Fair Courts

WomenMatter will continuously post updates on all this and other issues as we monitor the continuing philosophical and practical debates nationwide. Please check back often for updates. Past updates are available for reference on the Fair Courts Archives page.

Checks, Balances, The Supreme Court, and You.

The 2000 presidential election was exciting for lots of reasons. Apart from the controversy over family ties and hanging chads, we were moved by the ISSUES that made up the candidates’ platforms.

Many people were torn between Al Gore and Ralph Nader, but voted for Gore in the end because they were afraid of losing the right to choose.

This is because in the year 2000, we thought that George Bush was likely to appoint a new Supreme Court justice who would tip the scales and thereby overturn Roe v. Wade, the monumental case that upholds the right to privacy, and consequently, to an abortion.

But Roe V. Wade is still in tact

And in fact, none of the justices have formally announced plans to retire. So, were we duped into thinking that this right may disappear? NO. It could disappear.

It is still quite possible that Bush will nominate and appoint a new justice. Maybe this idea delights you, or perhaps it frightens you. Regardless of your point of view on abortion, it is helpful to understand the nomination process. Why? Because the issue of judicial nominations is likely to come up in the 2004 elections, and it just may influence your vote.

How a nomination turns into an appointment

Because of our government’s system of checks and balances, the president is not able to replace a justice with whomever he (and someday she) wants. The Senate has to approve the nomination before the nominee can join the highest court in the nation.

Since the Senate has a Republican majority right now, it is likely that whomever Bush nominates will be approved. But Democrats still have a chance to block a nomination, through a time-honored tradition called filibustering.

Talk and talk and talk in order to block

Sometimes, the minority does not have enough votes to defeat a measure, so they block it instead with a filibuster. The most humorous form of filibustering is the speech that goes on and on (and on and on), allowing the minority to keep the floor and thus preventing the majority from proposing a vote.

Republican Strom Thurmond delivered the longest ever filibuster speech at 24 hours and 18 minutes. And you thought you could talk.

The only thing that can stop a minority member from chattering on and on (usually about irrelevant topics) is 3/5 of the Senate. In other words, 60 Senators have to agree to stop the rant.

Blabbing for a purpose

If you are thinking to yourself, “this is where my tax dollars go? Wasted on the salary of an official that just babbles on and on about nothing?" You may want to think again. Filibusters happen relatively rarely, and have been used by Democrats and Republicans alike to stop legislation to which they are adamantly opposed.

Many say that the filibuster protects minority rights. How can constant blabbing protect someone’s rights?

Here’s how: if one party dominates the legislative and executive branches, that party can easily pass laws and judicial nominations, even if they don’t have bipartisan support. Therefore, the minority party has considerably less power. Right now, we have a Republican President and Republican majority in Congress, but the Democratic minority still represents millions of Americans.

One way for Democratic representatives to speak for their constituents is to halt legislation that those constituents do not want. It is a last resort of sorts.

Filibustering knows no party

For most of the 1990s, we had a Democratic president and Democratic Senate. During that time, Republicans used filibustering to halt legislation. No matter who the minority is, that minority can use a filibuster to prevent laws that their voters don’t want.

For a filibuster to work, minority representatives have to agree with one another. If there is dissention within the minority, and some minority Senators agree with the majority, then they can vote with the majority to stop the filibuster. Such an action is called cloture.

Senator Leahy trying to avoid a future filibuster

Since filibustering does take time, energy and money, it is best for the minority to avoid it unless absolutely necessary.

During the week of June 9, 2003, Senator Patrick J. Leahy of Vermont urged the Bush administration to consult with Democrats BEFORE making a judicial nomination to the Supreme Court. Reaching a consensus on the nomination before the matter goes to the Senate would prevent a filibuster.

The White House has not agreed to consult Democrats before making nominations, and considers Leahy’s request premature, since no justices have announced retirement.

The courts are political

It is likely that at least one justice will retire when the term ends in summer, 2003. That means that Bush could attempt to appoint someone new before his campaign really begins. Seemingly, all sides want to avoid the intense political battle that a nomination could ignite. Republicans don’t want this issue to dominate the 2004 campaign, and Democrats want a more moderate judge who won’t overturn Roe v. Wade.

If Republicans and Democrats can’t come to a compromise on a judicial nomination, prepare for a filibuster that could break Thurmond’s impressive record.

Posted on: 6/17/2003

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