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.