Tuesday, September 21, 2010

Judicial Activism and the Filibuster

When  Judge Virginia Phillips in Riverside, California ruled a couple of weeks ago that the military's "don't ask, don't tell" policy is unconstitutional, the court naturally opened itself to attack from conservatives its judicial activism.  Here, for example, is what Tony Perkins of the Family Research Council had to say about the decision:
"It is hard to believe that a District Court level judge in California knows more about what impacts military readiness than the service chiefs who are all on the record saying the law on homosexuality in the military should not be changed. Once again, homosexual activists have found a judicial activist who will aid in the advancement of their agenda. This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them."
(It's funny that you don't hear conservatives complaining about activist judges when they overturn duly-enacted ordinances restricting gun rights, or when they favor the constitutional rights of corporations to buy unlimited amounts of political advertising, but that's another issue.)  What I want to talk about here is the validity of the criticism of judges who substitute their views of Constitutional rights for the democratically-elected legislature's judgments of what the people want.  And what I want to say is that that criticism has a substantial amount of  force.  The doctrine of judicial restraint suggests that judges should think very carefully before overturning acts of Congress.  Not only is it presumptuous for a single judge to assume that she necessarily knows the limits of legislative authority better than the legislature, it also undermines fundamental notions of democracy for appointed judges to overturn the people's will.  Note that I'm not saying that judges should never overturn legislation that they think is unconstitutional.  (I'm also not saying that Judge Phillips was wrong in this particular case.)  What I'm saying is that judges should be very careful about declaring any statute unconstitutional. I'm also saying that the argument about undermining democratic institutions is probably the strongest argument that can be made against judicial activism.  It should be recognized as a powerful argument.  It would be better for Congress to decide controversial questions like whether gays can serve openly in the military, because the decisions of Congress are more likely to accepted by the public, and because legislators who make unpopular decisions can be easily removed by the voters.

But, and here comes the very BIG BUT, here is what I would say to the 43 Senators who today prevented a vote on  a defense authorization bill because it included a provision, already passed by the House, that would have eliminated the military's don't ask, don't tell policy legislatively:  Stop complaining about judicial activism.  Stop talking about judges thwarting democracy.  You no longer have the right to complain about activist judges, because you just did something worse than any liberal judge could do, and without any support in the Constitution.  A solid majority of both Houses of Congress was ready to allow gay soldiers to serve openly in the military, and you activist Senators who do not have the votes to command a majority just prevented that from happening by yet another abuse of the Senate rules.  So Tony Perkins, if you want to leave it to Congress to make these decisions, then you ought to support allowing Congress to take a vote on the issue.  It is no wonder that judges have to make the law in this country, when legislators either cannot or will not do so, whether they have acted for political gain, or whether they have taken advantage of a procedural rule to make a principled decision to advance a minority position over the will of the majority.

Either you believe in democracy or you don't.  Either you respect the legislative process enough to allow an up or down vote on an issue, or you let judges decide it.  If you want to exercise the courage of your convictions to take a principled stand regardless of what the majority of the chamber wants, then you'd better start respecting those judges who also take a principled stand regardless of what is politically popular.  What you can't do is complain about judges thwarting democracy, and then thwart democracy yourselves.

(photo of Judge Phillips from the New York Times)


  1. Today’s vote, orchestrated Harry Reid, was Kabuki theater. The DREAM act was inserted into the Defense bill. The same type politics as Republicans like McCain have done before that makes most of us CRAZY.

    This way, 57 Democrats can pose as champions of immigrants and gays rights (noble causes) before November elections, knowing it would never pass. Both sides seek cover and can say "I didn’t vote for that" or "I didn’t oppose that". I am continually surprised by the ruling class’ underestimation of our intelligence.

    Both parties ought to understand we on to them.

  2. It's weird that you can say 57 Senators voted for something knowing that it would not pass. Since there are only 100 Senators, you would think that if 57 Senators voted for something, it certainly should have passed. I also think they had at least a faint hope that a Susan Collins or Olympia Snowe or Scott Brown might have voted with them, and then it would have passed even with the 60 vote majority that we now seem to think is always required. I think I need to keep reminding people that when you require a cloture vote, what you are doing is preventing a vote on the bill from occurring. So I don't think it's right to focus on the 57 Senators who voted to end debate on the bill as somehow posturing. I think we ought to focus on the 43 Senators who prevented the bill from coming up for a vote. They are the ones who are engaged in Kabuki theater.

