- The Washington Times - Saturday, May 28, 2005

“I don’t know what more I can do to convince you that I really love you, Janie,” says the male character in a one-frame cartoon.

“Joanie,” replies the woman by way of correction.

Setting out this past week to prove he adores America, responsibility and institutional probity, John McCain actually proved he is one sorely confused politician. Like the cartoon suitor who didn’t even know the name of the woman he was courting, he got the most fundamental thing wrong. To head off an immediate Senate dustup, he furthered judicial tyranny. He helped squelch a non-outrage for the sake of a real one.

Of course, Democrats and the liberal pundits don’t see it that way. They have applauded this Republican for his role in leading 14 so-called moderates of both parties in a deal to prevent his own party from doing the right thing. The aim had been to alter filibuster rules to stop Democrats from a continued and unprecedented abuse of them to systematically thwart an up-or-down majority vote on the Senate floor of judicial nominees. Under the deal, the rules are preserved as is, but Democrats won’t use the filibuster against nominees except under “extraordinary circumstances.” Will we all live happily ever after? Is the republic safe at last?

No. Under the deal, a few Bush nominees may get approved, but others still won’t reach the floor for a vote, and the filibuster — which can only be ended by a 60-vote supermajority — will certainly return if the president nominates a halfway decent candidate for any Supreme Court vacancy.

The clear fact is, the deal will not enable the president to fill enough court vacancies with adamant nonactivists to tame a judiciary that shrugs its shoulders at the Constitution and the limits of its role in our tripartite governmental system. The deal will leave largely intact a judicial oligarchy that smugly, illegally and destructively overthrows laws it doesn’t like with no constitutional authority and no convincing intellectual excuse.

I have heard some describe the concern about these all-powerful judges as purely the wailings of social conservatives, but that’s not true. My own concern and that of many like me is the subversion of the basic principles of the grandest political experiment in world history, this thing we call American democracy and the rule of law, not particular societal consequences of that subversion.

While I think Roe v. Wade was a constitutionally suspect ruling, for instance, I also agree you don’t overturn decisions of that magnitude for many, many years, and I don’t think most states would change their abortion laws much if the ruling did disappear. I do believe the chief fear of many opposing Mr. Bush’s nominees is they just might nick away at Roe v. Wade.

The average American was confused about talk of a filibuster fight and thought it pure foolishness, I heard several journalists say on TV by way of self-fulfilling prophecy. News outlets, by and large, did not do a great job of explaining the Republican side of the issue. I may have missed it, but did not notice many bothering to list all the prominent Democratic senators who said at one time or another that judicial nominees should be approved or disapproved by an up-or-down vote, a fairly simple, straightforward concept. Few reports I read or saw bothered to explain what many consider the bounds of judicial review. The journalists I read mainly spoke of a possible catastrophic blowup because of partisan extremism, while telling us, too, that “moderates” just might save the day.

Moderates, my big toe. To be in the middle of two sides does not make you ipso facto moderate, if by “moderate” you mean “wise” and “temperate” on what counts the most. Being in the middle may simply mean you don’t get it, or that you are wishy-washy or conniving or a fraidy-cat, or someone just wanting to be a good guy — the ambition, as best I can tell, of Mr. McCain, who failed to achieve the status because of a lack of alertness. It’s “Joanie,” senator. Not “Janie.” “Joanie.”

Jay Ambrose is former Washington director of editorial policy for Scripps Howard News Service.

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