Wednesday, May 11, 2005

To Thwart a Presidential Nomination

The issue of judicial confirmation process currently plaguing the United States Senate is quite probably one of the most important legal issues taking place in our lifetime, if not the most important. As contentious as it is, as partisan as it seems, it is quite simply a critical constitutional crisis. The argument strikes at the heart of our system of government. It undermines the “separation of powers” clause of the Constitution and holds the potential for a legislative coup d’etat. It is under-reported and mis-reported because the issues involved require an understanding of our Constitution and political system that is severely lacking in the average citizen. This is because American History has been de-emphasized to the point that it is no longer seriously taught in our schools.

The Constitution of the United States provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” The Democrats in the Senate would like to equate “advice and consent” with “checks and balances,” but that is simply not the case. The concept of “checks and balances” refers to maintaining the sovereignty of the individual branches of government. The two most commonly cited “checks and balances” involve war and law. In the former example, the President has the sole authority (or used to, before Congress expanded it’s authority) to declare war, but Congress, which “holds the purse-strings,” decides whether or not to pay for it. The latter example goes like this: the legislative branch (Congress) enacts laws, the judicial branch (Supreme Court) interprets them, and the executive branch (President) enforces them, such that no one branch has the power to dominate the people.

That example is at the crux of this whole issue. The judicial branch has exceeded it’s authority. Judges have appropriated the power of the legislative branch and are using it to enact law. Judges are appointed in most cases, not elected. They do not speak with the voice of the people. When they legislate they do so not from an unbiased reliance on precedence and legality, but rather on their personal opinion, which is completely biased. Liberals prefer this approach because the hot-button issues they espouse do not win at the ballot box. Abortion-on-demand, partial-birth abortion, felon voting-rights, same-sex marriage, welfare for illegal aliens, miranda rights for foreign terrorists, and a raft of other issues are time-and-again defeated by voters only to be approved by activist judges. Conservatives oppose judicial activism for the very same reason. Conservatives would welcome any of those issues to be put to a democratic vote, but liberals recoil from that.

To return to the Constitutional issue, Michael J. Gerhardt, a liberal legal scholar, wrote: “by requiring only a simple majority of the Senate to approve a nominee, the Constitution sets a low threshold for confirmation relative to virtually all other significant legislative action...” Notice, Mr. Gerhardt compares “voting yea or nay” to deliberating legislation that may become “the law of the land.” If that isn’t disturbing enough, Mr. Gerhardt goes on to say: “as a practical matter, the requirement of a bare majority of the Senate for confirmation means that smaller factions cannot thwart a presidential nomination in the absence of special Senate procedures...” Now, contrast Mr. Gerhardt’s opinion with the point of view of Alexander Hamilton (someone who actually participated in writing the Constitution) writing in the Federalist No. 66: “it will be the Office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose - they can only ratify or reject the choice he may have made.”

Hamilton’s idea of “advice and consent” is radically different and diametrically opposed to that of Gerhardt and the Senate Democrats. From the first inauguration of George Washington to the first inauguration of George W. Bush the traditional idea of “advice and consent” has been upheld. Surely, there have been shenannigans on both sides to torpedo this or that nomination, but never - I repeat, never - has the filibuster been used to “thwart a presidential nomination.” Democrats all across the spectrum of radio and tv talk shows are talking about the blocking of Clinton nominations and the “Frist filibuster,” but that’s the typical smokescreen. It is a fact that every Clinton nomination that got out of committee received his or her “up-or-down vote.” Some nominations were not allowed to get out of committee, that is also true, but that is not a violation of tradition or law and could not have been accomplished without the cooperation of some Democrat Senators.

Consider for a moment Gerhardt’s language - “in the absence of special Senate procedures.” There is nothing special about a filibuster. The filibuster has a long history. A filibuster also has a very specific set of triggers. Not one of those triggers involves nomination confirmations. The Senate Democrats could not perpetually stall these nominations in committee, nor could they defeat them, so they came to the floor where a simple “up-or-down vote” would see these judges confirmed. Only by invoking “special Senate procedures,” in other words, using the filibuster where it is not provided for, can the minority party stop these nominations. By filibustering, the minority is violating both the spirit and the letter of the law and the Constitution - something they swore an oath not to do.

As noted earlier, many Senate Democrats are making disingenuous claims about the importance of “checks and balances,” suggesting that their ‘minority rights’ would be infringed were they not allowed to “thwart” the will of the majority. This is an audacious canard. Nowhere in the Constitution is there a provision, or even the suggestion of a provision, for “balancing” political parties. The governing authority in this country is the one that wins the election. It is only through an egregiously failing education system that these Senators can make this claim and expect not to be laughed off the stage. What is at stake here is the Constitutional concept of “separation of powers.” The President nominates, the Senate confirms. What the Democratic minority is trying to accomplish is a theft of the President’s power wherein the President can only nominate Senate-approved candidates. As if that weren’t enough power, the Democrats’ goal is to further co-opt the judicial branch, by allowing for nomination and confirmation of only those candidates for judgeships who meet a very narrow criteria, specifically, those judges who will be activist or not oppose judicial activism. Judicial activism allows the liberal minority to extent to the judiciary the legislative power that was lost in the Congress. This would have the effect of converting this country from a republic to an oligarchy.

“Legislation from the bench” is neither conducive nor equal to “government by the people, for the people, and of the people” which is the hallmark of the United States. My next letter, should it merit printing, will address that element of the Senate Minority’s New World Order.


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