- The Washington Times - Monday, March 21, 2005

Senate Minority Leader, Harry Reid of Nevada, is ocular evidence of the Democratic Party’s brain death.

Standing on the U.S. Capitol Steps last week like Horatio at the Bridge in 360 A.D., the wizened senator fretted that a funeral for the republic impended. According to Mr. Reid, the Constitution would end and absolute power would stalk the nation if a majority of senators vote to guarantee the president’s judicial nominees a floor vote on confirmation.

The minority leader’s alarmist fulmination responded to the vow of Majority Leader Bill Frist to end Democratic filibustering of judges. The practice unconstitutionally encroaches on presidential appointment powers under Article II by raising the confirmation threshold to 60.

In Mr. Reid’s deranged mind, honoring the Constitution’s prescription for judicial appointments would lacerate constitutional government: “But now, in order to break down the separation of powers and ram through their appointees to the judicial branch, President Bush and the Republican leadership want to eliminate a 200-year-old American rule saying every member of the Senate can rise to say their piece and speak on behalf of the people that sent them here.”

The senator has mistaken a separation of powers between the branches for a division of power between political parties. The Constitution offers parties no recognition. Indeed, they are unmentioned and were frowned on by the Founding Fathers.

The two-party system in the United States is thus not part of the constitutional fabric. It did not prevail under George Washington’s presidency. During the Era of Good Feelings from 1816-1824, there was but one political party.

Yet the separation of powers remained unimpaired, and democracy flourished. During the New Deal, Democratic President Franklin D. Roosevelt enjoyed staggering Democratic congressional majorities.

The 75th Congress (1937-1939) sported a 319-106 Democrat majority in the House, and a 76-16 Democrat margin in the Senate. FDR disdained the Republican Party in appointing eight stalwart New Dealers to the Supreme Court, who, with alacrity, overruled scores of cases to revolutionize federalism and to enshrine the welfare state. Despite the exclusion of Republicans and “compromise” candidates in Roosevelt’s Supreme Court appointments, several earned distinction, including Associate Justices Hugo Black, Felix Frankfurter and Robert Jackson.

The consensus Franklin Roosevelt cherished was a consensus among Democrats. He scorned a “government of national unity” with respect to judges or otherwise. His years in the presidency when one-party rule earmarked the government did not weaken our constitutional dispensation.

Contrary to Mr. Reid’s insinuation, a minority political party enjoys no right to deflate the meaning of popular elections by filibustering judges supported by the majority. Such filibusters were not even possible under Senate rules until 1949, yet the quality of appointments did not suffer. The minority leader is unable to cite a single allegedly deficient Supreme Court appointment caused by the absence of a filibuster threat.

Mr. Reid obtusely accuses the Republican Party of slashing and burning the filibuster to obtain illegitimate absolute power: “But our nation’s basic rules are there for moments when the eyes of the powerful grow large and hungry; when their willfulness makes them determined to do whatever it takes to win, and prevail at whatever cost.”

The GOP, however, has turned square constitutional corners in the appointment of judges. Last year’s elections offered voters a choice, not an echo, over judicial philosophy. Mr. Bush and Republican Senate candidates unequivocally championed judges in the model of Justices Anontin Scalia and Clarence Thomas. Their Democrat rivals were equally ardent for airbrush artist-like appointees who would invent a constitutional right to same-sex “marriage.” Voters decisively supported the Republican view.

If constitutional democracy means anything, it means Scalia-Thomas judges should be appointed during this Congress.

Mr. Reid fatuously maintains honoring the 2004 elections would mean submission to absolute power: “It would mean that one political party — be it Republican today or Democrats tomorrow — gets to have all the say. It would mean that one man, sitting in the White House, has the practical ability to personally hand out lifetime jobs to judges whose rulings can last forever.”

The essence of democracy, however, is that the winning party “gets to have all the say” (subject to constitutional limitations) until the next election cycle. The minority enjoys no right to a share of power, i.e., a right to a coalition government. That does not make majority power absolute because it remains contingent on popular support expressed at periodic elections.

With regard to judges, no judicial ruling is forever because all may be overruled or eclipsed. Also, justices regularly vote against powers asserted by their presidential benefactors, for example, Justice Tom Clark’s vote against President Truman’s claimed power to seize steel mills during the Korean War.

Mr. Reid’s absurd thesis is that democracy in judicial appointments must be destroyed to be saved. Aren’t Democrats embarrassed by such puerility?

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.

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