The agreement Sen. John McCain and six other Republicans brokered last week perpetuating the power of 41 Senate Democrats to veto Republican judicial nominees was a one-sided deal, preserving a one-party vehicle 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 repeatedly demonstrated their will to use it and—thanks to McCain & Co.—will now use it again, most likely to try to block any reliably conservative Supreme Court nominee.
It is true that in 1968, one month before a presidential election, some Republican senators used a filibuster to block lame-duck President Lyndon Johnson’s attempt to elevate Abe Fortas, who had ethics problems, 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 voted to block cloture on any of President Bush’s 10 appellate court nominees filibustered by Democrats.
As I mentioned last week, McCain argued on MSNBC’s “Hardball” that Republicans should retain the judicial filibuster because they might want to use it themselves. “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 “some day” already happened. In the early 1990s, we had a liberal Democratic President and a liberal Democratic Senate. When President Bill 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 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, still hoping to be President, is too busy polishing the bipartisan persona that has earned him the love of the liberal media.
This brings us to America’s court-driven journey leftward that McCain & Co.’s deal would help the Democrats make into a one-way trip.
In recent decades, un-elected judges have usurped the role of elected legislatures in deciding questions that go to the core of American life. Can a doctor kill an unborn child? Is marriage only between one man and one woman? 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 an 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 re-electing 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 & Co., liberal Democrats still have a grip on the steering wheel.