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The judicial god-squad

By Henry Lamb
web posted May 30, 2005

Once again, the U.S. Senate has trashed the U.S. Constitution. Judicial nominees require "advice and consent" of the U.S. Senate. Had the founders envisioned the need to require a super-majority for consent, they would have specified that requirement, as they did for treaty ratification and for constitutional amendments.

While the Constitution does authorize Congress to establish its own rules of procedure, this procedure must fall within requirements set forth within the Constitution.

Until 1917, there was no procedure for stopping Senate debate on any issue. The first "cloture" rule required two-thirds of the Senate to stop debate. In 1975, Senator Robert Byrd, as Majority Leader, used a simple majority procedure to change the requirement to three-fifths of the Senate to stop debate.

Byrd, and other Senate Democrats, demonized Bill Frist for threatening to use the same procedure they had used in 1975, calling the procedure "illegal," and "breaking the rules to change the rules."

Instead, seven Democrats and seven Republicans have appointed themselves to be the "judicial god-squad," further removing the Senate procedure away from the clear language of the Constitution.

Republicans need 50 Senators, and the tie-breaking vote of the Vice President, to change the Senate rule to allow an up or down vote on every judicial nominee. The seven Republicans who signed the judicial god-squad agreement, promise not to vote for a rule change, so long as the Democrats do not use the filibuster to block votes on judicial nominees - except in "extraordinary circumstances."

Who decides what are "extraordinary circumstances"? Republican John McCain says, "the fourteen Senators will decide; we'll know it when we see it." The seven Democrat signers need to gain only one Republican signer, to declare any nominee to be an "extraordinary circumstance," and thereby, block a full Senate vote.

Prior to this compromise agreement, it took 41 Senators to uphold a filibuster, and thereby, block a vote on a judicial nominee. Now, eight Senators can block a vote. How far is this from the "advice and consent" language of the Constitution?

These procedural shenanigans only complicate and delay the inevitable confrontation that will occur when Justice William Rehnquist steps down, likely, later this year. Democrat leaders have already identified judicial nominees they believe to be "extreme right wing," unsuitable for the judiciary. The President has already identified the nominees he considers to be exactly what the judiciary needs. The President's first nomination to the Supreme Court will be the stage on which the confrontation will be resolved.

With the judicial god-squad in place, however, instead of 51 Senators deciding who will rise to the Supreme Court, as the Constitution requires, eight Senators can decide who will not be given a chance.

Senator Lieberman, one of the self-appointed god-squad, says that because the appointments are for life, justices should require a super-majority vote. This is not a question for Senator Lieberman, nor the judicial god-squad to decide. The founders provided an amendment procedure to allow the people to make a decision of this magnitude. Of course, the Constitution is of little significance to these people.

When the inevitable confrontation for the next Supreme Court Justice comes, the seven Republican members of the judicial god-squad can nullify the work of a nation that elected Republicans to control the House, the Senate, and the Presidency. Three of those Republicans are up for re-election in 2006: Olympia Snowe (ME), Mike DeWine (OH), and Lincoln Chafee (RI).

With the help of these seven Republican Senators, the Democrats have retained their ability to prevent meaningful reform in the judiciary. At a time when the courts are drifting further and further away from the Constitution, and becoming bolder with their pronouncements, that have the effect of legislating from the bench.

Reform is badly needed. President Bush has the opportunity to nominate candidates who can bring these reforms about; the judicial god-squad has the power to prevent it.

The god-squad agreement expires with the 109th Congress. So too, should the terms of the Senators who created this detour from the Constitution. The Constitution requires an up or down vote on every nominee. Regardless of which party is in power, the Constitution should be the guiding light, not distorted, diffused, or defiled by procedural peculiarities, designed to secure political advantage.

Henry Lamb is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International.


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