Monday, March 21, 2005

Swingin’ on a Star

"Oh would you like to swing on a star; carry moonbeams home in a jar; and be better off than you are; or would you rather be a mule?; A mule is an animal with long funny ears; he kicks up at anything he hears; his back is brawny and his brain is weak; he’s just plain stupid with a stubborn streak; and, by the way, if you hate to go to school; you may grow up to be a mule."

Why would you want to be a mule? I guess it’s fitting for the Democratic Party, though. Consider the current strife they’ve created over judicial nominations. MoveOn.org is a political action group that was organized to oppose perceived obstructionism by the Right when they tried to hold Bill Clinton accountable for his acts of perjury. On March 16, 2005 MoveOn hosted the "Rally for Fair Judges" and in a complete turn around is encouraging obstructionism by the Left. As Senator Dick Durbin (D-IL) tells it, MoveOn’s making "sure the country doesn’t sell out to special interest groups." Excepting, of course, the ones that support his party.

Barbara Boxer had this to say to the MoveOn crowd: "Why would we give lifetime appointments to people who earn up to 200,000 a year, with absolutely a great retirement system and all the things all Americans wish for, with absolutely no check-and-balance except that one confirmation vote? So we’re saying we think you ought to get nine votes over the 51 required. That isn’t too much to ask. For such a super-important position, there ought to be a super vote, don’t you think so? It’s the only check and balance on these people. They’re in for life. They don’t stand for election like we do, which is scary."

Sen. Boxer is like a fish: ‘to fool the people is her only thought and though she’s slippery she still gets caught.’ The Constitution provides "checks and balances" for the different branches of government, not for political parties. She is also engaging in pernicious class envy. What matters is not how much a judge makes, but how well she represents the will of the people and whether she understands the Constitution. What is most damning for her party is her tacit admission that the 60 vote rule they’re braying for is not required by the Constitution: "we think you ought to get nine votes over the 51 required."

The Constitution provides a role for the Senate in selecting judicial nominees in the "advise and consent" clause. It also provides in Article I, section 5, for the Senate to make it’s own rules: "Each House may determine the Rules of its Proceedings, punish members for disorderly behaviour, and, with the Concurrence of two thirds, expel a member." The language makes it clear that the Senate is only required to use a super-majority in one case: to "expel a member." Unless, of course, you prefer the "it depends on what ‘is’ is" argument and then it means whatever you want it to mean in any given situation.

While extended debate has always been the norm in the Senate, the "filibuster" really came into being in the 1840s when Sen. John C. Calhoun (SC) used an obscure rule to block anti-slavery legislation by ‘speechifying’ till the bill was dropped. Calhoun was pirating the legislature and the practice was given the name filibuster, a Dutch word for pirate. In 1917, the Senate adopted the rule of cloture which allowed a 2/3 vote to break a filibuster. In 1975, Senate Majority Leader Mike Mansfield (D-MN) said, "we cannot allow a minority to grab the Senate by the throat and hold it there" and the 2/3 super-majority was reduced to a 3/5 vote or 60 Senators. It is clear that the Senate can make and change it’s own rules and (as instructed by Article I, section 5) a 2/3 majority is not required for rules changes.

Democratic Senators braying about respecting "200 years of history" is like ‘carrying moonbeams in a jar.’ In the 51 years between 1949 and 2000 there were only 13 instances of a judicial nomination filibuster. In contrast, there were 14 judicial filibusters within Bush’s first term alone! Senate Rule 31 says: "when a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration." It is over 150 years old. According to Sen. Durbin, the "nominees...were rejected by the Senate" when, in fact, the Democrats used the filibuster as a substitute for a vote, thus violating Senate Rule 31, which allows for rejection of a nominee only by a simple majority vote.

Now Senate Rule 22 is really ‘swingin’ on a star.’ It allows for unlimited debate, provides for a vote of cloture (to end the filibuster), but also requires a 2/3 majority to amend itself, as well as other Senate rules. The problem is that Senate Rule 22 "is plainly unconstitutional" according to Lloyd Cutler who was White House Counsel for both Jimmy Carter and Bill Clinton (no conservatives they) as well as many other Constitutional specialists, because it demands a super-majority where one is not required. Rule 22 also seeks to bind a future Senate which further violates the provision in Article I, section 5 for the Senate to "determine the Rules of it’s Proceedings."

