Thursday, May 12, 2005 - Students filibuster against Frist at his alma mater - May 10, 2005


Some background: A filibuster is anything a member of the parliament (or in America's case, Senate or House of Representatives) uses in an attempt to delay or to block a bill. So reading long long long speeches is a method to delay in the voting of a bill (record held is in double digit number of hours back in the 19th century, it has not been replicated since), or attaching various supid 'riders' to the bill in the hope that people will voted against it and pray that the bill dies a natural death. This, I speculate, is the reason behind those stupid laws you see in one of those humour books like no talking an alligator on a walk with a leash.

Anyway, the Republicans are now whining that the Democrats are delaying Bushes' judicial nomination to the various courts and Bill Frist is threatening the 'nuclear option' of demolishing the filibuster option once and for all by getting a majority vote to outlaw it. He has the votes and could if he so chooses to do so.

I would have a lot more sympathy with the Republicans if it were not for the simple fact that the Democrat's delay was in no way worse or longer than what they did to Bill Clinton's judicial nominees. The Republicans play a dangerous game. Whatever happens to their opposition could happen to them when the house and presidency reverts back to the Democrats.

But beyond such 'trite' political considerations, they might be a case for removal of such filibusters once and for all. Other than the fact that they could waste a lot of valuable political time (is that an oxymoron?), judicial nomination is not a matter to be taken lightly.

The United States comes from a Common Law tradition. What this means is that judges make the law in the sense that what a higher court decides in a case with a particular set of facts must be applied by a lower court with similar facts. Like cases should be decided alike. That is the basis of precedence. Hence the judge is a very powerful figure and this is even more so in the United States with a strong tradition of judicial activism/interference and a system designed by the founding fathers to protect the Constitution and curb the power of the Legislature and Executive. One of the outcome is that the government cannot simply legislate away decisions they do not like by the Judiciary which would be the case in Britain which has a system of Parliamentary Supremacy.

Hence, the stakes are very high. At the lower levels, the huge amount of cases that the American society creates everyday is simply piling into a huge backlog for whichever candidate makes it through. This does a disservice not simply to the litigants and society at large but also to the future judge.

At the level of the Federal Supreme Court, a "Conservative" bench could conceivably overturn Roe v Wade and thus allow states IF THEY CHOOSE TO DO SO to criminalise abortions except in certain legislated exceptions. Similarly for Affirmative Action (I wouldn't lose too much sleep over it. Asians don't get the protection of the law and yet do very well without it). Or the right to privacy. Or the constitutionality of the Patriot Act.

However, it might serve to note a few points. A Conservative bench may not be a bad thing especially if the person was a conservative in the politically traditional vein i.e. individual liberty and state rights against an overweaning Federal Government. So you could conceivably have a conservative judge ruling against Affirmative Action and gay marriages and at the same time strike down the Defence of Marriage Act signed by Clinton which states that marriage is the union of a man and a woman. And besides, supposed Conservative judges have turned out to be the complete opposite when on the bench, seeing in particular Justice Holmes.

So maybe Bill Frist may be doing the right thing after all.



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