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Judicial Issues # 5
The Compromise of 14 is a Bad Deal
Until all the judges nominated get an up or down vote and the filibuster
is removed the deal reinforces an unconstitutional legislative hostage
situation.
The Compromise of 14 appears to be a temporary, politically driven
quick-fix to a serious constitutional problem.
Crafted by a group of so-called "centrists" from both parties who were
smiling in the media lights all day Tuesday, presenting themselves and
being presented by the liberal media as heroic because they saved the
Senate from, well, I'm not sure what they saved the institution from.
They did temporarily save the minority from the minority, who had like
school children threatened to create havoc with Senate business and the
President's agenda if the filibuster was removed from the judicial
confirmation process.
When has this particular minority done much else than try and create havoc
with the President's agenda?
Saving the minority from itself in this particular case would be less
important than the action that still needs to be taken to save both the
Constitution's separation of power and the democratic foundation of
majority rule.
Senator Kay Bailey Hutchinson (who appeared on Fox News the morning after
the announcement) said: "I don't like it...it's not over..." and she
correctly referred to the compromise as "a resort to vagueness."
In the process of saving the minority from itself, contrary to the
Constitution, the not so Magnificent Seven Republicans provided the
minority with power the text of the Constitution explicitly guarded
against, that is, the power to try and force the President to "chose"
nominees preferred by the Senate based on mere ideological factors.
The good news for the moment is that Priscilla Owen has received
confirmation while Janice Rogers Brown and William Pryor will each get a
confirmation vote.
In praising, not the compromise, but just the fact that however it
happened for now three of his nominees will get an up or down vote, the
President wisely did not indicate in any way that this compromise of 14
has changed his mind regarding an up or down vote on all of his nominees.
Perhaps somewhere in the compromise there is the honest intent of the
legislative branch to provide itself with an interlude, using it as a test
for the minority, wherein to rebuild the trust of the people as well as
the other two branches of government, by keeping the option of the
unconstitutional filibuster in place while at the same time refraining
from using it.
(Good luck on that one).
As Senator Christopher Bond said, "It's a band-aid rather than the scapel
needed to fix the underlying problem."
And the good news is still tainted with duplicity. It means that the
judges who will get a vote were really not so "extreme" after all, and so
one would ask, especially regarding Priscilla Owen; Why was her
confirmation vote blocked for four years?
It goes back to what Judge Pickering said on Hannity & Colmes (Fox
News) a few hours after the compromise hit the news.
When asked about how Priscilla Owen could be considered so extreme by the
minority for four years and then shazam, she is suddenly OK for
confirmation; Pickering, who was confirmed by the Senate once and then
later blocked, said, "I didn't change, the politics changed."
Likewise, the Constitution has not changed, it is the politics of a
desperate minority that has changed.
The Power Grab
The Family Research Council said that the compromise "effectively
legitimizes overriding the presidential power to appoint judges with only
the 'advice and consent' of the Senate. The seven Republicans who
participated in the deal need to explain what Republicans gained in this
'compromise' that they did not already have--other than the fickle
admiration of the mainstream media."
The Federalist Paper # 76 clearly explains the rationales for why
the power of judicial appointment should be, and was vested in the
President, and the President alone.
All this interference via the filibuster and subsequently all the
convoluted senatorial bartering involved in the compromise - which still
keeps several qualified nominees in limbo proving the compromise is
nebulous and no less volatile - is precisely what the ratification process
in the late 1780s was meant to insure did not happen.
It is true that since the compromise three of the Republican seven -
Senators Graham, DeWine, and Warner - have indicated that they intend to
hold the Dems feet to the fire regarding the Dem promise not to filibuster
except under "extreme circumstances."
Meaning that if the either of those Senators feel the Dems have breached
that point of trust then the suggestion is each of those three senators
will vote for the no-filibuster rule change, and there would be the 51
votes needed to make it happen.
Why not just use those 51 votes to confirm, like the constitution
prescribes, or refuse to confirm the judges?
Senator Lindsey Graham said something that at least sounded resolute;
"Conservative is no longer an extreme circumstance." But according to a
Fox News story, comments just as resolute sounding from the Minority
Leader's office renders Graham's comments well meaning, yet regretfully,
more like wishful thinking.
Without the filibuster the liberal minority (nor the magnificent seven for
that matter) would be able to use that "extreme circumstance" as a weapon
to inflict their "choice" on the President in the first place. They would
only be allowed to express it within what one presumes would be a
reasonable period of time for debate, and then provide the nominee, who
they might think is "extreme" with a "no" vote.
Pat Buchanan hit the nail on the head: "If McCain's Gang of Seven wishes
to vote with 45 Democrats to let judicial nominees be filibuster-vetoed,
that is their right. But they will have to vote with Reid, Barbara Boxer
and Kennedy, and against their fellow Republicans and President Bush."
Notice Mr. Buchanan's thoughtful and correct use of the word combination
"filibuster-veto" which is where the problem originated, by allowing the
minority to use a dilatory legislative tactic to block the judicial
nominating process.
I keep re-reading the Constitution's ratification papers and cannot find
anywhere grounds for Senator Byrd's interpretation that the President has
a constitutional obligation to "consult" with either the minority, or the
majority for that matter, prior to submitting his nomination.
For sound reasons, everything in the text of the ratification papers, and
I guess that is called the intent, points the other way.
With the liberals using those Clinton-style interpretative skills at every
turn of this episode, where "is" can suddenly mean "is not" that keeps
three fourths of the media running around on empty fumes...underneath
though, this has been nothing more than a power grab by the minority
faction of the legislative branch.
A power grab pathetically disguised as a noble effort to regain a "voice"
that the minority never lost because the constitution has already clearly
prescribed the role of that voice within a reasonable amount of time for
rational debate if they want, but then, an up or down vote on the judicial
nominee.
To repeat, the constitution has not changed, the desperate politics of the
extreme liberal minority is what has changed and gone far beyond the
Founding Father's prescription for the separation of powers, and its
clarification is vital so they not be allowed to take the constitution out
there with them.
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