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ATLANTIC HIGHLANDS HERALD |
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RE-ESTABLISHING THE SEPARATION OF POWERS Throughout President Bush’s first and second terms a crisis has developed over his federal court nominees. Only two-thirds of them have received confirmation votes. No other president has received such treatment. While the Senate Republican majority could easily confirm most of Mr. Bush’s nominees, Democrats have used the novel strategy of filibustering nominees they consider ideologically undesirable (i.e., conservative). Only 41 votes prevent a vote – just as effective as a down-vote. At this writing, twelve of Mr. Bush’s court nominees have been stalled thus. They are: Priscilla Owen, William Pryor, Janice Rogers Brown, Thomas Griffith, William Myers III, William Haynes, Terrence Boyle, David McKeague, Brett Cavanaugh, Richard Griffin, Miguel Estrada, and Henry Saad. (Mr. Pryor was elevated to the Eleventh Ciruit Court by a “recess appointment”. Mr. Estrada withdrew himself from consideration in 2003 after vainly waiting two years for his confirmation vote.) Democrats have smeared these nominees, calling them “extremists”, “right wing judicial activists”, “out of the judicial mainstream”, “hostile to civil rights”, and “cozy with corporate interests”. The denunciations of Priscilla Owens and Janice Rogers Brown are particularly outrageous since both women have compiled outstanding records on the supreme courts of their respective states, Texas and California, where they enjoy wide bipartisan support. Justice Owens received the American Bar Association’s gold standard “well qualified” rating. Justice Brown – a child of black southern sharecroppers who earned her law degree as a widowed single mother – was elected with a 75% majority in liberal San Francisco county. Big media have trumpeted these charges, and some Internet sites have echoed them, but Democrats know it is thin soup. The nominees are as qualified as any court nominees – indeed, better qualified than most. Democrats’ only chance of blocking them is to deny them a vote. Republicans are naturally outraged that a president of their party is being denied the routine courtesy of an up-or-down vote on his judicial nominees. Democrats argue that Republicans filibustered the Abe Fortas nomination, in 1968, just as Democrats are filibustering nominations today. Turnabout, they say, is fair play. But that claim holds no water. Justice Fortas was already on the Supreme Court when President Johnson nominated him to succeed Earl Warren as Chief Justice. In a recent article (1) former Senator Bob Dole noted that the nomination was troubled from the start, as Justice Fortas had taken “…more than $15,000 [equivalent to 40% of his regular salary] in outside income from sources with interests before the federal courts”. Justice Fortas also remained LBJ’s political advisor while he sat on the Court, going so far as to discuss pending cases with the president – “an obvious violation of professional ethics”, observes Mr. Dole. When Senate leaders tried to force a vote on Justice Fortas, after less than a week of debate, 24 Republicans and 19 Democrats filibustered to extend debate. Only 45 senators supported cloture – far fewer than the 67 then needed. Seeing that Mr. Fortas lacked majority support, LBJ withdrew the nomination. In 1969 Justice Fortas resigned from the Court under an ethical cloud. The bipartisan coalition briefly filibustered Justice Fortas to clarify issues raised about him. A vote would have been held in due time, but the president withdrew the nomination. In the current instances, Democrats intend no votes. Some nominees have been filibustered for four years. As I write this article, seven Republican and seven Democratic senators have announced a “compromise” to head off the so-called “Nuclear Option” – a rule-change which would stop filibusters on judicial nominees. Three filibustered nominees will be voted on, but others will remain stalled. The agreement leaves Majority Leader Bill Frist without the 51 votes he needs for a rule change. The filibuster issue thus remains – looming over the Senate like the Sword of Damocles. When Mr. Bush nominates a candidate for the Supreme Court, the crisis will return. Reporters and pundits love contests of political strength. Certainly, this is a classic of its kind, but dissecting it is not my purpose here. The deeper question – not much asked during the “contest” frenzy – is this: why are federal judges of such great moment? To hear politicians speak, one might think these nominees are being elevated to nobility. They seem more important than the president or members of Congress. In today’s climate, of course, this is essentially true. Judges-for-life now wield power never imagined by the nation’s Founders. At the least flatulation of a federal judge, armies of lawyers, lesser judges, state legislators, and members of Congress leap to