AN AMERICAN'S PERSPECTIVE - "Time to Fish, or Cut Bait!"


By Roger Propst

The framers of our Constitution, in their great wisdom and in response to the failures of other forms of governance, created a document that outlined specific duties and responsibilities of the three branches of government. Legislation was assigned to the legislative branch, the Senate and the House of Representatives. Executive responsibilities were assigned to the elected President and his administration. Judicial duties were assigned to the judicial branch with the U.S. Supreme Court at the top of the pyramid. The executive and legislative branches were to be elected by the people, the judicial branch to be filled by appointment; nomination by the President, and confirmation by the advice and consent of the Senate. Many times what is not specifically stated in the Constitution is as important as what is. Notice the framers did not attach a super majority to the judicial confirmation process as they specifically did on other matters such as approval of treaties for example. It is obvious the framers intended for these appointments to be confirmed by simple majority votes.

For the first 214 years of our existence nominees to federal judgeships that reached the Senate floor were given an up or down vote consistent with the advice and consent clause of the Constitution. In 2003, led by former Senate Minority Leader, Tom Daschle, the Democrats decided to employ a procedural mechanism previously reserved for legislation, the filibuster, to block even taking a vote on 10 Presidential nominees who had received favorable votes in the Judiciary Committee and who had majority bipartisan support in the full Senate had a vote been taken. These nominees all were rated as qualified, and or highly qualified, by the American Bar Association, the previous benchmark for confirmation. This unprecedented obstruction of the executive branch's constitutional right to appoint judges by imposing a 60 vote requirement for confirmation is what has caused the uproar we are involved in now. The only logical reason for a minority to deny a vote to a nominee is that allowing the vote would result in confirmation; it's as simple as that.

Some think the Democrats in the Senate felt that because President Bush had lost the 2000 popular vote, they felt empowered to usurp his right of judicial appointments. Senator Daschle would find out in the 2004 election that his constituency in South Dakota did not agree by voting to bring him home and send John Thune who had campaigned on Daschle's obstructionist tactics to the Senate instead. Even if the Democrats' premise was valid, and it was not, one would think the results of the 2004 election would render that point moot. President Bush made up or down votes on judges an integral part of his 2004 campaign, and the American people responded by decisively reelecting him.

Quite appropriately, President Bush has renominated seven of the 10 filibustered judges, three withdrew their names after the smear campaign they endured. Six of the seven have been voted favorably to the Senate floor and the seventh will soon follow. What has been the Democrats' response? They plan to debate and attempt to persuade other Senators to agree with their position, and then deny confirmation by a majority vote on the floor. NOT! They instead are attempting to divert attention from their untenable stance by screaming about checks and balances, tyranny of the majority, and other such nonsense ad nauseum. One will never find the term filibuster in the Constitution, and the checks and balances crafted by the framers are the three branches of government. Although the Constitution allows either legislative body to set its own rules, nothing allows those rules to supersede the specific direction of the Constitution itself.

Democrats in the Senate, and the left-wing interest groups that control them to a certain extent, want to seize what they cannot win in elections. They have lost the last three national elections and now want to dictate to the President who he can appoint to the federal bench. The hypocrisy of many of these leading senators is appalling. I won't bore you with quotes, but New York Senator Schumer, Connecticut Senator Leahy, Massachusetts Senator Ted Kennedy, even Minority Leader Reid all demanded an up or down votes for President Clinton's nominees.

Because of this unprecedented obstruction and unconstitutional usurping of executive powers by denying a vote to judges reaching the Senate floor, Majority Leader, Bill Frist, will soon employ a parliamentary procedure called the Byrd Option, named for Senator Robert C. Byrd who as Senate Majority Leader either employed or threatened to employ the procedure to change Senate rules, to restore by simple majority vote the Senate's constitutional duty to provide advice and consent by voting on each nominee. What a novel approach, the President nominates, committee debates and votes, the full Senate debates and votes.

If one should need a reminder of the importance of having these unelected judges follow the Constitution, rather than legislate from the bench, one only need look at what happened this week in Nebraska. The people of that state voted in 2000 for a state constitutional amendment defining marriage as being between one man and one woman by a 70% margin; a single, unelected federal judge struck down the will of the people by the stroke of a pen. This is but one example of judicial activism, there are many more. Something not directly addressed by the Constitution should be addressed by the elected representatives of the people, not unelected judges. This is why far left groups such as support judicial filibusters; liberal activist judges are their only means of affecting public policy since the American people reject their views at the ballot box.

The Republicans sometimes seem uncomfortable in their role as majority, and the Democrats have never accepted their role as the minority. Democrats were quite comfortable in the majority they held for 40 years, routinely steamrolling the Republicans, and if the shoe were on the other foot would have long ago put this obstructionism down. It is now long past time for Republicans to end this minority of 41 usurping the President's right to receive a vote on his nominees. If they should fail to do so, they don't deserve to be the majority.


Hur Herald from Sunny Cal
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