July 29, 2007

Assault on the Judiciary

By Ed Lasky

There are preliminary signs of a looming dangerous breach of constitutional safeguards, one that would extend Congressional power into the executive and judicial branches of government. This unprecedented series of threatened actions imperils the checks and balances that have been the bulwark of our system of government.

The Democrats' anger over the Supreme Court decision that led to George Bush's Presidency has mutated into an unseemly rage in response to a series of decisions that Democrats disfavor. The extent of this overreach is revealed when considering this past week's developments: a pattern is developing and future actions deserves strict scrutiny.

The Democrats and their allies in the media have been harping for years that the Bush Administration repeatedly violated the laws of our nation and those of the "international community". Fearing that the Supreme Court - an independent branch of government - will not agree with their views on these issues and others (abortion, for example) the Democrats (sometimes aided by Sen. Specter) seem to be engaging a multi-pronged attack on the Supreme Court of the United States.

Three recent examples:

1) Senator Chuck Schumer - one of the most powerful Democratic Senators - has announced that he will fight any new Supreme Court nominee from George Bush. He apparently would rather have vacancies in the Court until a Democratic President is in place to nominate judges that a presumably Democrat Senate will confirm. This dereliction of duty on the part of the Senator conforms with a pattern of obstruction on the part of a Senate that has repeatedly refused to confirm a series of judges the Bush Administration has nominated to serve in the federal court system. This is preventing the executive branch from fulfilling its role to enforce the law and is a blatant attempt by the legislative branch to assume control of the executive and judiciary branch of the government.

2) Senator Arlen Specter -- a RINO (A Republican in Name Only) -- has announced that he wants to examine previous testimony given by Supreme Court justices during the nomination process to measure how closely they hewed to the positions and principles enunciated during questioning by the Senate Judiciary Panel. As the Wall Street Journal opined in an editorial, "Advise and Repent," Senator Specter apparently believes that Justice confirmed by the Judiciary Committee (and then the Senate) made "promises" regarding how they would decide on issues brought before the Court. As the Journal eloquently puts it:

"...it would be unseemly and improper for a nominee to seek confirmation to the nation's highest Court by promising Senators how he or she would rule on a given issue on the bench."

Each Court decision is uniquely dependent on the facts of the individual cases brought before it for review. Again, the Journal,

"This is the reason why judicial nominees refuse to predict how they would rule on topics-to prevent politicians from usurping the role of the judiciary and turning judges into Senators with robes".

Specter and Company are outraged, apparently, that recent Court decisions seem to break with precedents. A Senator who does not realize and appreciate that this is precisely one of the roles of the Court does not belong on the Judiciary Committee.

Apparently, Senator Specter and his colleagues have no problem breaking precedent when it suites their political purposes. But a Senator, as a lawmaker, should at least acknowledge the basic principles behind the nomination of judges.

3) The New York Times ran an editorial a few days ago by Professor Jean Edward Smith ("Stacking the Court") advocating that a Democratic Congress and a Democratic President expand the size of the Supreme Court. Smith writes,

"If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."

Smith clearly finds the recent decisions of the Supreme Court not to his political taste and states that there is nothing "sacrosanct" about having nine justices on the Supreme Court. This may be true. But what is sacrosanct is that the judiciary is an independent branch of government, the selection of judges is within the purview of the elected President of the United States, and it is merely the responsibility of the Senate to advise and consent regarding their appointment. The role of the legislators is to draft the laws, not to invade an independent branch of the government and arrogate their duties and responsibilities to themselves to accomplish partisan goals.

The Democrats could expand the size of the Court, and, with the presidency and congress (particularly the Senate) under their control, appoint very young Justices who would outlast administrations yet to come. A liberal, activist Supreme Court - with actuarial tables as an ally - could prolong Democratic control past Administrations and Congresses yet to come.

The congress is not limiting its imperial overstretch to the Supreme Court of the United States. As the kerfuffle over the selection of US attorneys reveals, the Democrats are intent to take away the unfettered power of a President to appoint US attorneys. This is a power long vested in the President, and is a power that the Democrats had no problem seeing exercised when President Bill Clinton unceremoniously fired and replaced US attorneys during the early years of his Presidency - including one who was investigating the Whitewater controversy.

Ed Lasky is News Editor of American Thinker.