WASHINGTON — Drat. The battle royal I predicted last week is off in the U. S. Senate. The battle was to be fought between the Democrats and the Republicans over what conservatives call “the Constitutional option” and the liberals call “the nuclear option.” That it was reported throughout the media as the “nuclear option” is still more evidence that the media are liberal. Obviously the argument over whether the media are liberal or not is another of America’s unnecessary debates.
So too is the argument over whether the President’s judicial nominees are “activist” an unnecessary debate. What distinguishes the President’s nominees from what in the recent past have been the Democrats’ nominees is that the President’s nominees pledge that their judgments will be restrained by written law, and the Democrats’ nominees make no such pledge. Obviously the judicial nominee who pledges to be restrained by the law cannot possibly be an “activist.” The Democrats’ nominees can be as “activist” as they want.
The very term “activist” historically was first used in the legal sense to apply to liberal judges, mostly Democrats. So far from judicial restraint have liberal judges wandered that now many take into account not only the Constitution but also social trends. In fact the latest fashion among these judges is to take into account international law. Recently Justice Anthony Kennedy in his majority opinion abolishing the juvenile death penalty invoked the “overwhelming weight of international opinion.” Now that is activism compounded with cosmopolitanism.
Again, the debate over whether the President’s nominees are activists is clearly unnecessary. Another way of putting it is that the debate is dishonest. The real “activist” judges are the liberals. Truth be known, Democrats have usually had no complaint with activist judges. Democrats are so weak in the legislatures of America that they can no longer make law. Consequently, they rely on their activist judges to make law for them. But if the debate over the term activist is unnecessary, this is not to say that the struggle over the President’s nominees is unnecessary. This week the White House and Senate Majority Leader Bill Frist blinked during one of the most important political battles of our time. It is a battle to decide who makes the law: legislators or unelected, unaccountable judges?
The White House was feckless in influencing wavering Republicans in the Senate. Senator Frist was incompetent in allowing seven of his senators to break ranks. Now there is calm in the Senate. There is drift. Yet the storm will come anew. The compromise worked out by Senator John McCain and seven Democrats cannot possibly hold. According to the compromise, the Democrats say they will filibuster future presidential nominees only for “extraordinary circumstances.” Thus all will depend on what the Democrats deem “extraordinary.” As we have seen, the Democrats already claim that a judicial nominee pledged to judicial restraint is an “activist.” Can people who so willfully twist the meaning of a word be relied upon to abide by the meaning of the word “extraordinary”?
Republicans were hoping to eliminate the judicial filibuster this week so that they could confirm judicial nominees with a simple majority — 51 votes rather than the 60 votes necessary to shut down a filibuster. They had their eye not only on the judicial nominees who have been languishing unconfirmed for years because of the Democrats’ filibuster threat but on the Supreme Court openings that are likely to develop this summer. With Chief Justice William Rehnquist’s health in doubt, such an opening will probably come before the summer ends. Then does one really think this week’s vaunted compromise will hold?
By almost anyone’s interpretation a Supreme Court opening can be described as “extraordinary.” When the opening occurs the Senate will be right back to the brink of a battle royal. Little has been gained in this compromise, save perhaps a proper appraisal of Senator Frist. He is not a leader. The battle royal will come when the President nominates Rehnquist’s successor. The Democrats will be even more desperate and their character assassination of the President’s nominee will be even more reckless and damaging to the nominee and to the court.