The Patriot Post® · The Demos' Full-o-Bluster

The Democrats are indeed full of bluster, but the current debate over their obstruction of President George W. Bush’s judicial nominees is no trivial matter. This debate is not about a “looming Constitutional crisis” – we are in the midst of perhaps the most serious Constitutional crisis since the War Between the States.

For months now, Demo-gogues Harry Reid, Teddy Kennedy, Bobby Byrd, et al., with the help of their Leftmedia minions, have railed against any potential change of Senate procedure. Specifically, they object to a Republican proposal to end judicial filibustering, which, for the first time ever, is being used by the Demos to obstruct the prescribed constitutional process for reviewing judicial nominees.

Historically, Senate rules allowed for unlimited debate (filibuster) until 1917, when the rules were changed to allow a two-thirds vote to close debate and call for a vote. In 1975, the rules were changed to allow 60 senators to invoke cloture. At that time, Ted Kennedy said, “Again and again in recent years, the filibuster has been the shame of the Senate and the last resort of special-interest groups. Too often, it has enabled a small minority of the Senate to prevent a strong majority from working its will and serving the public interest.”

Indeed, regarding judicial nominees, “a small minority of the Senate” is preventing the “majority from working its will and serving the public interest” by preventing judicial nominees from receiving their constitutionally-mandated full Senate vote.

More recently, when Democrats still held a Senate majority, two of today’s principal obstructionists spoke strongly against judicial filibusters. Said Vermont’s Patrick Leahy, “I have stated over and over again on this [Senate] floor that I would…object and fight against any filibuster on a judge.” Delaware’s Joe Biden added, “[E]veryone who is nominated is entitled…to have a hearing and to…have a vote on the floor. It is not…appropriate…not to bring them to the floor and not to allow a vote.”

Republicans concur – former Senate Leader Bob Dole notes, “When I was a leader in the Senate, a judicial filibuster was not part of my procedural playbook. Asking a senator to filibuster a judicial nomination was considered an abrogation of some 200 years of Senate tradition.”

But that was then.

Now, Kennedy, Leahy, Biden and company are holding hostage a third of President George Bush’s appellate-court nominees, preventing them from receiving an up-or-down confirmation vote in the full Senate.

The Demos assert that they are “protecting” the nation from radical judges who would do harm to our Constitution. Reid blusters, “The President is at it again with the extremist judges.” Kennedy bloats, “[I will] resist any Neanderthal that is nominated by this president…for any federal court.”

“My goal is to have fair up-and-down votes,” responds Senate Majority Leader Bill Frist. “Are we going to shift from that principle? The answer to that is no. … All judicial and Supreme Court nominees deserve a fair up-or-down vote.”

So, what’s really going on?

Demos insist that preservation of the Constitution is at the center of this heated debate. They are, inadvertently, correct, except – and it’s a colossal exception – that their plan for constitutional preservation is based on seating judges who “interpret” the Constitution and legislate by judicial diktat. Or, in the words of the august Sen. Sam Ervin, judges who “interpret the Constitution to mean what it would have said if they, instead of the Founding Fathers, had written it.”

Indeed, the preservation of our Constitution – and the fate of our Republic – hangs in the balance. The window for correcting decades of judicial mischief is closing.

Plainly, the Constitution declares (Article II, Section 2, Clause 2) that executive-branch appointments be subject to confirmation by the full Senate and that such consideration not be obstructed by a handful of ultra-partisans. However, Senate Democrats are dead-set on blocking the President’s appellate-court nominations, because they know the real locus of central-government power resides on the federal bench with their cadre of judicial activists.

On the other hand, most of President Bush’s nominees are constitutional constructionists – those who issue rulings based on the letter of constitutional law as intended by our Founders, rather than interpreting it according to their constituent agenda – and seating such nominees threatens to loosen the Democrats’ stranglehold on our Constitution.

The Federalist Papers constitute the definitive explication of the Founders’ “Original Intent” regarding our Constitution. In Federalist No. 81, Alexander Hamilton writes on the subject of constitutional interpretation, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution.”

In Federalist No. 45, the author of our Constitution, James Madison, writes about the limits of constitutional authority: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. … The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.”

Hamilton and Madison clearly reveal the scope of our Constitution and its proscription on judicial interpretation. For decades, however, Democrats like Kennedy have seen to it that the federal bench is stacked with judicial activists who will “interpret” the Constitution on behalf of their constituent agendas, thus ensuring that those constituents will re-elect their political patriarchs in perpetuity.

Therein resides the greatest threat to our constitutional republic.

As Thomas Jefferson warned: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. … The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

The final arbiter of constitutional law is the Supreme Court, and that body of jurists is one seat away from becoming the ultimate protectorate of the “despotic branch.”

The Demos, of course, know that Mr. Bush’s appellate-court judges will compose the A-list from which he’ll nominate one or two Supreme Court justices before the end of his term. That is especially true of the DC Circuit Court from which Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg hail, and to which California Supreme Court Justice Janice Rogers Brown was recently nominated.

This is precisely why the Demos’ denial of full Senate consideration to constitutional constructionists such as Judge Brown, Priscilla Owen and Miguel Estrada is so important: The Demos simply can’t stomach judges who will abide by their oath to “Support and defend the Constitution of the United States” – “Neanderthals,” as Kennedy calls them.

Of the Democrats’ effort to block these and other Bush nominees, Justice Antonin Scalia concludes, “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

The Republican leadership has two options: Bow to the Demo filibuster and abandon these decent and well-qualified judges, or amend the rules for considering judicial nominees only and allow a simple-majority vote to enforce cloture. In the event there are not enough Republican senators with the spine to support the latter option, Majority Leader Frist may call in Vice President Cheney, in his constitutional role as presiding officer of the Senate, to rule that a constitutionally mandated process may not be obstructed by filibuster.

Mr. Cheney has pledged to cast the deciding vote if the Senate is deadlocked, noting, “On the merits, this should not be a difficult call to make. The [filibuster] tactics of the last few years, I believe, are inexcusable.”

Enough already! Senator Frist, if need be, you must exercise the aforementioned Constitutional Option. The future of the Republic is in your hands. If necessary, “Nuke ‘em”!

On cross-examination: “This is not about two people being nominated to be federal judges. It is about the whole role of judges in a self-governing republic. Judges who decide cases on the basis of the plain meaning of the words in the laws – like Justices Brown and Owen – are anathema to liberals. The courts are the last hope for enacting the liberal agenda because liberals cannot get enough votes to control Congress or most state legislatures. Unelected judges can cut the voters out of the loop and decree liberal dogma as the law of the land. Liberals don’t want that stopped.” –Thomas Sowell