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JUDICIAL ISSUES # 4

It Is Time To "Pull The Trigger"

Kentucky Senator Mitch McConnell said last week (the last week of March) that he had the 51 majority votes it would take to implement a Senate rule change to kill the filibuster as an option for the minority to indefinitely stall (block) the judicial nomination process under the transparently crooked argument that the filibuster transported to the nomination process is a legitimate exercise in "advise and consent."

It is not. (A further point on this below).

And last week Majority Leader Bill Frist made a return offer to the Demoractic minority that Cindy Long of the Judicial Confirmation Network called a "rational" and "fair" proposal to resolve the irrational gridlock and whirlwind of misinformation the Dems have created with this issue.

A dangerous gridlock the framers of the constitution apparently saw the possiblity of in advance over 200 years ago. An unjustifiable gridlock informed by extrememly angry and confused ideological motives.

The majority leader's proposal included a guaranteed time frame for an up or down vote in Committee, and after 100 hours of senatorial debate, a guaranteed up or down vote from the Senate.

To reiterate: Minority Leader Reid's so called "offer" was nothing more than a shallow tactic aimed to force the President to relinquish his constitutional power and responsibility to the people by allowing the minority party to control his choice of nominee simply because the minority knows the President has nominated no one controversial enough to warrant objection that would reach majority proportions.

I would go further than Cindy Long and say that the majority leader's proposal of 100 hours of debate is very generous.

As my first commentary on this issue indicated, I believe it is a good proposal with reasonable parameters, and resolves the issue as the constitution prescribed, with a conclusion (the up or down vote) period.

The conclusion, as the Founding Fathers envisioned, sets the parameter wherein the separation of power between the branches of government is realized - and when the majority we hope pulls the trigger this coming week - then the balance of power will then be realigned with the Constitution and thereafter maintained.

The guidelines that hold the separation of powers intact are no place for clever (and not so clever) minded Senators to take a legislative tool and apply it to the judicial nomination process to ideologically compensate for what has not happened at the voting booth.

And now that the Democrats have predictably refused the majority leader's excellent guideline, as Pat Buchanan stated last week on the Human Events website, it is time to pull the trigger.

With the real issue in focus, when the Vice President wisely said that this particular issue is an "easy call" he could have meant that it is easier to challenge a swarm of very loud liberals at their spin machines than it is for them (the liberals) to challenge the U.S. Constitution.

And speaking of spin machines. Ralph Neas of People For The American Way called the majority leader's proposal "Political posturing to give cover for an unprincipled and unprecedented plot to break senate rules."

First: The filibuster was never intented by the Constitution to be used in a judicial nomination process, and the fact that it got there unconstitutionally via the "Senate Rules" does not mean that removing it from judicial nominations has anything to do with "breaking" Senate Rules.

As former White House Counsel C. Boyden Gray said as recently as Friday; "Judicial filibusters may violate Senate tradition, but overruling dilatory abuses of procedure by majority vote certainly does not. Democrats should bear this mind as they reconsider their radical filibuster."

And second: The plot that Neas is talking about? When was majority rule operating within the principled text of the U.S. Constitution a plot?

Dr. Thomas Sowell of the Hoover Institute has correctly identified where the real "plot" resides: "The courts are the last hope for enacting the liberal agenda because liberals cannot get enough votes to control Congress or most state legislatures. Unelected judges can cut the voters out of the loop and decree liberal dogma as the law of the land."

* * *

The reason Dems have yet to come up with a credible argument that would warrant keeping the filibuster for judicial nominees in place, is because THERE IS NOT ONE TO BE FOUND.

I also disagree with Washington Post columnist David Broder who at least admitted last weekend that the Dems do not have any viable negotiating stands.

The reason for this I believe is because the Senate liberals are, as the people now realize, clearly up against the Constitution, which is, as it should be, an impossible position to defend.

The fact that the majority party (within the legislative branch itself and within the larger venue of the separation of powers) stands with the Constitution does not mean that we have a disregard for the traditions of the Senate, it means that the situation is out of hand and returning the situtation to its normal constitutional state via the majority is the most logical way, and I would say the only way to fix this serious problem.

The Dems continue to argue, so to speak, once-removed from the constitutional position.

Karl Rove said last weekend during the flurry of arguments that it is still not some but ALL of the judges nominated that require via the constitution the right to an up or down vote.

The Dems (even Senator John McCain for that matter) have framed and most of the media have amplified the argument in what the people are now understanding to be the wrong context.

