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Judicial Issues # 3
Dems On the Edge of Nowhere
Why the Senate Democrats would allow the two liberal organizations
Alliance for Justice and People for the American Way to drive the
message behind their ground game - the filibuster tactic - is
incomprehensible.
In addition to what appears to be a blatant gesture of revenge provoked by
the 2000 election and the Supreme Court decision, the Dems have backed
themselves, not into a corner, but onto the brittle and eroding edge of a
very steep cliff.
And now for the past month threatening to jump, via shutting down Senate
business, which is a suicidal ploy, if they don't get their way with the
filibuster rule change.
The more one reads about the history of the filibuster the more one realizes
how unwarranted and dangerous this exercise in protest and misguided revenge
by the minority via the filibuster really is.
In a letter this week to Senate Minority leader Harry Reid, Kentucky Senator
Mitch McConnell diplomatically tried to call the Dems back from the edge.
McConnell did not call Reid back from the edge because conservatives have
capitulated to the liberal's hostage style threat on this issue, but, on the
contrary, because it would be for the Dems own good to return to solid
ground and get this rule change implemented and this pathetic situation of
"perpetual collision"(1) resolved ASAP.
I used the term "misguided revenge" because I believe that former Senate
Minority leader Tom Daschle started this mess as a counter attack against
the influence of the conservative movement following the 2000 election
battle in Florida.
Who was it that the Dems, whether they say it out loud or not, blamed for
the President being in the White House in the first place? That's right,
they blame conservatives, via the Supreme Court ruling on the recounts.
Why would the Dems dig themselves deeper into this self-inflicted vortex by
threatening to shut down Senate business if the majority party implements
the rule change, as most of the American people from all political factions
are now demanding either through letters to congress or represented in
answers to questions via polls.
The specific number of judges currently being affected
by this illegitimate filibuster is not the issue at the moment. Nor
does the number of judges the Dems have confirmed (compared to an earlier time when
they were the majority) have anything to do with it.
That is strictly a political bickering issue.
On an issue like this, beyond what one legal expert (who usually argues for
the left-wing) called the "political question doctrine" the Dems don't have any ground to stand on.
The "political question doctrine" is perhaps good fuel for the Democrat's
spin machine and talking point spots for TV commentators and sympathetic
columnists, yet up against the text of the Constitution, it's a lot of hot
air.
And it could get worse for them and they know it.
That's perhaps why Senate Minority leader Harry Reid, who has very unwisely carried forward Minority Leader Tom Daschle's
obstructionist plan from a former Senate, when challenged, panics, then not
knowing what to do, threatens to shut down the institution.
In testimony before the Senate Judiciary Committee on this issue, John C.
Eastman, Professor of Constitutional Law and Director of the Claremont
Institute for Constitutional Jurisprudence, said, "I think it extremely
important to distinguish between the use of the filibuster to enhance debate
and the abuse of the filibuster to thwart the will of the people, as
expressed through a majority of their elected representatives."
Several items from his testimony are worth close inspection. For
example, his Four Points.
(1) "It is important to realize that the use of the filibuster in the
judicial confirmation context raises structural constitutional concerns not
present in the filibuster of ordinary legislation."
(2) "These constitutional concerns are so significant that this body should
consider modifying Senate Rule XXII so as to preclude the use of the
filibuster against judicial nominees."
(3) "Any attempt to filibuster a proposal to change the rules would itself
be unconstitutional."
And pay close attention to this one.
(4) "I believe if this body does not act to abolish the supermajority
requirement for ending debate on judicial nominees, it could be forced to do
so as the result of litigation initiated by a pending nominee, by a member
of this body, or by the President himself."
Eastman continues: "Unfortunately, if Senate liberals will not abandon this
new and destructive tactic the only way to restore order within the Senate
is to confront the judicial filibuster directly with a clarification of
Senate rules."
If one does not think the majority party has the collective will to defend
its right to a majority vote as prescribed in the Constitution to the point
of litigating this issue, all one has to do is think back to the 2000
election.
Even whether a potential federal judge is considered "conservative" or
"liberal" or labeled "extreme" is still not the primary issue; The primary
issue is that by abolishing the filibuster for judicial nominees, we return
to the Constitution's wisely thought out prescription for the balance of
power between the executive and legislative branches of government.
This misappropriation of the filibuster has created a dangerous imbalance,
that "perpetual collision" if you will, which is impossible to justify.
