Frist Stabbed in the Back Over Judicial Nominees

We almost got there. We were on the verge of doing something that would have been the beginning of the end of judicial tyranny and the dictatorial rule of unelected men in black stomping all over the Constitution of the United States.

The Heritage Foundation put it this way: "America is edging towards a crisis in the role and operation of the federal courts – a crisis that threatens our constitutional democracy. Increasingly, we see judges ruling more on the basis of their personal opinions or their own particular view of the good society. In the process, courts regularly are ruling in ways that expand federal power and diminish the authority of the states and the freedom of citizens.

"As the courts have become more politicized, so has the judicial confirmation process. The political views of judges – or their perceived views – rather than their proven adherence to the rule of law is fast becoming the criterion for Senate confirmation. If we are to restore proper limits on government and protect our cherished freedoms, we must reverse this dangerous erosion of the proper role of the courts. To do this, the Administration must demand fidelity to the rule of law as the test of confirmation, the Senate must be pressed to change its rules to prevent obstructionists from holding up nominees, and the courts must be urged to enforce the federalism and limited government provisions of the Constitution."

That's what is at stake in the way the United States Senate deals with the president's judicial nominations.

The first step in dealing with this crisis is the appointment to the federal bench of jurists who will strictly adhere to the Constitution and interpret it in the sense that the Founders wrote it. The notion that it is a "living document," subject to change at the whim and caprice of un-elected judges who want it to reflect the customs and mores of the times as they discern them, is destructive of the Founders' original intent that was based on a sage understanding of the nature of man and the tendency of governments to overstep their bounds.

As Justice Antonin Scalia put it in a recent speech: "If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

On Monday night Senator Bill Frist was poised to put through a change in Senate rules that would have prevented the Democrat minority from continuing to use the filibuster to prevent the Senate from voting aye or nay on the president's judicial nominees. He was confident he had the 51 votes needed to change the rules and put an end to the obstructionism of the minority party, which was employing the filibuster in a way in which it had never in over 220 years been used – to deny senators the right to vote on judicial nominees.

He never got the chance – he was stabbed in the back by seven members of his own party, and the best chance this nation had to restore the Constitution as the bedrock of this Republic was lost, at least for the time being.

Say what they may about saving the Senate's cherished traditions of civility and mutual respect, what these seven so-called Republicans did was to hand Senate Minority Leader Harry Reid the sweetest of victories.

And how did he respond? Was it in the hallowed civility the dissident Republicans so cherished?

Hell no, it wasn't. It was in Reid's thuggish boast that "We have sent President George Bush, Vice President Dick Cheney and the radical right of the Republican Party an undeniable message ... the abuse of power will not be tolerated."

Note the "we." It obviously includes seven new recruits to his cause – seven Republicans who, if they had a shred of decency, would adopt the Judas solution: Find a tree, throw a rope over the lowest limb, put the noose around their necks and swing to and fro in the breeze.

As some observers have suggested, it isn't over yet. In the so-called agreement there is nothing that would prevent Senator Frist from sticking to his guns. As Pat Buchanan told Don Imus this morning, if the Democrats attempt to filibuster nominees other than the three they agreed to allow to have up-or-down votes, there is nothing to prevent Frist from still going nuclear and seeking to enact the constitutional option.

And, said Pat, that would require John McCain and his gang of seven to vote with the Democrats and against their own president and his party as many as four times.

So, in the end, it all comes down to Bill Frist. The good doctor has the scalpel in his hands ready to excise the malignancy growing on the federal judiciary. While it might be dangerous surgery, he has no option. He needs to turn his back on the people who stabbed him there and start cutting – now.

Then we'll see if the gang of seven prefers to allow the tumor to remain and to grow, or to get rid of it for good. And should they prove to be pro-cancer, well, there are a lot of trees handy on the Capitol grounds.

