Who’s afraid of majority rule? Senate Democrats, it seems. They adamantly oppose the appeals court nominees of President Bush, but don’t have the votes to reject them. What to do? Simple. Keep a vote from ever taking place. This so far successful effort by the Senate’s 44 Democrats has been used to disenfranchise the majority (and those who elected them) and keep 12 Bush nominees off the bench. Some nominees have been waiting since 2001 for Senate action.
It’s not exactly the American way. George Washington told Congress in his 1794 State of the Union address that “the fundamental principle of our Constitution … enjoins that the will of the majority shall prevail.” So far, it’s the will of the minority that has prevailed in the Democrats’ four-year fight to keep certain nominees from a Senate vote.
This has never happened in the Senate’s 214-year history. Never has a judicial nominee with majority support been denied an up-or-down vote by the filibuster, which requires 60 votes (Republicans have 55) to shut off debate and take a final vote.
For Democrats, there is no room for compromise. Two years ago, then-assistant Minority Leader Harry Reid was asked if he would agree to limit debate on the nomination of Priscilla Owen to a set time. He repeatedly said no and was finally asked whether “any number of hours would be sufficient for the senator from Nevada.” Reid, now Senate minority leader, replied, “[T]here is not a number in the universe that would be sufficient.”
Priscilla Owen, by the way, sits on the Texas Supreme Court and has been given the American Bar Association’s highest rating, “well qualified.” She has been waiting four years for a Senate vote. It may come next week unless Democrats filibuster her again.
It’s easy to understand why Senate Democrats are so stubborn. Federal courts are, for the most part, the left’s wholly-owned subsidiary. Unaccountable to the American public, courts can do what no legislature would dare.
Take abortion, for example. Polls consistently show that some 70 percent of Americans favor banning a surgical procedure in which babies are almost fully delivered before being killed by having their brains suctioned out. It’s grotesque, but just hours after President Bush signed the Partial-Birth Abortion Ban Act into law in 2003, a federal judge set it aside, ruling it was unconstitutional. It’s the same with public acknowledgements of God. Overwhelming majorities support school prayer and Ten Commandments displays, but the courts say no.
On these questions, and many others, judges have become our robed masters. The slate of appeals court nominees now stalled in the Senate would begin to change this state of affairs. They are men and women committed to following the Constitution, not to writing their own elitist policy preferences into law.
Senate Democrats and friends – groups like People for the American Way – understand all this and are engaged in a bare-knuckles struggle to keep their judicial edge in the American culture war. They have vowed political Armageddon – shutting down the Senate – if Majority Leader Bill Frist succeeds in revising Senate rules to make the confirmation of judicial nominees a simple 51-vote proposition.
But even in the Senate, democracy must prevail. That is why I joined nearly 200 leaders of Christian and conservative political organizations in urging Frist to end the filibuster of judicial nominees “at the earliest possible moment and well before a Supreme Court vacancy should occur.”
Unless a compromise can be reached that guarantees an up-or-down vote, Senate rules need to be changed so that the minority can no longer veto the will of the majority and stop the judicial nomination process.
The exercise of raw judicial power by the federal judiciary must be put to a stop. The best way to do that is to put men and women on the federal bench who believe that the written Constitution, not evolving social norms, is the law of the land.
Let’s get back to democracy and the rule of law. Let’s start by returning majority rule to the U.S. Senate.