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Fighting Faction 

by Robert Herold

James Madison would applaud the Senate "moderates" who arranged this so-called "truce" (those 17 centrist senators from both parties who agree on much and hold the balance of power in the Senate were they to operate as an extra party caucus). But he would worry that he missed something back in November 1787, when he penned his famous essay urging ratification of the Constitution, Federalist No. 10.

He opens that essay with the line, "Among the advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction." He then defines faction to mean "a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interest of the community." In a free society, he sees no justification nor prospect of controlling faction by controlling its causes, which he associated with liberty. Rather he seeks to control the effects of faction and he argues that a federal republic can accomplish this by forcing compromise.

Madison's system was designed to act as a brake against radical change, except in times of emergency or overwhelming mandate. It was supposed to prevent the nomination of judges whose primary qualification is that their judicial biases conform (for example) to the religious right, a minority faction intent on doing political violence.

Madison would have opposed not only Bush's nominations, but the threat of the so-called "nuclear option" that made this "truce" necessary. Madison's design was intended to support tradition, process and incremental change. It is true that filibusters have been used in the past, notably during the long civil rights struggle, to empower another minority faction, the segregationist south. But I do believe that Madison would draw a distinction between filibusters then and now. Slavery and its aftermath was unique to the American experience. Addressing both was long over due. Those who used procedure to prevent progress, Madison would hold, were, because of the process Madison helped put in place, able to act as a kind of tyranny of the minority. But even before the landslide election of 1964 doomed opponents of civil rights legislation, progress had been made by an often-ambivalent majority to defeat this ever-narrowing tyranny. The military had been integrated, housing "covenants" had been declared unconstitutional, urbanization and the rise of a national economy were combining to make segregation even less attractive -- even to entrenched, racist boosters -- and Brown v. Board of Education had been decided a decade earlier.

Today, though, if anything, we see what Madison would regard as a dangerous aberration, a situation in which a relatively slim Senate majority is seeking to domineer over a sizable minority. Madison, for this reason, would no doubt denounce the Republicans' expedient efforts to end a filibuster undertaken to defeat a few judicial nominees that the sizable Democratic minority regards as completely unacceptable. To accomplish their ends, this lackey Congress must use procedure rather than rhetoric and deliberation to effectively tyrannize the minority, something that Madison in Federalist No. 10 didn't think could happen.

And make no mistake about it, George W. Bush, if he has his way, will pack the court with judges who continue to share his opposition views to all social reform of the past century. Bush has shown himself to be neither compassionate nor conservative. He is a radical adherent of what turn-of-the-19th-century conservatives applauded as "Social Darwinism," defined in brief as the political and economic survival of the fittest.

In Priscilla Owen, Bush found his perfect nominee, and it is unfortunate that Democrats agreed to a truce before the nomination came to a vote. No one disputes that as a judge, Owen showed a willingness to throw out jury verdicts favoring workers and consumers against corporate interests. She tends to set aside verdicts that go against these same interests. Enron's political action committee gave Owen $8,600 for her successful Supreme Court bid in 1994 and "two years later, Owen wrote the majority opinion that reversed a lower court order and reduced Enron's school taxes by $15 million. Since 1993, Enron contributed $134,058 -- more than any other corporation -- to Owen and other members of the Texas Supreme Court."

So, if you are looking for a judge who will toss out precedent, use her position to narrow the use of the interstate commerce clause and confuse corporate interests for public interests -- as Bush certainly is -- Owen would seem to be the perfect nominee. She would further transform America into what Bertram Gross years ago termed "friendly fascism" -- the logical result of institutionalized Social Darwinism.

Owen certainly isn't the compromise nominee that Madison envisioned being produced by a governmental system of checks and balances, in which the three branches of government mediate the violence of faction.

Madison would indeed shake his head over what's happening today in Congress. He would not have approved of fooling around with long-established precedents like the filibuster. As he shaped things, it should not be possible for this so evenly divided body to govern at the ideological margins and ram a Priscilla Owen down the throats of the minority.

Publication date: 05/26/05

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