Remembrance and Restoration
In NRO's new blog, Bench Memos, Bradford Berenson takes us on a little stroll down memory lane as a reminder that, far from being "intransigent," President Bush has been reasonable, conciliatory, and willing to compromise in the judicial confirmation process all along.
Goes to illustrate the old saying that no good deed - and no act of rank foolishness - ever goes unpunished.
Leave it to Charles Krauthammer, then, to capture the essence of the confirmation filibuster fight:
Krauthammer also lays bare what is at stake in this (apparently) looming showdown:
Having established that, you must have known that I'd have another shoe to drop. And here is the latest one:
And Specter, it should be pointed out, has not been mentioned as being among those Pachyderms "sitting on the fence" on the matter of the Byrd Option. But it's like I always say: there is no defeat so improbable that Republicans can't find some way to pull it, kicking and screaming, from the jaws of victory.
It is also said that people rarely recognize turning points in history when they happen, but only after the fact. This judicial filibuster fight is, IMO, one of those turning points. The reason is momentous: what is at stake is nothing less than whether our republican (small "r") form of government, already significantly eroded by the left's conversion of the courts into a near-oligarchy, will survive to be restored to its full constitutional form, or whether its remnant will be gutted leaving only the facade of representative democracy behind.
The historical parallel I see is with the impeachment of President Andrew Johnson in 1868. Johnson had come to office following Abraham Lincoln's assassination as an initial ally of so-called "radical" Republicans in Congress who favored a harsh post-Civil War reconstruction policy toward the defeated southern states. They espoused a number of arguments for favoring this option, but the true reason was much more practical: to forestall the day when those states, which were dominated by Democrats, could send representatives to Congress and take the majority, and power, away from them.
It didn't take long for President Johnson to figure out "radical" Republican motives, and he soon came to embrace the lenient reconstruction plan that Lincoln had formulated. This brought about a bitter and escalating conflict between the Executive and Legislative Branches that culminated in the "radicals" forcing a confrontation.
At their instigation, Congress passed the Tenure of Office Act. This law forbade the president to fire any member of his administration without Senate permission. It was a gross violation of the separation of powers and blatantly unconstitutional (as the SCOTUS ruled 58 years later). But the legislation itself wasn't the point; it was a naked power play. They knew President Johnson wouldn't accept it, indeed dared not if the Executive Branch wasn't to be completely emasculated. They wanted him to step over the line in the sand they had drawn for one purpose and one purpose only: to impeach him, and confirm the conquest of the Executive by Congress.
It worked exactly as planned - almost. Johnson took the bait by firing Lincoln's Secretary of War, Edwin Stanton, an ally of the "radicals." The latter promptly filed and passed Articles of Impeachment against Johnson for the "high crime and misdemeanor" of having exercised his constitutional authority as Chief Executive, and the Senate tried him.
The final vote: 35-19 for conviction - one vote short.
Had the radicals garnered that extra vote, our history since then may have been very different. Having established congressional supremacy by a minority faction over the other two branches, and at a time when the stability of our political structure was still in flux following the unprecedented stesses and upheavals of the Civil War, the "radicals" would have had carte blanche to steamroll through wholesale changes that could well have sacrificed constitutionalism and "rule by consent of the governed" on the alter of sheer power.
The parallel with the present dispute is obvious. Once again, a minority legislative faction is attempting to emasculate the constitutional authority of the Executive. And while the nation isn't in the same overtly prostrated condition, the potential damage is even greater for the trends in that direction being the less obvious. For it isn't just the Executive that minority Democrats are trying to squash, but all three: the Legislative by preventing the Senate from exercising its advise and consent function, and the Judiciary by functionally depopulating it via attrition in order to ensure that a like-minded minority controls it as well, and thus to maintain de facto left-wing rule over the country in defiance of the wishes of the people as expressed at the ballot box.
The battle for the Judiciary has raged for nearly twenty years precisely because the courts have become politicized as the only means by which liberals can retain their hold on national power. The last three elections have been fought largely on this issue. And Republicans have won all three of those elections, only to be stymied by Democrats upping the ante after each defeat. It ought to be crystal clear by now that no genuine compromise is possible; Democrats will settle for nothing less than total victory.
If they win, and majority Republicans don't break the confirmation filibuster, the message will be equally unequivocal: no constitutionalists will ever make it to the federal bench again. The courts will complete their transformation into a extreme secularist mullahcracy. The democratic process will "progressively" atrophy as elections become more and more pointless. The triumphant left will regain the increasingly ceremonial elective branches and wreak a ruinous vengeance upon their political/ideological foes. And those dissidents, denied change through conventional means, will be forced to turn to "unconventional" means to express their opposition, or be driven underground altogether.
If Republicans win, history, tradition, the Constitution, and American democracy itself will triumph right along with them - at least to keep up the fight for a while longer.
