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."