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Jewish World Review May 30, 2005 / 21 Iyar, 5765

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Senate slapstick

http://www.NewsAndOpinion.com | The deal on confirmation of judicial nominees seems to have been struck by seven Democrats essentially supported by their party's base and seven Republicans at odds with theirs. It contains one crucial phrase — Democrats will filibuster only in "extraordinary circumstances" — and it is undefined.

Unless it is defined by the Democrats' recent behavior. But can anyone contrive to tickle coherence from that behavior?

Democrats have agreed to stop filibustering the confirmation of three judges they have hitherto identified as extraordinarily dangerous to fundamental American liberties.

One of the three, Priscilla Owen, is an impeccable representative of mainstream conservative jurisprudence. Have Democrats reserved the right to filibuster similar nominees?

Another of the three, Janice Rogers Brown, is out of that mainstream. That should not be an automatic disqualification, but it is a fact: She has expressed admiration for the Supreme Court's pre-1937 hyper-activism in declaring unconstitutional many laws and regulations of the sort that now define the post-New Deal regulatory state.

Conservatives are justified in believing that her libertarianism will usefully leaven the federal judiciary. But have Democrats, by allowing her confirmation, said that a nominee like her does not constitute an "extraordinary circumstance"?

Majority Leader Bill Frist's promise to "closely" monitor Democrats' compliance with the deal concerning judicial confirmations will not require minute measurements with a jurisprudential micrometer. Democrats, that herd of independent minds, will or will not, as a bloc, filibuster a nominee whose only discernible disqualification is his or her deviation from the prevailing consensus in the faculty lounges of the Yale, Harvard, Michigan, Chicago, Stanford and Columbia law schools.

The infinitely elastic phrase "extraordinary circumstances" may have various meanings when the issue is filling a Supreme Court vacancy. If the vacancy is occasioned by the retirement of a conservative justice, the phrase may mean that Democrats will find nothing "extraordinary" in President Bush's nomination of someone like Judge Michael McConnell of the 10th circuit, whose many impressive opinions and other writings are broadly respected, if disagreed with, by most occupants of those faculty lounges.

But what if the issue is replacing a liberal — say, Justice Stevens, who is 85 — and thereby changing the complexion of a closely divided court? Then Democrats may suddenly discover the charms of natural law theory and announce that a "balanced" court is ordained by the laws of nature and nature's G-d, so the nomination of even a mainstream conservative jurist would constitute an "extraordinary circumstance."

The compromise is a mere pause, and arguably a prudent one, in a protracted fight. However, it looks to many conservatives like a defeat, partly because of Frist's own rhetoric, which was tactically imprudent and mistaken as a matter of constitutional law. Instead of just correctly arguing that the Democrats' obstruction of up-or-down Senate votes on judicial nominees was wrong —a violation of the ethics of legislative statesmanship — he incorrectly said the obstruction violated a constitutional right. Once he cast this controversy as the defense of such a glistening right — one not enumerated in the document — any compromise would seem to derogate the nation's foundational document.

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Harry Reid, the Democrats' tone-deaf minority leader, said the fight that has produced this temporary truce "was a fight for Americans' basic rights and against the Republicans' abuse of power. . . . Americans have said no to Republicans limiting our freedoms." By so speaking, Reid wounded the seven Republicans who gave him the occasion for exhibiting his smallness. Because of John McCain's conspicuous role in this episode the episode will resonate in the competition for the 2008 GOP presidential nomination. By brokering the deal that allowed Reid to gloat, he may have guaranteed that a large portion of his party's nominating electorate will have an ABM principle — Anyone But McCain.

Even allowing for the Senate's normal narcissism, Reid's apparently ingenuous belief that Americans' "basic rights" were at risk in a change of Senate rules was, in its way, comic. So, a final thought on the rhetorical slapstick of recent weeks:

By giving the filibuster sacramental status, Democrats have become, with the zeal characteristic of recent converts, devout communicants in the church of tradition, willing to die in the last ditch in defense of the Senate as the Framers of the Constitution supposedly wanted it. But of course that Senate was done away with in 1913.

The Framers' carefully considered requirement was that each state's senators would be "chosen by the legislature thereof" rather than by direct popular election. Do Democrats, in the purity of their newfound reverence for the Framers, now favor repealing the 17th Amendment?

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