Posted on 12/15/2004 11:23:35 PM PST by Lancey Howard
The editors at National Review Online have opined that the Republicans must resist the temptation to change the Senate rules (which Republican Senators believe they can do by a simple majority) to prevent filibusters of judicial nominees. This threat to change the rules has been referred to as the "nuclear option".
(The NRO editorial and the accompanying Free Republic thread can be found HERE.)
The NRO editors believe that it would be wiser for Republicans to play the "Democrats are obstructionists" card during the political campaign season and hope that the folks who comprise the malleable "middle" (the clueless "undecideds" like the people on the street who get interviewed by Jay Leno) save the day for the rest of us by taking their squishy "rage" out on the Democrats. No thanks.
THE SLIPPERY SLOPE
First of all, let's sum up how we got to where we are today and where we will inevitably end up unless something (the "nuclear option") is done about it.
For the first 200 years of our nation's existence, the vast majority of Presidential judicial nominees were confirmed after legitimate "advice and consent" hearings and an up-or-down vote. Not a whole lot of public attention was even paid to lower-court nominations and most were confirmed by the Senate (regardless of party alignment) with little fanfare or controversy. Even Supreme Court nominations, while obviously generating considerably more interest, were largely considered done deals, occasional burps like LBJ's Abe Fortas notwithstanding.
Then, in the 1980s, everything changed.
During the Robert Bork confirmation hearings the Democrats devised and unveiled the smear tactic now known colloquially as "Borking". Over the next fifteen years or so, the Democrats fine-tuned and expanded this "art of the smear". At one point they conducted what was for all intents and purposes an inquisition of Supreme Court nominee Clarence Thomas. Thomas himself referred to his "Borking" by the Democrats as a "high-tech lynching". Indeed it was. Fortunately, the Democrats' attempt to destroy Thomas failed and he was ultimately confirmed. It was also fortunate that the Democrats had not yet "progressed" to where they are today.
Fast forward a few years and today we see that the Democrats are filibustering any Republican nominee who appears to take the United States Constitution seriously. And they are doing so routinely!
PICK YOUR CLICHE
"The toothpaste is out of the tube".... "The genie is out of the bottle".... pick your cliche; the bottom line is that after 200 years of working just fine, the Constitution of the United States has been irreversibly perverted by the Democrats. The 200-year tradition of Senate "advice and consent", as envisioned by the Founders and set forth in the Constitution, is gone forever.
The Democrats are fully aware that as a consequence of taking the drastic step of routinely filibustering judicial nominees, virtually every nominee to a federal bench who is sent up by future Democrat Presidents (and there will likely be some, like it or not) will be turned away by the Republicans as a "liberal judicial activist". Tit-for-tat. What goes around comes around. What's good for the goose is good for the gander. Etc. Pick your cliche.
RECESS APPOINTMENT MERRY-GO-ROUND
So here we are. It's a whole new world for the judiciary and it is a world where appointments to federal benches, including the Supreme Court, will be primarily recess appointments. It's the inevitable bottom of the slippery slope and if we are not there yet we are closing in fast. As the current lifetime appointments retire or die off, the various federal benches (including the Supreme Court) may as well have turnstiles installed as each new President packs the court with his own recess appointments (which last only for the duration of a Congressional term) and the previous President's recess appointments go home. "Advice and consent" be damned. That stuff is obsolete.
This will eventually lead to a situation where in times of a Republican Presidency the courts will be loaded with "strict constructionists" who take the Constitution seriously and in times of a Democrat Presidency, with liberal activists who make rulings based on the chic political correctness of the day. (The Constitution is a "living document" don't you know. If it wasn't, it would include a process for amendment..... Oh, wait....)
Every time there is a switch in the party that controls the Presidency (resulting in the courts being once again turned upside down), the motions and the lawsuits will rain down like cats and dogs and reversals will be the rule of the day. The judiciary branch will be in a constant state of utter chaos.
Congratulations, Democrats.....
We will soon arrive (if we have not already arrived) at a point where the only way a nominee of any consequence will ever get confirmed to a lifetime appointment is if a President can get 60 votes in the Senate (enough votes for closure against a filibuster). This will normally mean a President must have a Senate comprised of at least 60 members of his own party. History shows us that this is a very rare situation.
But imagine that this rare situation someday comes to pass. The Supreme Court, filled with recess appointments, could then be filled with NINE fresh lifetime appointments. Now imagine that the lucky President who finds him or herself in such a position is some future version of Hillary Clinton. (Roll that one around in your head for a minute.... carefully.)
THE "NUCLEAR OPTION"
On the other hand, there is the "nuclear option". Unfortunately, the "nuclear option" appears to be the only option at this point. The next four years are likely to provide an historic opportunity for a conservative President, George W. Bush, to shape a Supreme Court comprised of a few more "strict constructionists"; a Supreme Court which values the rule of law, the separation of powers, and American tradition.
This opportunity must not be squandered.
As for the soon-to-be-outraged Democrats? Well, is there really any doubt that the party that invented "Borking" and has beaten the process down to the disgraceful low-point we now have would "go nuclear" if the shoes were on the other feet? Please.... OF COURSE they would.
Nuke the Whales!
I believe that this is my first full-blown essay here at Free Republic. Any comments from anybody, including critique of my writing style (such as it is), would be greatly appreciated.
If anybody has a ping list for people interested in the judiciary, would you please pass this thread on? Appreciate it....
Your writing style ("such as it is") is great. The essay is well-reasoned with just the right sense of urgency.
Write more of these please. I'll wait here.
Ping.
Thanks!
But only on people like Leahy, Schumer and Durbin; Russia's out of bounds for now.
But those clever Russkies had better behave themselves....
I can't tell if your pinglist includes Congressman Billybob, so I'm pinging him here.
Nuke them till they glow. Then shoot them in the dark.
I think it's excellent work, Lancey! It would need only minor editing to be worthy of publication.
Ping.
Thanks for the pings!
BUMP
-good times, G.J.P.(Jr.)
well done! looking forward to more...would you put me on your ping list of your originals plz?
Thanks. I don't usually do vanity editorials like this, but I was responding on another thread and my post got so verbose I figured I'd just go nuts and post it on its own.
Regards,
LH
Ping.
Ping.
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