Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Filibuster War

James Skillen


May 2, 2005

Almost anything can be called "war" today. California Supreme Court Justice Janice Rogers Brown, one of President Bush's nominees for a federal court position, said on April 24 that "there seems to have been no time since the Civil War that this country was so bitterly divided. It's not a shooting war, but it is a war" (4/26/05, press release). The cover of May's Harper's Magazine announces: "The Christian Right's War on America." Stanley Kurtz strongly objects to its lead story, which "systematically identifies conservative Christianity with fascism." 

The debate, which some call war, is in part over the constitutional responsibility of the president to appoint federal judges with the advice and consent of the Senate. President Bush has proposed nominees, including Justice Brown, whom some oppose. The Senate's 44 Democrats have warned that they might use the filibuster to keep some judicial nominees from receiving an affirmative vote in the Senate; 60 votes are needed to break a filibuster. This threat violates a long Senate tradition even though it is not unconstitutional. In response, Republicans are counter-threatening to change Senate rules in order to disallow use of the filibuster against judicial nominees. Such a move would violate another long-standing Senate tradition.

The tragedy of "war" talk in this case is that it suggests the country has reached a point where ordinary processes of government and debate have failed, thus justifying resort to extraordinary methods and weapons, even if that means trumping or trashing the very institutions at stake. Republicans and Democrats are struggling for control of the judiciary, knowing that hard-fought and highly controversial issues such as abortion and civil rights will be decided in the courts (including the Supreme Court) in the years to come. The balance of power in Congress is close. The two sides are deeply divided. Each party wants to put its stamp on the courts.

But how can this tense situation possibly be helped by words and deeds that may weaken the Senate and the federal judiciary even further? Some of the pressure on Republican leaders like Sen. Bill Frist, for example, comes from Christians like James Dobson (Focus on the Family) who recently said of misguided Supreme Court justices that they are "unelected and unaccountable and arrogant and imperious and determined to redesign the culture according to their own biases and values and they're out of control" (Los Angeles Times 4/26/05).

That kind of diatribe makes little sense. Even if the Supreme Court was filled with justices Dobson approved, they would still be unelected, unaccountable, and determined to act in accord with their own values. By trashing the justices he dislikes, Dobson adds fuel to the fire of those who denounce the justices Dobson approves. From both sides the judiciary as an institution is demeaned.

The spectacle of Republicans and Democrats ratcheting up the conflict in the Senate is a sorry sight. But those who object to current judicial, congressional, or presidential judgments should not respond as if this is the end of the world and that war is now justified. Regardless of who wins the current Senate fight over judicial appointments if a compromise is not reached, it will not be the end of the world and it need not be the end of the Senate and the courts.

What is needed today is for citizens and public officials alike to realize that justice cannot be done without functioning government institutions. Those who don't like current decisions should gear up for long-term public service to change policies and decision makers, while showing respect for public offices. Dishonoring government may bring about something far worse than a few bad appointments.

—James W. Skillen, President
    Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”