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A Letter to the Senate: Filibuster

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Forwarding, cutting, pasting permitted and encouraged.

Dear Senator:

Will you vote no on Senator Frist's cloture resolution to cut off debate on the Alito nomination? I feel strongly that you should. Everything about Judge Alito--his record of pandering to the most hard-hearted and repressive expressions of the Reagan justice department, his judicial decisions, consistently favoring management over labor, corporate power over the individual, and government over the citizen, his support of ludicrous, (un)constitutional doctrines like the unitary executive and his evasive and disingenuous performance before the judiciary committee makes his elevation to the Supreme Court a grievous prospect. Most pertinently, Judge Alito's apparent willingness to vest sovereign power in the person of the executive fits all too well with the program of an administration that, from its inception, has placed itself above the rule of law. It is the duty of the Senate to maintain the independence of the legislature and the judiciary against this revolutionary assault on our system of checks and balances.

A Supreme Court appointment is a gift that keeps on giving--and giving. It is also an occasion when the constitution requires that the executive and the legislature collaborate in establishing and maintaining their third and coequal branch of government. It exemplifies the conditions under which the filibuster is appropriate. The senate allows unlimited debate precisely to protect the minority--not the fringe, but an opposition able to muster 40 of 100 votes.

The difficult process the founders put in place for amending the constitution makes clear their concern that we not revise our basic form of government on the decision of the fifty-first out of one hundred individuals. An appointment that is likely to determine the adjudication of conflicts among the three branches of government for the next thirty or so years ought not to be confirmed by a bare majority. If the conservative position is that which preserves tradition against ill-considered change and unintended consequences, then the conservative position on this appointment demands not a simple majority but a broad consensus. This is the demand precisely articulated by the filibuster rule. Given the likely impact of this appointment is it not reasonable and prudent to require a nominee acceptable to sixty of one hundred elected representatives?

The filibuster against the confirmation of Judge Alito may not defeat the nomination, but it can serve another important purpose, one which has not been effectively served by the judiciary committee hearings: to make Judge Alito's judicial record clear and present to the public mind. Please stand up in the Senate and say clearly and forcefully that this man upheld the strip search of a 10 year old girl and the police murder of an unarmed, teenaged purse-snatcher. Read the details into the record. Read the dissents that place Judge Alito to the right even of Scalia, Thomas and Luttig into the record. Read the percentage of his decisions that found for the strong against the weak into the record.

The people must know that this is not a consensus appointment.