Posted on 04/18/2005 3:32:57 PM PDT by wagglebee
Amnesia and an abundance of hot air are the order of the day in the Senate. Liberals are screaming bloody murder because Senate Majority Leader Bill Frist is seeking a way to derail unprecedented judicial filibusters by Democrats. But when Democrats were nominating the judges, they sang a different tune.
Senator Frist is seriously considering a measure to allow confirmation of judges on an up-or-down vote by a simple majority. The Democrats, prodded by far-left-wing groups, are resisting. Currently it takes 60 votes (three fifths of the Senate) to break any filibuster. But for over 200 years, judicial filibusters were unheard of.
And it all raises questions as to how the courts have become so blatantly politicized. The minority has blocked 10 of 52 of the president's appeals court picks.
The April 15 Rutland Herald in the home state of Senator Patrick Leahy reports that in 1975 the Vermont Democrat played an active role in whittling down the number of votes required to shut off a Senate talkathon. At that time, we heard not a word from him, as we do today, about how the filibuster serves as a bulwark against any "assault on our tradition of checks and balances and on the protection of minority rights in the Senate and in our democracy." Now in 2005, Leahy is the ranking Democrat on the Judiciary Committee and uses that exact argument to block judges he doesn't like.
Oh, but things were so different then, says Leahy spokesman David Carle. Well, yes, they were. The Senate was controlled by Democrats, not Republicans. And the issue was liberal causes, not judges who will interpret the law according to its intended meaning.
Now liberals want only judges who will write into law policies they can't get past the elected representatives of the people. Thus their previous arguments are out the window, and the filibuster is accorded some kind of sanctity, cloaked in several mythologies.
* First of all, they argue, Senator Frist is trying to eliminate all filibusters.
No, he is not. The constitutional option (described by the liberal media as the "nuclear option") targets only judicial filibusters. (In fact, Senator Frist's very first Senate vote in January of 1995 was to preserve legislative filibusters).
It is the Democrats who have tried to break all filibusters, most recently in 1995. Nine of them are still there today (Boxer, Bingaman, Feingold, Harkin, Kennedy, Kerry, Lautenberg, Lieberman and Sarbanes). They are fully supporting filibusters against well-qualified men and women.
* Secondly, let's tackle the old saw about how filibustering judicial nominations is "part of Senate tradition."
Absolutely and unambiguously false. For over 200 years, Senate tradition never – never ever ever – required 60 votes (three-fifths of the Senate) to approve judges. In the past, even Democrats favored up-or-down votes.
"Vote them up or down!" thundered Senator Leahy on the Senate floor in September of 1999 and added: "That is what the Constitution speaks of in our advise-and-consent capacity. That is what these good and decent people have a right to expect. That is what the oath of office should compel Members to do." Leahy had spoken of how "improper" it would be to filibuster a judicial nomination. An up-or-down vote, the senator said then, was "a constitutional responsibility."
Of course, that was different. A Democrat was in the White House and nominating the judges.
In that same year, none other than Senator Ted Kennedy intoned: "We owe it to Americans across the country to give these [judicial] nominees a vote. If our Republican colleagues don't like them, vote against them. But give them a vote."
In March of 2000, Senator Charles Schumer, New York Democrat, said stalling on judges was "an example of government not fulfilling its constitutional mandate because the president nominates, and we are charged with voting on, the [judicial] nominees."
* A third myth perpetuated by the left is that the constitutional option is "unprecedented."
No, it is not. Senator Robert Byrd, the octogenarian who sees himself as the last word on Senate history, served as Senate majority leader in 1979. In that year, he laid down the law. "Let the Senate vote on amendments, and then vote up or down on the resolution, he said. "If I have to be forced into a corner to try for a majority vote, I will [change the rules]."
Last month, the Washington Times reported that Senator Byrd "led the charge to change the rules in 1977, 1979, 1980 and 1987 [all years in which he was majority leader], and in some cases to do precisely what the Republicans are now proposing."
* Fourth, Senator Richard Durbin said on the Senate floor April 15 that filibustering judges "has happened repeatedly in our history."
No, it has not. The Illinois Democrat cites the case of Judge Richard Paez, a Clinton nominee, and says his nomination was filibustered by Republicans. The fact is Judge Paez ultimately was confirmed on an up-or-down vote, though he had a majority of more than 50, but fewer than 60 votes. Anonymous "holds" have delayed judicial nominations. That is not the same thing as literally talking them to death.
By contrast, Judge Priscilla Owen, a Bush nominee, has more than 50 votes (like Judge Paez) and (also like Judge Paez) fewer than 60 – but (very much unlike Judge Paez), she cannot get an up-or-down vote.
* Now we come to a fifth myth bandied about by Senate Democrats through their mainstream media megaphone – that they simply want to debate the president's nominations so they can come to some kind of compromise with the Republicans.
Oh, sure, That's why Senate Minority Leader Harry Reid has said he will "shut down the Senate" rather than carry out the constitutional obligation to vote up or down on the nominees. The Nevadan has said, "There is not a number [of hours] in the universe that would be sufficient" to talk to death the nomination of Judge Priscilla Owen. How's that for the "spirit of bipartisanship" which Democrats invoke whenever their opponents stand for principle?
What leads the Democrats to such disruptive and desperate tactics to block judges?
Mark Levin, president of the Landmark Legal Foundation, traces the fever pitch to radical left groups such as the misnamed People for the American Way, the Leadership Conference on Civil Rights, the Alliance for Justice, and NRAL Pro Choice America. We have also dealt with this issue in "Senate Democrats Under Fire for Plot Against Judicial Nominees.")
The memos, reproduced in the appendix to Levin's best seller "Men in Black," clearly show that these organizations have been pulling the strings behind the scenes.
