For political reasons, I would not favor a Republican Party filibuster of the President’s first nominee for the U.S. Supreme Court. But her record as an appeals court judge and publicly enunciated judicial philosophy do render her unfit to serve even as a traffic court magistrate.
Unfortunately, thanks in large part to past feckless GOP judicial nomination strategies, not only were previous unqualified nominees not filibustered; to the contrary, Republican Judiciary Committee leaders later boasted of the large number of their caucus that voted to approve their nominations.
To paraphrase Orrin Hatch (R-UT), the architect of the failed strategy as applied to Justices Breyer and Ginsburg: “After all, President Clinton was elected by the American people and elections have consequences.”
DeVine Law is confident that, Sen. Jeff Sessions (R-AL), also elected by American people, will un-Hatch that strategy; better exercise the advice portion of the Advise and Consent Clause; and lead a full scale attack against the dominant but weakened judicial philosophy favored by liberals for decades that essentially requires its adherents to violate their Oath to uphold the Constitution.
During the nomination proceedings for Justice Samuel Alito four years ago when the Democrats threatened to filibuster President George W. Bush’s nominee, Sen. Chuck Schumer (D-NY) admitted that judicial philosophy was the paramount issue, which any person paying attention should have known since at least the 1987 nomination brawl that sunk the nomination of Robert Bork.
Yet, despite that, and the later Borking of Justice Clarence Thomas, liberal Democrat Washington Post columnist E. J. Dionne reminds:
Sen. Jon Kyl, R-Ariz., warned during the Alito confirmation that if Democrats used ideology as a measuring stick with Bush nominees, it was inevitable that Republicans would apply the same standard to the appointee of a Democratic president.
“I say to my Democratic friends, think carefully about what is being done today,” Kyl warned in 2006.
“Its impact will be felt well beyond this particular nominee.”
Truly an astounding admission of the consequence of the previous fictions participated in by both parties, but taken advantage of only by the Democrats, in which the discussion of “qualifications” discussed everything but the most important ones.
Let us be clear, there is no history of the Republican Party ever conducting smear campaigns against the nominees of Democrat Presidents. None. And the lesson of Democratic Party “borking” is not that we start now with Judge Sonia Sotomayor. No.
Rather, the lesson that should have been learned in 1987, but really prior to that given the usurpation by the courts of the power to make law since the 1960s by banning voluntary prayer in schools and 1970s discovery of a right to abortion, is that the preferred liberal Democrat judicial philosophy is anathema to Liberty and self-government in a federal republic.
Presidents Jefferson, Jackson and Lincoln considered the employment of the philosophy (now enunciated by the majority of lawyers and judges in America for the past 40+ years, including Sotomayor) to be grounds for impeachment. But thanks to the Hatch-Kyl past, the GOP can’t even claim it as an “extra-ordinary” circumstance that the Gang of 14 determined to be the only grounds for a judicial filibuster of a Supreme Court nominee.
(*Full discussion of the issues regarding judicial filibusters and the so-called nuclear option raised in 2005 below)
Past debates have granted Democratic Presidents the kind of broad deference that should only be offered in the case of political appointments, but not lifetime appointments to the Third Branch of government. Republicans droned on about the “intelligence”, “temperment”, “character” and “experience” of the nominees, which usually were satisfied if they attended an Ivy League School; hadn’t been convicted of assaulting another lawyer; hadn’t been discovered with a dead girl or a live boy; and were given a satisfactory rating by the ABA.
Those days have changed, and our liberal friend Dionne joins us in welcoming the change:
To pretend that these judicial fights are about anything other than the court’s philosophical direction is a form of willful dishonesty. It’s better to be straightforward about the existence of a political struggle over the court…
President Obama has bemoaned the fatal flaws of the U.S. Constitution as merely a recitation of “negative right: that fails to grant positive rights to the government. He longed for us to “break free” of such constraints. Judge Sotomayor, who has publicly expressed her belief in Latina racial and gender supremacy, was recently chastised by a fellow Clinton appointee for her flippant silence on the Constitutional prohibition against denials of equal protection to the White Race in a judicial decision presently on appeal to the Court she desires to join. The Latina member of La Raza (The Race) also has publicly described the job of a judge to “make policy.”
Sotomayor is not solo in the above beliefs, but she is unique in having stated those mostly ordinary Leftist beliefs publicly. Such beliefs are usually kept quiet since the main reason for them is that they usually can’t get their policy preferences approved by We the People and their elected representatives. So, even if she can be defeated in her nomination quest, no doubt any future nominees from this President will be just as liberal.
But, all conservatives must vote against her. In fact, the vote on her nomination will, in many ways, determine who the real conservatives are.
Policy is prescribed to be made by the executive and legislative branches of government. Judges have a limited but vital role to interpret/apply the law as it is given them. But it is easy to pretend to do that with language in an opinion. It has always been a great temptation for judges to do this, and we have always had judges that could not resist. Dred Scott and Plessy come to mind.
Chief Justice John Roberts famously compared the role of a judge to that of an umpire in the game of baseball that the current New York nominee is said to have saved. The qualifications to be an umpire are also quite similar to that of a judge, for in that position one can also fall to the temptation to determine the outcome, and given Sotomayor’s Obama-like desire to empathize with her favored groups, we are certain the Red Sox wouldn’t stand a chance against the Yankees with her behind the plate.
Umpires have be able to see. Judges have to be able to read and comprehend the English language. Contrary to popular opinion, the U.S. Constitution was not written for lawyers to cloud in mystery with phalanzes of vague rhetoric. It was written in mostly plain and unambiguous language.
Umpires have to have character so that they resist the temptation to use their position to favor or punish any team or player based on ulterior motives. Lady Justice is supposed to blind, i.e. impartial to the race, gender or station in life occupied by the litigants.
Finally, umpires have to have the courage to call a third strike on A-Rod in the bottom of the Ninth of Game Seven of the World Series in the Bronx knowing that it will result in the Atlanta Braves winning the series!
Sonia may have saved America’s National Pastime but if her judicial philosophy were to again hold sway on American’s highest court, someone will be required to save America.
Originally published @ Examiner.com, where all verification links may be accessed.
*Response to a question from “Cold Warrior”: [Is] a simple majority in the Senate [is] all that is needed for confirmation of a Supreme Court justice[?]
Well, that depends. The Constitution does not require that, and in fact, it does not even require that the Senate give a nominee a roll call vote on the floor or that they do anything. That is why I opposed the nuclear option which some sought to invoke to shut down a Democrat filibuster of judicial nominees under Bush. The point of that option was to have the parliamentarian rule a filibuster out of order, despite the rules of the senate allowing same, to claim that the Advise and Consent clause and other provisions of the Constitution requiring super-majorities, require that nominees not be filibustered.
The A&C clause does not require the senate to do anything, much less vote, or much less that any vote only be by majority. The Senate may reject a nominee by inaction. (The President can make vacancy appointments for one year) The Constitution allows the senate to make its own rules and under the rules adopted in January, judicial nominations are not excluded from filibusters. (Budget reconciliations are)
So, the only real conflict that could arise is if the GOP tried to filibuster and the Democrats tried the nuke option.]
Mike DeVine’s Charlotte Observer, Examiner.com and Minority Report columns
“One man with courage makes a majority.” – Andrew Jackson