  3. No, Joe, having determined to perpetuate the anti-democratic filibuster, the Dems must accept responsibility for the Kibuki theater that exists in the Senate.

  4. I'm not sure you can blame the Democrats for perpetuating the filibuster. It takes a two thirds vote to change the rule. Alternatively, the Senate could theoretically adopt brand new rules for itself next January at the beginning of the next Congress. In hindsight it might have been a good idea for them to do at the beginning of 2009 when they had a solid majority. Of course, they were hoping they had a filibuster-proof majority, and were also hoping for at least a tiny bit of Republican support. More importantly, though, if the Democrats did that, it would be open season on all Senate rules, and who knows what would result. The Republicans would probably want a supermajority for all tax increases, which is what we have in California, and which has caused absolute fiscal chaos. All this is discussed in the New York Review article I cited in my earlier post on filibusters. http://www.nybooks.com/articles/archives/2010/sep/30/specter-haunting-senate/?page=1

    I would prefer to blame the people who are abusing the filibuster rules for abusing the filibuster rules, rather than blame the victims for their inability to change the rules.

  5. Don't buy it. The filibuster is a 19th Century anachronistic tool to perpetuate power in the hands of a determined minority, and stifle change.

    The Dems are not "victims." And as you correctly point out, they could have changed the rules in 2009, but chose not to do so. The reality of life is that the Senatorial Dems and Republicans are -- with few exceptions like Feingold --rich, status-quo types, or owned by rich, status quo types. Change is not their watchword, or their interest.

  6. I do believe Reid and GOP lawmakers were politically posturing before the elections. GOP lawmakers will help repeal "don't ask don't tell". It is the right thing to do. However, they want to wait until after the Pentagon's review is done and they wanted to stop Reid from adding an amendment that affected immigration issues. The sticky wicket being the DREAM act. Why would he tack that on there? Everybody knew what would happen, including Reid. I call that bad theater. Both sides of the Senate make my stomach ache.

  7. First-time reader today, so must ask forgiveness for starting out with a gripe or two, but...

    Mr Markowitz, I know it's neither necessary nor appropriate to throw every conceivable observation or point into a single blog post, but I am surprised you let this one slide.
    The irony, of course, is that when Brother Perkins at FRC said,

    "This is a decision for Congress that should be based upon the input of the men and women who serve and those who lead them"

    he was, of course, being utterly disingenuous (read: "lying thru his teeth," as is almost always the case these days when any Publican, conservatroid, tea-beggar, or Villager says or writes anything at all).
    Because, of course, the top brass at the Pentagon have now publicly come out (as it were) in favor of repeal of DADT.*
    So by Perkins' own criteria, he too should be supporting repeal, not opposing it. Unless, of course, he's just a lying, hypocritical hack.

    Second, some commenters have pointed out that the feckless Senate Dem's had the option to change the filibuster rules at the start of the last Congress, and chose not to. Absolutely true -- and let's not have anybody fooling themselves into thinking they didn't want to tinker lest they regret doing so if the Pubbies re-took the Senate. We all know that the apparent "need to get to 60 votes" in the Senate, which never existed before this Congress, will be gone again, never even referred to in any verb tense, the very instant Senate becomes majority-Publican.
    It's not just since November of 2000 that the USA has no longer been a "democracy;" the loss goes back at least to the Reagan era, if not further.

    *That's not to say they seem eager for it, but that's still infinitely better than if they hadn't.

  8. Thanks for stopping by smartalek, hope to see you around often. And thanks for noticing the additional point that many military leaders are now in favor of repealing DADT.

    I do have to caution you, however, that I have an aversion to name-calling on this site, and I reserve the right to delete posts that engage in name-calling. I have nothing against people making fun of Republicans (or Democrats), and I do it myself pretty often, but I do try to avoid using derogatory language or name-calling. I just don't think that is ever helpful in trying to getting anyone who doesn't already agree with you to consider your point of view. Though perhaps you meant "Pubbies" as a term of endearment, in which case I'll agree it is kind of cute.