Political Hay

Theater of the Absurd

Mario Cuomo takes a star turn in the Democrats' latest brazen act.

By 5.5.05

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Do many others see the humor of Al Gore preaching to the gathered Michael Moronites at MoveOn.org about the "extremism" of George Bush's judicial nominees, or is this something that can only be appreciated by extremist, right-wing theocrats?

Do the American people want Ted Kennedy, Pat Leahy, and Barbara Boxer to be the arbiters of what constitute "extremism" and the "mainstream?" I doubt it, but it seems as though the "mainstream" press does. We are witnessing an absurd farce being portrayed as high political drama. Will the Republicans steamroller the embattled Democratic minority that is refusing to back down off its principled defense of the "independence of the judicial system"?

For all their desire for "unlimited debate," the Democrats have failed to make the case that any of Bush's nominees are dangerous extremists. California Supreme Court Justice Janice Rogers Brown once shockingly used the term "socialist" in describing some New Deal programs. But perhaps her real problem is extreme Aunt Jemimahism --being a black woman who is a political conservative. Democrats manufactured an issue with Miguel Estrada when, in their zeal to insure judicial independence, demanded that he hand over confidential attorney-client memoranda that he wrote while working in the Solicitor General's office (something never asked of any other nominee). Estrada predictably refused -- a refusal that was supported by every living former Democrat Solicitor General. And then there is Alabama Attorney General William Pryor whose extremism seems to be defined by the fact that he is a practicing Catholic (read, pro-life). In addressing the MoveOn.orgers, Al Gore lambasted what he called Republican accusations that Democrats were waging a war against religious people. "How dare they!" he cried, which elicited wild applause from the ridiculers of the inhabitants of "Jesusland." This seems to be the extent of the Democratic argument -- to call people "extremists" and then the counter-punch of "how dare they!" How dare they.

Democrats also like to point out that Republicans blocked a similar number of Clinton appellate court nominees, and that the 10 nominees that the Democrats have filibustered (they've actually stopped a total of 17 with other tactics) only represents about 5% of Bush's judicial nominees. So what's the big deal? This argument is disingenuous, and they know it. Yes, those 10 nominees represent about 5% of Bush's total judicial nominees but 20% (or 33%, using the 17 that have actually been denied a vote) of the more powerful appellate court nominees. And if Democrats retain the right to filibuster indefinitely judicial nominees, guess how many of Bush's Supreme Court nominees will be filibustered? Assuming that they aren't "moderates" who meet with the approval of Howard Dean, I'd take a wild guess that it would be about 100%. It is also an important distinction to note that the Clinton nominees who were blocked by Republicans were blocked by majorities, not by filibustering minorities. Using Democratic logic, it is dirty politics for majorities to hold up a president's judicial nominees, but it is vital to the health of the country that minorities be allowed to hold up a president's judicial nominees.

CAN ANY SERIOUS PERSON take the Democrats seriously any more? The Democrats claim that the judicial nominees against whom they continue to filibuster threaten the Republic as they are "too conservative" and might make rulings based on their own personal convictions rather than the law. What personal convictions might those be? Well, that the Constitution is the law of the land, for one. To believe the Democrats, the constitutional rights of Americans are not threatened by the Democrats' favorite "mainstream" judges -- such as those who dominate the most overturned court in the land, the 9th Circuit Court of Appeals, or Supreme Court Justices like Anthony Kennedy or Ruth Bader Ginsburg who think that the Constitution is a "living" document subject to ratification by a majority of Supreme Court Justices who should be guided by, among other things, the laws and popular feeling in other countries -- but by judges who are "too conservative" in believing that the Constitution trumps the laws of Belgium, or whatever Justice Kennedy might believe should be "fundamental" rights on any given day.

The real sacrosanct laws of the land, according to Democrats, are Senate rules. These rules must never be changed (at least not by Republicans), even though such changes are allowed by Senate rules. Democrats want to continue the unprecedented tactic of filibustering judicial nominees who would otherwise be confirmed, and call any attempt to change the Senate rules an attack on the "rights" of the minority. In this past weekend's "Democratic Response" to President Bush's weekly radio address, Mario Cuomo eloquently spoke about how James Madison (who today would, no doubt, be called an extremist by the Senate Democrats) feared the "tyranny of the majority" and crafted the Constitution accordingly.

The checks against tyrannical majorities, however, that James Madison and the other founders created were the constitutional provisions limiting government power, not Senate rules on filibusters. And it is exactly these constitutional limits that have been trampled by the "living document" judges preferred by Democrats. But we should not expect that Mario Cuomo's or any of the Democrat filibusterers' arguments are sincere. After all, as recently as 1998 when Bill Clinton was appointing judges, this is what Senator Pat Leahy had to say about the prospect of filibusters on judicial nominees: "I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported [...] If we don't like somebody the President nominates, vote him or her down." I guess he lied.

The Democrats complain that 51% doesn't make a mandate. They seem to forget, though, that their candidate got about 48%. And they lost seats in both houses of Congress. So what "mandate" do they have to continue to hold up the President's judicial nominees?

Well, Mario Cuomo has come up with the novel argument that the Republicans really should not control the Senate because a majority of Americans are represented by Democratic Senators. In the 2000 presidential election, as in all presidential elections, the winner was determined by the Electoral College and both Bush and Gore tailored their campaign to capture electoral votes, not the popular vote. Yet when Gore won a razor thin majority of the popular vote, leading Democrats then whined that Bush's razor thin electoral victory was somehow "illegitimate." Now, Mario Coumo, apparently throwing his new-found appreciation of James Madison out the window, uses a variation on the Electoral College to argue that, even though Republicans have been elected to 55% of the Senate's seats, since millions of Republicans in some of the nation's larger states have the misfortune to be "represented" by Democrats in the Senate, Republicans have no business controlling the Senate. Unbelievable. But that's the depth of sophistry to which the Democrats have sunk. It is unfortunate that a "tyranny of the majority" exists in California since the minority Republicans can't filibuster the next senatorial election of Barbara Boxer.

It is amazing just how twisted and intellectually vacant the Democrats' arguments in the judicial nominations debate have become. And it is amazing that any self-respecting person in the news media can report these arguments with a straight face. But as has become very clear over the past several years, the Democratic Party, and its allies in the media, have no shame.

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About the Author
Brandon Crocker is the chief financial officer of a commercial real estate development and management company in San Diego.