- The Washington Times - Friday, May 27, 2005

The agreement brokered this week by Sen. John McCain of Arizona and six other Republicans to preserve the power of 41 Senate Democrats to veto Republican judicial nominees was a one-sided deal, preserving a one-party vehicle Democrats will use to keep driving America on what they hope is a one-way trip to the left.

It was a one-sided deal because Senate Democrats retain the key power they need to control the direction of the courts, while Senate Republicans retain their key deficiency: Democrats can still stop a Republican judicial nominee with 41 votes. Republicans still cannot confirm one with 59.

The judicial filibuster is a one-party vehicle because Republicans can be counted on to never use it. The Democrats, on the other hand, have already demonstrated their will to use it repeatedly and — thanks to McCain & Co. — will now use it again, most likely to try to block any Supreme Court nominee they fear could shift the court in a conservative direction.

It is true that in October 1968, one month before a presidential election, some Republican senators used a filibuster to block lame-duck President Lyndon Johnson’s attempt to elevate the ethically challenged Abe Fortas from associate justice to chief justice. But that was not a strictly partisan effort. Nineteen Democrats voted to block cloture on Fortas, who later resigned from the court. Not one Republican has voted to block cloture on any of President Bush’s 10 appellate court nominees who were filibustered by Democrats in the past two years.

Appearing on MSNBC’s “Hardball last” month, Mr. McCain argued Republicans should retain the judicial filibuster because they might want to use it themselves someday. “I say to my conservative friends, some day there will be a liberal Democrat president and a liberal Democrat Congress,” said Mr. McCain. “And do we want a bunch of liberal judges approved by the Senate of the United States with 51 votes if the Democrats are in the majority?”

But that “someday” already happened. In the early 1990s, we had a liberal Democratic president and a liberal Democratic Senate. President Clinton nominated former American Civil Liberties Union lawyer Ruth Bader Ginsburg and former Ted Kennedy aide Stephen Breyer to the Supreme Court. Both won the eager support of most Senate Republicans. Mr. McCain meekly voted for both.

Both went on to predictable careers as liberal activists on the court, voting even to declare partial-birth abortion a constitutional right. But do you hear Mr. McCain lamenting now that he voted for — let alone failed to filibuster — these Clinton liberals? No, the great maverick is too busy polishing the bipartisanship that has earned him the liberal media’s love.

This brings us to America’s court-driven journey leftward, which McCain & Co.’s deal would help the Democrats make a one-way trip. In recent decades, unelected judges have usurped the role of elected legislatures in deciding questions that go to the very core of American life. Can a doctor kill an unborn child? Is marriage only between one man and one woman, or can two men or two women “marry” each other? Does the First Amendment protect a “free speech” right to sell pornography, but not for public policy groups to speak freely through paid advertising during a federal election? Can prayers be said in public schools? Can the Ten Commandments be displayed on public property? Must God be expelled from public life?

On all these questions, unelected judges have been driving America to the left. By electing and re-electing President Bush, who promised to put constitutionalists on the courts, and by electing a 55-member Republican Senate majority, voters have tried to drive America back to the right. But thanks to McCain & Co., liberal Democrats still have a grip on the steering wheel.

Terence P. Jeffrey is a nationally syndicated columnist.

Copyright © 2018 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide