Judges and Judiciary,
Letters
Apr. 22, 2005
Senators' Comments Don't Equate To An Attack
Letter to the Editor - Professor [Erwin] Chemerinsky, who I generally have a lot of respect for, has sunk to a new low by comparing Senators [Tom] Delay and [John] Cornyn's recent irresponsible statements regarding violence towards the judiciary to those who would like to see an end to the filibuster of appellate judges.
Professor [Erwin] Chemerinsky, who I generally have a lot of respect for, has sunk to a new low by comparing Senators [Tom] Delay and [John] Cornyn's recent irresponsible statements regarding violence towards the judiciary to those who would like to see an end to the filibuster of appellate judges. ("Attack On Courts Threatens Crucial Checks And Balances," April 12 Daily Journal) One can denounce the minority of the Senate imposing its will on the majority while at the same time criticizing those who make stupid comments about what actions ought to be taken against the judiciary.
[Chemerinsky's] legal arguments are also unpersuasive. First, it is unclear why the "nuclear option" is illegitimate if the Senate gets rid of the filibuster, which is a Senate-created rule, following its own rules (regardless of whether Chemerinsky wants to label it "procedural" or "substantive").
Next he argues that getting rid of the filibuster "of course, would eliminate any check on the ability of the president to fill the federal courts with very conservative judges." I guess a majority of the Senate doesn't qualify as a "check."
Furthermore, in his historical analysis of the filibuster, he conveniently fails to mention when it was first used against appellate judges (it started with our current president).
Finally - and he has made this irrelevant argument before - he asserts that a majority of the Senate today actually represents a minority of the Americans. I don't think this constitutional scholar needs reminding that the Senate has nothing to do with population; that is, each state gets an equal number of Senators. Had the framers wanted a popular vote on this check on the president's power to nominate judges, they would have given the House of Representatives the power to "advise and consent."
I guess I just expect more from Professor Chemerinsky!
Hirbod Rashidi
Los Angeles
Contributing Writer
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