"America is like a healthy body and its resistance is threefold: its patriotism, its morality, and its spiritual life. If we can undermine these three areas, America will collapse from within."
--Joseph Stalin

Wednesday, May 11, 2005

Of Judicial Nominees and Educating Democrats

Democrat's Misunderstanding, or is it Misrepresenting? How Democracy Functions

Will Malven

I hear a whole lot of angry Democrat voices out there hysterically decrying the Republican Senate Majority Leader's decision to bring President Bush's judicial nominees to the floor and force a vote. This action will probably bring about the much dreaded filibuster and the resulting Senate rules change (the so-called "Nuclear Option"), allowing an historically traditional simple majority vote on each of the nominees. This in spite of the dire warnings by Democrats, and some Pundits of the Left and the Right, of cataclysmic results. This anger and fear, I believe, is because the Democrats feel powerless and, oddly enough considering the name of their party, because the Democrats don't understand how democracies function.

A Brief Senatorial History/Civics Lesson:

First allow me to point out that the filibuster is not in the constitution. "What?" Yep, that's right folks, nowhere in the constitution is this Senatorial phenomenon to be found. It is not a "constitutional right." I just wanted to get that out front in case someone from the Left was tempted to take up this argument on constitutional grounds. The filibuster came about in 1806 when the rule allowing the Senators "to move the previous question" (a call to end all debate) was eliminated (Gee, isn't that a rules change?). From that time until 1917 there was no way to end debate at all. In that year, the Senate changed the rules (there's another one) to allow for a vote of cloture, a two-thirds vote of the Senate to end all debate. In brief, that rule was changed three more times in the Twentieth Century to allow for changing circumstances. The last change occurred in 1975 to allow for a cloture vote consisting of a "super majority" of three-fifths of the Senate (that's 60 votes for those of you on the Left Coast). One other point (sort of an aside), the House also had it's filibusters until 1842 when the procedural rules were changed to allow for a strict control of debate.

All of these rules changes occurred without any catastrophic effects on the legislative bodies, or on the government in general.

Now, having established that Republicans are not out to destroy the Constitution, let's discuss how democracies work. I'm not talking about democracy as in "one man, one vote" (something that has never been in the Constitution; we are a republic, in which the representatives are democratically elected. Yes, there is a big difference).

I am talking about democracy as in "the majority wins." It has long been known, in struggle for ideological dominance, the way to prevail is to convince a majority of the voting population that your ideals are superior to those of your opponents, so that the voters will support your side. If you are successful in your campaign, your side will win. Another aspect of democratic principles is that, as one side wins, the other side inevitably loses. The losing side then goes home, licks their wounds, and revises their strategies and concepts of governance. They then rally to present their new tenets on the field of honor at the next election. If they are wise in their choices then their constituents prevail, and they win.

What does this have to do with the upcoming Senate conflict over judicial nominees? A lot! The Democrats, still smarting over not being in control of the Senate, are playing the spoilers game. "I don't care that I lost, I still insist that you do it my way!" Rather than facing the reality that their ideals have been rejected repeatedly by the American Voter, revising their political offerings, and rejoining the battle. They still want to win with a losing hand.

They propose to do that by invoking the filibuster at a time and in a manner that is, after all of the blather from both sides fades away, unprecedented. You can twist and turn it however you want, the facts are stubborn in this case, whenever a majority of Senators wanted a judicial candidate to be approved, and that appointee was reported out of committee, he always received a vote, and if a simple majority (that's fifty-one votes) voted in his favor, he was approved. That's it, no ifs, ands, or buts.

So, if what the Democrats are doing is wrong (and it patently is), what should they do? Glad you asked that question. They should endeavor to win the battle of ideals. All that Senators Reid, Leahy, Kennedy, Byrd, and the rest have to do is convince six Republican Senators that these judicial nominees are beyond the pale; that they are out of the mainstream "right-wing extremists." If they are able to do that, then they will prevail, and the nominees will fade back into their former obscurity, regardless of anything that Senator Frist and the Republicans can do.

