1130 words A nation of laws not of men. Martin G. Evans Professor Emeritus, Rotman School, University of Toronto. This is a nation of laws not of men. This fundamental bedrock of American society in under attack by the very men and women who make our laws: the state and federal legislators. This must stop. Both major parties are guilty of changing and bending of the rules in order to serve their own political ends. Fortunately, the most recent of these attacks was (partially) turned back at the last minute: the filibuster rule is safe for the time being. L Massachusetts: Law abolishing senate seat vacancy to be filled by selection by Governor. Democratic initiative In the summer of 2004, Massachusetts Democrats had high hopes that by the following January there would be a senate vacancy following the election of Senator John Kerry to the Presidency of the United States. Alas this was not to be. Under Massachusetts law when a mid-term vacancy occurred, the senate seat was filled by a person of the Governor’s choice – it could even be the Governor! With the Massachusetts Governor’s office filled by a Republican, and with large Democratic majorities in the State Senate and State House of Representatives and with the US Senate closely divided, the Massachusetts Democrats introduced a law to change the way in which Senate vacancies should be filled. The proposal was to have a special election for the Senate office. In general this would be a good idea – allowing the people to decide. It is the applicability to the current election that I am objecting to. The law was designed to apply to a particular vacancy: that of John Kerry, with intended benefits to particular incumbents. It should have been drafted so it applied, not to the current potential vacancy, but to vacancies that occurred after the next Senate elections. In that way, the potential Kerry vacancy would have been treated under the rules in place when he was elected, and future vacancies would have been treated under the new rules. That would have been much fairer. L New Jersey: At the request of the democratic Party, the New Jersey State Supreme Court overturned the rule that said the deadline for candidates to file was 51 days before the election. This enabled Frank Lautenberg to run for the United States Senate after Robert Toricelli withdrew as candidate about 36 days before the election. His withdrawal was not due to ill-health. It was not due to family issues. It was not due an appointment as ambassador or cabinet secretary. No, he withdrew because he was losing to Republican, Doug Forrester. This was the most egregious self-serving action taken by the Democrats in recent memory. The rules 2 are there to be followed. One could understand the rule being set aside in the case of death (though in Missouri the dead Mel Carnahan defeated the very much alive John Ashcroft). One could understand the rule being set aside if Torricelli had been appointed to a cabinet position or an ambassadorship. But there is no justification for changing the rule because he withdrew from the race because he was losing. Where is the fairness in that? The Court argued that after Torricelli’s withdrawal, a substitute was required to ensure that the electors of New Jersey had a “full and fair ballot choice” [SUPREME COURT OF NEW JERSEY. A-24 September Term 2002. 53,618]. They had a perfectly good choice until Torricelli withdrew because he was losing. That is not a reason to change the rule. Of course, if after serious consideration, it was felt that the rule was too onerous. The legislature could have changed it; but to be fair, the change should not apply to this race but only to future races. L Texas: redistricting despite no new census. Republican initiative In 2001 the US Census Bureau issued its decennial census report. This triggered a round of redistricting for congressional and state offices in every state in the union. In Texas, the normal bilateral consensus on districts did not emerge so that the districts based on the 2001 Census had to be drawn by a three judge panel of the Federal Court. Following the 2002 election, the Republican-dominated State Legislature decided that the judicially crafted plan was inadequate and developed its own plan. After much excited jockeying with Democratic lawmakers hiding out in Oklahoma (and with the Texas Rangers trying to herd them back to the legislature), the new redistricting plan passed into law and was the basis for the 2004 election. This plan was recently upheld in the District Court. If the plan is overturned on appeal to the Supreme Court, who knows what will happen. Once again, there is an underlying unwillingness to abide by the rule and wait for redistricting until after the 2010 census in 2011. L Federal: abolishment of the filibuster for judicial nominations. Republican initiative. Last month we saw the cliffhanger in the Senate with the Republican majority threatening to use the so-called “constitutional option” or as the Democrats prefer the “nuclear option.” This apocalyptic phrase describes the intent of the Republican majority to remove the opportunity of the minority Democrats to filibuster the President’s judicial nominees. To overcome a filibuster by invoking cloture, 60 votes are needed. However a little used procedure could be invoked by asking the Vice-President in his role as presiding officer of the Senate to declare filibustering judicial nominations as unconstitutional. Upholding the chair’s ruling on such a request requires a simple majority of the Senators present. This is a double attack on the rules. First it destroys the filibuster rule, second it undermines the Senate’s rules for changing its own rules. Changing Senate rules requires a 67% supermajority so requires a large measure of agreement between all members. The constitutional option reduces the bar for change considerably. Once again, this attack goes into effect instantly. A better model would be for any rule change not to be effective until the next congressional session. This would reduce the opportunity for self serving rule changes and allow for deliberate second thoughts to occur – something very lacking, at least until May 23rd 2005 in today’s feverish climate. Fortunately, cooler heads did prevail and a deal was struck that kept the filibuster for judicial nominations intact (but with reduced potency) and allowed the confirmations of some judicial nominations in 3 the Senate. This rush for the immediate application of rule changes is a dangerous one. We see this in much legislation that is sloppily drafted due to the perceived need to act in haste. This speediness is in line with the North American desire for immediate gratification. The best things come after mature deliberation. Both sides should reduce their focus on immediacy and consider the long term implications of their actions