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The Left Filibusters On By: Harold Johnson
FrontPageMagazine.com | Friday, June 13, 2003


If you keep tabs on ideological double dealing in the mainstream media, it helps to have a long memory. Sometimes it's years before crooked shooters in the press corps get a chance to exempt liberals from the stern ethical standards that were once used to club the less politically correct.

The cork-popping over Senator Hillary Clinton's new memoir, for which Simon & Schuster has already paid her more than $2.8 million, is instructive. Contrast today's excited reporting with the jeers that greeted then-House Speaker Newt Gingrich eight years ago when his lucrative book deal with Rupert Murdoch's Harper Collins was announced. The furor over the supposed conflict of interest forced Gingrich to relinquish his advance - an example that no one, as far as I have heard, is recommending to the junior senator from New York.

But the most glaring media hypocrisy now on display is in the coverage (if you can call it that) of the ongoing Senate filibuster fights over two of President Bush's key judicial candidates. For weeks, Democrats have succeeded in denying up-or-down votes on appellate-court nominees Miguel Estrada and Priscilla Owen. This unprecedented obstruction of the Senate's advise-and-consent role has been accomplished largely under the radar screen. When the media isn't ignoring the story altogether, it's framing the controversy as mere politics as usual, nothing to get exercised about. The nasty "G" word ("gridlock"), which echoed through newscasts when a Republican Congress was declining to enact President Clinton's agenda, has gone into hibernation.

A look back brings the double standard into focus.  Journalists' ho-hum response to the Democrats' Big Stall would startle a time traveler from the 1950s, '60s or '70s. Back then, hatred of the filibuster was a prime tenet of liberal faith. The media shared the indignation over what was seen as an illegitimate, anti-democratic relic, a cudgel used only by drawling foes of civil rights and reactionary resisters to government expansion. Year in and year out, from the Eisenhower era to Jerry Ford's, "progressive" senators, cheered on by press and pundits, launched new sorties against the Cloture Rule, the Senate provision that lets a minority drag out "debate" unless and until halted by a supermajority vote. In 1975, Reform Turks in the post-Watergate Senate finally succeeded in reducing the vote needed to quash a filibuster from two-thirds of the membership to three-fifths. But even this famous liberal victory fell short of the ideal of scuttling cloture altogether.

Opposition to the Cloture Rule carried a "sense of moral superiority," as Democratic senatorial aide Eric Redman put it in his celebrated 1973 book, "The Dance of Legislation." He expressed a common liberal conviction when he wrote, "No self-respecting Senator would ever lead a filibuster."

When the media found a particular filibuster especially odious, vivid techniques could be used to marshal opinion against the interminable talkers. During Southern Democrats' "holding action" against the Civil Rights Act of 1964, each evening's newscast on CBS featured a clock that counted down the lengthening filibuster.

Yet today, when Democrats filibuster to keep a talented Latino lawyer (Estrada) in his place - and to sink the nomination of a reputedly brilliant woman jurist (Owen) - the klieg lights of the Big Three networks are turned off. This may be the first filibuster ever mounted against judicial nominees below the Supreme Court level, but Rather, Jennings and Brokaw can hardly stifle their yawns.

The question of the hour: Will Bush's candidates for the Supreme Court also get caught up in cloture shoot-outs? One or more sitting justices might retire at the end of the current term in late June, so we could have the answer soon. Because the media's studied ennui over the Estrada and Owen struggles has de-stigmatized the filibuster for the moment, sparing Democrats a hit in public opinion, Bush's High Court nominees could well be in for similar treatment.

This isn't all bad news.  It's conceivable that the very prospect of elbow-jabbing resistance to Bush's selections might make it more likely that we'll get nominees of backbone and philosophical ballast.  We're sometimes told that the rough-and-tumble of recent Senate confirmation fights threatens to "deter" "good people" from allowing their names to be put forward. Is that really to be regretted? Perhaps the type of lawyers most prone to shrink from a mud-splattering fray are those who serve the nation best by remaining in the tranquil decorum of white-shoe law firms.

With the courts at the center of so many hard-fought, defining social struggles -- affirmative action, abortion, the overall reach of federal power -- this is not a time to give gavels to the faint of heart. Men and women who flinch at controversy, who crave admission to swank social circles, who value affirmation from Newsweek, Time and the Washington Post, are not suited for the battles at hand.

"When great causes are on the move in the world . . . something is going on in space and time, and beyond space and time, which, whether we like it or not, spells duty."   This famous call to commitment by Churchill should be sewn into the robe of any jurist nominated by a conservative president. Justice Clarence Thomas understands. "Finding the right answer is often the least difficult problem," he told the American Enterprise Institute in a 2001 speech.  "Having the courage to assert that answer and stand firm in the face of the constant winds of protest and criticism is often much more difficult." Quoting Alexander Hamilton, Thomas said judges must be people of "an uncommon portion of fortitude." Unfortunately, he observed, too many in public life "show timidity today precisely when courage is demanded."

So a case can be made that the filibusterers and their media enablers unwittingly do service if they scare off the lamb-hearted and the sunshine strict constructionists. For the federal bench, we need candidates who, if they don't exactly view slings and arrows from Barbara Boxer, Chuck Schumer or Ted Kennedy as trophies of honor, at least have character and conviction that will steel them for a fight. The rest, of course, will be up to the president: He'll have to take the case for common-sense conservative judges to the people, building enough popular pressure that, in the end, it's the filibusterers who fold.


Harold Johnson is an attorney with the Pacific Legal Foundation.


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