That is called winning a contest of competing ideals. It is the essence of what a democracy is all about. We already know that they don't have to worry about any Democrat Senators crossing over and supporting these nominees, because anyone who could conceivably lay claim to being called a "moderate Democrat" has already been eliminated from their ranks.

Of the Republican Senators, because they are not monolithic in their thinking, there are already several (the more liberal ones) that one would think could easily be swayed by Senator Reid and his coterie of Leftist followers. Surely, if their doubts and concerns are legitimate, and these controversial nominees (each having received the "Good Housekeeping Seal of Approval" from the ABA) are as "seriously flawed" as Democrats represent, they should be able to persuade those Senators to support their side and reject these "highly controversial and ill-suited judges" from being approved. If they cannot, then I suggest that they revise their positions, and re-examine their objections and motives.

Any intelligent, non-ideologically rigid person should be willing to do that when confronted by their own failures. It may be that they are letting their political agenda (a desire to take back the White House and hand President Bush a defeat-at any cost- to which they can point as a failure in 2006) to acquire greater importance to them than their obligation to serve the American people.

That is what our Founding Fathers envisioned, and how this system of government is supposed to work. The wrongly invoked concept of protecting minority rights, has nothing to do with votes in the Senate. The few times a two-thirds vote is required by the Constitution, it serves as a "check" on the President's powers and actions. It was not intended to defeat will of the majority within the legislative houses.

The protection of minority rights is found in the Bill of Rights, and is aimed at protecting the people from being oppressed by a majority "ruling class." Hence we have such things as, "the right to petition the government,""the right of the people peaceably to assemble," "freedom of speech," "free exercise" of religion, "the right to keep and bear arms," protection against "unreasonable search and seizure," etc.

Those are the protections for minority rights so highly valued by our Forefathers, not the right to thwart the wishes of the majority in passing laws or in approving nominees. In fact, I would question whether or not the filibuster is constitutional at all.

The purpose of debate is supposed to be to convince one’s adversaries of the merit of his arguments on the issues. One method of winning your way, is to harangue continuously until the other side gives up out of sheer frustration, but it has very little to do with actual debate. It falls more under the label of boorishness.

It is unfortunate that Democrats prefer to put their own agenda before the good of the people, or even the wishes of the people. That is one reason that they have been on a losing streak, and in all probability will remain so.

Remember, that up until the nomination of Judge Bork (the single most qualified adjudicator ever to have been nominated to the Supreme Court), personal politics was never an acceptable reason to reject a nominee, and vicious personal attack in an attempt to give the appearance of impropriety, was never an acceptable tactic. The only restriction on whether a nominee was approved, was whether or not he was qualified academically and temperamentally to serve on the nations highest bench.

It was the Democrats who chose, out of petty political motives, to lower the prestige of the Supreme Court by subjecting the nominees to personal invective, and character assassination because of what they might do once they were on the bench.

As the Democrat's fall from power continues and grows, I fully expect this descent into petty, hate-filled politics in which the objective is not to win on the field of ideas, but to batter and berate the opposition into submission, no matter what the cost to the individual, or to the country, will worsen.

Following this course is sure to lead to the eventual demise of the Democrat party, either through the emergence of a new middle-left party, comparable to a more liberal version of the Republican Party, and relegating the Democrats to a fringe element supported by their beloved extreme leftist enthusiasts like those in Hollywood and in Washington D.C., or through attrition as disillusioned "true believers" wander away in disgust and apathy.

This I would actually hate to see, I do not believe that a one party government can be trusted to always do the right thing. I would rather see the party revitalized by the young up and coming politicos who, in re-examining the actions of this morally bankrupt Democrat party, will take up the mantle of leadership and marching in the footsteps of young Jack Kennedy, move the party back into the mainstream of American thought and ideals.

I love a good honest competition of ideas, and right now, the Democrats aren't really that much competition.

Copyright 2005 Will Malven

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