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Judicial Issues # 1
Get Rid of the Filibuster for Judicial Nominees and Return to the
Constitution
After reading the full text of Justice Scalia's dissent on the recent
Supreme Court ruling that bans the death penalty for juvenile's under 18
years of age, I agree with the Human Events editorial stand that Justice
Scalia should at the appropriate time become the next Chief Justice of the
United States Supreme Court.
In the meantime, Justice Scalia's dissent in Roper v. Simmons calls
attention to the serious problems involved with new-wave, politicized
liberal thought, especially when it is applied to the decision making
process of the high court.
Five members of the Supreme Court recently decided that the death penalty
for anyone under the arbitrarily chosen age of 18 years, no matter how
terrible the crime, is "unconstitutional" on grounds that the death
penalty violates something Justice Kennedy called the "evolving standards
of decency."
I think the following is one of the many things Justice Scalia said in his
dissent that stands out as a serious and clear warning: "The Court has
purported to make of the Eighth Amendment, however, a mirror of the
passing and changing sentiment of American society regarding penology. The
lower courts can look into that mirror as well as we can; and what we saw
15 years ago bears no necessary relationship to what they see today. Since
they are not looking at the same text, but at a different scene, why
should our earlier decision control their judgment?"
And elsewhere the Justice points out a serious problem with liberal
thought across the spectrum, including the political spectrum; "Nor does
the court suggest a stopping point for its reasoning."
As Terrence Jeffrey, editor of Human Events Online wrote in response to
the Roper v. Simmons ruling: "Most alarmingly, these tribunes are not
claiming to have discovered something in the Constitution that went
unnoticed for two centuries. They are claiming the Constitution itself has
changed in the last 16 years--not because state legislatures ratified an
amendment, but because some justices have changed their personal
perceptions of what the Constitution ought to mean."
And I believe indirectly Justice Scalia's dissent does call an alarm for
changing ASAP the Senate filibuster rule in its current form as it applies
to the President's judicial nominees.
A counter-measure for the future if you will.
At the time (11-18-03) when the high court shot down a Texas law against
sodomy in Lawrence v. Texas, Justice Sandra Day O'Connor and other
"moderates" on the high court included in their opinions that it is for
some reason important to incorporate ideas and views of international
legal thinking trends into American judicial decisions via the U.S.
Supreme Court.
The founding fathers are probably rolling in their graves, asking how and
why the current Supreme Court might be doing this.
Also at the time of the Texas sodomy ruling Justice Scalia spoke to the
press and warned the American people that the seeds for this current
intellectual, and I would say in this case moral misappropriation of the
Eighth Amendment in Roper V. Simmons, were being sown.
So what would implementing a simple majority vote on judicial nominees
have to do with the recent Supreme Court decision in Roper v. Simmons?
A great deal I believe.
As conservative columnist Thomas Sowell wrote: "An aging Supreme Court
means that there is now perhaps a once-in-a-lifetime opportunity to stop
the erosion of democratic self-government by putting advocates of judicial
restraint, rather than judicial activism, on the federal courts, including
the Supreme Court."
Liberal thought continues to twist sound logic into the illogical. We
accept that the communication process called "spin" is a competitive
reality during political campaigns and legislative battles, yet that is
not what we should expect, nor put up with from a Supreme Court when used
as a tool for interpretation of the U.S. Constitution.
Since the filibuster issue is a separate yet connected problem, I will
write about it first.
Changing the filibuster rule and implementing a simple up or down majority
vote from the Senate within a designated time-frame for the President's
judicial nominees without recourse to the filibuster would provide the
people with the assurance that the legislative branch is indeed doing the
people's business, that is, instead of this tiresome display of
small-minded partisan gridlock.
The intention of the traditional filibuster was well meaning enough, yet
today, exemplified in the day-in and day-out obstructionist tactics of
former Senate Minority leader Tom Daschle during the President's first
term, the filibuster rule changed directions and became a venue of abuse,
as well as an obstacle to the Senate's true role of advise and consent.
A former counsel to Senate Majority Leader Bill Frist called the current
use of the filibuster by the Democrats in the Senate nothing more than
"hostile reduction."
As former Nixon cabinet member Eliot Richardson said on this issue; "There
are times when a nation's future may depend on whether its citizens can
rise above policy differences and take a stand for democracy. This is such
a time. At stake is our government's ability to make decisions and take
action."
In reference to the high court's recent decision in Roper v. Simmons,
syndicated columnist Cal Thomas correctly asked this week in his scathing
Fox News Column One: "What kind of twisted morality and twisted law is
that? It makes the coming battle for the Supreme Court even more
important."
It is time for Senate Majority Leader Bill Frist to take the step and
introduce what liberals as well as some moderates and conservatives are
mistakenly calling "the nuclear option."
Obviously, the challenge at this time to the majority party would be that
in the future the current majority could then be the minority. And that
minority at that time would then not have the filibuster rule to
politically payback and block potential liberal appointments. In addition
to the usual entanglements of senatorial bartering, these are probably the
two main reasons why temperatures around some conservative feet drop below
freezing when faced with making this change in the Senate.
At this time it would be volumes more constructive for the country if the
filibuster rule was changed, and therefore, unequivocally removed from the
judicial nominating and confirmation process.
The wrong-headed term "nuclear option" is essentially brought to you by
the left-wing, to imply that doing away with the filibuster rule for
judicial nominees is "radical."