We are also being stabbed in the back by sloppy eggheads like this - Professor Bainbridge: He posts this --

More on The Filibuster Deal
Lots of my fellow conservatives are seriously exercised by the compromise reached by the Senate moderates on judicial nomination filibusters:

Captain Ed says "we can thank Bill Frist for his lack of leadership and resolve for taking a majority and turning it into a minority"
Patterico calls it a GOP "cave"
Michelle Malkin opines that the "GOP parade of pusillanimity marches on. With this pathetic cave-in, the Republicans have sealed their fate as a Majority in Name Only."
Hugh Hewitt claims to know that "it surely is not a good deal"
John Hinderaker complains that the deal is "absolutely sickening"
James Dobson calls it "a complete bailout and betrayal"
Will somebody please get these folks some cheese to go with their whine? I find these reactions not only short-sighted but also surprisingly unconservative. They reflect a willingness to put possible short-term partisan gain (and I emphasize the word possible) over both principle and long-term advantage.

What is a - arguably the - basic conservative principle? Russell Kirk taught:

Conservatives are champions of custom, convention, and continuity because they prefer the devil they know to the devil they don’t know. ... Burke’s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to he gradual and discriminatory, never unfixing old interests at once.

... In politics we do well to abide by precedent and precept and even prejudice, for the great mysterious incorporation of the human race has acquired a prescriptive wisdom far greater than any man’s petty private rationality.

... Any public measure ought to be judged by its probable long-run consequences, not merely by temporary advantage or popularity. Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away. As John Randolph of Roanoke put it, Providence moves slowly, but the devil always hurries.

The filibuster is a profoundly conservative tool. It slows change by allowing a resolute minority to delay - to stand athwart history shouting stop. It ensures that change is driven not "merely by temporary advantage or popularity" but by a substantial majority. Is it any wonder that it has usually been liberals who want to change or abolish the filibuster rule?

Proponents of the "nuclear option" claim to believe that abolishing the filibuster could be limited to judicial nominations. It's a coin flip as to whether this is naive or disingenuous. It's a slippery slope to abolishing the filibuster as to Presidential nominations or even legislation. Would the GOP be tempted to abolish the filibuster if necessary to put John Bolton at the UN? Or to ram through social security reform? Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation. (Imagine President Hillary with a 50-50 Senate split and, say, Mark Warner as VP. What will prevent HillaryCare II if we don't have the filibuster then? Our slim majority in the House?)

Even if this precedent could be limited to judicial nominations, what happens if President Hillary (with a 50-50 Senate split) nominates somebody like Larry Tribe or, worse yet, Margaret Marshall to the Supreme Court? Wouldn't it be handy to still have the filibuster around then? Sure, the Democrats could pull the nuclear option, but why should the GOP pave the way?

I've been as critical of Democrat obstructionism as anyone. But even in the unlikely event that pulling the trigger on the nuclear option would have guaranteed that every one of President Bush's current and future nominees ultimately would have passed a confirmation vote, the cost still would have been too high.

Update: BTW, any honest conservative must admit that the only reason we're having this debate over filibusters is because of Orin Hatch's changes to the Judiciary Committee rules and procedures on matters like blue slips, hearings, and so on, which deprived the Democrats of the tactics that the GOP used to bottle up a lot of Clinton nominees in committee. The judicial confirmation process didn't get to be such a mess without help from both sides (even though the Democrats do deserve blame for starting it).

Update2: My views on this matter are proving almost as effective at bringing out the numbnuts as my views on immigration. One emailer opined, for example:

You and Reynolds have it dead wrong, and your buddies the DemoRats will prove me right so fast it's going to spin your head.

My "buddies"? Sheesh. You have not been paying attention, dude. But at least he put me in good company. Anyway, one of these days I'm going to do a post that combines my take on filibusters, immigration, and the Confederacy just to watch the spittle fly. It'll be almost as much fun as my usual efforts at making liberals apoplectic.

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