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Nov 7, 2009 4:22 PM CST |
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Now that fourteen senators have preserved—for now—the possibility for a minority of senators to prevent a controversial judicial nominee from coming to a floor vote, we should take a step back from the partisan debate and consider the institutional role of the filibuster against judicial nominees. The judicial filibuster is, above all, a device that prevents a single political party from gaining a stranglehold on all three branches of government. If the Senate were to vote to strip this essential safeguard, the United States would become one of only a few remaining democracies devoid of any institutional check on majoritarian control of the courts. The details of the filibuster are uniquely American. By permitting endless Senate debate unless shut off by the sixty votes required for closure, the filibuster enables a minority party to block judicial nominations unless the dominant party can muster not merely a bare majority, but a three-fifths majority for controversial nominees. But the basic idea—blocking any one party from taking over the judiciary—is widely embraced by democracies. A broad if not universal consensus recognizes that among the checks and balances required for a healthy democracy is a judiciary which is independent, not only of the political branches of government but also of the majority political party. Without this check, minority rights are in jeopardy, and democracy is at risk of falling prey to the tyranny of a majority. Democracies around the world use two main devices—one focusing on judicial selection and the other on judicial nominations—to ensure that their courts do not become politically monochromatic. Judicial selection in many countries requires a supermajority. Most European countries, as well as Chile and several other Latin American countries, require a three-fifths or two-thirds majority to select judges of their highest courts. In Germany, for example, where each of the two houses of parliament elects half the sixteen constitutional court judges, the two major parties have agreed that a two-thirds majority is required in each house to elect the judges. Since neither party can achieve a two-thirds majority on its own, the predictable result is that judges of Germany's highest court come from the two major parties. Italy's system is more complex but pursues a similar goal. Of the fifteen judges of its constitutional court, one-third are appointed by the other highest Italian courts; one-third by the President (not the Prime Minister), who ordinarily chooses leading, middle of the road legal scholars; and the remaining five by the two houses of parliament, with a two-thirds majority required on the first three ballots, after which the supermajority requirement is reduced to three-fifths. The other main device to ensure pluralistic judiciaries relies on screening commissions—often called councils on the judiciary—to nominate judges. In France, for example, the section of the High Council on the Judiciary responsible for nominating judges includes not only government and parliamentary designees, but also five judges, a public prosecutor, and a state counselor appointed by the Council of State. In South Africa, most members of the Constitutional Court must be nominated by the Judicial Service Commission, which includes the Chief Justice, the President of the Constitutional Court, a judge designated by the Chief Judge, the Minister of Justice, four attorneys nominated by the legal profession, a law teacher designated by law teachers, delegates from provinces, and six parliamentarians, of whom at least three must be members of opposition parties. These devices are not universal. In Britain and nations that still follow its principle of parliamentary supremacy, high court justices have traditionally been appointed by governments. But even in those nations—where courts are far less powerful than ours and lack authority, for example, to invalidate legislation—the trend is toward separation of powers. Recently Britain decided to establish a supreme court. Its justices will be appointed by the Prime Minister but only from nominations made by the high court judges themselves. The wisdom of most of the world's democracies on judicial selection ought not lightly to be disregarded. The issue of our judicial filibuster is not Republican versus Democrat. Nor is it whether judicial nominees are entitled to a straight up-or-down vote. It is a far more fundamental question of separation of powers. And in particular, it is a matter of the political independence of the courts from the majority party of the day. Unlike most modern democracies, our two-hundred-year-old constitution requires neither a supermajority requirement for confirmation nor a pluralistic judicial nominating commission. Historically this absence has not mattered in most cases, since the Senate confirms the great majority of our federal judges by overwhelming margins. But for the small minority of controversial nominees we have had a safety net—the potential for a judicial filibuster—as a check to accomplish here what is achieved elsewhere by supermajority requirements and pluralistic nominating commissions. If we value, as we must, the separation of powers and the genuine independence of the courts, the Senate should continue to preserve this uniquely American institutional safeguard. Doug Cassel is Director of the Center for International Human Rights of Northwestern University School of Law. Views expressed are those of the author, and not necessarily those of Northwestern University, the Center of International Human Rights, or Chicago Public Radio. |
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