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Supreme Court Sanity Calls for Filibusters

By John Yoo, The Philadelphia Inquirer

Should senators filibuster Elena Kagan, Merrick Garland, or Diane Wood for the Supreme Court? Yes, if there is any hope of fixing the broken appointment process and restoring limited constitutional government.

The three are the most-often-mentioned nominees for the seat of Justice John Paul Stevens, 90, who last month announced his retirement after 35 years on the high court. A filibuster to prevent a confirmation vote on his replacement would have little to do with these three distinguished lawyers, and everything to do with President Obama and his Senate allies.

Over the years, Senate Democrats have destroyed the confirmation process by turning it away from qualifications to a guessing game over how court nominees might vote on hot-button issues such as abortion, the death penalty, and racial quotas. They began the degradation of the advise and consent role with the 1987 rejection of Judge Robert Bork, who would have been one of the most qualified justices in the history of the Supreme Court, and the outrageous effort in 1991 to smear Clarence Thomas (for whom I served as a law clerk). They continued the descent with the filibuster of a slate of excellent picks for the lower courts by George W. Bush, and they reached a new low with their votes against John G. Roberts Jr. and an attempted filibuster against Samuel A. Alito Jr.

Gone was any deference for a president's choice. Dismissed was any thought of respecting a nominee's refusal to prejudge cases. Senate Democrats would try to stop the second coming of Oliver Wendell Holmes. Obama outlined the new standard in 2005. The senator from Illinois admitted that Roberts was highly qualified, but voted against him because "it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak." Obama did not oppose Roberts because of a specific lower court decision, or any speech, article, or book, but because he disagreed with his "deepest values," his "core concerns," his "broad perspective," and the "depth and breadth of [his] empathy."

This new confirmation standard allows only the mutely ambitious on the bench, lawyers whose only distinction is a silent voice and an inkless pen. Republicans can put an end to this race to the bottom only by filibustering Democrat judicial nominees in return.

Republicans can also use the filibuster to return the federal government to its proper role in our constitutional system. When Obama chose Sonia Sotomayor for the Supreme Court last year, the jury was still out on the president. It wasn't clear if Obama was a moderate technocrat, as much of the electorate hoped, or if he was a man of the left, as Republicans feared.

That answer is now clear. At home, Obama has launched a broad campaign to redistribute wealth and engineer social change. He and his large congressional majorities enacted a wasteful $800 billion stimulus, increased the national debt by 50 percent in two years, and nationalized the health-care sector - fully one-sixth of the economy.

On national security, Obama kept to the Bush-Petraeus drawdown schedule for Iraq and reluctantly surged troops to Afghanistan. But he has tried his best to fit the war against al-Qaeda into the box reserved for criminal activities: He promised to shut down Guantanamo Bay, abjured tough questioning tactics, loosed a special prosecutor on CIA interrogators, announced a civilian trial in New York City for 9/11 plotter Khalid Sheikh Mohammed, and automatically treated al-Qaeda's Christmas Day bomber as a criminal suspect.

Obama's first Supreme Court nominee made clear that he was a man of the left. Sotomayor's views put her at odds with most Americans - her view that a "wise Latina" made a better judge than a white man, her easy approval of racial quotas for hiring firefighters, her belief that the Supreme Court should import foreign laws and precedents into its decisions, and her conclusion that the right to bear arms applied only to Washington, D.C., and not the states.

Now, Stevens' retirement presents a problem for Obama and an opportunity for Republicans.

Obama will have to pick a nominee who supports abortion and racial preferences to keep his governing coalition together. As those positions will be to the left of most Americans, Obama may want his nominee to be centrist on issues such as crime, religion, national security, and economic regulation. Obama's search for that rare breed - a moderate Democratic judge - will be like watching a political version of The Bachelor.

Republicans can use the confirmation process to draw even sharper contrasts on the issues that have sparked popular opposition to Obama. They will have to accept a nominee who supports abortion and racial preferences; they will get no one else from this administration. But they can draw the line at judges who support the massive expansion of the welfare state at home while restricting the government's power to safeguard the nation from its foreign enemies.

The GOP will earn public support for its actions, but more important it will be returning the Supreme Court to the original meaning and purpose of the Constitution. The framers wanted the federal government to play a limited role in domestic affairs, and an energetic one to protect the national security against unforeseen emergencies and war. They did not establish a government to redistribute income or impose a socialistic vision of regulated markets. The Constitution's preamble declares its purpose: to "provide for the common defense" and "promote the general welfare," not balance the common defense and promote special interests. If President Obama doesn't send the Senate a nominee who understands those words, the Supreme Court vacancy could be another issue to await the results of the November elections.

John Yoo is a law professor at the University of California, Berkeley, and a visiting scholar at the American Enterprise Institute. He was a Justice Department official in the George W. Bush administration and is the author of "Crisis and Command." Contact him at jyoo@law.berkeley.edu.

5/2/2010