Mr. Krauthammer sums it up succinctly:
Four years ago this past Monday, on May 9, 2001, President Bush held an event in the East Room to introduce to the country and to the Senate his first 11 nominees to the federal bench. He invited leaders from both parties. I distinctly remember seeing Senator Leahy — then chairman of the Judiciary Committee — in the room. There were a record number of judicial vacancies, including numerous judicial emergencies designated by the non-partisan Administrative Office of the U.S. courts, and President Bush had moved with record speed to get a slate of nominees up to the Senate.
The President presented a slate of well-qualified, mainstream nominees. The slate was racially diverse. It included a mix of men and women. And, perhaps most importantly, it included both Republicans and Democrats. People forget this, but two of the original eleven were judges originally nominated by President Clinton: Roger Gregory and Barrington Parker. In the case of Judge Gregory, it was the first time in history that a president had re-nominated a failed circuit-court nominee originally nominated by his predecessor from the other political party. This was unprecedented and highly significant, and it was intended to send a message. It was an olive branch. The President highlighted it in his speech that day, asking the Senate to move beyond the bitterness of the past in the judicial wars and to start afresh in a spirit of cooperation and good faith.
The Democrats took the olive branch the president extended and slapped him in the face with it. They immediately held hearings for, and confirmed, the two Democrats among the nominees and then held up the rest, refusing even to hold hearings for a long time on most of them. They then complained incessantly (and, for the most part, falsely) about not having been adequately consulted by the White House with regard to these nominations. And they executed the play suggested by Professor Tribe, Marcia Greenberger, and others at a Democratic strategy session on how to block Bush judicial nominations — a session held before the President had even taken office — when they scheduled hearings under Senator Schumer to try to legitimize the notion that judicial nominations could be blocked on ideological, rather than competence grounds.
This sent the strongest possible message to those of us in the White House that there was no interest at all in cooperation or good faith from the Democratic side and that they were determined from the start to try to frustrate the new president's efforts to fill judicial vacancies....
The President tried to change the tone, but he was shouted down. This is where the genesis of the conflict that has led us to the brink of the nuclear option really began, at least in this Administration....The ultimate proof that the Democrats escalated this conflict beyond all reasonable or defensible proportions is this: Today, more than four years after the East Room event, three of the original eleven nominees still have never received an up-or-down confirmation vote in the Senate. [my emphases]
Goes to illustrate the old saying that no good deed - and no act of rank foolishness - ever goes unpunished.
Leave it to Charles Krauthammer, then, to capture the essence of the confirmation filibuster fight:
There has certainly never been a successful filibuster in the case of a judicial nominee who clearly had the approval of a majority of the Senate. And there has surely never been a campaign like the one undertaken by the Democrats since 2001 to systematically deny judicial appointment by means of the filibuster.
Two hundred years of tradition has been radically and unilaterally changed by the minority. Why? The reason is obvious. Democrats have not had a very good run recently in the popularly elected branches. Since choosing the wrong side of the culture wars of the 1960s, they have won only three of the past 10 presidential elections. A decade ago they lost control of the House for the first time in 40 years, and now have lost all the elected branches. They are in a panic that they will lose their one remaining ability to legislate - through the courts.
And this they have done with great success, legislating by judicial fiat everything from abortion to gay marriage to religion in the public square. They want to maintain that commanding height of the culture and are not about to let something like presidential prerogative and two centuries of Senate history stand in their way. Hence the filibuster strategy.
Krauthammer also lays bare what is at stake in this (apparently) looming showdown:
Feeling they have a weak hand, however, the [Donks] have been offering "deals." In the latest, as reported in Roll Call, Democrats would allow some appellate court nominees to go through, deny at least three others, and promise not to filibuster a Supreme Court nominee as long as there are no "extreme circumstances."
But of course Democrats believe that anybody who, say, opposes affirmative action on principle is "extreme." As is anyone who believes (as, for example, I and many others do) that abortion should remain legal but that Roe v. Wade is a travesty - an extreme case of judicial arrogance and constitutional invention - worthy of [overturning].
If Republicans accept this kind of deal, they are fools. They have a perfectly constitutional, perfectly reasonable case for demanding an up-or-down vote on judicial nominees, and they should not be throwing it away for a mess of potage and fuzzy promises. [my emphasis and quotes]
Having established that, you must have known that I'd have another shoe to drop. And here is the latest one:
The Philadelphia Inquirer reports on an interview with Senator [Snarlin' Arlen] Specter calling for "a show of independence" by Senate Majority Leader Bill Frist to reject the calls for a nuclear showdown and forge a compromise. The filibuster fight is largely driven by activists on the extreme, Specter said. Adding "I think the way to approach it is for both party leaders not only to release their caucuses from party-line voting but to urge independent voting on the issue. I think if that were to happen there wouldn't be a filibuster and some of these nominees might well be defeated."
