The Race To The Bottom

Senate Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., discusses the Senate upcoming votes on judicial nominations during a news conference on Capitol Hill Tuesday, May 24, 2005.
Attorney Andrew Cohen analyzes legal issues for CBS News and

The Old Testament's Book of Judges is about cycles of apostasy, so it is entirely fitting that Congress' last-minute filibuster deal focused upon President Bush's most controversial judicial nominations. Like most things that Congress does, the deal only delays resolution of the toughest questions for another day. And it virtually guarantees the continuation of the current cycle of venomous anti-judicial rhetoric, itself an apostasy of the Constitution and its foundational principle of the separation of powers.

When Congress cannot agree upon clear, decisive language in its legislation, when it cannot resolve the toughest questions behind important issues, it uses fuzzy-wuzzy words like "reasonable" in its laws and them dumps those laws, with their intentional ambiguities, into the laps of judges to make sense of it all. That's why there is so much litigation in this country and why judges often feel the heat that more accurately ought to be directed at the politicians, who, after all, failed to do what their constituents pay them to do. Guess what? Congress did the very same thing Monday night when Senate moderates reached their so-called historical accord.

Saying in a memo of understanding that there will be no filibuster unless "extraordinary circumstances" exist is like saying in legislation that Congress wants to outlaw pollution when it is "reasonable" to do so. "Extraordinary circumstances," of course, will mean very different things to very different senators and once a dispute arises over what constitutes "extraordinary circumstances" – say, when President Bush nominates a controversial pick to replace U.S. Supreme Court Chief Justice William Rehnquist – we will all likely be back to where we were until Monday evening. In other words, legislators who make careers from weaseling out of tough choices weaseled out of a tough choice involving the rules of their very own body.

And by forestalling the showdown over the federal judiciary, the Senate ensured, even encouraged, many more months or years of vitriol toward judges. We are now at the nadir of a cycle in American history wherein the rule of judges has been politicized almost to the point of no return. It is not difficult to see how we got here. In fact, it is a surprise that it took so long for Congress and the White House to drag the judiciary down into the mud. Call it "Defining Article III Downward." Or call it a race to the bottom. Whatever you call it, it is a terrible thing when individual judges or the federal judiciary as a whole get demonized for doing no more and no less than what the Constitution requires.