Strengthening Constitutional Self-Government

No Left Turns

Prediction

The Democratic attack on Alito will get no traction, and he will end up getting confirmed readily, after lots of delays and huff-puffing. The Bork-Thomas phenomena is receding, and we are slowly returning to a more normal and sane confirmation process. If the Dems filibuster, they’ll look even worse than they do taking the Murtha line on the Iraq war. I doubt they can sustain a filibuster.

Discussions - 9 Comments

The Bork-Thomas phenomena is receding, and we are slowly returning to a more normal and sane confirmation process

I am not sure that is true at all. What is happening is that Republican nominees now have their backgrounds vetted first and foremost for "confirmability." Superior intellect, judicial temperment, and ideological soundness are still considerations, but they come into play only after a potential candidate passes the "astonishingly anodyne" test. When the judiciary stops exercising an unconstitutional legislative function the Bork-Thomas phenomena will end. It will end because the control of an unelected unaccountable super-legislature will no longer be at stake. Until then, the only thing which stops hearings from becoming circuses will continue to be this hyper-vigilant vetting process.

Before conservatives feel self-congratulatory about the success of this heavy vetting tactic, we ought to consider how profoundly alien the whole slick package - stealth nominees, senatorial talking points, evasion, the refusal of future (unelected) social super-legislators to answer questions about social policy under the guise of avoiding future bias - how profoundly alien all of this is to the spirit of a representative republic. Are we forced into these tactics? I guess. Is Bush willing to raise our game by nominating someone who will engage in a full and frank exchange of views about judicial tyranny in front of the American people (Janice Brown)? Nope. He would rather take big gambles on the long term future of the court by nominating safe short term bets to get through committee and get a vote. This involves treating the public to a nominee/senatorial dance-off wherein ridiculous evasions and even sillier attempts at character assassination take the place of a once in a decade chance to make the case for restoring the judiciary to its traditional role.

I am not sure this kind of near-dishonesty is good tactically; I know it is bad strategically. We will never convince a majority of the American people that it is a good idea to restore the traditional role of the courts by sneaking "ours" on to courts until they outnumber "theirs." When we act this way we demonstrate an implicit acceptance of the leftist subversion of the courts; we act as though we can make the courts "our" super legislature instead of "theirs."

We are right, we can win the day rhetorically with the right candidate, and even if she loses, poltically we win. Don’t want Janice Brown, Senator Feinstein? OK, Michal Luttig, then. Next nominee, even tougher. Rinse, repeat. As things stand now, everytime our nominee wins, we still lose. Our nominee has to dance around rhetorically in a way which tacitly accepts the illegitimacy of conservatism and the impossibility of restoring traditional role of judges. I want it all; good judges and an aggressive promotion of judical restraint. The worst thing that can happen is that we have to send up another nominee; meanwhile the whole nature of the debate has changed and we have remained faithful both to a higher principle and to the spirit of open and honest debate. Sorry this post is so long.


I think WM hits the nail on the head.
What matters isn’t so much whether the specific Bork scenario will be repeated, but whether the lines drawn by the liberals at that time are still enforceable. Sadly, it appears that they are.

And even at that, I don’t assume that the Alito confirmation will be easy. The Judiciary Democrats are vicious, ruthless, conscienceless, and power-mad -- as bad as the Left interest groups. Whatever might be rational for them, they are strongly tempted well beyond that. Their fundamental character, or rather lack of character, must be considered here. And it points toward a nasty battle.

Thanks, wm. The country is full of liars. The Democrats won’t admit what it means to say that Const. won’t even allow the people to outlaw partial birth abortion, based on the widely shared perception that it’s at least very close to murder. The Republicans (like Roberts and Alito) won’t just say that ROE and CASEY should be reversed in a way that the most people can understand and accept. If the median American really believes that abortion should be allowed to some extent and restricted to some extent (maybe shut down after three months), the Republicans should be able to explain that the Court keeps now them from passing laws that reflect their "moderate" and certainly conflicted views. Even if you agree with the overrated and over-publicized argument of Hart that the law should register the results of the feminist social revolution, where in the Constitution does it say that it’s the function of the Court to make that determniation? Unless the Republicans come out of the closet on this and make a direct and persuasive appeal to the people, a 5-4 reversal of CASEY really will seem illegitimate, and the Court won’t have the guts to do it (as they didn’t in 1992).

If the Dems filibuster, they’ll look even worse than they do taking the Murtha line on the Iraq war.

