Bruce Fein: Thank you.

Fitton: You’re available on the Internet and such. You worked in the Department of Justice. You worked with Congress. You worked with the Heritage Foundation, and your views on constitutional law are very well respected. Is there a crisis in the judicial nomination process?

Fein: Well, I think there is. It does seem to me that the fringe Democrats are intent on denying the president the right that he won in defeating Al Gore the right to choose qualified candidates for the federal judiciary. Both of the President's candidates received sterling ratings from the American Bar Association, yet Democrats are trying to deny votes simply because they don't agree with the philosophy of the nominees.

Fitton: And we’re not talking about a donor to George Bush whose only expertise is the ability to write a check. We’re talking about Miguel Estrada, who is well known by both sides of the aisle as being extremely competent if not brilliant in the areas of law, and Priscilla Owen, a highly respected Justice on the Texas Supreme Court. They’re both being filibustered. Am I right in that this is rather unusual? I think the last major filibuster of any significance was Abe Fortis, and there was an ethical concern about Fortis, wasn’t there?

Fein: Yes, there was an ethical concern that Fortis had taken money from the Wolfen Foundation, which had been funded by tainted money, and he was receiving an astronomical sum for a few moments of lecturing at American University. But most importantly, the Fortis so-called filibuster was not aimed to derail a final vote. It was to enable further information to be elicited. The scandal was unfolding. The Democrats were also involved in the filibuster, and President Johnson withdrew the nomination. So there wasn’t any final effort by a Senate minority to prevent a vote. It was the President who chose to withdraw the nomination.

Fitton: It was a delaying tactic versus a stopping tactic.

Fein: Exactly! And it really was not a very prolonged process because the President decided he was not a credible candidate anymore.

Fitton: No allegations of impropriety against Ms.Owen or Mr. Estrada?

Fein: No, they’re squeaky clean and, in fact, it’s viewed as a demerit that they have such brilliant and lustrous backgrounds. I mean, Miguel Estrada is a virtual Horatio Alger story, coming from Honduras and winning all sorts of scholastic accolades, clerking on the United States Supreme Court, working in the Solicitor General’s office, in private practice arguing cases before the court repeatedly which is a rarity in the legal profession. There is no one who alleges that he is incompetent, that his mind has been, you know, corrupted by money or otherwise. The objection is to his ability to think in ways that the Democrats don’t like. But in our system, you’re supposed to win elections if you want your philosophy to prevail and not to try to abuse the Constitution to prevent the majority from obtaining what the Constitution envisions them entitled to obtain.

Fitton: Well, of course then, if your conscience truly tells you as a Senator that I can’t vote for this person because I so strongly philosophically disagree with them, you can always vote against them in the up and down vote.

Fein: Of course, that’s exactly it. There’s not any requirement that a Senator himself, or herself, not vote against a nominee for whatever reasons they want. I might disapprove of them, but this is an effort to prevent the majority from voting and they can vote in opposition and go back to the constituents and say, "Well, I voted in opposition and you need to elect more Democrats because we don’t like these judges." That’s the way the democratic rules of the game operate, but they’re trying to prevent the majority from casting a vote at all.

Fitton: Bruce, you may have noticed this week that Judicial Watch filed suit against the Senate over the use of the filibuster which is Rule 22 in the Senate Rules and Rule 5 which is the Governing Rule that allows filibusters to generally take place. They’ve added an extra constitutional requirement, meaning super majorities in effect, to the nomination process. There has been some concern from Republican Senators and other Constitutional scholars from both left and right about the use of the filibuster in this context. What’s your view on the constitutionality of the filibuster?

Fein: I think you can make a distinction between filibustering judicial nominees as opposed to legislation. The reason being that the Founding Fathers intended to architect the Constitution to create barriers to excess legislation. However, there was no corresponding worry of the Founding Fathers that there would be too many judicial confirmations. The Founding Fathers took the appointment power away from the Senate in the latter days of the Constitution, and entrusted it to the President because they deplored the idea of the lowest common denominator influence that always attends collective decision-making which just seems to ratchet down the quality of the nominee.

Fitton: When it comes right down to it, a filibuster could occur against the judicial nominee for the Supreme Court. The Supreme Court then could be divided 4 to 4, and even have fewer members, depending on the issue.

Fein: Right.

Fitton: It really could lead to something that would impact our everyday lives. It has already, in my view, but people will pay attention then.

Fein: I think it has the potential of spiraling into the greatest judicial crisis since the Supreme Court packing scheme of Franklin Roosevelt in 1937. I hope it doesn’t come to that point, but if you look at the dynamics in the poisonous atmosphere on the judiciary committee between Democrats and Republicans, I would not predict that it won¹t happen.

Fitton: Bruce Fein. Thank you. You’re working on the issue as we are with our lawsuit. We’ll keep you updated as to what happens in Court. Stay tuned.