With all due respect, when Senator McCain said this week that the majority should trust minority leader Reid's offer to vote on "some" of the nominees with a promise not to filibuster a Supreme Court nominee "except under extreme circumstances" he is diverting the focus to Senator Reid and the minority when the focus should remain on the constitution.

The minority leader's "evolving standard of compromises" is plenty of reason itself to be suspicious.

Case in point: In the same AP article reporting on McCain's statement, it was noted that some of Reid's own associates "vehemently denied" that the minority leader even made that promise not to filibuster Supreme Court nominees.

It goes back to that problem of "perpetual collision" the minority has created and which continues to sustain their logic.

As to the "extreme circumstances" the minority leader says would be the possible element that - in his opinion - would allow him a loop-hole to escape from his promise not to filibuster; At this point I would say again what we conservatives have said from the beginning of this battle, with most of the people and the Constitution concurring with us now, that the minority should not be trusted nor allowed to make that judgment by itself in the first place.

After reading a sampling of opinions and writings from Janice Rogers Brown and Priscilla Owen, as well as some of the liberal opinions of their opinions (which is where the real extreme circumstance is), I cannot locate what would constitute an "extreme circumstance" other than perhaps that they are considered "conservative" and that they understand how to exercise constitutional restraint.

For example (and there are many others), Priscilla Owen was re-elected to the bench in Texas with 82% of the vote. Sounds like she might be the one who is in the "mainstream" as opposed to the liberals in the Senate and the media who are villifying she and Janice Rogers Brown.

Janice Rogers Brown is being misrepresented by the liberals essentially because she is an articulate clear-headed conservative, and just as frightening for liberals, a black female who can justify her disagreement with affirmative action.

The "extreme circumstance" to a liberal is that these brilliant women as well as other nominees being derailed by their filibuster, understand and are independent minded enough (thank God) to think beyond the modern day political spin-machine-persuasion and therein exercise constitutional restraint.

Remember that without intellectual restraint progress would have no traction.

As the people continue to educate themselves on this issue the more they are saying to both the majority and minority parties: With all due respect, give us our constitution back regarding judicial nominations and keep the "senate rules" the Constitution provided to that branch of government within the parameters of the legislative arena where those rules belong.

* * *

During a floor debate in the Senate on Thursday of last week (5-12-05) Senate majority leader Frist and former Democratic majority leader Robert Byrd directly confronted each other on this issue.

Senator Byrd has skillfully mavericked his way around Senate rules on several incidents before as a previous majority leader himself, as pointed out by Texas Senator John Cornyn and former White House Counsel C. Boyden Gray. (Both items can be read on the Human Events Website.)

I thought part of the exchange between the Senators was educational.

Byrd said to Frist: "Now to give consent, we may vote, but to deny consent doesn't require a vote."

At first glance that sounds clever, and a great deal of this battle from the liberal minority's perspective is resting on that logic coupled with the false "extreme circumstance" arguments amplified in the media against qualified judges...yet if you read the constitution you will see that Byrd's logic is meaningful only, and I reiterate "only" if that denial of "consent" or denial of a "vote" (translated as a "no" vote) is used, not as the vote, but used to kill the real vote itself.

The Committee for Justice correctly calls that selling snake oil.
"When will the media set the record straight, that permanent judicial filibusters of majority-supported nominees are a radical break with Senate history? When will it report that liberal leaders are selling snake oil in the judicial debate?"

In the proper voting scenario prescribed for the judicial nominating process by the Constitution as opposed to legislative confrontations, if the minority were foolish or blind enough to follow Byrd's logic, then a confirmation vote would be in the current Senate make-up, 55-0 instead of 55-45 or thereabouts, presuming the confirmation vote went along majority-minority lines.

Or perhaps 52-3 if undecided moderate Republicans fail to separate themselves from the minority and, contrary to Senator Byrd and company, at least decided to vote.

In other words, Senator Byrd's deception is that he's not talking about denying "consent" in the voting context, he's talking about denying the vote, which is the proper place for his denial of consent.

To his credit, Senator Frist walked out of that confrontation with Byrd, who was left talking to himself on the Senate floor.

If the majority under the leadership of Senator Frist has the courage to pull the trigger and ban the filibuster this week from the judicial nominating process, then Senator Byrd's logic, as it should, will be rendered as meaningless as it is misplaced, and subsequently unsuccessful while the proper balance of power between the three branches of government as prescribed in the Constitution is restored.