Every argument so far for a continuation of such a filibuster, whether from
the liberal Senators like Robert Byrd, Charles Schumer, and so on, is based
on a political premise outside the real argument framed in the text of the
constitution.
In support of his conclusion to his Senate testimony, Eastman uses
reinforcement from another professor of law that usually debates the liberal side of an issue, yet on this issue, the problematics of breaching
the constitution should be clear, and that should be the focus.
It would be easy to imagine the political problems, as if they didn't
already have enough, that Senate Democrats would face in the world of
political communications and consequently at the polls if a senator, a
nominated judge, or either the President were forced, each on very solid
legal or constitutional grounds, to litigate this issue in order to, as
Eastman said, "insure that the constitutional norm of majority rule is given
effect."
Last week (4-17-23), while the communications battle continued in the media
the Judiciary Committee made a decisive move that further complicated the
matter for the Dem minority with a direct challenge by sending for the
second time the nominations of Janice Rogers Brown and Priscilla Owen to the
Senate for confirmation.
During the judiciary committee vote two no-vote reactions were noteworthy.
Ultra liberal New York Senator Charles Schumer continued the same liberal
gibberish the communications people have been using for TV spots. But
Senator Ted Kennedy's reaction was telling.
Senator Kennedy has been in the senate a long time, and he knows they are
fighting a losing battle on this one. You could hear it reflected in the
angry resignation in his voice while exercising, without echoing the Schumer
gibberish, his advise and consent role, which was simply a "No" vote.
In the case of judicial confirmations the constitution has provided the
minority with a voice expressed via advise and consent, not a guarantee that
it would have its way, and much less a method (such as the filibuster) by
which to keep the full process of nomination from playing out because highly
qualified judges are not to their ideological liking.
Senator Kennedy knows two things:
(1) That it would be very unwise to allow either one of those women the
opportunity to litigate their right as a judicial nominee from the Executive
Branch to get an up or down vote.
And (2), As long as the Dems can with the help of the liberal media keep up
the appearance that they are challenging the opposition party they can keep
that perpetual collision (gridlock) going for a while...yet at some point
the public catches on, and that point is now, where the people see (as
conservatives have seen all along) that it is the Constitution the Dems must
breach or sidestep first, which then turns everything else into a virtual
sideshow.
Also revealing last week were Vice President Cheney's statements in a speech
at the National Press Club wherein he made it clear that if the rule change
vote turns out to be a tie, he will cast the majority vote in favor of
returning to the Constitution.
The Vice President said, "On the merits, this should not be a difficult call
to make. First, the Senate has full authority to set its own rules, and it
is perfectly legitimate for the leadership, backed by a majority, to restore
traditional practice. And let me emphasize that - to restore traditional
practice."
Early yesterday morning (4-26-05) after reading that a "deal" or
"compromise" was being presented to the majority party and the President by
Senate Minority Leader Harry Reid while backing away from his threat to shut
down the Senate, it became clear that this so called compromise was no
compromise and should be rejected. It was an offer of capitulation.
I sent an email that seemed to never get sent yet it did somehow get where
it needed to go.
In offering to allow votes on an arbitrary number of judges - the minority's
"choice" - while the President would agree to withdrawing the highly
qualified judges the minority has chosen to dislike, then the Dems would
refrain from closing down the Senate.
How nice of them; don't you think?
(Note that this unconstitutional filibuster would remain a weapon for them
in the judicial nominating process.)
Perhaps they thought the President would not notice that glaring omission.
With all due respect, the minority leader sounds like a used car salesman
standing in the middle of a junkyard trying to sell you a brand new Jaguar
for $75,000 with an unprecedented $74,000 rebate.
Before you should consider the unbelievable financial element, look around
the junk yard and the first question is of course; Where is that damn
Jaguar?
The problem with Senator Reid's deal is that it was nothing but an offer of
capitulation made under the acting-out-of-a-pretense that he has control of
the issue.
The people, the Executive Branch, the majority party, and the judges up for
nomination themselves, all see it differently.
Once the people realized the constitutional boundary that's being crossed
here by the minority and what's at stake, and what the minority's real
motives are, they see through what Dr. Thomas Sowell correctly called the
"disinformation campaign" against judges, and therein it becomes, as Vice
President Cheney said a few days ago, "an easy call."
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