The agreement brokered this week by Sen. John McCain and six other Republicans to preserve the power of 41 Senate Democrats to veto Republican judicial nominees was a one-sided deal, preserving a one-party vehicle that Democrats will use to keep driving America on what they hope is a one-way trip to the left.
It was a one-sided deal because Senate Democrats retain the key power they need to control the direction of the courts while Senate Republicans retain their key deficiency: Democrats can still stop a Republican judicial nominee with 41 votes. Republicans still cannot confirm one with 59.
The judicial filibuster is a one-party vehicle because Republicans can be counted on to never use it. The Democrats, on the other hand, have already demonstrated their will to use it repeatedly and–thanks to McCain & Company—will now use it again, most likely to try to block any Supreme Court nominee they fear could shift the court in a conservative direction.
It is true that in October 1968, one month before a presidential election, some Republican senators used a filibuster to block lame-duck President Lyndon Johnson’s attempt to elevate the ethically challenged Abe Fortas from associate justice to chief justice. But that was not a strictly partisan effort. Nineteen Democrats voted to block cloture on Fortas, who later resigned from the court.
Not one Republican has voted to block cloture on any of President Bush’s ten appellate court nominees who were filibustered by Democrats in the past two years.
Appearing on MSNBC’s Hardball last month, Sen. McCain argued that Republicans should retain the judicial filibuster because they might want to use it themselves someday. “I say to my conservative friends, some day there will be a liberal Democrat president and a liberal Democrat Congress,” said McCain. “… And do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?”
But that “someday” already happened. In the early 1990s, we had a liberal Democratic president and a liberal Democratic Senate. When President Clinton nominated former ACLU lawyer Ruth Bader Ginsburg and former Ted Kennedy aide Stephen Breyer to the Supreme Court, both won the eager support of most Senate Republicans. McCain meekly voted for both.
Both went on to predictable careers as liberal activists on the court, voting even to declare partial-birth abortion a constitutional right. But do you hear McCain lamenting now that he voted for—let alone failed to filibuster–these Clinton liberals? No, the great maverick is too busy polishing the bipartisan persona that his earned him the love of the liberal media.
This brings us to America’s court-driven journey leftward, which McCain & Company’s deal would help the Democrats make a one-way trip.
In recent decades, un-elected judges have usurped the role of elected legislatures in deciding questions that go to the very core of America life. Can a doctor kill an unborn child? Is marriage only between one man and one woman, or can two men or two women marry each other? Does the 1st Amendment protect a “free speech” right to sell pornography, but not a right for public policy groups to speak freely through paid advertising during a federal election campaign? Can prayers be said in public schools? Can the Ten Commandments be displayed on public property? Must God be expelled from American public life?
On all of these questions, un-elected judges have been driving America left. By electing and reelecting President Bush, who promised to put constitutionalists on the courts, and by electing a 55-member Republican Senate majority, voters have tried to drive America back to the right.
But thanks to McCain & Company, liberal Democrats still have a grip on the steering wheel.