If the process for confirming federal judges in the next session of Congress is at all like the last, the Democratic Party should change its name to the Undemocratic Party.
Many of the American left’s chief policy aims over the last 40 years — including legalized abortion on demand, race-based admissions for state-run colleges, and driving God and prayer out of American public life — were advanced not at the ballot box or in legislatures, but by unelected federal judges who enacted the liberal agenda by fiat from the bench.
There was a simple reason for this: The American people had too much good sense to give the liberal agenda majority nationwide support. To win, liberals had to cheat the democratic system. To do that, they had to make sure the referees were on their side.
It did not matter if a large majority of voters in a state backed a conservative initiative, or if a supermajority of the U.S. Congress enacted a conservative law. All the liberals needed to prevail was for one federal judge to take their side, and at least five members of the U.S. Supreme Court to rule for them if a conservative appeal made it that far.
Time after time, conservatives have seen their legislative touchdown passes flagged by left-wing judges. In one of the most egregious examples of the 1990s, a federal judge tossed out California’s Proposition 187, an initiative passed by 59 percent of the voters that simply said illegal aliens could not receive nonemergency public benefits in the state. This year, federal judges overruled the federal Partial-Birth Abortion Ban, which had been enacted with support of 64 U.S. senators.
As this undemocratic system of government-by-judges has become the settled way Americans decide major social issues, the primary role of the national Democratic Party has shifted from making sure liberal legislation gets through Congress to making sure constitutionalist judges do not.
The last thing the Democrats want now is a federal bench dominated by fair and honest referees, who are guided by the rulebook known as the U.S. Constitution, not by the eccentric policy aims of the Democratic liberal elite.
But democracy itself has at last cornered the Democratic Party. By electing and re-electing a Republican president and by expanding the Republican Senate majority — in national campaigns where the direction of the federal bench was an unambiguous issue — the American electorate has offered the Democrats a choice: confirm constitutionalists judges now, or become even more of a minority party tomorrow.
President Bush shrewdly sharpened that choice for the Democrats last week when he announced intention to renominate 20 candidates for the federal bench who were blocked by Democrats in the last Congress.
The best thing Mr. Bush can do in his second term to advance the cause of freedom in the United States is to secure the confirmation of constitutionalist justices to the Supreme Court. But the second best thing he can do is to drive more liberal Democrats out of the Senate by forcing them to fight against constitutionalist judicial nominees.
In the last Congress, the Democrats blocked many Bush judicial nominees by invoking cloture, which requires a vote of 60 senators to bring a nomination to a final floor vote. The architect of these filibusters was then-Senate Majority Leader Tom Daschle, South Dakota Democrat. He was defeated for re-election by conservative Republican former Rep. John Thune.
Senate Republicans now ponder changing Senate rules to prohibit filibusters of judicial nominees.
One possibility is called the “nuclear option,” by which a simple majority of senators could affirm a ruling on the Senate floor by Vice President Dick Cheney that it is unconstitutional to filibuster judicial nominations.
Recently in Human Events, Sen. Orrin Hatch, Utah Republican, the outgoing Senate Judiciary chairman, suggested another possibility. In the last Senate, he and Senate Majority Leader Bill Frist, Tennessee Republican, co-sponsored Senate Resolution 138 to change Senate filibuster rules. It “would apply only to nominations,” said Mr. Hatch, “and require a declining supermajority on successive cloture votes — from 60, 57, 54, 51, and finally a majority of senators present and voting.”
Republicans could enact this change by a simple majority vote when they first adopt the rules for the incoming Senate.
Whichever remedy the Republicans select, they are now in a win-win situation, as long as they fight for Mr. Bush’s nominees. Either the Democrats cave and confirm the president’s picks, or they continue obstructing democracy on the floor of the Senate and suffer the consequences in 2006.
Terence P. Jeffrey, the editor of Human Events, is a nationally syndicated columnist.