Bucks County Herald – May 14, 2009

Jeffrey Toobin, Souter Quits, Filibuster Specter

Dear Friends,

Good morning. We get what we deserve. Those were the closing words of Jeffrey Toobin in his best seller, “The Nine.” I thought about Toobin’s fascinating story about the present make up of the U.S. Supreme Court, especially in light of Justice David Souter’s decision to retire and Senator Arlen Specter’s influence on the Judiciary Committee as a new Democrat.

During the time that President Obama’s team searches for a likely replacement, we should hearken to Toobin’s last words. “One factor will determine the future of the Supreme Court: the outcomes of presidential elections,” Toobin wrote. “Presidents pick justices to extend their legacies.

“The Court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people,” Toobin concluded. “We can expect nothing more, and nothing less, than the Court we deserve.”

We in the news business depend upon the courts to maintain freedom of the press. I have no doubt that, left to their own devices, state legislatures and the congress would be happy to impose restrictions.

It will be fascinating to see whether the President chooses a female to succeed Justice Souter since there is only one woman on the bench. And I wonder whether the President will select a candidate who has not been a judge. I think of Earl Warren who was Governor of California prior to his selection to the Supreme Court. It was the Warren Court that gave America the landmark civil rights decision, Brown v. the Board of Education, a 9 to 0.

Further, Senator Arlen Specter, the new Democrat, will get his chance to influence the Judiciary Committee when it deliberates over the President’s choice. While the Democratic Caucus has stripped him of his seniority, I have no doubt that his voice will be heard.

But, Specter’s star may be waning. If former Governor Tom Ridge decides to run in the 2010 Republican Primary, my bet is that he’ll beat conservative Pat Toomey. The state GOP is worrying that if Toomey becomes the U.S. Senate standard bearer, the Republican Party will continue in a death spiral. Don’t be dissuaded over Ridge’s announcement that he won’t run. We’ve all heard words like that before. Someone may make him an offer that he cannot refuse.

And speaking about Arlen Specter, last Sunday’s Inquirer had two significant headlines in its “Currents” section. Michael Smerconish, a Central Bucks product, is a morning talk show host and weekly columnist for the Inquirer. His lead was, “By leaving the [Republican] party, Specter could propel it, at long last, to the sensible politics he represents.”

The other column, by Dick Polman, stated, “This party’s over: Specter’s departure is one more sign of the GOP’s slide into immoderation and irrelevance.”

Either Smerconish or Polman is right.

By the way, don’t miss the Smerconish interview in Philadelphia Magazine (May issue). It’s excellent, except that the native of Doylestown appears nude…not his best side to be sure. I’ll kid him about that next time we chat.

But I stray.

With the appointments of Justices John Roberts and Samuel Alito, the U. S. Supreme Court has tilted to the right…5 to 4. Will the Republicans in the Senate resort to the filibuster to block a liberal nomination?

The filibuster has always fascinated me. It’s so undemocratic. Any Senator or group of senators can stop legislation dead in its tracks by implementing Senate Rule 22. That is, Senators can speak as long as they want unless a super majority (three fifth’s of the senate) votes to stop the debate. That means 60 of 100 senators. The super majority rule is called cloture and was imposed by the Senate in 1806. Without cloture, the senate cannot move on to other business unless the filibuster motion is withdrawn.

The House of Representatives has no such rule and passes legislation by a simple majority. I’ve always thought that the Senate should change its super majority rule. But it would require two thirds of the Senate (66) to do so. How likely is it that 66 Senators would make that change? Alas, it’s not in their best individual interests to do so. Making that change has as much chance of the Senate, or any federal or state legislative body for that matter, to impose term limits.

My search on Google revealed that a filibuster or threat of a filibuster has become more common in recent decades. Twice as many filibusters took place in the 1991-1992 Senate session as took place in the entire 1800’s.

Some day, we’ll chat about how the Senate avoided a disaster over George W. Bush’s judicial appointments in 2005. Called the Nuclear Option, seven Democratic and seven Republican Senators, known as the Gang of 14, led a compromise effort that prevented the minority members from shutting down the business of the Senate.

However, there is a curious exception to the filibuster. On budget issues, which must have the approval of both the Senate and the House of Representatives, a procedure called “Reconciliation” requires only a simple majority. Reconciliation has prevented the Senate from filibustering but only because the business before it was about money.

So the Democratic majority in the Senate can’t use “Reconciliation” to confirm the President’s choice to replace Justice Souter. Then again, thanks to the Specter switch, the Senate Democrats may have the 60 votes they need to stop a GOP filibuster anyway.

Who knows? But it’s fascinating, eh?

Sincerely,

Charles Meredith