Majority Rule, Part I

The present demand for a change in the Senate rules is a result of uncompromising Republican dissatisfaction with the Courts. The political parties were reversed on this issue in the late 1930s, when FDR tried to pack the Courts. Then, Republicans and many Democrats maintained that an independent Judiciary was a critical component of the "checks and balances" theory under which the United States government operates. And, at that time, conservative-dominated Courts had regularly declared New Deal programs unconstitutional. Conservatives and the notion of independent Courts prevailed, so FDR didn't get to pack the Courts and many New Deal programs were ended.

Now Sen Frist's "nuclear option" - eliminating the fillibuster in the Senate - is motivated by the Republican desire to pack the Courts. There are two immediate practical questions involved in that nuclear option, the Senate rules and the independence of the Judiciary. Both of these questions revolve around what "majority rule" means; i.e., what is our political philosophy?

Before considering the substance of these matters, I note that ending the fillibuster also ends the "rights of the minority," as does packing the Courts. I believe conservatives are too quick and too willing to change our system of government to gain temporary political advantage.This should not be done in hurry. Republicans are not only hypocritical, but opportunistic and tyrannical as well, in their strategies and goals. And, what is their goal? One party rule.
 

Conservatives know full well that by packing the Courts they will control the government for at least another generation, maybe two. That would be the result of an ever-shifting philosophy of government, and a large number of conservative puppets on the bench for life. When it suits them, conservatives can denounce the Courts and try to emasculate them. On another day, when the weather changes, conservatives can play the Courts as the "independent" branch, reviewing government decisions to insure conformity to conservative ideology. By putting fellow-travelers on the Courts, conservatives can bend the government to their wishes without winning any elected office. That is why the Courts are an important prize in their overall political strategy.

Why have I described conservatives in that manner? Because their behavior is not different from the totalitarian Stalinists of another day. What conservatives want is a compliant, ideologically committed Judiciary, and lots of show trials.

But, isn't that what Liberals have had all along since FDR tried to pack the Courts? The answer to that is clearly NO. Since the Roosevelt and Truman Administrations, most of the Judges appointed to the Courts have been moderate Republicans. In fact, in my living memory, there was a time - the 1960s - when a majority of the 9th Circuit (California and the West) bench was manned by ultra-conservatives, appointees of then-dominant Knowland machine. L:iberals have never had a lock on the Courts, for the simple reason that appointments were always considered non-political. Judicial nominations used to be a perogative of our Congressional representatives, who would put forward names to the President. That's how then-Senator Knowland's buddies got on the Courts. Liberals may now rue those decades when they did not apply a litmus test to judicial nominees, because the result has been a judiciary increasingly dominated by the ideological right.
 

Conservatives hate the heyday of "liberal" decisions, the Warren Court. But Earl Warren was - guess what? - a moderate Republican. For the most part, the Court never was a bunch of flaming liberals. What happened in the Warren Court was a number of obvious injustices were finally corrected (after a century or so). Even today's ultra-conservatives admit segregation was wrong, unjust and even (gasp!) unconstitutional. I think they are getting around to (some of) women's rights. (But, I don't know for how long, or whether they will take all of it back.)
 

I don't think conservatives can even imagine what a truly Liberal Court would look like. Here's one tiny, little sample: ALL businesses and other activities would be forced to attend to people's rights and the environment, on penalty of being expropriated. Basic rationale: you may run a business if it doesn't harm the public (that's the people); otherwise, it is a public nuisance.

It should be apparent that conservatives want their cake and eat it when it comes to the Courts. Anyone who understands "Kangaroo Court" and "Show Trial" should oppose what the Bandit and his henchmen, led by Sen Frist, are trying to do.
 

But, the Courts are only half the issue. The other half is the expression of the political will of the minority in the Congress. The Republicans want to prevent that from happening. That is an irksome position, as conservatives have taken advantage of their supposed minority status hundreds of times to prevent passage of legislation. There is an assymetry, and liberals should not forget it. But, I would rather not get into how oppressive conservatives are. Instead, I think it is worth discussing the fundamental philosophical question: majority rule.
 

There's a good part of me that wants to agree with Newt Gingrich about transforming the United States into a parliamentary system; i.e., a system similar to that of Canada, England, France and many European States. However, that would fly against the Constitution in many details, if not overall. For example, the Courts. In a true parlimentary system, Parliament can do anything - the citizens are at the mercy of whatever government is in charge. The answer to tyranny is get rid of Parliament, if you can. That is why in democratic parliamentary systems there is always an organized, official "shadow government." (Note: Parliamentary systems don't have to be democratic, and they weren't for most of Western history.) If and when the ins are thrown out, everyone changes seats; which brings us back to the Courts. In many parliamentary systems, judges don't serve for life; they have terms. Sometimes, they can be thrown out by the party in power. This goes along with the notion that Parliament can do anything - for a time.
 

Our Federal Judges are appointed for life. There are no term limits. They are appointed, not elected. This means the party in power cannot get rid of unpleasant or unco-operative Judges, except by impeachment for cause. The implication is the Congress is not all-powerful, which it is not, per theory of "checks and balances." So, as we head toward a parliamentary system, we need to think about amending the Constitution to put terms on judicial offices, or insert a means of dumping out-of-line judges. The idea of the parliamentary system is that a sufficient check-and-balance is limiting service. Put another way, you know how long you will have to tolerate the SOB in office, so there's a limit to the suffering.
 

But, if we aren't headed toward a parliamentary system, what are we to make of Judges for life? The Judiciary can become a loose cannon, or a juggernaut if unchecked. One way to handle the problem - implicit in Justice Scalia's Thought - is to remove Marbury v Madison, the princple of judicial review. The foundation of all "liberal" interpretations of the Constitution is that settlement by Chief Justice John Marshall, the idea that the Courts can interpret.the Constitution in its application to the law. By preventing "judicial activism," limiting jurists to applying the words of the law as written, but possibly allowing consideration of legislative intent, the horrors of "liberal interpretation" disappear. But, at least three things are overlooked in Scalia Thought:
 

1. The long history of "conservative interpretations" of the Constitution, as in Dred Scott
2. The huge body of settled law based on Marbury v Madison that would be thrown out
    
3. Where does interpretation begin or end? Who will bell the cat?

So, I don't think clamping down on judicial acitvism is the answer. In fact, the present conservative Court has been plenty active; e.g., it selected the President. Without some form of check, the Courts could become a junta running the country. The traditional check was putting "non-ideological" people on the bench, and allowing the various regions and political parties to nominate their favorite daughters and sons. Republicans are ending all that.

I returned to the Courts only as illustration of how many things will need to be changed, if the United States becomes a parliamentary system, and not just another autocracy.

So, now I turn to the question, what of majority rule? Is it limited in any way? Are there are "rights of the minority?" How far should we bend to accomodate the minority? What test shall we apply to the majority to determine its legitimacy? How can prevent the tyranny of the majority?

... to be continued