attention. Judges “order” legislatures to act and carve up state constitutions. School administrators turn to jello at letters from the ACLU about Christmas carols. The Supreme Court has divined a “right” to homosexual sex based on practices of other nations. Last January even the federal Executive branch held its collective breath to see if a federal court would “permit” a prayer at the Presidential Inauguration. The situation is, by any reasonable measure, completely out of control. An unaccountable federal judiciary was not in the wildest dreams of Madison, Jefferson, or Hamilton. They expected the judiciary to be the “weakest” branch, as its rulings would require support and enforcement by the other two branches. The Founders confidently expected the executive and legislative branches to block or ignore any unreasonable court rulings, in the unlikely case that such should occur. In earlier articles I reviewed the few instances where the Constitution grants one branch power over another. The Supreme Court rules on the constitutionality of legislation, but otherwise has no power over the other branches. Despite what many officials and legislators (both state and federal) think today, the final word belongs to the Congress, not the courts. Section 2 of Article III says, “…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (2) The Senate never fought over past judicial nominees because judges were not considered politically important. No one expected courts to make new law. Federal judges did not rule on the Pledge to the Flag, absurdly redefine fundamental societal institutions (e.g., marriage), or condemn (innocent) comatose patients to death. Federal courts did their limited work under the universal assumption that citizens had the right to make their own laws and govern themselves as they saw fit, subject only to broad constructions of equality before the law. But somewhere, over the last 50 or 60 years, things changed. Experts differ on where the new court activism started. Some point to the Supreme Court’s Brown v. Board of Education decision (1954) which outlawed segregation of schools by race. Others go back to McCollum v. Board of Education (1948), where the Court found religious instruction in public schools a violation of the establishment clause and therefore unconstitutional. In the mid-50s I saw “Impeach Earl Warren” billboards on Pennsylvania highways. Some citizens had already recognized the Court’s new role as liberalism’s advance guard. In the years since, we have become so inured to Court rulings on religion, abortion, pornography, legalized racial discrimination, euthanasia, homosexual “rights” – and any number of other intrusions into American law and life – that Court-made law no longer seems remarkable. Indeed, “strict constructionist” judges who decline to dictate new law from the bench are now labeled “out of the mainstream” by liberals who have come to expect judicial enactment of their agenda. Today’s Battle Royal in the Senate is really part of a “civil war” for America’s future. In this war, judges are thought desperately important to both the political left and right: to the left, for continuation of judicial activism; to the right, as a means of stopping it. The war will continue until Congress restricts the courts’ purview and uses impeachment to punish activism and non-Constitutional rulings. Failing this, Americans will stand helplessly by as their culture is dismantled by unaccountable judicial fiat. This cannot have been the Founders’ vision. It is easy to see how much we have lost. The idyllic American life I and my children lived, in our childhood, is long-gone. Today, no child can wander freely in his own neighborhood, as we did. Instead, child molesters roam freely after serving trivial sentences (3 years, on average) for their repeated acts. Over 2 million of them live among us. Every week sees a new atrocity. We rage over their crimes, but the courts refuse long prison terms, castration or execution as remedies. Lawsuits attempt to block publication of sex offenders’ names and addresses. Across the nation we are literally suing ourselves to death. Almost no local law can be enacted without being challenged in court. Makers of legal products are being ruined by punitive lawsuits. Groups of illegal immigrants sue for their “rights”. Lawsuits seek damages for terrorists who were “humiliated” in prison. Other prisoners sue for cable TV. The list goes on and on… Unless the courts are reined in, American society 20 years hence will be unrecognizable. There is no limit to what an unaccountable judiciary can and will do. This is a war to the finish that many Americans do not even realize is being fought. ******* (1) See Mr. Dole’s article to the Washington Times (5/19/05) at http://www.washingtontimes.com/commentary/20050518-093633-5549r.htm (2) Full text of Article III, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
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