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Judicial Issues # 6 (June 3, 2005)

Realign the Senate to the Constitution

It is still imperative that the issue regarding separation of powers between the three branches of government be clarified and resolved by removing the filibuster from the judicial nominating process.

I am not trying to categorically machine gun the constructive things, or perhaps the one constructive thing that did immediately result from the compromise, and that is the confirmation so far of at least some of the President's nominees.

But that in itself should have happened a long time ago.

Just the fact that it happened within the context of a senatorial face-saving compromise does not take the Dem duplicity machine, or the majority's political fear of the minority's "certifiable" threat of even more legislative obstruction, off the hook.

What appears to be a purely contemporary political solution via the recent Compromise of 14 within the legislative branch just does not go far enough to fix the problem that reaches back to the written Constitution.

The compromise does not change the reality that there is still no valid rationale for retaining this judicial filibuster. I believe the Republican majority in the Senate still has the responsibility to exert the power of the elected majority to reinstate the constitutional intent as prescribed in the document's text.

I also believe we are up against one of modern history's most intellectually and morally bankrupt minorities who have frustrated themselves down into a game of mindless obstruction and duplicity almost to the point of no political return.

The so-called compromise will in time only further reveal more of the inane and obvious contradictions of the Dem positions on both the filibuster itself and the nominated judges.

The further out the problem gets from the text of the constitution where the compromise was staged, the more important it becomes to fix this problem.

Liberals in the Senate and the media believe that by taking an issue so far out beyond the original problem (in essence, ignoring the problem) they can with their false and repetitive sound-bite mantras, fool the people into believing that it is "radical" and "out of the mainstream" or regressive to return to the source where the problem has to be fixed.

If you believe them then you have been seduced or intellectually tricked into a delusion driven by the amplification powers of modern communications.

And with all due respect, the subtle manner in which some of the so-called "moderates" or "centrists" in the majority have communicated since the compromise that they are trying to exert individual influence on the nominating side of the process, beyond their up or down vote, just exaserbates the problem.

To reiterate an item from an earlier commentary; The most disturbing element in the current situation continues to be that the framers of the Constitution defined the checks and balances of power the way they did for a profoundly constructive reason, that is, to avoid exactly the situation happening right now with the filibuster and the compromise.

Immediately after the compromise was announced Senate Minority Leader Harry Reid said that certain potential nominees might still be filibustered because they were not "included in the compromise."

The Constitution of the United States does not provide the Senate Minority Leader with the power to exercise this kind of legislative bartering wherein to subvert the judicial nominating process while at the same time, subverting the Constitution.

Instead of waiting to see if his constituents become enlightened enough to vote him out of the Senate like they did the former Minority Leader for the same kind of arrogant obstruction, just get rid of the filibuster and put the minority "voice" back into its proper place.

For example, Louisiana Senator Mary Landrieu (God bless her John Bolton vote) got caught up in that minority spin machine when she enthusiastically said that the compromise "helps protect these cherished traditions of ensuring that the minority, even a lone individual, will continue to have the right to speak up and be heard."

Regarding clarifications of the judicial filibuster issue, it is not that her sentiment is bad, it's that it is misplaced.

Commentator Phyllis Schlafly explained it in reference to a renegade judicial activist in Nebraska who is trying to over-rule via his individual sympathy for gays a constitutional amendment banning gay marriage overwhelmingly voted into law by the people of that state.

"Bataillon's argument that the Nebraska law violates the First Amendment because it 'chills or inhibits advocacy' of same-sex marriages is a legal embarrassment. That argument is absurd; gays can continue to advocate their agenda all they want...
Bataillon's argument that the Nebraska law unfairly prohibits people from 'entering into numerous relationships or living arrangements' is just as far-fetched. Under the Nebraska law, gays can have any relationships they want, but they don't have the right to force the government or the people of Nebraska to recognize those relationships or accord them special privileges."

Schlafly correctly pointed out the juvenile stupidity of the judge's rationale (and typical of gays) because gays can still "advocate" all they want, nothing is stopping them from doing that, but a state amendment voted on by a majority of the people can keep them, as it should, from legally getting marriage.

The point being that getting rid of the current judicial filibuster tactic is not really an issue of restricting the minority voice in the first place. The Constitution provides a framework for both minority and majority voices. The balance of power for this process is between the legislative, executive, and judicial branches.

It is not the Constitution's fault that Senate Dems at this point in history, happen to be the minority.

When the individualized political battles between the ideologies of the two parties that make up the legislative branch get in the way of the President's constitutional right to nominate, creating the kind of destructive mess we have now, then it is time to fix the problem, period.

One famous Washington Post columnist prior to the compromise offered some equivocal word-piddling when he said that since nowhere in the Constitution does it explicitly say that the Senate cannot filibuster a judicial nominee under the Dem farcical claim of advise and consent, reasoning that the minority has as much constitutional right to filibuster as the majority has to call the filibuster unconstitutional enough to make the rule change.

What?

First of all, he was wrongly implying that changing the filibuster rule would not be a solution; and second, at the same time he was suggesting that the minority bluff to cripple Senate business was reason enough for the majority to back away from implementing the rule change.

To the contrary, as Senator George Allen implied prior to the compromise, that was all the more reason to call their bluff and pull the trigger.

The Constitution does explicitly restrict the role of the Senate in the judicial nominating process.

It is a restriction that would render a filibuster, or any other clever form of intrusion into the President's right or constitutional power to nominate judges, a breach of what the text of the constitution is saying.

Wendy Long, the counsel for the Judicial Confirmation Network, could not have explained it more clearly.
"It is apparent from the rhetoric included in the ‘Memorandum of Understanding’ that at least 14 Senators - the signers of this compromise - fail to understand the Constitution’s ‘advice and consent’ clause. Article II, Section 2 of the Constitution reads: ‘[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court .’ The Senate’s advice and consent role is part of the ‘appointment’ process, not the ‘nomination’ process."

At all times keep Cindy Long's clarification of the Senate's advise and consent role in mind, as it is prescribed for the "appointment" or confirmation side of the process while the "nomination" side of the process is completely the President's responsibility.

If the President sees fit to consult with members of the Senate regarding a potential nominee then the Constitution has provided him that discretion, and President Bush has stated that he does in fact already consult with the Senate regarding nominees.

So what's the problem here?

If a particular Senator, or a clique of Senators from the minority, or from the majority for that matter, who may not have been consulted regarding a specific judicial nominee has recourse to a tactic like the filibuster to exert the pressure of choice on the executive branch, then we are starting - and playing with - a dangerous fire fueled by political news-making-mentalities the framers in their remarkable revolutionary foresight and wisdom doused over 200 years ago. The ratification papers explain why.

Just an afterthought off the record:
After watching and listening to this judicial episode unfold in the various media formats and on the Senate floor over the past four years, wherein all the repetitive Dem rationales to filibuster in order to block confirmation votes on qualified judges are informed and guided by a radical left-wing swarm of ranting abortion and gay rights advocates, I mean, who in their right mind would feel an inclination to seriously consult with them anyway?