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Jewish World Review May 25, 2005/ 16 Iyar 5765

Cal Thomas

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Minority rule

http://www.NewsAndOpinion.com | The so-called "compromise" by 14 Senate "moderates" over the nomination of judges to the federal bench was a victory for an institution and a defeat for the Constitution. It also ignored the results of the last election and revealed, once again, that at least some Republicans apparently suffer from power attachment disorder — an inability to handle the responsibilities that come from being in the majority.

In spite of all the feel-good spirit, handshaking and smiles at the Monday night announcement of the agreement (and why do you think Minority Leader Harry Reid was smiling and praising the agreement?), the gang of 14 senators undermined a president's right to nominate judges of his judicial philosophy and have them voted up or down.

Senators John Warner, Virginia Republican, and Robert Byrd, West Virginia Democrat, were reported to have examined jots and tittles in the Constitution to see what the founders meant by "advice" in the "advice and consent" clause. Like proof-texting the Bible, they apparently discovered there are ways to get around anything if one spends enough time rationalizing and looking for excuses.

The agreement is without substantive meaning. Some of the very judges deemed by Democrats as "extremist" will be confirmed, while others will not. The provision to support a judicial filibuster only under "extraordinary circumstances" is a phrase left to the interpretation of each senator.

What has brought the country to the brink is not this president or conservative senators. It is rogue judges who have decided in their own minds — shaped by their own social and political biases — to reshape the country in their image.

They have abused the Constitution — not "faithfully executed" what the founders intended — and they have often ignored laws passed by the legislative body in favor of their personal agendas and legal biases.

Among the messages sent by this agreement is that it is perfectly fine to be an activist liberal judge on the Supreme Court if you're nominated by a Democrat president. You just can't be a conservative one and, if you are, you are unlikely to reach the bench.

One of the conservative activist groups pushing for a majority vote on judges, the National Coalition to End Judicial Filibusters, issued a statement that said the "centrist 'deal' dishonors the Constitution, ignores an election, and forgets four nominees who withdrew their names as a result of Democrat obstruction." Those would be Miguel Estrada, Carolyn Kuhl, Claude Allen and Charles Pickering, in addition to the two cut loose in the moderate deal: William G. Myers III and Henry Saad.

This agreement firmly establishes the 60-vote super majority as a hurdle, however remote, that all future judges must clear. It also establishes a small minority of 14 senators as the real power in the Senate.

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While Senator Mike DeWine, Ohio Republican, said he and his colleagues reserve the right to call on the chair to rule that a simple majority is needed to change the rules and confirm judges by majority vote, that is less likely to happen given the rapport the moderates have found and the editorial hosannas that will come from the usual newspaper suspects, which want no justice on the Supreme Court who will stand against abortion on demand, the sanctioning of secularism or the advance of same-sex marriage.

Republicans increased their majorities in the House and Senate and President Bush won re-election largely because most voters perceived them as having principles and wanting to restrain the moral and social mudslide that judges have assisted in bringing forth on this nation. Now, by refusing to pull the majority trigger, Republican "moderates" effectively say only what they think matters and not what the voters decide.

Why are Republicans afraid to use power? The excuse that they haven't had it that long is no longer valid. They've held power in Congress for a decade and now have united government. It must be a character flaw. They prefer the praise of liberals to the affirmation of their conscience.

If voters in South Dakota can defeat former Senate Minority Leader Tom Daschle, perhaps there are enough citizens who believe in the Constitution and majority rule to oust some of these "moderates" from their seats and replace them with people who believe that principles are beyond negotiation and compromise.

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