Wednesday, June 15, 2005

Whose Rules?

Senate Minority Leader Harry Ried (D-AZ) has repeatedly expressed the central problem in this country’s government at this time: “Breaking the rules to change the rules.” In psychiatry, this is a condition called projection. Simply put, someone suffering from projection transfers their issues or problems onto another person. The Democratic Party is suffering from projection and nowhere else is it more clearly seen than in the current problems of the nomination and confirmation process. The Democratic Senators are on both sides of the ‘confirmation fence.’

Senator Chuck Schumer (D-NY) said on March 7, 2000: “it is an example of Government not fulfilling its Constitutional mandate because the President nominates, and we are charged with voting on the nominees...this delay makes a mockery of the Constitution.” Yet in April 2001 Schumer said “What we’re trying to do is set the stage...we expect to have significant input in the [nomination] process.” On April 30, 2003, Schumer (with Patrick Leahy) sent a letter to President Bush outlining a plan to the Senate and a committee of unelected citizens, judges and academics to provide the President with a pool of nominees for him to select from. Just last month, Chuck Schumer expressed a view that Senators weren’t required to vote on nominees, completely reversing his position of March 7, 2000. The only thing that has changed is that now a Republican is President.

Senator Barbara Boxer (D-CA) said: “According to the U.S. Constitution, the President nominates, and the Senate shall provide advice and consent. It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.” That was May 14, 1997. On January 28, 1998 she said: “whether the delays are on the Republican side or the Democratic side, let these names come up, let us have debate, let us vote.” Just last month, Boxer contended that Senators had the duty to block nominees from a vote. The only thing that has changed is that now a Republican is President.

On June 18, 1998, Senator Patrick Leahy (D-VT): “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 or her down.” In blunt language Leahy explained his job on Oct. 3, 2000: “Frankly, that is what we are paid to do in this body. We are paid to vote either yes or no - not vote maybe.” Over the next five years, Leahy has obstructed Presidential nominees in the Judicial Committee and on the floor of the Senate. The only thing that has changed is that now a Republican is President.

September 14, 2000 saw Senator Levin explain the job of a Senator: to “advise and at least vote on whether or not to consent...” Clearly, Levin believes a vote is intrinsic to “advice and consent,” but that opinion changed. Senator Sarbanes complained on March 19, 1997 that nominees couldn’t “ considered by the Senate for an up-or-down vote. That is the problem today.” The problem today, eight years later, is that Senator Sarbanes won’t allow an up-or-down vote. Senator Biden (March 19, 1997): “everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor.” Senator Kennedy (Feb. 3, 1998): “If our Republican colleagues don’t like them, vote against them. But give them a vote.” Senator Harkin (Sept 14, 2000): “I’ll just close by saying that Governor Bush had the right idea. He said the candidate should get an up or down vote within 60 days of their nomination.” The only thing that has changed is that now Governor Bush is President Bush.

The Senate Democrats’ claims of minority rights, diplomatic concerns, and extremist nominees are a canard. They know that few citizens pay close attention and they know that even fewer citizens are educated enough to know what the Constitution actually says. On May 1, 2001, Neil A. Lewis wrote a report for the New York Times titled “Democrats Readying for Judicial Fight.” Lewis reported on a retreat held by the majority of the Senate Democrats “where a principal topic was forging a unified party strategy to combat the White House on judicial nominees.” The usual special-interest crowd spoke about “the need to scrutinize judicial nominees more closely than ever.” Senator Daschle went so far as to warn his party against making any positive statements about nominees. The Democrats were expressly told to depart from Senate tradition and to disregard their Constitutional duty by the likes of National Women’s Law Center co-director Marcia R. Greenberger and Harvard Law professor Laurence H. Tribe: “They said it was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they are scholarly or erudite.”

“Change the ground rules.” Isn’t that exactly what Harry Reid has been whimpering about? “Breaking the rules to change the rules,” Reid and other Democrats keep saying. In fact, Greenberger and Tribe have it completely wrong - and they know it! The Constitutional ‘advice and consent clause’ specifies that the Senate expressly has the obligation to confirm Presidential nominees if “they are scholarly or erudite” and have majority support. Senators can express their “advice and consent” by voting. If they feel the nominee is not competent they can vote against him or her. It truly is just that simple.

The Democrat claims of “separation of powers” and “checks and balances” are likewise so much manure. What is well known by all the Senate Democrats, but perhaps may be news to many common citizens, is that the Supreme Court, as recently as 1997, settled the issue of who has the power of nominations. In Edmond v. United States (1997) the Supreme Court maintained that Article II of the Constitution is “more than a matter of etiquette or protocol; it is among the significant structural safeguards of the constitutional scheme. By vesting the President with the exclusive power to select the principal (noninferior) officers of the United States, the Appointments Clause prevents congressional encroachment upon the Executive and Judicial Branches.” This was an expansion on Freytag v CIR (1991) wherein the Supreme Court found that Article II “also preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power [and] neither Congress nor the Executive can agree to waive this structural protection.” Given these findings, the April 2003 Leahy/Schumer plan to select judicial nominees by a committee, a similar plan floated by Senator Byrd in April 2005, and the requirement of the 14 Senate Moderates for consultation are all unconstitutional, illegal, and a violation of these Senators’ oaths of office.

The Bolton confirmation is another venue for Democrat obfuscation. On May 26th, Senator Dodd (D-CT) spoke for nearly half an hour expressing a laundry list of objections to John Bolton leaving no doubt whatsoever about his opposition to the nominee. Harry Reid, Barbara Boxer, and almost every other Democratic Senator have given similar performances. They have no intention of voting to confirm John Bolton. However, in a “gang that couldn’t talk straight” moment, Dodd was interrupted by Senator Joe Lieberman (D-CT) who spoke for a very few minutes about a classified document that is being withheld from the Senate Democrats. It was Lieberman’s contention that this document was holding up the vote. Senator Joe Biden (D-DE) parroted Lieberman’s position, “We are willing to vote 10 minutes after we get back in session, if in fact they provide the information.” Despite her vitriolic condemnation of John Bolton only days before, Boxer told AP News, “we need information on this nominee that we’ve been asking for a very long time.” Dodd, in an interview on FOX News Sunday, clearly stated that Bolton is being held hostage for this information and could provide no reasonable explanation for why he needed it. There is no way that Bolton will be confirmed by the Democrats - documents or no, he will be voted down. If they have already decided, why don’t they vote?

The Democrats have been “breaking the rules to change the rules” for decades. When the Supreme Court frustrated FDR’s New Deal, he made them toe the line by threatening to arbitrarily create new judgeships and stack the court. In 1995, Lieberman, Harkin, Kennedy, and Kerry, Democrat Senators all, proposed and supported a measure that said “filibuster rules are unconstitutional” and would have ended filibusters forever. Hillary Clinton’s book deal advance got her a round of applause in 2000, while Newt Gingrich’s got him a Senate investigation and acrimony. Also in 2000, Al Gore sought to violate federal and Florida election laws in his attempt to steal an election. Rather than quietly tell Al to go home, his fellow Democrats ignored the law and tried to help him break the rules. In New Jersey 2002, the Democratic Party, with the connivance of the NJ Supreme Courts, violated both state and federal election laws allowing Frank Lautenberg to replace Robert Torricelli on the ballot. The rules just don’t seem apply to Democrats, so it should come as no surprise that they break those rules whenever they don’t like them.


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