That is nothing more than a subjective liberal spin yet far from the
reality.
The "People for the American Way" turn the issue inside-out when they say
that making the filibuster off-limits for judicial nominees "is a radical
tactic that would prohibit senators from using filibusters against
extremist judicial nominees."
Using the filibuster against the President's judicial nominees is the
"radical" creation of the left-wing in the first place. Being used, not to
strengthen the advise and consent role of the Senate as they will tell
you, rather, it's being used to "block" conservative judicial nominees,
pretending the filibuster is being used for "extended debate" while
keeping the nominee from a Senate vote.
Like the magician's magic wand across the page, liberals love to wave
their sophistry right before your eyes.
Applying a filibuster to the President's judicial nominees was never meant
to be an option. So when "People for the American Way" argues for the
filibuster and writes "All bipartisan cooperation would vanish and the
Senate's legislative business could grind to a halt," that organization is
only telling you in reality what the Senate Democrats are currently, that
is, already doing with the filibuster.
What America, the sovereign nation we also call The United States, would
gain right now with a simple majority vote in place for court nominees far
outweighs what the Senate as an institution and politicians therein, as
some argue today, would lose.
The Senate and the country would lose nothing.
In fact, I believe we would regain something vital and important via a
return to the original intent of the constitution.
And to cold-footed conservatives I would quote Miranda again, former
counsel to Senate Majority Leader Bill Frist, who wisely said: "Moreover,
it is hard to imagine what single piece of legislation conservatives fear
so much that overcomes concern for the independence of the judiciary."
For Democratic Senator Robert Byrd of West Virginia to argue that a
majority vote on nominees would "restrain debate" is somewhere beyond
absurd.
Do not believe it! The filibuster isn't being used to extend debate, it's
being used, as Richardson said, to block action, and in doing so, it is a
"corruption of the democratic process."
When I said above in blog style that the Senate would lose nothing, my
point was historically verified in a recent floor speech from Senator
Orrin Hatch, former Judiciary Committee Chairman, posted yesterday
(3-9-05) on the Human Events website.
Senator Hatch made it clear that the filibuster rule was never intended to
apply to the President's judicial nominees, it was intended to apply to
the protocol and workings of the legislative branch itself, regarding
legislation, not court appointees.
Let the two different parties engage in extended legislative debate as the
constitution provides, but leave the judicial nominees from the Executive
Branch to a simple majority vote.
The filibuster was not intended to be mischaracterized by the minority
party to falsely challenge the executive branch while claiming it to be a
constitutional right simply because the minority disagrees with the
political ideology of the Executive Branch.
Senator Hatch also pointed out that for more than a century the up or down
vote for judicial nominees has co-existed just fine with legislative
filibustering.
And Senator Byrd said, "If we restrain debate on judges today, then what
next?"
That's hogwash; That's just more of that theatrical sophistry Senator Byrd
is known for, and it's based on a false premise. The Dems took the
filibuster into an area where it is not supposed to be to begin with, and
are now trying to make you believe its the norm.
With all due respect and in all honesty, Senator Byrd often sounds like he
might be missing something. As Senator Hatch pointed out, the current and
redundant filibusters against the court nominees of the executive branch
simply amount to a defenseless and politically motivated breach and
obstruction of constitutional law.
So it's back to what Eliot Richardson said: "At stake is our government's
ability to make decisions and take action."
And that would be the primary point; The filibuster rule should be removed
from the judicial nominating process because it has become nothing more
than a weapon for abuse in being applied where it was never intended to
be.
2.
Dick Morris, former advisor to President Clinton and a Fox News political
analyst has said this week in "The Hill" publication that the reason
Majority Leader Frist, who has the votes to implement this constructive
rule change, has not yet moved on this issue, is because of pressure from
the White House (via Karl Rove and the President himself) where it is
believed (according to Morris) that nominating the judges (currently
re-nominated) would continue to "divide" the country.
Whether Morris is just speculating or has reliable inside information
isn't clear, yet it sounds like mere political speculation to me.
Morris thinks that it's a political gesture to keep up the appearance for
the right wing of the party while allowing the Dems to continue the
filibusters, that is, to further anger the grassroots, and to appease
women and independents in order to keep the country from being so
"divided."
Even from that line of political thinking it would still be more
advantageous to implement a majority-vote rule because, and it is no
surprise, the Dems are now ballistic and threatening to create procedural
chaos in the Senate because they won't be allowed to do something that was
never intended for them to be allowed to do anyway.
Several recent polls indicate that the majority of the people are already
severely fed up with the Senate Dems abuse of the filibuster rule while
simultaneously being fed up with radical thinking liberal judges.
One example: Consider a news item from 3-9-05: A Gallup Poll found 59% of
Americans are displeased with the overall moral climate in America, with
only 7% (predominately the young) being happy with the moral climate.
Whether you want to call that a "solid" majority or an "overwhelming"
majority is up to you, yet when placed against the opposite number of
seven percent, let's just say that 59% is a very damn clear indicator.
It stands to reason when that many people believe the moral climate of the
country is going in the wrong direction, then one would ask; How could a
more conservative judiciary "divide" the country?
Politically, one might say that changing the filibuster rule now
simplifies the game to straight poker, raises the political stakes in the
future, and therefore will require a continual sharpening of strategic
skills by both parties.
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