In 1790 Thomas Jefferson penned in a letter to James Madison his famous idea that "the Earth belongs to the living." With intricate mathematical calculations he determined the span of generations and reasoned that since present generations should not be bound by the decisions and compacts of past generations, all laws should expire every 19 years. Madison responded with a gentle -- but devastating -- counter, pointing out to his friend the practical problems with this idea and concluding that its implementation, by causing so much uncertainty in the continuity of arrangements, would be enormously harmful.
For most of our republic's history, Madison's view prevailed. The result was an unusually stable, free, and thereby prosperous society. In recent decades, however, the tide has slowly shifted towards Jefferson. But now the rallying cry is not "the Earth belongs to the living," but "the Constitution is a living document." The practical result is that our court systems have become increasingly unpredictable.
Though legal scholars may argue about when things started to unravel, it is clear that the 1973 Roe v. Wade Supreme Court decision was a momentous achievement of the "living document" forces -- championed by liberals and, institutionally, by the Democratic Party. But it also has served as the main impetus for the continued march in that direction.
Since Roe v. Wade, liberals and, increasingly, the leaders of the Democratic Party have sought to protect the decision through the selection of new justices to the Supreme Court. Obviously, since Roe v. Wade can not stand up to the scrutiny of "strict constructionist" views of the Constitution, Roe v. Wade supporters have had to push for the selection of jurists hostile to such views -- i.e. "living document" proponents who do not believe that judges should necessarily be bound by what the Constitution actually says, or by notions of "original intent," in determining constitutional issues.
Now some may argue that liberals took this position before Roe v. Wade, particularly in regards to expanding the federal role in economic matters. But it was with the abortion issue that the movement really took flight. It is for the purpose of protecting abortion rights, after all, that most Senate Democrats are now making the adoption of a rather controversial interpretation of an implied (and before 1973, unknown) general "right to privacy" a prerequisite for becoming a member of the federal judiciary.
So what has a 30-year effort to rid the federal judiciary of conservative "constructionist" judges achieved? Quite a lot. Just look at the 9th Circuit Court of Appeals.
Whereas Democrats have succeeded in bouncing conservative Supreme Court and Federal Appeals Court nominees for, supposedly, not being in the "mainstream," the most overturned (that is, most out-of-the-mainstream) court in the land is the 9th Circuit Court of Appeals, which is dominated by Clinton and Carter appointees. The most recent 9th Circuit fiasco was the decision by a three-judge panel (one Carter and two Clinton appointees) to stop the California gubernatorial recall election. This decision was so transparently politically motivated (with its stress on misapplying Bush v. Gore) and so void of legal merit that even the 9th Circuit, with a full twelve-judge panel (9 Democrat appointees) was compelled to reverse the decision.
The real indication during this process that the "living document" forces now control the day was that few analysts were willing to predict the outcome of the deliberations of either of these panels on the basis of the law. All eyes were instead focused on the composition of the judges on each panel. It does not matter what the law or the Constitution says, but who the judge is. The Democrats currently filibustering George W. Bush's judicial nominees understand this and want it to continue.
Senator Charles Schumer charges that the current Bush administration "wants the courts to become the sword that destroys…[civil] rights." And who can forget the wonderful DNC short animated classic depicting Bush as a mad scientist creating a monster Supreme Court Justice "with no heart" to destroy civil rights throughout the land. Liberal Democrats like to portray themselves as our saviors in all things, but especially in the realm of civil rights. The fact is, however, that the savior of our civil rights is a paper document known as the Constitution -- a paper document that liberal Democrats would make subject to change based on "contemporary circumstances" as determined by judges.
Liberal Democrats would rather have our civil rights safeguarded by judges than by law (the Constitution) because the Constitution, as it is written, constricts the liberal Democratic social policy agenda. That's an interesting trade off. Democrats warn us of the threat to our liberties posed by conservative judges who would give John Ashcroft the power, with a court order, to look in to the library records of suspected terrorists. Yet these same Democrats see no risk to our liberties by weakening the authority of the Constitution for the purpose of enshrining abortion rights, or expanding government intrusion in the workplace, or any other liberal social policy goal.
The ranking Democrat on the Senate Judiciary Committee, Patrick Leahy, bemoans the fact that President Bush has chosen to submit judicial nominees like Miguel Estrada, Charles Pickering, and William Pryor rather than working with him on producing "consensus" nominees. In Senator Leahy's "living" version of the Constitution the right to make judicial appointments rests with the minority party's ranking member of the Senate Judiciary Committee, with, of course, the advise and consent of the president.
As evidenced by the trumped up charges leveled against the "stealth candidate" Miguel Estrada and the "racially insensitive" Charles Pickering, the Democratic strategy seems to be to latch on to any possible smear, however unsupportable. Any cover will do in the effort to derail a conservative nominee.
Perhaps most outrageous of all, Committee Democrats oppose William Pryor because they believe his strongly held moral views (being a practicing Catholic) will prevent him from upholding laws that conflict with those views. Democrats have much experience expressing moral outrage, and they were quick to cry foul to charges that good old Catholic boys like Pat Leahy and Ted Kennedy would discriminate against Catholics. And, for once, they were right. Their logic after all, implies that anyone with serious religious convictions is unfit to serve as a judge. One wonders if Patrick Leahy and Ted Kennedy came to this epiphany while watching the Diane Sawyer interview with Ken Starr for 20/20 in 1998 in which she expressed incredulity that someone like Judge Starr, who prays and sings hymns, could possibly fairly investigate an admitted sinner like Bill Clinton.
As demonstrated by the 9th Circuit, and liberal icons like former Supreme Court Justices Blackmun and Brennan (for whom the Constitution was irrelevant, and who ignored stare decisis whenever there was a prior Court precedent they didn't like), Leahy, Kennedy, et. al., want judges whose views will cause them not to uphold the law -- when those views are liberal ones. Indeed, there is not a greater example of personal views trumping the Constitution or existing law than Roe v. Wade. The hollowness of their professed fear about Pryor is manifestly obvious as it is not backed by one single example. In fact, the recent Ten Commandments monument controversy in Alabama -- where Pryor serves as Attorney General -- provided just the opposite illustration. Pryor enforced a law with which he personally disagreed.
Senators Leahy, Kennedy, Schumer and the others making these arguments know they are false. The real reason they feel compelled to destroy these nominees is that judges whose conservative judicial philosophies will cause them to uphold laws and the Constitution as they are written will prevent Senators Leahy, Kennedy, and Schumer and their ideological friends from using the court system to enact liberal policies into law. It is, indeed, Schumer, not Bush, who seeks to use the courts as a sword to effect political change.
Filibustering federal appeals court nominees is not just unprecedented, it is, strictly speaking, unconstitutional, as depriving the Senate the opportunity to vote on the president's judicial nominees violates the Senate's clear constitutional duties. Republicans could circumvent the filibusters by getting a simple majority vote to institute a rule to authorize a full Senate vote on judicial nominees upon the assent of a simple majority of the Senate. Democrats have vowed to shut down the Senate if Republicans do this.
When the emergency funding for the Iraq and Afghanistan missions gets completed in the coming days, it will be an ideal time to force the Democrats' hand. Let them make this a campaign issue. Whereas Democrats have tried to sway voters by employing scare tactics about what conservative judges might do, Republicans can now remind voters of what liberal Democratic appointed judges actually have done -- from declaring the Pledge of Allegiance unconstitutional, to attacking the Boy Scouts, to playing outlandish political games in California. This is an issue Republicans should win. And if we are to restore integrity and predictability to our legal system, it is an issue Republicans must win.
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