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Nov 21, 2003 For those of you who missed it last week, there was a pajama party on Capitol Hill. Republican Senators, in an attempt to bring attention to Democrats' filibuster of judicial nominees, hauled out the cots and took to the floor for nearly 39 hours. It was a marathon session that put even the C-SPAN crowd to sleep. However, despite the Republicans' mostly theatrical efforts, the filibuster held fast: Priscilla Owen, Carolyn Kuhl and Janice Brown are still awaiting an up-down vote. The bleary-eyed Republicans have a point: only 63% of George W. Bush's courts of appeals nominees have been confirmed, contrasting with 80% in the first three years of the previous two administrations. Nearly 11% of the judicial seats in the courts of appeals system are currently vacant; 25% on the 6th Circuit alone, according to Senator Mitch McConnell. (I'm not a lawyer, but that can't be a good thing.) To be fair, the Democrats counter that 60 of Bill Clinton's nominees were "blocked" and that this is merely business is usual; a normal, healthy exercise of the Senate's constitutional duty of advise and consent. Indeed, Chuck Schumer and company is wont to thunder, "We are not a rubber stamp!" in defense of their tactic. (Schumer uses that phrase so often that he should probably have it made into, well, a rubber stamp - would save him loads of time in his press releases.) What are four "out-of-the-mainstream" judges, they ask, among the scores that have been confirmed? Here’s the problem: never, in the 100-plus years since the filibuster rule was implemented, has it been used to block an up-down vote on a judicial nominee. The tactic is simply unprecedented. This, not surprisingly, doesn't bother the Democrats, who portray themselves as the white knights out to save women and minorities from a handful of judges who will single-handedly "roll back the clock" to the days of Dred Scott and tight corsets. With such a clear and present danger like "Hangin'" Janice Brown looming on the Supreme Court horizon, any countermeasure is fair game. Their histrionic indignity over "radical" judges is amusing, if not disingenuous, especially coming from folks of the "living, breathing" school of constitutional thought. It is a dead giveaway that their theory really is: "it's a living, breathing document…as long as my kind of people decide how it lives and breathes." Otherwise, they call it "rolling back the clock." The first characterization is lofty and unassuming, the second rather foreboding. (Two sides of the same coin, isn't it?) And the Left tries to have it both ways. Sometimes the Constitution "lives and breathes," giving us, for example, racial quotas and abortion on demand. In other cases, however, the "living, breathing" crowd heads for the hills. The First Amendment is downright frozen in time: "virtual" sex between adults and children on the Internet is obviously what the Founding Fathers had in mind when they whipped up freedom of expression. Ditto the mythical "separation of church and state" - don't dare try to put a respirator to that one. Voluntary prayer in schools has always been the immediate precursor to a state church and James Madison would cringe at the idea of a child bringing a Bible to school. (UC-Berkeley scholars are still working feverishly to prove that the Founders were all simply "spiritual," if not atheists.) In short, a handful of words - some in the Constitution, some not - reduced to a catchphrase is the ironclad law of the land when it suits the liberal dogma. On the other hand, if a few judges can find a way to contort the language of the same Constitution in order to pluck some new progressive right from the legal ether, well, that's just fine too. Which is why the fight must be waged. It's not just about keeping the current victories from being undone, but also about the new ones to come. The Left has a wonderful thing going with judicial activism: what cannot be won through the voting booth can simply be dictated from the bench. Gay marriage could be next in line. Americans overwhelmingly oppose it, but 5 Supremes of the "living, breathing" persuasion can make it so with the stroke of a pen - just ask Massachusetts. When judges like Owen, Kuhl, and Brown, qualified women who have made a career of interpreting the plain meaning of the law, are denied a vote under the pretense of being "idealogues" and "out of the mainstream," our judicial system has indeed been hijacked. Unfortunately, even a 39-hour slumber party in the nation's capital couldn't do much to change that. ------------ About Matthew Bastian: Recovering socialst, part-time drummer, long-suffering Brewers fan, and all-around beach hound, Mr. Bastian lives in central New Jersey. Email Matthew Bastian: mbastian19@hotmail.com Comment on this column in the forum. ------------ |
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