Senate Deal Detonated Against The Constitution By Moderates

The Senate deal worked out by 14 moderate Republican and Democratic senators may look official and sport an official sounding name -- "Memorandum of Understanding on Judicial Nominations" -- but America and the U.S. Constitution were hoodwinked. Yep, they pulled a quick one all right. We actually were able to see the Constitution being literally hijacked, yes, heisted right from under our very noses.

Some in the Senate felt that the institution was dangling dangerously on the precipice, like Senator Robert Byrd -- absolutely the last senator to be interested in protecting the rights of the minority voices of America. Yet there he stood in the well of the Senate claiming that minority views in the Senate would be silenced by this "tyranny" of the majority.

But was America precariously perched on the edge of the abyss? Byrd urged his fellow senators to "Step back from the precipice because America would suffer incalculable damage." Yet it was Byrd and the other determined Senate distracters who wanted a deal they could hardly wait to make. They had absolutely nothing to lose. After all they were in the clear minority. So the Democrat moderates offered their deal to the Republicans, which would also send President Bush a clear and concise message... "Don't mess with the minority party... you may have the votes but we have the will and 'The Deal'." This deal was brought to America courtesy of the 14 Senate Constitution-nators!

So it didn't matter that the Democrats could not understand that they didn't win the majority of the seats in the Senate and if they didn't have the votes required to win then they should have just sat back and accepted defeat and plotted for the 2006 senate elections. Instead, they convinced seven Republicans to accept, and even embrace, the notion that there is a clause in the Constitution (but not any rule book I've read) that says, "take a vote and the one with the lowest number of votes gets to make the rules." It just doesn't happen that way, and for Stall-O-Crats and Constitution-nators who behave like spoiled children, that's tough medicine to take so they looked for ways around the rules, and indeed they found it in "The Deal."

Conservatives thought that we had won. After all there had been a presidential election, and it was carried in all the newspapers. CBS even covered it. But something odd happened on the way to the public forum... Suddenly it did not matter that the Advise and Consent Clause of the U.S. Constitution had called for an up or down vote.

Article II of the Constitution is clear. It provides "The president shall nominate, and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court and all other Officers of the United States."

The Constitution clearly gives the president the absolute right to nominate judges not the U.S. Senate. That's why the White House and Senator Frist insisted upon a call for an up-or-down vote -- that's the say-so that the Senate gets. It's called Checks & Balances. (Check the Constitution -- like the spaghetti sauce commercial says, "It's in there!")

Instead the minority party was calling the shots and Democratic Leader Reid was feeling quite good that he convinced seven Republicans to leave the fold, pretend that the GOP had actually lost the election, and on top of that, convince the seven Republicans that it was far more crucial that civility in the Senate be restored instead of what potential harm might befall the neutering of the Constitution.

So after Tuesday's Senate embrace of "The Deal", Majority Leader Bill Frist said the agreement, "if followed in good faith, will make filibusters of judicial nominees in the future, including Supreme Court nominees, almost impossible." But is that the Senate handshake agreement that Democratic Stall-O-Crat Leader Harry Reid thought he had signed? Well, maybe not.

He has quite a different take on what he thought he had read. "The agreement that will allow Justice Owen to receive an up-or-down vote also had the effect of taking the nuclear option off the table," Senator Reid said referring to the Senate Majority Leader's real threat to strip Democrats of their ability to filibuster judicial nominees.

So whose version is the correct one? Reid says, "This agreement makes clear that the Senate rules have not changed. The filibuster remains available to the Senate minority."

Well the Nuclear Option was not detonated, but something worse happened. What was detonated was the explosion on the Senate floor of principles and of the constitutional right of the president to expect a simple up-or-down vote, nothing more and certainly nothing less.

The liberal Stall-O-Crats had repeatedly urged the president to compromise over this political high stakes parlor game. Only problem -- the president was not moving. The president fully understood that to compromise the Constitution away for short-term imaginary political sport or bringing back ceremonial niceties to the Senate truly only serves to trivialize the judicial nomination process as well as the office of the presidency.

