Sen. Leahy's Bizarre World - Hugh Hewitt says when Democrat needs facts, he fabricates them

Vermont's Patrick Leahy took the floor in the United States Senate on May 9. It was the 1-year anniversary of President Bush's first round of judicial nominations, and Leahy had been under attack for refusing to even hold hearings for these nominees. Leahy's blockade is unprecedented in the annals of the Senate, so the chairman of the Judiciary Committee came up with a novel defense of his obstructionism: He reworked history.

Leahy's little history lesson tells you much, much more about Leahy than it does about FDR's court-packing plan or President Bush's nominees. First, the facts: Roosevelt's "Judiciary Reorganization Plan" was submitted on Feb. 5, 1937, more than four years before FDR became a "war-time" president.

That plan had absolutely nothing to do with blocking nominees to existing vacancies, but proposed instead to create more than 50 new judgeships, including six new seats on the United States Supreme Court. The plan divided the country and the Senate, but a small majority of the upper chamber was in line to vote for a version of it when FDR's point man, the then majority leader Sen. Joseph Robinson, dropped dead on July 14.

Leahy's version of history is thus wrong on every count, and his bizarre re-telling of a pretty familiar episode from American history would earn a junior high kid an F. (People wonder why our high school students don't know history. Perhaps they have been watching C-SPAN.)

The interesting question is whether Leahy is ignorant or duplicitous. The former should just embarrass Democrats since this is the man they elected to lead the Judiciary Committee. The latter should alarm all fair-minded Americans.

Leahy has already led the Judiciary Committee to a new low in its savaging of Judge Pickering. The disgust that coursed through the moderate Democrats like Zell Miller in the aftermath of that smear was palpable.

Out on the campaign trail, GOP challengers to vulnerable Democratic incumbents in South Dakota, Minnesota, Iowa, Georgia and Missouri have picked up on the theme of an out-of-control chairman leading an out-of-control committee in a time of war. Their appeal to set the Senate straight by returning control to the responsible party has traction.

The conservative base has also figured out that the best way to respond to Leahy is to contribute to John Thune, Norm Coleman, Jim Talent, Greg Ganske, and Saxby Chambliss.

Listeners to my radio program have copied me on hundreds of e-mails that have gone to Leahy and Tom Daschle that detail why the correspondents have contributed to Thune et al. (Leahy-inspired contributions to Thune must aggravate Daschle the most as these dollars are deployed against his seat-mate Tim Johnson.) As I replayed and replayed the tape, Leahy's abuse of history, the calls and e-mails took on an almost unbelieving tone: How could such buffoonery be present in the Senate?

The answer is that Leahy and his gang have been given a free ride by the elite media. Everyone knows what he's up to, and Leahy's erratic behavior is not much of a secret, having been comprehensively documented as recently as last fall by Michael Crowley in The New Republic. But Leahy's historical ravings and his bullying of unquestionably well-qualified nominees is tolerated by folks who should know better because – however blunt and often repugnant his tactics – Leahy is keeping the judiciary safe for the left.

Tim Russert came on my program a week ago to defend his coddling of Democrat senators, and I pushed on this point. Russert defended his honor, claiming to be hard as nails on Democrats to the point of earning the enmity of Tom Daschle. I asked him if he had ever mentioned the names of marooned nominees like Miguel Estrada, John Roberts and Michael McConnell. Russert did not answer and instead retreated to his general defense of his interviews with Democrats.

Four days later, Sen. John Edwards appeared on "Meet the Press." Edwards is a member of the Judiciary Committee, and as the president had demanded action on his judicial nominees the Friday just before the Edwards' interview, many expected Russert to come down hard on this point where Edwards was vulnerable. Edwards did self-destruct on taxes, but not on judicial nominations. Why? Because Russert did not pose a single question on the subject, much less the sort of pointed inquisition Russert reserves for GOP representatives.

Leahy's astonishing historical illiteracy will not draw much attention, nor will the cooked books when it comes to the Committee's processing of appellate nominees, nor the radical expansion of the "blue slip" power that Leahy has silently implemented. Given the media's complicity in the stonewalling, it is amazing that the electorate knows anything at all about the issue.

But they do. And they are voting with their $25 and $50 contributions, and they'll be voting with ballots in the fall. When the Senate shifts back to GOP control in 2003, the irony will be that one Vermonter will have given back what the other took away.

