The Samuel Alito Supreme Court nomination hearings are now a
part of history, but snippets of the Democratic Party’s accusations
and name-calling live on. Sen. Dick Durbin (D-Ill.) dramatically
lamented that “a chill wind blows,” presumably across the facade of
the Supreme Court building. In actuality, the entire D.C. landscape
was engulfed by great gusts of hot air emanating directly from the
Judiciary Committee hearing room.
As is their custom, Senate Democrats revealed their disdain for
or ignorance of the U.S. Constitution as written. Sen. Pat Leahy
(D-Vt.) reminded us that President Bush promised to be a uniter not
a divider and that there were many judges he could have nominated
that would have united the country and been a unifying choice.
Sweet-sounding though this sentiment may be, it is not the job of
the Court to see to the nation’s mood.
And though it had absolutely no relevance to the Alito
nomination, some senators accused the president of an attempt at
“packing” the Supreme Court. Some even referred to the courage of
the Democratic Party in refusing to let President Franklin
Roosevelt do likewise. It is interesting that they should bring up
this particular example but probably not surprising, given their
tin ear for American history.
In 1937, Roosevelt proposed legislation that called for all
federal judges to retire at age 70. If they refused, the president
would then have the power to appoint new judges who would serve in
tandem with those over 70, enabling him to appoint six new Supreme
Court justices. He was indeed opposed by prominent Democrats,
including his own vice president, but the bill was doomed for sure
when its biggest supporter, Majority Leader Joseph T. Robinson
(D-Ark.), died during the Senate debate.
At the crux of the issue was the reason Roosevelt sought to pack
the courts: a majority on the Supreme Court had ruled that many
parts of his New Deal programs were unconstitutional. And even
though his scheme didn’t succeed, the threat convinced the Court
eventually to approve of most of his agenda and change the way it
interpreted the Constitution.
But no such friction over legislation exists between the Bush
Administration and the Court. The relevant parallel is that while
Roosevelt sought to impose an extra-constitutional age requirement
on the courts to suit his purposes, it is modern-day Democrats who
would act similarly in attempting to filibuster judicial
nominations to suit theirs.
Another similarity is that Roosevelt exhibited the very same
tendency that today’s Democrats cite when they accuse Bush of
trying to elevate the Executive branch of government above the
other two. Many liberal lawmakers and those in their media wing
have taken to calling President Bush “King George.” Sadly for them,
there exists no Adams or Jefferson equal to the task of taking him
on. A few James Callenders, maybe.
If the loyal opposition really wants to talk about an American
monarchy, they should begin by looking at the record of the king of
the modern welfare state, particularly his use of Executive Orders. While George Bush has signed
196 EOs in five years for an average of around 40 per year,
Franklin Roosevelt issued an incredible 3,466 in twelve years, or
288 per year. Of those 3,466 EOs, only 630 were issued during the
World War II years, including one that provided for the internment
of Japanese and German Americans.
In reaction to the Supreme Court’s treatment of his policies and
to explain his radical power-grab Roosevelt said, “During
the past half-century the balance of power between the three great
branches of the federal government has been tipped out of balance
by the courts in direct contradiction of the high purposes of the
framers of the Constitution. It is my purpose to restore that
balance.”
Of course, in time Roosevelt did reshape the Court to his own
liking, eventually naming an unprecedented nine justices, none of
whom was threatened with a filibuster. And many of those nine
succeeded in tipping the balance of power in favor of the judiciary
toward liberal policy-making, far more than even Roosevelt himself
could have hoped.
But the worm, as they say, is starting to turn and the days of
deciding cases via shadowy penumbras and foreign law may be over.
With the possibility of at least one more judicial vacancy under
President Bush in the offing, the John Roberts Court very well
might revert to the pre-Roosevelt approach of strict
constructionism. And that would result in a new deal for an old
Constitution.
