gain. Worried about minority rights, the Framers designed a Constitution that imposed a difficult, hazardous path before any government action could be taken. Legislation had to be able to run the gauntlet of the popular House, the state-chosen Senate, and the nationally elected president, before braving federalism’s limited enumeration on federal powers. “Hence a double security arises to the rights of the people,” James Madison explained in Federalist 51. “The different governments will control each other, at the same time that each will be controlled by itself.”

Under the Framers’ design, domestic action could flow only from high levels of political consensus built upon long and careful deliberation. It forced the political parties to compromise — if President Bush had truly wanted Estrada on the courts, he should have traded political favors with Senate Democrats. Though ever frustrating to those who demand immediate reform or unchecked majority rule, the filibuster rule bolstered these unique features of the American Constitution. They imparted a stability to government and a resistance to sudden impulses that spared the United States the trials and tribulations of Europe, where parliamentary government has often led to wild swings of policy. As political sociologist Louis Hartz observed long ago, there is a reason why the United States never suffered the evils of socialism or Communism.

Democrats, however, have little difficulty trading constitutional stability for short-term political advantage. The filibuster’s end falls in line with President Obama’s refusal to fulfill his constitutional duty to faithfully execute the laws, merely to avoid the radioactive political fallout from his signature health-care law or dictate his preferred immigration reforms. It fits neatly Obamacare’s erasure of the limits on the powers of the federal government over interstate commerce, spending, and taxation, and with the president’s political browbeating of the Supreme Court for the assist. But these political victories, evanescent as they will be, will do permanent harm to the American political and constitutional system, which may well remain the longest-lasting legacy of Mr. Obama and his Democratic allies in the Senate.

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