"If anyone will take the time to read a history book," began Leahy in his most condescending tone, "they would understand this is the way the Senate is supposed to act. A very popular president, a war-time president, Franklin Delano Roosevelt – a revered president – tried to pack the courts, and the United States Senate said, 'No, you can't do that.' Every historian will tell you today, thank goodness the United States Senate stood up to a popular war-time president, and said you can't pack the courts because it would destroy the independence of the federal judiciary."
Leahy's little history lesson tells you much, much more about Leahy than it does about FDR's court-packing plan or President Bush's nominees. First, the facts: Roosevelt's "Judiciary Reorganization Plan" was submitted on Feb. 5, 1937, more than four years before FDR became a "war-time" president.
That plan had absolutely nothing to do with blocking nominees to existing vacancies, but proposed instead to create more than 50 new judgeships, including six new seats on the United States Supreme Court. The plan divided the country and the Senate, but a small majority of the upper chamber was in line to vote for a version of it when FDR's point man, the then majority leader Sen. Joseph Robinson, dropped dead on July 14.

Leahy's version of history is thus wrong on every count..." - Hugh Hewitt

From http://www.crf-usa.org/bria/bria10_4.html:

"Nine Old Men"
When the three unanimous Supreme Court rulings against New Deal programs were announced on May 27, 1935, New Dealers called it "Black Monday." Speaking with reporters, Roosevelt lashed out against the court, complaining of its "horse-and-buggy" mentality. Clearly, he believed that the justices were locked into a view of the Constitution that did not take into account the economic crisis then facing the nation. In the months that followed, FDR's fears grew that the Supreme Court would totally gut the New Deal, including such landmark legislation as the Social Security Act and the National Labor Relations Act.
At this time, the nine justices on the Supreme Court were actually divided into roughly three groups. Justices Van Devanter, McReynolds, Sutherland, and Butler made up the conservative wing. These men viewed the Constitution as the guardian of property and the capitalist system. Justice Sutherland once commented that, "the meaning of the Constitution does not change with the ebb and flow of economic events." On the other hand, the three liberals on the Court, Justices Brandeis, Cardozo, and Stone, saw the need to interpret the Constitution in the light of new realities and problems. In between these two groups were two moderates: Justice Owen Roberts and Chief Justice Charles Evans Hughes.
Although appointed by a Republican (Hoover), Chief Justice Hughes tended to vote with the liberals in cases concerning New Deal legislation. This left a divided court with Justice Roberts providing the "swing vote." In 1935 and 1936, Roberts sided with the four conservatives to make up the five-vote majority that struck down a number of New Deal laws.
President Roosevelt and his supporters were also critical of the advanced ages of many justices. Six of the "nine old men" were 70 or older. Justice Brandeis (who happened to be one of the liberals) turned 80 in 1936. Many New Dealers resented the ability of a small group of conservative-minded men, all born before 1880, to block the will of the Roosevelt administration, Congress and the majority of the U.S. electorate.
The Court Reform Bill
In fact, previous conservative Republican presidents had appointed a large majority of all federal court judges (who also served life terms). In 1936, only 28 percent of the 266 federal judges were Democrats. Moreover, during his four years in office, FDR had yet to name one Supreme Court justice.
Shortly after "Black Monday," Roosevelt began talking privately with his advisers about how to curb the power of the Supreme Court. He asked his attorney general, Homer Cummings, to study the matter. Cummings and others first concentrated their efforts on a possible constitutional amendment.
In November 1936, Roosevelt won re-election by carrying all but two states. Although FDR did not make the Supreme Court an issue in his campaign, he nevertheless considered his landslide election as a mandate for federal court reform. He knew he had to act quickly since many New Deal laws passed during his first term were headed for the Supreme Court.
Working quietly, Attorney General Cummings drafted a bill that, on the surface, appeared to streamline the entire federal court system. But the real target was the Supreme Court. Cummings proposed that Congress pass a law granting the president the power to nominate an additional judge for every federal judge who, having served a minimum of 10 years, did not resign or retire within six months after reaching age 70. In effect, this would enable FDR to add up to six more justices to the Supreme Court as well as nearly 50 more lower-court federal judges. Of course, the Senate would still have to approve his nominations.
FDR sent his court-reform bill to Congress on February 5, 1937. In his accompanying message, Roosevelt stated that the judiciary should be reorganized "in order that it also may function in accord with modern necessities." He pointed out that the number of justices on the Supreme Court had been changed by Congress six previous times. The president argued that the federal courts were crowded with pending cases causing costly delays. He also addressed the issue of "aged or infirm judges" and the need for "younger blood":

A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses filled, as it were, for the needs of another generation . . .

