Posted on 03/04/2002 11:23:56 PM PST by JohnHuang2
As prescient as the framers of the Constitution were, they apparently didn't anticipate the wholesale obstruction of the president's judicial appointment power by a highly partisan Senate majority. The reason for their confidence is instructive, and Republicans should learn from it.
To be sure, they recognized the potential for abuse by the Senate of its advice and consent power. They even imagined that rank partisanship might play a role. But they thought the Senate's accountability to the electorate would deter abuse. In his Commentaries on the Constitution, Justice Joseph Story confirmed all of these points.
There may be cases, said Story, where the Senate would reject suitable ("absolutely unexceptionable") appointees "from party motives, from a spirit of opposition, and even from the motives of a more private nature. ... But such occurrences will be rare." Why? Because "there will be a responsibility to public opinion for a rejection, which will overcome all private wishes."
Implicit in this is the framers' conviction that the Senate should not reject qualified nominees for political or personal reasons. Alexander Hamilton, in Federalist No. 76, made this very point quite expressly when explaining the reasons for the Senate's advice and consent role in the first place. "It would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to preventing the appointment of unfit characters. ..."
Justice Story made the same point: "they may withhold their advice and consent from any candidate who, in their judgment, does not possess due qualifications for office." You see, there is no mistaking it: The framers intended to ensure the appointment of qualified judges – not those whose political views were acceptable to the Senate majority.
So it is clear that the framers did not mean to confer on the Senate co-equal appointment power with the president. But that doesn't matter to Sen. Daschle and company.
Daschle, on the Sunday shows, made it clear that unless the Judiciary Committee "reports him out of committee," President Bush's nomination of Judge Pickering to the 5th Circuit Court of Appeals will not make it to the floor of the Senate for a vote.
Note that Daschle makes no apologies for this, because Sen. Dianne Feinstein, to whom he refers as "about as moderate a Democrat as you'll ever find," has "looked at all these facts" and is opposed to Judge Pickering's confirmation.
The Democratic leadership is not alone. The entire liberal establishment has essentially endorsed the rank politicization of the judicial nomination process.
The New York Times, in a strong editorial urging the Judiciary Committee to reject Judge Pickering's nomination, admitted that Pickering was not a racist, contrary to the claims of many opposing him. But to the Times there are plenty of other sins to justify his rejection. Do these sins have anything to do with his qualifications or suitability for the position? No, other than some trumped-up ethical complaints against the judge (and a bogus claim about his record in employment discrimination cases) to which the Times' editors pay lip service for cover.
The bottom line is that Pickering is a political conservative and fails the abortion litmus test. "He was a driving force behind the Republicans' decision to put a plank in their 1976 party platform calling for an anti-abortion amendment to the Constitution." This unpardonable puts him "well outside the mainstream on issues of reproductive choice."
The clincher is in the closing sentence. "If President Bush is committed to speeding up confirmations, he should name men and women who have distinguished records and do not have the hard-right views and ethical problems that Mr. Pickering does."
But he does have a distinguished record, as witnessed by the liberal American Bar Association's finding that he is qualified and the fact that the Senate voted unanimously to confirm his appointment to the federal District Court a mere decade ago.
Understand what's at stake here. "Hard-right" is code for "mainstream conservative." This is no exaggeration. As long as the Democrats control the Senate (and the Times has anything to say about it) mainstream conservative judges will first be eviscerated, then rejected.
The Democrats have never been held accountable for their usurpation of the president's appointment power and the systematic character assassination "Borking" of politically unacceptable judicial nominees. If anything, they have been emboldened by the Republicans' feckless response.
Until Republicans get in the fight, they will be making fools of the framers by allowing the abject nullification of the president's appointment power by the anti-constitutionalists.
And then he goes on to quote Justice Story?
Furthermore, weren't the Senators appointed by the State legislatures at the time? Doesn't make much sense that it was the electorate that would be the check here. What makes more sense is that the Senators, because they were appointed by the legislatures would have the health of their State at the foremost in their mind even if they didn't have their own citizenry in mind.
And certainly, the Senators would be as far removed from the favors of lobbyists as possible. Since they weren't elected and required no warchests to become Senators, the influence of special interests was non-existent.
This is a pretty poor analysis I think. The 17th amendment was a BAD idea.
Not only will I not vote for you again--I will work against your reelection. You sir, are a coward. In the view of this voter, cowardice is the worst kind of treason because you are incapable of even displaying the strength of your conviction. You are unworthy of the continued support of the good people of Mississippi who elected you. To quote John Stuart Mill, "The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself."
The conservatives who elected you are fed up with your cowardice in the face of those who would destroy OUR country and we are ready for a fight. If you are not capable of or willing to lead this fight---then you need to get the hell out of the way.
Aside to J.C. Watts--Please move to Mississippi and become our Senator.
Do you have the details on the Lott assistant who tried to make a "deal" with the Dems to get the younger Pickering to roll-over?
" Until Republicans get in the fight, they will be making fools of the framers by allowing the abject nullification of the President’s appointment power by the anti-constitutionalists."
When will conservatives wake up and see that today's Republicans are no better than the conservative Democrats of a few years ago.?
We MUST not give up on this.... Keep the pressure on YOUR Senators to bring this vote to the FLOOR for a vote by the FULL senate !!!
DO NOT allow Sen. Leheay and his fellow LIBERALS on the Judiciary Committee to prevent this vote from going to the floor!!!
Advise and consent means 100 Senators not 10 !!!
Sign PETITION to SUPPORT Judge Pickering...
CLICK here for "Mail Blaster" .. E-mail ALL U.S. Senators/Congressmen, and a variety of NEWS organizations in a single easy step..
Let them know that Judge Pickering deserves a vote of the FULL Senate UP or DOWN by ALL 100 Senators...!
Then PRINT the entire Petition and FAX it to YOUR 2 Senators !!
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