An American Heresy

Following is a speech delivered by Al Gore at the Hyatt Regency Washington on Capitol Hill on Wednesday.

Four years and four months ago, the Supreme Court of the United States, in a bitterly divided 5 to 4 decision, issued an unsigned opinion that the majority cautioned should never be used as a precedent for any subsequent case anywhere in the federal court system.

Their ruling conferred the presidency on a candidate who had lost the popular vote, and it inflamed partisan passions that had already been aroused by the long and hard-fought election campaign. I couldn’t have possibly disagreed more strongly with the opinion that I read shortly before midnight that evening, December 12, 2000. But I knew what course of action best served our republic.

Even though many of my supporters said they were unwilling to accept a ruling which they suspected was brazenly partisan in its motivation and simply not entitled to their respect, less than 24 hours later, I went before the American people to reaffirm the bedrock principle that we are a nation of laws, not men. "There is a higher duty than the one we owe to a political party," I said. "This is America and we put country before party." The demonstrators and counter-demonstrators left the streets and the nation moved on — as it should have — to accept the inauguration of George W. Bush as our 43rd president.
 
Having gone through that experience, I can tell you — without any doubt whatsoever — that if the justices who formed the majority in Bush v. Gore had not only all been nominated to the Court by a Republican president, but had also been confirmed by only Republican Senators in party-line votes, America would not have accepted that court’s decision.

Moreover, if the confirmation of those justices in the majority had been forced through by running roughshod over 200 years of Senate precedents and engineered by a crass partisan decision on a narrow party line vote to break the Senate’s rules of procedure then no speech imaginable could have calmed the passions aroused in our country.

As Aristotle once said of virtue, respect for the rule of law is "one thing."

It is indivisible.

And so long as it remains indivisible, so will our country.

But if either major political party is ever so beguiled by a lust for power that it abandons this unifying principle, then the fabric of our democracy will be torn.

The survival of freedom depends upon the rule of law.

The rule of law depends, in turn, upon the respect each generation of Americans has for the integrity with which our laws are written, interpreted and enforced.

That necessary respect depends not only on the representative nature of our legislative branch, but also on the deliberative character of its proceedings. As James Madison envisioned, ours is a "deliberative democracy." Indeed, its deliberative nature is fundamental to the integrity of our social compact. Because the essential alchemy of democracy — whereby just power is derived from the consent of the governed — can only occur in a process that is genuinely deliberative.

Moreover, it is the unique role of the Senate, much more than the House, to provide a forum for deliberation, to give adequate and full consideration to the strongly held views of a minority. In this case, the minority is made up of 44 Democratic Senators and 1 Independent.

And it is no accident that our founders gave the Senate the power to pass judgment on the fitness of nominees to the Judicial branch. Because they knew that respect for the law also depends upon the perceived independence and integrity of our judges. And they wanted those qualities to be reviewed by the more reflective body of Congress.

Our founders gave no role to the House of Representatives in confirming federal judges. If they had believed that a simple majority was all that was needed to safeguard the nation against unwise choices by a partisan president, they might well have given the House as well as the Senate the power to vote on judges.

But they gave the power instead to the Senate, a body of equals, each of whom was given a term of office — 3 times longer than that of a representative — in order to encourage a reflective frame of mind, a distance from the passions of the voters and a capacity for deliberation. They knew that the judges would serve for life and that, therefore, their confirmation should follow a period of advice and consent in which the Senate was an equal partner with the executive.

Alexander Hamilton, in Federalist # 78, wrote that the "independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill-humors which the arts of designing men… have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."

When James Madison introduced the Bill of Rights, he explained that "independent tribunals of justice will consider themselves… the guardians of [these] rights, … an impenetrable bulwark against every assumption of power in the legislature or executive."

So, it is not as a Democrat but as an American, that I appeal today to the leadership of the majority in the Senate to halt their efforts to break the Senate’s rules and instead protect a meaningful role in the confirmation of judges and justices for Senators of both parties. Remember that you will not always be in the majority, but much more importantly, remember what is best for our country regardless of which party is temporarily in power. Many of us know what it feels like to be disappointed with decisions made by the courts. But instead of attacking the judges with whose opinions we disagree, we live by the rule of law and maintain respect for the courts.

I am genuinely dismayed and deeply concerned by the recent actions of some Republican leaders to undermine the rule of law by demanding the Senate be stripped of its right to unlimited debate where the confirmation of judges is concerned, and even to engage in outright threats and intimidation against federal judges with whom they philosophically disagree.

Even after a judge was murdered in Atlanta while presiding in his courtroom, even after the husband and mother of a federal judge were murdered in Chicago in retaliation by a disgruntled party to a failed lawsuit — even then — the Republican leader of the House of Representatives responded to rulings in the Terri Schiavo case, by saying ominously: "The time will come for the men responsible for this to pay for their behavior."

Religious faith is a precious freedom and not a tool to divide and conquer