Why Judicial Appointments Matter
By Charles Cole (04/29/05)
Amid the hoopla of the current back and forth of the ongoing battle in the U.S. Senate over judicial nominations, some people still wonder why all this matters so much. Why, they ask, is so much time and political maneuvering being spent on an issue that many Americans don’t even understand?
Well, here’s the big deal. Secluded in their Star Chambers, far out of public view, sits a group of omniscient paragons of wisdom and erudition. They wear black robes, wield unprecedented power, and enjoy lifetime tenure. They are not elected, but rather are appointed by the president, subject to confirmation in the U.S. Senate. They comprise a cadre of modern day praetorian guards, staunchly entrenched between the unruly, unsophisticated, illiterate hoi polloi (formerly known as “we the people”) to their right, and our beneficent, all-caring and seemingly omniscient and omnipotent government firmly positioned to their left (usually, far left).
For the caring, compassionate, all-knowing “progressive” elements of our society, the great sea of unwashed hicks (i.e. denizens of the red states) simply cannot be trusted to run live their own lives, much less make decisions applicable to the sophisticated literati residing in the enlightened blue states. Clearly, someone must ensure that society does the things required of a progressive country. Legislatures cannot be relied on to do this, since they are subject to the whims of the boobs.
Enter the vaunted federal judiciary. On a host of issues, from insisting that states maintain legalized abortions, to denying states the right to consider aggravating factors in sentencing decisions relating to minors, to foisting a whacky, far left view of what the “definition of marriage” should be, these contemporary Delphic oracles repeatedly use their powers of constitutional interpretation to rewrite laws, overturn completely proper and well reasoned judicial decisions (of state courts and lower federal courts), and create new “rights” out of whole cloth!
There are two underlying factors which have caused the Senate Democrats to engage in the heretofore unprecedented practice of filibustering judicial nominees. First, since they are no longer able to implement their leftwing agenda through legislative means, they must rely on judges to carry their water for them. Second, and this is a very important point, they have circled the wagons around the federal circuit appellate courts.
The first point above is well known. The second point has long been a stealth issue. To understand its relevance, one must keep in mind that federal district courts are trial courts and do not issue rulings which become binding precedents on other courts. Federal appellate courts, however, review a host of issues and rulings of lower courts and their rulings DO become binding precedent in the circuit where they are located. Their rulings are also often cited by other federal courts in applying law to fact patterns.
Viewed in this light, it is not surprising that the Senate Democrats continue to attempt to mask this important difference. Note how often they parade out their moth-eaten mantra of having approved 95% of the President’s judicial nominees. But what they fail to tell you is that this includes federal district court judges. The approval rate of Mr. Bush’s circuit court (appellate) nominees is only 67% -- far below the approval rate of appellate judges in prior administrations. They have focused their filibusters on appellate court nominees for fear that conservative, strict constructionist judges may overturn many of the loopy leftwing rulings and decisions submitted to them on appeal from lower courts.
The other argument the Democrats have employed is that the safeguards of checks and balances via the filibuster must be retained at all costs. For them to say this in public is simply hypocritical hubris! Nine sitting Democrat Senators (including some of the most vocal opponents to eliminating the current filibuster of judicial nominees) themselves supported, in 1995, the elimination of filibusters of legislation! That’s right – these same self-righteous blowhards are now excoriating the very position they themselves took just ten years ago!
As it turns out, this issue IS a “big deal”. And the Republicans in the Senate would do well to listen to the growing crescendo of demands from their own party’s constituent voters and begin acting in the interest of the country, rather than continuing to bend over backwards to achieve some nebulous “compromise” with Democrats who are intent on ramming this unconstitutional procedure down the throats of the American people. If Republican Senators enjoy being in the majority, then it’s time for them to start acting like it! Their constituents are starting to wonder why they worked so hard to elect these Republicans if the latter care more about the “comity of the Senate” than they do about the direction in which the federal judiciary is taking this country.
Memo to Republican Senators: are you listening?
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