Judicial Battles and the Charlie Brown Syndrome

When it comes to reaping the "spoils of war" many conservative Republicans are beginning to feel like Charlie Brown does when Lucy moves the football just as he tries to kick it. They get all psyched up and excited and ready to accomplish a task, only to have the opportunity yanked away from them at the last second.

The recent compromise regarding judicial filibusters agreed to by seven Republicans did just that. It incensed conservatives as yet another example of not being allowed the opportunity to enjoy the fruits of their labor. And, as the GOP's single largest constituency and the backbone of its grassroots operation, they have every right to be angry.

Essentially, what the GOP compromisers have done is legitimize an ideological litmus test for judicial nominees as opposed to enforcing the Senate's historical practice, much less its constitutional duty, to offer "advice and consent" on such nominations.

Further, the deal has legitimized the use of the heretofore illegitimate judicial filibuster, a new addition to the two-hundred plus years of Senate traditions and practices.

The "constitutional" (or nuclear) option, which was effectively tabled by the compromise, would restore the status quo, pre-2001. It would not, as liberals have wanted to suggest, remove some minority right that had previously been thought legitimate. It simply would have relied on a majority of the Senate to uphold a ruling that a filibuster of a judicial nomination is out of order, (seeing as how it had essentially never been "in order" in the past).

Another possible incarnation of the constitutional option calls for a simple majority of the Senate to sign onto a discharge petition, (normally used to move matters out of committee), and to indicate on the same petition that they also accede to confirmation of the nominee in question. The argument can then be made that the Senate had fulfilled its advice and consent function. It should be noted that the Constitution does not describe or mandate how the Senate should go about fulfilling this function.

Now that the "deal is done", these options are currently off the table. Given this new landscape, what can we reasonably expect from Democrats? They have already tipped their hand.

According to the Associated Press, within hours of the announcement of the agreement, Harry Reid cornered most of the Democrat contingent of compromisers in his private office and asked for their commitment to "pledge to support filibusters against Brett Kavanaugh and William Haynes, two nominees not specifically covered by the pact with Republicans... some of the Democrats agreed."

Well, we all knew it wouldn't take long, I guess we just underestimated how long it would take the Democrats to gut the "principles" of the agreement. Turns out they managed to do that before they headed off to bed that night.

The secret actions of the Democrats immediately following the creation of the deal speaks volumes about the true nature of their intentions, as well as the naivety of their GOP counterparts. Further, their filibustering of Bolton's nomination to be U.N. Ambassador just two days later puts their "goodwill" on public display for all to see.

How else can we predict how they might behave? By making note of what is important to them. In this case, liberal judicial activism - and their fear that Bush appointees to the bench would further de-legitimize it.

The judiciary is their largest and most influential stronghold in the ongoing culture war in America. If judicial activism itself comes into question, their primary means of advancing their power comes into question as well.

Democrat obstructionism of the nomination process is the byproduct of their recognition that the judiciary is the only institution in our federal system where their philosophy can thrive and make law unhindered by the inconveniences of the democratic process. For them, this is about ideological empowerment and a fear that the GOP could be successful in moving the judiciary back to its roots; that of applying the law and the Constitution as written.

The battles in Congress over the appointment of federal judges, even down to the district court levels, reveals a recognition of the obvious - that federal judges are now, to a large extent, our real lawmakers.

Thomas Jefferson recognized the potential problems of an activist judiciary in the earliest days of our nation's history saying, "The Constitution... is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please." If he could only see it now...

The simple fact is that if judges honored the court's proper constitutional role, the subject of their liberalism or conservatism would be irrelevant and we could all get back to confining our political battles to elections and the branch of government that is supposed to make law - the legislative branch.

Like it or not, a Supreme Court vacancy is in the offing, most likely within the next month and, as spoils of war go in American politics, this is the grand prize. Like Charlie Brown, conservatives will line up and try to kick the ball again. But now, thanks to the compromise, we know who needs a good "talking to" beforehand.