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Emory Law Insights

Filibusters, judges and human rights

Introduction

Here we present two issues with long and sometimes difficult histories—the process of selecting federal judges for lifetime appointments, and what constitutes a human right.

While the question of whether to retain the Senate filibuster at all is topical now, Professors Jonathan Nash and Joanna Shepherd look back to the effects of earlier restrictions on the filibuster. In 2013, a change to Senate filibuster rules warped the process surrounding federal judges’ nomination and confirmation. Their research focuses on the US Courts of Appeals judges appointed over the eight years of the Obama administration and on the behavior of sitting district judges who might have changed their behavior with an eye to being selected for elevation to the courts of appeals. This is the basis for “Filibuster Change and Judicial Appointments,” published last year in the Journal of Empirical Legal Studies.

Professors Nash and Shepherd found Obama judges confirmed after the rule change “were more likely to cast pro-choice votes in abortion cases and anti-death penalty votes in death penalty cases.” They also find evidence that the elimination of the filibuster had “a polarizing effect on sitting federal district judges, especially those with a greater chance of promotion to the courts of appeals,” they write. Also, “Democratic judges were more likely to use politically-charged words signaling their very liberal ideological positions in abortion opinions and Republican judges were more likely to use words signaling their conservative views.” Their findings are “useful in assessing the desirability of restoring the judicial filibuster, as well as to the debate over the retention of the legislative filibuster.”

How to define human rights?

Professor Michael Perry says despite a growing focus on human rights since World War II, we still struggle to define what they are. His article, “The Morality of Human Rights,” begins with the Universal Declaration of Human Rights adopted by the United Nations in 1948. At the time, critics found some of the Declaration’s stated principles obvious and unnecessary.

René Cassin, a member of the drafting committee, lost 29 relatives in the Holocaust. He responded by observing that World War II had its origins in disagreement over who we define as human. The Declaration spells out the reasons used to justify treating other humans with hatred or indifference: “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

More recently, former US Secretary of State Michael Pompeo launched a Commission on Unalienable Rights, and in a 2019 Wall Street Journal opinion article, said human rights campaigns had become too broad.

“Human-rights advocacy has lost its bearings and become more of an industry than a moral compass,” Pompeo wrote, “And ‘rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.”

Backlash was swift, including cries of hypocrisy. But it illustrates “universal” human rights are harder to codify than it would seem.

The right to moral equality and the right to moral freedom have been of “special concern to me in my scholarly work,” Perry writes. His article discusses how these rights apply to abortion and same-sex marriage.

The phrase Perry repeatedly returns to is from the Declaration: “all human beings . . . should act towards one another in a spirit of brotherhood.” Stating universal rules of conduct for every government creates what Perry calls “the first truly global political morality in human history.”

Is there is a nontheistic imperative to require such a standard and “what does the morality of human rights require of government?” he asks. A few months distant from an attack on the US Capitol that sought to nullify a presidential election, perhaps it’s time to re-examine how fraternity is linked to liberty and equality.