In his effort to persuade Democrats to drop their filibuster of some of President Bush's 45 Court of Appeals nominees, Senate Majority Leader Bill Frist of Tennessee has promised to make no effort to block legislative filibusters.
He has it exactly backward.
Apart from the case for or against filibusters of legislation, requiring 60 votes to give someone a lifetime appointment to the federal bench makes perfect sense.
Federal judges are not agents or delegates of either the president who nominates them or the Senate that confirms them. They are intended to impartially resolve controversies between the other two branches and between the people and the government, in accordance with the Constitution and the law. When either of the other two branches oversteps its bounds, the federal courts are empowered to check the actions of that branch.
Today, because federal legislation and regulation affect every facet of our daily lives, decisions by federal judges touch everything we use and do, from the air we breathe to the safety of the drugs we take.
To enforce these decisions, the judiciary depends on the public's confidence that the judges are deciding these cases objectively and impartially, free from any outside influences. And to ensure that these decisions are made with complete independence, the Constitution has not only required joint action by the president and the Senate, but it has also given federal judges the right "to hold their offices during good behavior," which means only so long as they avoid conviction for a serious crime.
They normally hold on to their authority until they choose to leave, become incapacitated or die.
Supreme Court Justice William O. Douglas served 36 years; if he retires this year, Chief Justice William H. Rehnquist will have served 33 years. In recent years, the average length of a judge's tenure has been about 24 years and may be getting longer. With today's medical advances, judges appointed in their 30s can serve 40 to 50 years. Leading isolated, secure and privileged lives, these powerful public officials lose touch with the problems of ordinary people. Arrogance becomes an occupational disease.
During these long years, such powerful government officials are accountable for their decisions to no one but their consciences. If senators made mistakes or misjudgments or if new information appears, nothing can undo a judicial confirmation so long as a judge maintains "good behavior."
Would the Senate have confirmed former Assistant Attorney General Jay S. Bybee to a lifetime seat on the 9th U.S. Circuit Court of Appeals had they known he was the author of the infamous Aug. 1, 2002 memo authorizing interrogation practices that amounted to torture? When the memo became public, it was promptly repudiated by the government and was completely revised in December to ban those practices. Yet now nothing can be done about Judge Bybee.
The choice of a federal judge is thus like no other action by the Congress as a whole, or by the Senate. Legislation can be repealed or amended; ratified treaties can be repudiated; non-judicial appointees serve limited terms at the pleasure of the president. Only federal judges can stay as long as they want.
Such irreversible and unaccountable power over so long a period and over so many vital issues is anomalous in a democracy. No other democracy allows judges to serve such natural life tenure. Everywhere else in the world, judges have fixed terms or life tenure with retirement in their 60s or 70s. In this country, only Rhode Island still uses the federal system.
Although proposals have been made to reduce life tenure, none of these is likely to be adopted. It is therefore important that there be wide support for judicial nominees. Requiring the concurrence of 60 senators out of 100 for controversial nominees does not seem excessive.
Moreover, this will not slow the confirmation process appreciably, as the last four years have shown. The presumption in favor of the president will still apply in most cases. During the 17 months that the Democrats controlled the Senate, they approved 17 Court of Appeals nominees proposed by President Bush and 83 district judges, even though the Democrats disagreed with almost all of these nominees on judicial philosophy.
Overall, only nine judges of 218 have been filibustered on ideological grounds -- 35 appellate judges and 172 district judges have been seated. And if a nominee is blocked, there are many more candidates available.
To maintain a life-tenured judiciary that deserves the confidence of the American people, requiring 60 votes for controversial nominees is not too much.
Herman Schwartz is a professor at the Washington College of Law
at American University and author of
Right Wing Justice: The Conservative Campaign to Take Over the Courts
(Nation Books, 2004). Thanks to Carl Bromley at