With the exception of the 1968 hiccup in the filibuster process involving then U.S. Supreme Court Associate Justice Abe Fortas who was nominated by President Lyndon Johnson, the process has never been used against judges. Justice Fortas had been nominated by President Johnson to become Chief Justice of the Supreme Court.

The only problem was that Justice Fortas was clearly a barrel of bad news for the Democrats in the Senate who ordinarily would have supported him but for his several unprincipled practices he had engaged in. For instance, he was an alleged lifeline to the Oval Office for a jailed felon who needed a get-out-of-jail card from the president. He also provided President Johnson with behind-the-scenes cloakroom Supreme Court deliberations...an invasion of the Constitution's separation of powers and quite possibly a violation of several federal statutes.

There was a debate on his nomination, there was a Senate floor vote and 19 Democrats joined 24 Republicans to send Associate Justice Fortas' nomination to the waste bin of history.

So the threatened use of the filibuster by the U.S. Senate liberals to neuter the Constitution was more grandstanding and histrionics than standing firm for the principles which they purportedly stood on because at the end of the day the very senators who so veraciously attacked the three judges they considered the most extreme gave them a pass. So much for their highly held principles.

It is also disingenuous for these same Stall-O-Crats to claim that the agreement also favors Republicans in the happenstance that one day the GOP senators find themselves in the Senate minority with a Democratic president making judicial nominations. The Senate compromisers assume that because the Democratic senators were threatening to violate the constitutional process, Senate Republicans who had not used this procedure against judges nominated by the president somehow would denigrate themselves by playing Tag-You're-It with the Democrats. It is simply nonsensical.

So now the very same liberals who thought they had lost the last presidential election are now in the driver's seat -- at least as perceived by the American public -- because they told America that they stood firm for judges who represented America's values and the values of the senators.

I thought the U.S. senators who were elected by the residents of their states were reflective of America! But this Senate deal seems to say otherwise. It is ludicrous to compel the president to submit to the Senate the type of judicial nominees that pass the "minority party's" muster. It is plain absurd. If the minority wants to see judicial candidate nominees that reflect their beliefs, there is something which is as old as the Constitution that they may be interested in trying -- it's called winning an election! Winning Senate elections guarantees the votes that are needed and not "Senate Deals". So if the Stall-O-Crats believe, as Senator Reid believes, that this agreement will last any longer than the first Supreme Court nomination made by President Bush, they need to pay close attention to six words:

The Capital Hill Senate cave in is not going to work. Someone should inform Senator Harry Reid, the Minority Leader, that America is willing to write a new ending to this Capital Hill drama in 2006. This is the ending like in the John Wayne westerns; the good guys...the American people and the Constitution are going to win.

Kevin Fobbs is President of National Urban Policy Action Council (NuPac), a non-partisan civic and citizen-action organization that focuses on taking the politics out of policy to secure urban America's future one neighborhood, one city, and one person at a time. View NuPac on the web at www.nupac.info. Kevin Fobbs is a regular contributing columnist to the Detroit News. He is also Outreach Communications Vice Chairman of the Michigan Republican Party and daily host of The Kevin Fobbs Show on News Talk WDTK - 1400 AM in Detroit as well as co-founder of the Jackson, MI-based American Conservative Values Television Network. Listen to The Kevin Fobbs Show online at www.wdtkam.com daily 2-3 p.m., and call in toll-free nationwide to make your opinion count at 800-923-WDTK(9385).

We actually were able to see the Constitution being literally hijacked, yes, heisted right from under our very noses.

That was already occurring, long before this deal (which tactically has changed nothing except to give the GOP three of its judges the bench).

2 posted on 05/25/2005 5:05:59 AM PDT by Coop (In memory of a true hero - Pat Tillman)

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