This November found lawmakers in Washington and Jerusalem caught up in a matched pair of high-profile disputes, unrelated but remarkably similar, that showcase the sort of right-wing extremism snarling the people’s business in the two capitals.
In both cases, conservative lawmakers were out to block high-level appointments in the justice system. In both cases, conservatives tried to cloak their opposition in procedural technicalities, but made it plain that their real objections were ideological. Underlying both cases is a quandary that sets the two nations apart from other Western democracies: Both political systems are held hostage by far-right minorities that don’t understand the meaning of the word “outvoted” and don’t accept the basic legitimacy of views they dislike.
The dispute in Washington involves the appointment of judges to the U.S. Court of Appeals for the D.C. Circuit, the nation’s second most powerful court after the Supreme Court. It’s the place where challenges to executive-branch regulations are heard. As such, it’s the main address for legal efforts to thwart a president’s agenda, as President Obama has learned to his grief.
Three of the court’s 11 seats are currently vacant, leaving the court evenly balanced between Democratic and Republican appointees. That doesn’t reflect the actual ideological balance, though. Six retired judges continue to hear cases on a part-time basis, and five of them are Republican appointees.
With its effective Republican majority, the court has been a persistent thorn in the Obama administration’s side. Senate Republicans have filibustered every attempt by Obama to fill the three vacancies. They say the court’s caseload doesn’t justify the additional judges mandated by law. But they also say they don’t want Obama “packing the court” with “extremist” liberals. That would undermine its excellent reputation, as two conservative legal experts wrote in The Hill, for “careful legal reasoning and attention to detail.”
The Constitution, of course, permits a president to name judges who reflect his outlook. But today’s conservatives don’t consider a liberal Democratic outlook to be legitimate.
Democrats, furious, are closer than ever to abolishing the filibuster, at least in judicial nominations. It’s a move so provocative that it’s called the “nuclear option.” It signals an utter breakdown of civil debate in Washington.
UPDATE: The Democratic-controlled Senate, in a historic and bitterly fought rule change, stripped Republicans on Thursday of their ability to block President Barack Obama’s judicial and executive branch nominees.
The action fundamentally altered the way Congress’ upper chamber has worked since the mid-19th century by making it impossible for a minority party, on its own, to block presidential appointments, except those to the U.S. Supreme Court.
Obama, a former senator, praised the action, calling the filibuster “a reckless and relentless tool to grind all business to a halt.”–Reuters
The dispute in Jerusalem is different on the surface. It involves the selection of state prosecutor, roughly equivalent to America’s solicitor-general. The nominee, deputy attorney-general Shai Nitzan, is one of the stars of Israeli criminal justice, a fierce defender of the rule of law and a protégé of several former attorneys-general who later became chief justices of the Supreme Court.
He’s also Public Enemy No. 1 to much of the Orthodox community, which bitterly opposed his nomination. It’s the latest episode in a traumatic, ongoing debate over the meaning of the rule of law.
The state prosecutor oversees the nation’s district attorneys, but his best-known duty is prosecuting high-level government corruption. To avoid political taint, the candidate is chosen by a five-member search committee representing the Justice Ministry and the legal profession. The nomination then goes to the Cabinet for pro-forma approval. A similar process picks judges.