by Bruce Ledewitz
From the Pittsburgh Post-Gazette.
Are we witnessing the beginning of the end of American democracy?
In the 1930s, democracy disappeared in a polarized Germany, bitterly divided between Communists and Nazis. People in Germany came to believe that political differences were too fundamental for compromise. In that atmosphere, where all political differences were considered matters of ultimate morality, each side grabbed as much power as it could until the rule of law, individual liberty and ultimately even elections were abolished.
Today in the United States, political contests are becoming this same sort of ultimate struggle, in which partisans on both sides label their opponents evil and untrustworthy. Political compromise is becoming more difficult as more Americans view their political commitments as ultimate truth and the views of others, ultimate wrong.
In this atmosphere, restraint vanishes and bad faith is presumed. One such restraint is the filibuster in the Senate that allows legislative action to be delayed or blocked. The Republican majority threatens to restrict the filibuster because, they say, the Democratic minority is violating the Constitution by preventing votes on some of President Bush’s judicial nominees. Bad faith is attributed to the federal judges who failed to reattach the feeding tube in the Terri Schiavo case. Some Americans believe that these judges purposely disobeyed the law. There is talk of judicial impeachment.
Both the controversy over the filibuster and that of the Schiavo case are founded on misunderstandings that threaten American democracy. The filibuster exists because Senate rules permit extended debate unless debate is cut off by 60 votes. The filibuster allows a minority of senators to prevent legislative action. Currently the Republican majority is short of the 60 votes it needs to curtail debate over judicial nominees. The filibuster allowed Senate Democrats in the last session of Congress to block action on 10 out of 215 judicial nominees.
The Republican leadership has been threatening to change the Senate rules to prohibit the use of the filibuster over a judicial nominee. That might sound innocuous — just tinkering with another set of internal rules. But it would represent such an earth-shattering change in the way the Senate functions that this tactic has been dubbed “the nuclear option” — it would essentially blow up the Senate.
The Republicans argue that preventing votes on judicial nominees violates the constitutional obligation of the Senate to provide advice and consent to the president’s judicial nominees.
This constitutional theory is a stretch. In 1968, Abe Fortas’ nomination for chief justice was blocked by filibuster, yet no one suggested that the move was unconstitutional and no senator or nominee has thought to challenge a filibuster in court since that time. The Constitution no more requires a vote on judges than it does on other nominees, or treaties or legislation, all of which can be blocked by Senate rules.
The filibuster is one of the many ways in which the American political system protects political minorities. The structure of the Senate itself, representing states rather than population, is another minority-protecting mechanism. Americans are usually sensitive to the rights of political minorities. The filibuster was not challenged even when it was used to delay historic civil rights legislation by a Southern bloc.
The difference today is the strong desire to overturn Roe v. Wade. There will be Supreme Court vacancies soon. Under the current rules, Democrats would be likely to prevent a vote on any nominee who openly opposes Roe. Once the filibuster is removed, the Republicans will be able to select a clearly anti-Roe nominee.
But this is precisely the point of compromise in a democracy. Previous Senate majorities have accepted the hindrance of the filibuster as healthy. They would have been satisfied with a nominee likely to vote against Roe, but perceived as a reasonable person. Such a candidate could be made more or less filibuster proof.
The current Republican majority does not wish to accept such restrictions. They view their opponents as fundamentally immoral — “against people of faith,” as Majority Leader Bill Frist puts it in the Family Research Council program, “Justice Sunday,” which will be simulcast in churches nationwide tonight.
The Republicans would do well to remember that today’s majority is tomorrow’s minority. Democracy loses when limits on majority rule are abolished in a mistaken quest for an immediate political goal.
The Schiavo case was an even more dramatic example of demonizing opponents. The religious right believed strongly that Terri Schiavo was not in a permanent vegetative state, had not consented to termination of hydration and nutrition and was not fairly represented by her husband. When a Florida judge ruled the other way on these three issues, Congress granted to her parents the right to bring their claims to federal court. These claims were to be considered “de novo,” notwithstanding any prior state court decision. But when the claims were presented in federal court, Judge James Whittemore rather summarily dismissed them, and both the 11th Circuit and the Supreme Court refused to intervene.
The Schiavo case further infuriated the religious right and probably is helping fuel the filibuster repeal effort. “Willful judges” were blamed for Terri Schiavo’s death. Without the filibuster, it is felt, judges more attuned to popular opinion will be confirmed.
But federal judges had little choice in the Schiavo case. The issues that the parents wanted to have addressed — Terri Schiavo’s actual condition, her intention and the good faith of her husband as guardian — were all matters of Florida law. The congressional statute limited the federal courts to considering issues of federal law, which were all pretty weak. To put it bluntly, it does not violate a patient’s federal rights to remove a feeding tube when the patient is in a vegetative state, has expressed her will that this be done and her guardian authorizes it. The problem was not legal but factual: Were these assertions about Terri Schiavo true? If true, there were no federal violations. And they were found to be true — correctly or incorrectly — under Florida law.
Congress could have granted the federal courts authority in the Schiavo statute to decide issues of Florida law, but Congress decided not to. Based on the federal issues before the courts, the federal judiciary did nothing wrong.
It is a sign of the breakdown of reasoned political discourse that this explanation of the Schiavo result has not been disseminated. We would rather believe that evil judges are frustrating the will of the majority. We would rather believe that radical action must be taken.
We are at the point where a small but determined majority is so convinced of its rightness that it is willing to change the rules to further its short-term goals.
And that is how democracy fails.
Bruce Ledewitz is a professor at the Duquesne University School of Law. (ledewitz@duq.edu)