On the eve of the day when the unconstitutional filibustering of judicial nominees was going to be voted down by the Republican majority in the Senate—returning the body to the majoritarian rule on judicial nominations that had stood for more than 214 years—seven so-called “moderate” Republicans sabotaged their 48 Senate colleagues, the Senate leadership and the President.
For weeks, they had huddled in secret with seven Democrats looking for a deal to avoid the coming showdown.
The seven Democrats sought to skirt the politically dangerous course of choosing between the radicals who lead them in the Senate and their more conservative (and in some cases red-state) constituencies. They had watched how former Senate Democratic Leader Tom Daschle (S.D.) destroyed his political career by making the wrong choice.
McCain and Maine
The seven Republicans are a different lot. John McCain of Arizona, their leader, has built his career on undermining his party, as have the Maine twins Olympia Snowe and Susan Collins, and Rhode Island’s Lincoln Chafee. For this, they’ve received fawning media attention and false praise as “reformers.”
To many, Lindsey Graham of South Carolina is so thrilled just to stand in his hero McCain’s shadow, he would follow him off a cliff, which he may well have done. John Warner of Virginia, one-time husband of Elizabeth Taylor and one of Middleburg’s finest horsemen, has never been a trustworthy conservative, having helped derail the Senate candidacy of Oliver North several years ago. And Mike DeWine, formerly a reliable conservative congressman, has obviously concluded that his political fortunes depend on how well he imitates skittish fellow Ohioan George Voinovich, who is more upset about patriotic John Bolton’s becoming our ambassador to the UN than worried about the America-hating members who run the place.
These are the “statesmen” who snatched defeat from victory.
Rather than defeating the unconstitutional filibustering of judicial nominees, and allowing every senator to give his or her “advice and consent” by voting on the candidate, the seven moderates cut a deal in which three appellate court nominees would be guaranteed a vote, but the fate of all remaining and future nominees is unknown. The filibuster lives, allowing a mere 41 left-wing senators to determine who will or won’t serve on the bench.
What is at stake here is monumental: the future of the federal judiciary. The November election saw a record number of people voting. The President and many Republican senatorial candidates ran on an agenda that included the appointment of originalists—that is, judges who will follow and interpret the Constitution—to our courts. The electorate returned George W. Bush to the presidency and increased the Republican majority in the Senate.
But the Senate Democrats, even fewer in number since November, have refused to accept the returns and insist on rejecting the will of the people. For all their talk about counting every vote and fair elections, they rightly believe that the only way they can advance their unpopular liberal agenda is by judicial fiat. So, they seek to pack the federal appellate courts through the backdoor by leaving vacancies on key courts where Clinton judges are more numerous, rather than filling them with the President’s nominees. And, of course, this is a prelude to the coming fight over the Supreme Court.
If we have any hope of ending judicial tyranny and returning to a more vibrant representative government—where we, the people, determine what kind of society we want to live in and bequeath to our children—we must win this battle. The only means by which we can directly influence this process is at the ballot box. If the left, with the aid of these seven moderate Senate Republicans, succeeds in obstructing majority rule, there is little recourse. If 51 senators can’t be mustered to kill filibusters against judicial nominations, there’s no hope of finding 67 votes to convict and remove judges who’ve been impeached or to propose constitutional amendments to limit judicial activism on a systemic basis.
But all is not lost. Given the irresistible attraction to Senate Democrats of filibustering President Bush’s nominees, and the ambiguity of some of the language in this deal, I don’t expect it will last very long. Maybe then two or three of these moderate Republicans will put principle and the Constitution before self-promotion.