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May 15, 2003 Republicans are calling it a “crisis” in the judiciary. Democrats say that it is pretty much business as usual. They are, of course, speaking about the ongoing filibuster by Senate Democrats of a handful of President Bush’s nominees – namely, Priscilla Own and Miguel Estrada. The Democrats further explain their unprecedented tactic by claiming that they are merely protecting the federal bench from some “extreme ideologues” whose views are not in the “mainstream.” Republicans blocked plenty of Bill Clinton nominees, they say, so what’s the big deal? The truth, as usual, probably lies somewhere in the middle. Nonetheless, I think Bush has an argument here. First of all, if I hear “mainstream” used to describe judges one more time, I’m going to scream. Seriously. It’s a worthless cliché that was beaten to death long ago and its true meaning is painfully obvious. “Mainstream” in this context is simply code for “how do they feel about abortion?” Now, don’t worry: I’m not going to poke a stick at that hornets’ nest. Abortion is an emotional nuclear trigger and there are far too many people who are passionate, if not intransigent, about their views. A few paragraphs from me aren’t going to sway anyone, and rightfully so. But keep in mind that Ruth Bader Ginsburg, a Supreme sweetheart of Liberals everywhere, spent a good chunk of her career in the ACLU. Now, given their history of bravely waging war against insidious things like a Christmas crèche display that happens to cast a shadow on some town hall in rural Kansas, I would hardly call theirs a “centrist” organization. So stop with the “mainstream” and say what you really mean. That said, there’s something that sticks in my craw about the whole issue: if Liberals are so hypersensitive about keeping the deck from getting stacked against them, isn’t the tacit admission there that the deck was stacked in their favor to begin with, whether the issue is abortion, affirmative action, or any other pet cause? One would assume that if these cherished tenets of Liberalism were the rock-solid constitutional rights that their proponents claim they are, they would withstand a little scrutiny down the road. If so, why sweat who happens to join the Supremes? My only conclusion is that they know they got away with one, if not several, during the heady years of the Warren and Burger courts. Indeed, judges gaveth and judges can taketh away. (No more Biblical verb tenses, I promise.) To which many liberals will reply, “So? What’s wrong with a little judicial nudge in the name of social progress?” Fair enough. My reply: that’s exactly what created the mess we are in now. Probably starting with FDR’s frustration over his stymied New Deal policies and attempts to pack the court, the concept of legislation by judicial fiat has wrecked the system. Objectively, the fact that judicial fiats have tended to smile on the Liberals’ causes shouldn’t make it any less of a concern for them. The bottom line is that the responsibility for deciding difficult social issues has moved from the legislature, where it belongs, to the judiciary, where it doesn’t. The fact that our confirmation process has turned into such a catfight, with the Dems generally wielding the sharper claws, is a direct result. Which brings us full circle to President Bush. He wants to rework the system so that the filibuster tactic can’t be used again. A noble cause, I suppose, but probably doomed to failure. The rewriting of time-honored parliamentary procedures is no small task. Plus, the Liberals have a surefire strategy that they aren’t likely to compromise: he who can’t be Borked will be filibustered, or at least filibustered until he can be Borked. (Either way is fine.) In their mind, this is a battle that must be waged. Those “mainstream” values like partial birth abortion, racial quotas, and easy access to Internet pornography at your local library depend on it. ------------ About Matthew Bastian: Recovering socialist, 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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