Just like the mule with his brawny back and weak brain, the Democrats speak strongly but just can’t remember what they’ve said. On June 21, 1995. Sen Edward Kennedy (D-MA) said, "Senators who believe in fairness will not let a minority of the Senate deny [a nominee] his vote by the entire Senate," but that’s not what he said at the MoveOn rally. That same day, Sen. Frank Lautenberg (D-NJ) asked, "why can we not have a straight up-or-down vote on this without threats of a filibuster?" The next day, Sen Tom Harkin (D-IA) urged his fellow Senators to not "hide behind this procedure. Have the guts to come out and vote up or down." On June 18, 1998, Sen. Patrick Leahy (D-VT) said, "I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported...If we don’t like somebody the president nominates, vote him up or down. But don’t hold him in unconscionable limbo, because in doing that the minority of senators really shame all senators." Sen. Leahy has participated in over 15 judicial nominee filibusters. (Sen. Leahy, sir, have you no shame?) "I find it simply baffling that a senator would vote against even voting on a judicial nomination," Senate Minority Leader Tom Daschle (D-SD) said on Oct. 5, 1999. Only few short years later, in 2003 Daschle was leading filibusters on Miguel Estrada and Priscilla Owen at the same time! According to Time Magazine, Estrada "has not betrayed much of anything in the course of his controversial nomination hearings," which, apparently, is enough to black-ball him. On Meet The Press, Tim Russert asked Daschle, "why not let the Republicans have a vote? You can vote no, but just give them a vote the way you thought they should have in 1999." Daschle’s response was, "Tim, that should be the rule, but sometimes there are, as you know, exceptions to the rule." No mule was ever so eloquent: ‘sometimes there are exceptions to the Constitution.’

In 2002, the American Bar Association said that the "protracted delays in the judicial nomination and/or confirmation process weaken the federal judiciary by depriving it of the judges needed to resolve disputes expeditiously [and] contribute to dangerously crowded dockets, suspended civil case dockets, overburdened judges, and understaffed courts." Judge Charles Pickering’s confirmation was successfully filibustered, but Bush appointed him to the Fifth Circuit Court of Appeals as a recess appointment. Despite his sterling record on civil rights, the Democrats tried to ‘tar-and-feather’ him as an "opponent of civil rights." He did not pass the Left’s litmus test because he wouldn’t bend to the liberal special interest wind. In Judge Pickering’s opinion, "the bitter fight over judicial confirmations threatens the quality and the independence of the judiciary." The simple fact is, if you don’t subscribe to the liberal view, you need not apply.

In 1995, Senate Minority Leader Tom Daschle (D-SD) said, "the Constitution is straightforward about the few instances in which more than a majority of Congress must vote: A veto override, a treaty, and a finding of guilt in an impeachment proceeding. Every other action by the Congress is taken by majority vote...Democracy means majority rule, not minority gridlock." Except in the case of those, "as you know, exceptions."

In a nutshell, it isn’t Republicans who’ve launched the Nuclear Option, but the Democrats. They are trying to hijack the judiciary because that is where the liberal agenda is legislated. It was Roe v. Wade, not legislation, that made abortion legal. School prayer and public religious displays are not the purview of ‘the people,’ but are decided in courthouses. In New Hampshire and New York City, the courts have decided how and how much we pay for education. Voters in several states have used the ballot box to make gay marriage illegal, only to be overturned by unelected liberal judges. The death penalty is legally provided for by Article 14 of the Constitution and is approved by many citizens, but liberal courts promote the rights of criminals over the will of the people. As an out of power minority, the Democratic Party has only one last means to power: the judiciary. In the last half century, Democrats have controlled the Senate, stacking courts with left-wing zealots. Under President Clinton alone they placed 367 judges. That’s power. That’s what they’re fighting for.

‘Now all the monkeys aren’t in the zoo; the Congress has quite a few; Ted, and John, and Hillary too; they could be better than they are; they could be honest and go far.’

[Swingin’ on a Star was written by Johnny Burke]

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