Sandra Day O’Connor’s retirement from the Supreme Court (probably so she can “loosen up” with John Riggins) reinvigorates the Senate’s recent bi-partisan agreement not to filibuster judicial nominees. “Extraordinary circumstances” will be parsed and debated, with all other Senate business hanging in the balance, while the acceptability of Shrub’s nominee is debated.
Democrats will line up with a list of unacceptable and ill-informed decisions and writings; Republicans will counter with their own brilliant and morally insightful list, with “So what?” thrown in for good measure. The crux will come down to whether a president is entitled to get whoever he wants on the Court. The answer is, obviously, “No.”
It is difficult to believe the Founding Fathers wanted a rubber stamp for anyone a president wants to nominate, or they would not have required the Senate’s advice and consent for confirmation. Advice is in the eye of the beholder. The Senate can tell the president whatever it wants, whereupon he is free to ignore them. The consent piece is supposed to act as a guarantee against the repayment of a political favor, or the appointment of a justice well outside the mainstream of American thought, since justices can only be impeached for misconduct, not recalled for being an idiot.
The hypocrisy of the current majority’s penchant for referring to themselves as “strict constructionists” of the Constitution is rarely more evident than it is here. (The Terri Schiavo case may be one case, when both houses of Congress turned over every rock they could find, looking for judges to interpret the law the way Congress wanted, then threatened changes in the court system when their own parochial idea were ignored.) The framers of the Constitution were deeply concerned about the potential for a tyranny of the majority; the tradition of filibusters is the best example of this. While not specifically mentioned in the Constitution, filibusters go back about that far. Senators were expected to conduct themselves as gentlemen and use it only when the rights and perspectives of the minority were in danger of being abused or ignored.
Republicans should be well aware of this, if any of them could be bother to read the history they espouse to honor and protect. Franklin Roosevelt was unhappy when the Supreme Court’s overturned some of his New Deal legislation. (The Court has often lagged well behind the prevailing political sentiment of the day, and thank God for that.) Roosevelt’s attempt to stack the court by enlarging it, thereby adding sufficient justices to ensure a sympathetic majority, was soundly and properly defeated, on the ground that the Supreme Court is not an ideological sanctuary, where presidents may park disciples of whatever half-baked political idea is currently in vogue.
Whatever the Democrats do, they are not denying Shrub his Constitutionally-protected right to put whoever he wants on the Supreme Court. It is the responsibility of the President and the Senate to agree on a justice who can speak responsibly for all Americans. Not that everyone will agree with him or her all the time; that’s not possible, regardless of who is selected. Fringe groups on the left and right will disagree with a good choice; that’s as it should be.
The President’s responsibility as the head of government is to find a nominee agreeable to him that will not so offend the loyal opposition as to prompt a filibuster. The Senate’s responsibility is to grant him quite a bit of leeway. Both sides’ willingness to do these things has been well-evidenced by the high percentage of Shrub’s federal court judges that have been approved, even though the filibustered few got all the attention.
There’s one last argument against letting Shrub automatically have whoever he wants. We had an opportunity in the country to have a King George I over two hundred years ago. Mr. Washington turned it down. We don’t need one now, and that’s what we’ll be inching toward if the Senate abdicates its responsibility. What freedoms that have survived since 1787 are due, in large part, to the ability of the executive and legislative branches to appoint informed and non-partisan consciences to the federal courts. Presidents don’t send edicts to Congress; they send requests. Let us not start down a slippery slope toward one-man rule. One-party rule is bad enough.