But the most rabid and vocal-wing of their party is not only demanding these Democrats to "look even worse," they hold the almighty purse-strings that enable the Democrats to compete. How much longer can these Democrat politicians keep telling these DailyKos and MoveOn people to back off? How many more elections will Democrats try and play, ala Kerry, on both sides of the ball?


How many more elections will Democrats try and play, ala Kerry, on both sides of the ball?

let them...

A better question is why, seeing their weakness, we do not use this opportunity to promote our vision of the correct function of the judiciary in a straightforward way. Our ideas are better, I am confident over the medium term we would carry the day.

I’m with WM, why doesn’t the GOP use this moment of turmoil and unrest in the Democrat ranks to launch a general, cultural counter-offensive.

How?

Easy!

Begin with state and federal funded universities. Call hearings, at the hearings haul up some of the worst offerings of the rabid leftist professiorate. Read out some of their kooky writings, then demand to know what the idiot in question could possibly have meant by comparing Bush to Hitler, America to NAZI Germany, you get the idea. You have to be aggressive. When you get done with those academic specimens, you immediately haul in the administrators, the Deans, and those responsible for hiring and granting tenure to such a pack of loons. Once College administrators begin to fear getting hauled up before a Congressional committee, where some young Congressman is looking to make a national name for himself, we’ll soon see a significant ameilioration in the politically correct tone on the campuses.

Recall, they run with people’s money. No money, no fun, or as it was said in the movie The Right Stuff: "No bucks, no Buck Rogers!"

That is just the grandstanding part of a general counter-offensive. The other part has to be the withholding of federal education dollars, absent significant educational reform in American colleges. Rattle ’em.

Another aspect of the counter-offensive, would be denying press credentials to the NYT.

THERE MUST BE CONSEQUENCES for the type of stories they’ve been running. You can’t shut them down via censorship, but you can certainly begin marginalizing them. Recall when the GOP said that it would no longer rely upon the American Bar Association after what they did to Bork, and the political stands they were adopting. The Bar Association immediately was chastened, and haven’t been causing as much of a problem, {as they would probably like, they haven’t changed, but they were forced to tack}.

Get aggressive, and begin to start thinking imaginatively.

Folks, I’m sorry, but the Democrats, the Party of FDR held the purse-strings of this country, the U.S. House of Representatives for forty straight, uninterrupted years! That is one helluva historical feat, folks. Now, from what I can see, they seem to be on the very verge of commiting suicide.

Republicans, RINOs and McCain notwithstanding, are too damn busy governing (sometimes albeit not very well) to to do anything but get the hell out of the way of the huge falling carcass called the Democrat Party.

But I can assure you that when that beast finally hits the floor, the sound will be felt by all, and the aftershocks may very well rip this country to shreds when all is said and done. The last time a major new politcal party arose from the ash-heap of history, it wasn’t long before this nation was embroiled in a damn bloodly mess!

It occurred to me that appearing before a Senate confirmation hearing is like experiencing Judgment Day in reverse: The righteous appear before a panel of sinners and seek absolution for having lived a virtuous life. Similarly, the old definition of hypocrisy as the tribute that vice pays to virtue has been turned on its head. As their good words and deeds from memos and court decisions past are mercilessly exposed, nominees backpedal furiously to disown their unassailable beliefs. Thus, this ritualized dance can be seen as the tribute that virtue pays to vice, particularly with regard to abortion:

“No, I didn’t really mean it, Senator, when I wrote that killing babies shouldn’t be regarded as one of the cardinal virtues. I was a hired gun. That is what my client paid me to say. I may have believed that then, but I can’t for sure say that I believe it now. I was young and immature and eager to please. Times change. I promise not to be so indiscreet in the future.”

It might be said that being pro-life has become the virtue that dare not speak its name. It would be refreshing, albeit perhaps suicidal (and hence not pro-life) if a nominee were to look his inquisitors in their eyes, and say forthrightly: "Senators, you are seeking candor from me, but the American people are entitled to as much from you. Be frank. Admit that you are so adamant in your defense of abortion--not ’choice’ by the way--because, deep down, you believe that American constitutional law distills to a single principle: namely, that Americans must be free to copulate with impunity -- anytime, anywhere, with anyone, in any manner. Since babies sometimes result, and they can be inconvenient, abortion is an indispensable escape valve for persons who believe as you do. It is appalling that American liberty should be trivialized in this fashion or reduced to this level. It was not for this that patriots have died."

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