Most embarrassing to them was an internal note to Senator Kennedy by a staffer on April 17, 2002. Here is the part of it that raised many eyebrows:
"Elaine Jones of the NAACP Legal Defense Fund (LDF) tried to call you today to ask that the Judiciary Committee consider scheduling Julia Scott Gibbons, the uncontroversial nominee to the 6th Circuit court at a later date, rather than at a hearing next Thursday April 25."
You might wonder what was so important about delaying an "uncontroversial" nominee. Here's the answer.
"Elaine would like the committee to hold off on any 6th Circuit nominees until the University of Michigan case regarding the constitutionality of affirmative action in higher education is decided by the en banc 6th circuit," the memo explained. "The thinking is that the current 6th Circuit will sustain the affirmative action program, but if a new judge with conservative views is confirmed before the case is decided, that new judge will be able, under 6th Circuit rules, to review the case and vote on it."
The Gibbons hearing was postponed. As Levin puts it, "This is court tampering, plain and simple."
Or there is the memo targeting Miguel Estrada. And what do you suppose was his shortcoming? Read this statesmanlike concern from a staffer addressing Senator Durbin.
"They [attendees at a strategy session] also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino and the White House seems to be grooming him for a Supreme Court appointment."
There you have it in black and white: An Hispanic who might end up on the Supreme Court is "especially dangerous." This from the party that claims to be holier than thou on the issue of pure bigotry.
This is not a dead issue. As we reported last year, the Coalition for a Fair Judiciary urged that the memos be preserved lest someone "intentionally or inadvertently destroy evidence of a crime." The coalition's president, Kay Daly, recently told me her group continues to pursue the matter through every legal channel available.
That again this brings us back to the basic reason the courts have become so politicized. Previously in this space, we explored the origins of the idea that once judges issue opinions or decrees, voila! They become "the law of the land" – no matter how outrageous and wrong. In case after case, the courts ignore the plain meaning of the Constitution or override the elected branches of government and their employers: you and me.
Judicial overreach has led to a situation where elected senators have tied themselves in knots over the confirmation and unprecedented filibustering of judges. Legislators have concluded that if judges are going to act like politicians and override them, the lawmakers might as well submit would-be judges to political grinders and litmus tests before they are seated.
Robert P. George, McCormick Professor of Jurisprudence and Director of the James Madison Program of American Ideals at Princeton University, put it this way in a Feb. 17 Heritage Foundation lecture: "[I]n a basically just democratic republic, judicial power should never be exercised lawlessly – even for desirable ends. Judges are not legislators."
As this writer noted the last time we dealt with this subject (see " Curbing Abuses of the Judicial Oligarchy"), it was the Supreme Court's 1803 Marbury vs. Madison decision that fostered the idea that the courts always had the unchallenged right to the last word, even if guided more by the judge's personal ideology than the letter of the law and its true meaning.
Professor George, however, notes that "Chief Justice [John] Marshall himself [along with other early supporters of judicial review] did not imagine that the federal and state courts would exercise the sweeping powers they have come to exercise today." And as we noted previously, Marshall was simply out to frustrate the will of President Thomas Jefferson, an old political rival from their days in Virginia politics.
In the study "Marbury vs. Madison and Judicial Review," constitutional scholar Robert Lowry Clinton, Ph.D., writes that the early 19th century decision merely meant that "the Court was relying on its own interpretation of the Constitution in deciding what it could and could not do within its own sphere."
Dr. Clinton, who is acting chairman in the political science department at Southern Illinois University, adds, "This was entirely consistent with its recognizing a like power of other branches of government to interpret the constitution for themselves in deciding what they could and could not do in carrying out their constitutional functions."
Nonetheless, over two centuries, the widespread assumption that Marbury vs. Madison was all-encompassing has grown and has led to the fulfillment of Thomas Jefferson's prophecy, in an 1804 letter to Abigail Adams, that the decision would ultimately lead to a form of despotism.
That is precisely why Senate liberals and their far-left allies are using the unprecedented judicial filibuster to block judges who will not enact from the bench the unpopular policies they cannot get through an accountable Congress.
And that is precisely why Americans who want a judiciary that bases its findings on interpreting the law rather than making new law should let their senators know they support the constitutional option that allows an up-or-down vote on judicial nominees.
I would love to see the Supreme Court make a ruling that overturns Marbury vs. Madison; I know it will never happen but it would be wonderful if the courts could at least acknowledge that they are a co-equal, rather than superior branch of government.
Of course, what's ironic is that the court might never have had the authority it exercised in deciding Marbury v. Madison, except that the nature of the decision was such that neither party could object.
Basically, IIRC, the court ruled that the petitioner should have prevailed if intervening factors hadn't rendered the case moot; because the case was moot, however, the respondant prevailed. The petitioner couldn't complain about the decision because the matter was, in fact, moot; the respondant couldn't complain about the decision because he won.
Thus the Supreme Court took advantage of a case where it could claim authority and set precedent with zero challenge.
The problem is judges (and Justices) who use the power of judicial review, not to obey and enforce the Constitution but to reject and rewrite it. THAT is the problem, not the principle of Marbury. See below.
Congressman Billybob
Latest column, "A Triple Black Dog Double Dare to Infinity."
When Andrew Jackson made his famous remark, "Mr. Marshall has made his ruling, let him enforce it," he was probably going too far; but when will the executive branches realize that without their enforcement, court decisions are moot.
If we don't fix these problems now, this country is headed for a Reformation. And you never know how those things will turn out.
If we don't fix these problems now, this country is headed for a Reformation.Unfortunately, i have to agree with you. And the Reformation will not be pretty. I reckon the country will be torn apart and a whole bunch of innocent people will die.
Memo to self: Buy more ammo!
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