And Specter, it should be pointed out, has not been mentioned as being among those Pachyderms "sitting on the fence" on the matter of the Byrd Option. But it's like I always say: there is no defeat so improbable that Republicans can't find some way to pull it, kicking and screaming, from the jaws of victory.
It is also said that people rarely recognize turning points in history when they happen, but only after the fact. This judicial filibuster fight is, IMO, one of those turning points. The reason is momentous: what is at stake is nothing less than whether our republican (small "r") form of government, already significantly eroded by the left's conversion of the courts into a near-oligarchy, will survive to be restored to its full constitutional form, or whether its remnant will be gutted leaving only the facade of representative democracy behind.
The historical parallel I see is with the impeachment of President Andrew Johnson in 1868. Johnson had come to office following Abraham Lincoln's assassination as an initial ally of so-called "radical" Republicans in Congress who favored a harsh post-Civil War reconstruction policy toward the defeated southern states. They espoused a number of arguments for favoring this option, but the true reason was much more practical: to forestall the day when those states, which were dominated by Democrats, could send representatives to Congress and take the majority, and power, away from them.
It didn't take long for President Johnson to figure out "radical" Republican motives, and he soon came to embrace the lenient reconstruction plan that Lincoln had formulated. This brought about a bitter and escalating conflict between the Executive and Legislative Branches that culminated in the "radicals" forcing a confrontation.
At their instigation, Congress passed the Tenure of Office Act. This law forbade the president to fire any member of his administration without Senate permission. It was a gross violation of the separation of powers and blatantly unconstitutional (as the SCOTUS ruled 58 years later). But the legislation itself wasn't the point; it was a naked power play. They knew President Johnson wouldn't accept it, indeed dared not if the Executive Branch wasn't to be completely emasculated. They wanted him to step over the line in the sand they had drawn for one purpose and one purpose only: to impeach him, and confirm the conquest of the Executive by Congress.
It worked exactly as planned - almost. Johnson took the bait by firing Lincoln's Secretary of War, Edwin Stanton, an ally of the "radicals." The latter promptly filed and passed Articles of Impeachment against Johnson for the "high crime and misdemeanor" of having exercised his constitutional authority as Chief Executive, and the Senate tried him.
The final vote: 35-19 for conviction - one vote short.
Had the radicals garnered that extra vote, our history since then may have been very different. Having established congressional supremacy by a minority faction over the other two branches, and at a time when the stability of our political structure was still in flux following the unprecedented stesses and upheavals of the Civil War, the "radicals" would have had carte blanche to steamroll through wholesale changes that could well have sacrificed constitutionalism and "rule by consent of the governed" on the alter of sheer power.
The parallel with the present dispute is obvious. Once again, a minority legislative faction is attempting to emasculate the constitutional authority of the Executive. And while the nation isn't in the same overtly prostrated condition, the potential damage is even greater for the trends in that direction being the less obvious. For it isn't just the Executive that minority Democrats are trying to squash, but all three: the Legislative by preventing the Senate from exercising its advise and consent function, and the Judiciary by functionally depopulating it via attrition in order to ensure that a like-minded minority controls it as well, and thus to maintain de facto left-wing rule over the country in defiance of the wishes of the people as expressed at the ballot box.
The battle for the Judiciary has raged for nearly twenty years precisely because the courts have become politicized as the only means by which liberals can retain their hold on national power. The last three elections have been fought largely on this issue. And Republicans have won all three of those elections, only to be stymied by Democrats upping the ante after each defeat. It ought to be crystal clear by now that no genuine compromise is possible; Democrats will settle for nothing less than total victory.
If they win, and majority Republicans don't break the confirmation filibuster, the message will be equally unequivocal: no constitutionalists will ever make it to the federal bench again. The courts will complete their transformation into a extreme secularist mullahcracy. The democratic process will "progressively" atrophy as elections become more and more pointless. The triumphant left will regain the increasingly ceremonial elective branches and wreak a ruinous vengeance upon their political/ideological foes. And those dissidents, denied change through conventional means, will be forced to turn to "unconventional" means to express their opposition, or be driven underground altogether.
If Republicans win, history, tradition, the Constitution, and American democracy itself will triumph right along with them - at least to keep up the fight for a while longer.
Mr. Krauthammer sums it up succinctly:
The Democrats have unilaterally shattered one of the longest-running traditions in parliamentary history worldwide. They are not to be rewarded with a deal. They must either stop or be stopped by a simple change of Senate procedure that would do nothing more than take a 200-year-old unwritten rule and make it written.
What the Democrats have done is radical. What Frist is proposing is a restoration.
posted by JASmius at 11:01 PM
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