The Constitutional Option: What’s Really At Stake

April 21, 2005

The best way to understand the brouhaha over the Republican plan to invoke the constitutional option to prohibit Senate filibusters to thwart judicial nominations is that Democrats are very poor losers, but Republicans are even poorer winners — so far.

The reason we’re even talking about a so-called ” nuclear option” is that Democrat leaders remain in denial about their consistent drubbing at the ballot box. They won’t accept that the public has rejected their message.

They are acting like the ornery little brother who hits his older brother, and when big brother merely threatens to hit back, he goes running to mommy, telling her his big bad older brother hit him first.

This whole flap is not that complicated. Republicans won the presidential and congressional elections. The Republican president is therefore entitled under the Constitution to appoint judges, with the Senate having the right to pass on the competency and character of the nominees.

The Senate does not have coequal authority with the president on judicial appointments as the advice-and-consent function was not intended to confer veto power on the Senate.

While Democrats are doing most of the bellyaching, they drew first blood in this skirmish by changing the ground rules in reversing nearly half a century of precedent by filibustering certain judicial nominations.

In response, Republicans have threatened that unless the Democrats quit breaking the rules, they will implement a formal rule change to effect a restoration of the status quo such that judicial nominees can be confirmed on a simple majority vote of the Senate.

Democrats, being the consummate spinmeisters they are, have characterized this “threat” to restore the status quo as a draconian move by the Republicans. But let’s not forget that they are the ones who went “nuclear” in the first place by departing from the established practice of not filibustering judicial nominations. But like the little brother, they’re trying to paint the Republicans as the wrongdoers.

With all the hype over procedural squabbles we’re missing a more important point. In the end, this isn’t just a struggle over Senate rules or which side is being more gentlemanly. What is at stake in this ongoing fight over judicial nominations is nothing less than the integrity of the Constitution, the independence of the judiciary, the separation of powers, and ultimately, the preservation of popular sovereignty.

Democrats can talk until they’re blue in the face about Republicans tinkering with the system by invoking a Senate rule change. But in the first place, it is just that: a Senate rule change, and as I said, the change is only necessary to correct the Democrats’ abuses and usurpations of power.

The reason Democrats are filibustering judicial nominees is that they refuse to play by the rules and allow the duly elected president and Congress to exercise their constitutional authority. No one’s asking them to lie down or forfeit their minority rights, merely not to break the rules to obstruct the majority.

Under our system, the people elect the president and Congress, and those two branches set policy for the government. The judiciary was never intended to be a policy-making branch. Yet Democrats, for decades have been willfully violating the Constitution by using the courts to make laws and set policy — often in derogation of the policies already set by the other two political branches.

In an astonishing demonstration of chutzpah, Democrats have been complaining about Republicans threatening the independence of the judiciary when Republicans say they want to take action to force the judiciary to revert to its non-political, independent role. Democrats haven’t respected the independence of the judiciary since before the Warren court era of judicial hyper-activism.

It is laughable that they demand an independent judiciary when what they really want is a judiciary they handpick for the express purpose of implementing policy they can’t otherwise achieve through the political branches of government. They see the judiciary as both a high-powered vehicle to thwart the democratic will of the people and as a weapon for their side to use in the Culture War. They view the judiciary as a catalyst for social change, an instrument to supplant traditional values with secular relativism, and all the hedonism and licentiousness it entails.

That’s why they seek to divert attention from the real issues involved in the judicial nominations debate and demonize the messengers, the Republicans, as pawns of the evil Christian Right. If unenlightened Christians are advocating the constitutional option, it must be a sinister ploy indeed.

Thank God for these ” sinister” Christians, who at this point are the main ones holding the feckless Senate majority accountable — feckless, that is, unless they muster the backbone to invoke the constitutional option.