On May 23, Senate Republicans were poised to disarm Harry Reid and Co. of the weapons they have used to kill the Bush judges. Every hostage still held by the Democratic minority was about to be freed.
And the Senate was about to dynamite the last obstacle to President Bush’s honoring of his pledge to end judicial activism. The road was about to be opened for two, three or perhaps four Supreme Court justices, who would bring an end to the social revolution that has been imposed upon us from above since the time of Earl Warren.
Victory was at hand.
Majority Leader Bill Frist had the 50 votes to pass a rule permitting the majority to ensure each judicial nominee gets a vote, up or down, and none is smothered to death by a tyrannical minority.
But that evening, Sen. John McCain and six other Republicans defected and threw victory away. They agreed to let Reid and Co. keep the filibuster-veto, if they would agree only to use it in “extraordinary circumstances.”
The naivete of the moderate Republican is a thing to behold.
Only 72 hours later, those “extraordinary circumstances” suddenly arose, as Reid and Co. beat John Bolton to a bloody pulp, refused to let the Senate vote to confirm or reject him and sent him back to his cell.
Not to worry, said the McCain Seven. Bolton is not a judge. He is only the president’s nominee to be U.S. ambassador to the United Nations. By bringing Bolton out for a ritual beating and dragging him back to his dungeon, our Democratic colleagues did not violate the Spirit of Munich.
The filibuster-veto is the moral equivalent of letting a mob tie a man to a whipping post and lash him almost to death, without a trial, while denying the majority the right to set him free. Under the filibuster-veto, at least a dozen conservative judges have seen their good names smeared by Senate demagogues, as in a show trial, but been denied a vote by the full Senate on the truth or falsity of the charges against them.
This is un-American. But now we are instructed by McCain and his colleagues that Senate comity requires this tactic be made a permanent Senate institution.
For dissing his colleagues and Frist, and leaving Bush’s Supreme Court nominees subject to a filibuster gauntlet and death by a thousand cuts, McCain is being hailed as the conscience of the Senate. But the ball is now back in the court of the majority, Frist and President Bush himself.
Will they accept the demand of the McCain Seven that the president “consult” them on all future appellate and Supreme Court nominees? And does that mean prior approval? Will they accept a minority veto of Bush’s judicial choices? Will they accept the deal cut by the McCain Seven that freed three hostages — Janice Rogers Brown, Priscilla Owen and William Pryor — but gave Reid, Ted Kennedy and Barbara Boxer a conceded right to take future hostages under “extraordinary circumstances”?
In brief, is the Republican Party bound by this Munich? If it is, the GOP has lost its last chance to change the composition and course of the Supreme Court, and Bush’s legacy will be as diminished — as was that of his father and every Republican predecessor since World War II.
Dwight Eisenhower said that his nominations of Earl Warren and Bill Brennan were two of his biggest mistakes. Nixon came to office determined to recapture the Supreme Court for constitutionalism. But after Judges Haynesworth and Carswell were rejected by a liberal Senate, he was persuaded to name Harry Blackmun, father of Roe v. Wade, for which three of Nixon’s four nominees voted. Only William Rehnquist dissented.
President Ford’s lone choice was John Paul Stevens, the most reliable liberal on the court. Reagan elevated Rehnquist to chief justice and named Antonin Scalia, but his first choice was Sandra Day O’Connor, who is now reading up on international law to find out how she should rule. After Robert Bork was keel-hauled, Reagan named the mugwump Anthony Kennedy. Bush’s father named cipher David Souter, but redeemed himself with Clarence Thomas. And so it has gone.
Since Nixon, then, Republican presidents have named 12 justices to the Supreme Court. Three turned out to be “strict constructionists” who look for guidance beyond the rulings of the Warren Court, as they should, to the Constitution of the United States.
The mega-issue here, then, is: Who shall rule us? Shall it be unelected Supreme Court justices? Or elected legislators we can replace at election time? Is America a judicial dictatorship or a constitutional republic?
If Frist and President Bush cannot break up the McCain Seven and bring two of those senators back to supporting majority rule, the game is up. As Barry Goldwater used to say, “It’s as simple as that.”