The "Court-Packing" Fight
Much to the surprise of President Roosevelt, his court-reform plan came under serious attack. The press soon began to refer to it as FDR's "court-packing" scheme. The president was compared with Hitler in seeking dictatorial powers. Even some liberal New Deal Democrats in Congress voiced their reservations.
Supporters of the bill decided to concentrate their efforts in the Senate. Appearing before the Senate Judiciary Committee, Attorney General Cummings presented the administration's case. "The proposed increase in the number of judges is not for the purpose of enslaving the judiciary," he said. "The purpose is to rejuvenate the judicial machinery, to speed justice, and to give to the courts men of fresh outlook who will refrain from infringing upon the powers of Congress."
But most of those testifying before the Judiciary Committee rejected FDR's plan as little more than a cover to pack the Supreme Court with liberal justices. The plan, they claimed, would make the court more political, thus undermining its independence. Critics argued that since there were no age regulations placed on the president or members of Congress, there should be none on federal judges either. Others claimed that it was not the Supreme Court justices who were overturning Roosevelt's New Deal laws, but the Constitution itself.
Perhaps the most persuasive witness before the Senate Judiciary Committee never appeared in person. This was Chief Justice Hughes who entered the political fray by submitting a letter that was read to the committee by Senator Burton K. Wheeler (D-Mont.). Hughes stated in his letter that the Supreme Court "is fully abreast of its work." He rejected the notion that more justices would make the court more efficient. The chief justice argued, "There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide."
"The Switch in Time"
In the midst of the "court-packing" fight, a series of unexpected events occurred that finally sank FDR's court-reform bill. On March 29, 1937, the Supreme Court reversed itself and upheld a state minimum-wage law very similar to laws that the court had previously struck down. This case was decided by another 5–4 vote. But this time the four conservative justices were in the minority. Shortly afterward, the Supreme Court ruled as constitutional both the Social Security Act and the National Labor Relations Act, two key pieces of New Deal legislation. These cases, too, were decided by slim 5–4 majorities.
For some reason, Justice Owen Roberts decided to switch sides in these cases, thus providing the three liberals along with Chief Justice Hughes a bare one-vote majority. These decisions weakened the argument that younger, more liberal justices were needed on the Supreme Court. The press quickly called the sudden shift by Justice Roberts "the switch in time that saved nine." In the meantime, one of the conservative justices announced his intention to retire, thus giving FDR his first opportunity to make a Supreme Court appointment.
Despite these developments, Roosevelt refused to withdraw his court-reform bill. While he did agree to compromise, FDR's chances of getting the bill through Congress began to look poor. The Senate Judiciary Committee, although dominated by Democrats, issued a report that recommended against the president's proposal. "This bill," the report declared, "is an invasion of judicial power such as has never before been attempted in this Country."
The last hope of the bill's supporters rested with the persuasive powers of the Senate Democratic Majority Leader, Joe Robinson. When he died suddenly before the full Senate voted, the court-reform bill was doomed. By late July 1937, Roosevelt gave in and agreed to drop the bill..."

Looks like President Bush got the last laugh though :-)
LOL! President Bush COULD learn from FDR (and Reagan), and do an "end run" around the Senate, taking his case more forcefully DIRECTLY to the American people.

Here are some quotes from FDR's "fireside chat" from March 9, 1937 - about reorganizing the judiciary,

from http://www.mhric.org/fdr/chat9.html:
"...I want to talk with you very simply about the need for present action in this crisis...
...Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government - the Congress, the Executive and the Courts. Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses...

...The Court in addition to the proper use of its judicial functions has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there...

...What do they mean by the words "packing the Court"?
Let me answer this question with a bluntness that will end all honest misunderstanding of my purposes.
If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and the Senate would confirm Justices worthy to sit beside present members of the Court who understand those modern conditions, that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators -
if the appointment of such Justices can be called "packing the Courts,"
then I say that I and with me the vast majority of the American people favor doing just that thing- now..." more

If the man who spoke these words [FDR] was a left-wing socialist, what does that make the DemocRATs of today?

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