Judicial Profiling By The Democrats
By Randall Nunn (04/29/05)
It is time for the Republicans in Congress and the White House to stop pussyfooting around and act like a party with a mandate from the voters. Thus far, the Republicans have not shown themselves to be particularly effective in the battle over confirmation of judicial nominees nor skillful in their explanation of the issues involved in this constitutional confrontation.
The issue is relatively simple to articulate. The Constitution provides that the president appoints Supreme Court justices and judges to the lower federal courts, with the advice and consent of the Senate. The president, not the Senate, is empowered to select the judges. The Senate passes on their fitness for the office, voting to confirm or not by a simple majority vote. The Democrats are preventing a majority vote and trying to use their abuse of the filibuster to amend the Constitution, de facto, by requiring the concurrence of 60 Senators to confirm a judge. The Democrats are perverting the Constitutional requirements by denying confirmation because of a nominee’s judicial or political philosophy, rather than “fitness” for the office.
Alexander Hamilton, writing in The Federalist Papers, explained that allowing confirmation of such appointees by the Senate “would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Never was it suggested that a nominee’s beliefs about the nature of the government or the judicial system should be a factor. What could be more sensible than to allow the president to appoint people who share his vision of government and the proper role of the judiciary in that government? Should the Senate be allowed to force Cabinet members on the president who disagree with his basic policies? Of course not. The president was elected by a majority of the voters because they agreed with his policies and positions on important issues. The president should be allowed to carry out his duties with cabinet members and other appointees of his choice, so long as they are “fit” for that position. Judicial nominees should be no different.
The Democrats in Congress, and their confederates in the mainstream media and academe, are engaging in judicial profiling. Anyone who is conservative is presumptively not entitled to a vote in the U.S. Senate because the minority has decided that conservative principles are unacceptable in judicial nominees. And if the nominee is philosophically opposed to certain pet liberal doctrines and ideals (e.g., restrictions on religious expression and abortion rights), then such nominee must be stopped. This is nothing more than a campaign to frustrate the ability of the president and Congress to carry out their programs and to overrule the majority by imposing the elitist liberal philosophy on the country. If this is allowed to continue, what is the purpose of elections?
The arrogance of the Democrats and their liberal allies is not concealed in the slightest. Reuters news agency reported this week that “Top Democrats on Monday raised the possibility that they might permit some of the seven nominees to be confirmed, provided others were dropped.” The minority is telling the president and the majority in the U.S. Senate that they “might permit” some nominees to be confirmed, “provided others were dropped.” This is tantamount to telling the president that they—the liberal minority—will select the judges and the Constitution be damned. Of course, the liberals get away with this because Reuters (like the rest of the mainstream media) reports this without any comment or opposing viewpoint.
The Democrats in the Senate are, in effect, telling the country that they will force their choices on the president and the majority whether they like it or not and despite the Constitution. Their arrogance and disdain for the U.S. Constitution ought to be exposed and criticized by the media and the majority in Congress. Instead the media treats this battle as a fight by Democrats to prevent “extremist” judges from being appointed while at the same time some Republicans treat it as merely a squabble over Senate rules.
If respect for the rule of law and our judiciary is to be restored, it is vital that more strict constructionist judges be placed on the bench. If Republicans in the Senate don’t have the courage to set aside Senate “clubbiness” and collegiality on an issue like this at a time when a majority of the country is incensed over social engineering by judicial decisions, they are not doing the job they were elected to do. And when elected representatives don’t do their job and refuse to act in accordance with their campaign representations, it is time to “un-elect” them.
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