Monday, May 16, 2005

Who decides what is 'mainstream' jurisprudence?

Apparently left wing senators get to decide. Editorials like this one are useless to the debate.
So who should be confirmed? The Constitution gives the Senate joint responsibility, with the president, for the selection of judges. The standard should be whether a nominee's legal philosophy is within the broad mainstream of established law. Even Democratic leaders concede that at least two of the disputed seven (Griffin and McKeague) meet that minimal test. The records of some of the others, notably Brown and Owen, are more problematic, particularly in their willingness to challenge settled law.
ONE of the problems with this type of logic, that only nominee's within the "broad mainstream of established law" ought to be concerned, is the question of who decides what "mainstream" means. According to the Editorial board at USA Today, mainstream is defined as a few Democrats joining Republicans to approve a nominee. Now, there are several Democrats in the Senate who will vote for the Bush nominees, Ben Nelson of Nebraska being one, and there are apparently others who will as well. Why does Barbara Boxer get to decide what "mainstream" is? Surely that thought bothers millions of people around the country who didn't vote for her and never would.

As to the question of who decides what is "mainstream" we should look at the system, how it is set up and hopefully it will provide an answer. In this country (Hint: Its in the name of the newspaper), a majority of the elected representatives to the US Senate decide whether or not a nominee is qualified and should be approved (or consented to). For over 200 years, if a majority of Senators voted to approve a nominee, that person was then appointed by the President to his or her judicial post. In America, we can safely say that "mainstream" ought to defined by the majority, not the minority.

This lapse of logic by USA Today (and other making the pro-filibuster argument) stems from a lack of understanding, not just of our Constitution (I'm being generous, willful distortion may be a more accurate description) but of the Separation of Powers embedded in our Constitution. Some have argued, that the filibuster rule exists to ensure a separation of powers so as to avoid one party rule and protect minority rights. This is simply wrong. The Founders sought to separate powers so as to make it more difficult for government to do all things because they understood that the more government acted, the more freedom was lost. That is why they pitted each branch against each other. The Constitution does call for certain interaction between the branches as the mode of accomplishing government acts. Here, the Senate is a check on the President.

Separation of powers, and checks and balances, in the Constitutional scheme does not mean to separate one party from too much power. There weren't political parties when the constitution was written. God knows that for most of the past century, the Democratic party held majorities in both Houses of Congress and often held the presidency. It was often said that there was de facto one party rule. They weren't worried about separation of powers then. Separation of powers means that the other branches of government check each other. If the a majority of the Senate approve of a nominee, then the Senate approves. That's how this has worked for over 200 years. If changing the filibuster rule is required to revert to that system, then so be it.

The Democrats clearly don't like being in the minority, not after so many years of "one party rule". But really their aversion to these nominees is not that won't respect the "broad mainstream of established law" but rather that these nominees may write opinions and make judgments that Democrats/Lefties/Liberals don't like. That looks like policy shopping to me, and after 70 years of liberal leaning judges rewriting the constitution from the bench to enact an agenda that can't get passed democratically, Democrats' new found fealty to history, traditions, the constitution and established law comes up a little short. Hopefully, so will their efforts to block judges that will actually pay attention to those things.