- The Washington Times - Thursday, August 5, 2004

Just before closing shop until September, Senate Democrats began filibusters on four more circuit court nominees. The names and the faceless number (now 10) are ever less important with each new obstruction. What matters increasingly is the abuse of the Constitution in the unprecedented use of the filibuster to block the Senate from having an honest vote, up or down.

That is an issue that President Bush and senatorial candidates will take to the American people this election. But what is the debate over judges really about? For the answer we need look no further than to the two indispensable men — George Washington and, yes, Ronald Reagan.

Washington’s first criterion for selecting judges was simple: He would not nominate anyone who had not recently supported the new Constitution. He wanted no judge who would seek to rewrite or undermine it. So, too, Ronald Reagan. The 40th president told a partisan Senate Judiciary Committee chairman, Republican Strom Thurmond of South Carolina, that judges should be neither liberal nor conservative, but “constitutionalists.”

Washington thought the judiciary was the most important of the three branches of government because it would protect our liberties. For Mr. Reagan, liberty was less urgently at stake than the legitimacy of the courts and the Constitution itself.

Such past statesmanship only adds to the current disgust one has over the toxic culture of the Senate Judiciary Committee and New York Sen. Charles Schumer’s effort to corrupt judicial selection with ideology. While Sen. Orrin Hatch, Utah Republican, bears responsibility for the partisanship, if only by his consistent surrenders to the bullying of Sen. Patrick Leahy, Vermont Democrat,Democratshave stepped well beyond that pale. Liberals under Sen. Tom Daschle, South Dakota Democrat, are attacking constitutional supremacy itself and the independent judiciary that John Adams so carefully crafted.

Clinton White House Counsel Abner Mikva illustrated the liberal plan in a 2002 article. In light of Bush v. Gore, Mr. Mikva said, the Senate should not confirm any Bush appellate nominees, since this president had lost the popular election. From the start, the fight over this president’s judicial nominees was plainly not politics as usual, even if it was rooted in decades of judges pursuing political ends with scant regard for what the people’s elected representatives, including the Constitution’s Framers, wrote or intended.

The balancing between a disinterested judiciary and political divisions in interpreting constitutional law is an old debate, and one that Americans had reason to believe was settled long ago. Thomas Jefferson thought that interpretations of the Constitution should be left to a majority vote of the Congress, a result demagogues like Mr. Schumer would relish. This is, in fact, what is done in some banana republics. But American constitutionalism, including the independence of the judiciary and court review of laws that politicians in Congress enact, has been the key to making America as economically strong as we are, as compared to other democracies.

Had Jefferson not been packed off as our ambassador to France while the Constitution’s Framers met in Philadelphia, American history might have unfolded differently. Our experiment might not have survived the shifting sands of political manipulation. The American Revolution might well have ended much like the French.

Although Jefferson’s view did not prevail, Democrats now are trying to achieve the next closest thing: subjecting the third branch to the Senate’s will. The new liberal view includes an expansive role for Congress. Mr. Mikva illustrated this, too. He took issue with the Supreme Court for making what he termed “political thicket” decisions, including those that impose “limits on what areas Congress can regulate” and that “cut back substantially” on governmental conduct “even when legislatively authorized.”

Yetthisisjustwhatthe Supreme Court must do to limit an overreaching Congress. Overreaching is not limited to liberals. Mr. Hatch, a Republican, has sponsored more legislation later held unconstitutional than most senators put together. We should be glad the Supreme Court will act to restrain our overreaching politicians, even if we disagree with some results.

This is what the fight is all about. Democrats fear not only that what was wrongly legislated through the courts in the past to their satisfaction could just as easily be undone, but also that laws they adopt on behalf of trial lawyers and other special interests could suffer from judicial scrutiny as well. So, they have undertaken to block nominees in ways far beyond the mere tug-of-war of confirmation politics. The Daschle Democrats have successfully effected a fundamental amendment to the Constitution without the people’s assent.

Rather than seeking to determine the judiciousness of a nominee — that ability to rule on the law or the Constitution without personal bias — Democrats are out to guarantee that our judges are just that: biased for particular plaintiffs.

The legitimacy of our courts, and especially the Supreme Court, comes from much more than black robes and a high bench. It comes from the people’s belief that judges will act without regard to personal politics or bias. Senate Democrats, like John Kerry of Massachusetts and John Edwards of North Carolina, are pursuing an end to that judicial independence with unforeseeable, unintended consequences to a unique national strength. In the America they would reshape, citizens will have to worry about the personal ideology of the judge to whom they come for justice under the law.

More than just complain about an obstructionist Senate, Mr. Bush needs to explain to the American people all that is at stake.

Manuel A. Miranda served as counsel to Senate Judiciary Committee Chairman Orrin Hatch and Majority Leader Bill Frist. He now chairs the Ethics in Nomination Project.

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