Democrats have cooked up the so-called judicial filibuster to subvert several of President Bush’s nominations to the federal bench, which means that Republicans must find 60 votes just to have an up-or-down vote. Republicans are fighting back with plans to end the filibusters as they pertain to judicial nominees by requiring just a simple majority.
Sounds about as far removed from the issue of taxes as it could be. But here’s why judicial nominees matter, even when it comes to taxes.
In a school desegregation battle, which was first brought in 1977, a federal judge found that the cities of Kansas City, Mo., and Kansas City, Kan., weren’t doing enough to integrate their school system.
After a decade of legal wrangling, the federal judge in the case, Russell Clark, determined he’d had enough and ordered a tax increase to pay for a magnet school plan.
The price tag? More than $2 billion dollars.
Judge Clark, appointed by President Jimmy Carter in 1977, had decided that he had the power to tax, the elected representatives of the people be damned.
But Article 1 of the U.S. Constitution specifically gives such power to the legislature and the legislature only.
The Supreme Court in 1990 reversed Judge Clark’s move on taxes, citing the constitutionally limited powers of the judiciary and the 10th Amendment, which reserves all unnamed powers to the state.
But the Court, in an opinion written by Kennedy-appointee Justice Byron White said it was OK for federal courts to order legislative bodies to raise taxes to right constitutional wrongs.
That’s a distinction without a difference. And Democrats, who are waking up to the fact that they can’t get legislatures to agree to tax hikes, are turning to courts to get activist judges to do their work for them.
Indeed, in 2004, more than half the state legislatures faced lawsuits that sought court-ordered tax hikes to pay for more school spending.
So there’s another reason why this fight over President Bush’s judicial nominees matters. His picks look more likely to stick to the Constitution when it comes to taxes than judges the Democrats might prefer.