Does filibuster deal tie Dems hands on Supreme opening?

And more musings and thoughts on Courts and Lawmakers

Something I really wondered, and now somewhat addressed (perhaps just in wishful thinking, perhaps not) by an article in today's (7-4-2005) The Washington Post: Did the deal that the gang of 14 made effectively declaw any real fight over Supreme Court nominees?

Headline is linked, much commentary follows.

Filibuster Deal Puts Democrats In a Bind

Pact May Hinder Efforts to Block High Court Nominee

By Charles Babington and Susan Schmidt
Washington Post Staff Writers
Monday, July 4, 2005; Page A01

Democrats' hopes of blocking a staunchly conservative Supreme Court nominee on ideological grounds could be seriously undermined by the six-week-old bipartisan deal on judicial nominees, key senators said yesterday.
With President Bush expected to name a successor to Justice Sandra Day O'Connor next week, liberals are laying the groundwork to challenge the nominee if he or she leans solidly to the right on affirmative action, abortion and other contentious issues. But even if they can show that the nominee has sharply held views on matters that divide many Americans, some of the 14 senators who crafted the May 23 compromise appear poised to prevent that strategy from blocking confirmation to the high court, according to numerous interviews.
The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under "extraordinary circumstances." Key members of the group said yesterday that a nominee's philosophical views cannot amount to "extraordinary circumstances" and that therefore a filibuster can be justified only on questions of personal ethics or character.
The distinction is crucial because Democrats want to force Bush to pick a centrist, not a staunch conservative as many activist groups on the political right desire. Holding only 44 of the Senate's 100 seats, Democrats have no way to block a Republican-backed nominee without employing a filibuster, which takes 60 votes to stop.
GOP leaders, sensing the Democrats' bind, expressed confidence yesterday that the Senate will confirm Bush's eventual nominee, no matter how ideologically rigid. "I think there is every expectation, every reason to believe that there will be no successful filibuster," Majority Whip Mitch McConnell (R-Ky.) said on "Fox News Sunday."
Under the "Gang of 14" accord, the seven Republican signers agreed to deny Majority Leader Bill Frist (R-Tenn.) the votes he needed to carry out his threat to bar judicial filibusters by changing Senate rules. The seven are implicitly released from the deal if the Democratic signers renege on their end. Yesterday, key players suggested the seven Democrats will automatically be in default if they contend a nominee's ideological views constitute "extraordinary circumstances" that would justify a filibuster.
Sen. Lindsey O. Graham (R-S.C.), one of the 14 signers, noted that the accord allowed the confirmation of three Bush appellate court nominees so conservative that Democrats had successfully filibustered them for years: Janice Rogers Brown, William H. Pryor Jr. and Priscilla R. Owen. Because Democrats accepted them under the deal, Graham said on the Fox program, it is clear that ideological differences will not justify a filibuster of a Supreme Court nominee.
"Based on what we've done in the past with Brown, Pryor and Owen," Graham said, "ideological attacks are not an 'extraordinary circumstance.' To me, it would have to be a character problem, an ethics problem, some allegation about the qualifications of the person, not an ideological bent."
Sen. Ben Nelson (Neb.), a leader of the seven Democratic signers, largely concurred. Nelson "would agree that ideology is not an 'extraordinary circumstance' unless you get to the extreme of either side," his spokesman, David DiMartino, said in an interview.

... more at linked article

So we are finally getting down to the brass tacks of just what "extraordinary circumstances" means, and apparently it means that the Democrats that signed on to the deal to avert "the nuk-u-lar option" may have really tied the hands of the other 37 (give or take) Democrats in the Senate, never mind the hundred plus million out in the rest of the country.

This is beautiful. I hate to say it, I really do. When the deal was first announced, I have to admit that I was fairly livid. How dare a group of RINOs (Republicans in name only) such as Specter and Graham sell out a few of the President's choices for the Judiciary just to get a few other choices their long delayed votes. All of the nominees did deserve, and for that matter still deserve, up or down votes. Yet that was prevented for at least a few of the remaining nominees who were tossed under the bus in favor of getting just a few other nominees their long delayed votes (and, of course, in favor of preserving the right to filibuster future nominees in "extraordinary circumstances").

At the time the deal was announced I was concerned that "extraordinary circumstances" basically meant "until a Supreme Court opening," but that doesn't seem to be what these poor deal makers agreed to at all. At least not according to this article.

It still remains to be seen though if what the article suggests is really true. After all, there are Biden, Kennedy, Schumer, Byrd and a host of others on the other side of the aisle, whether they signed onto the agreement or not, who will fight tooth and nail to preclude any swing in the make-up of the court. Especially any swing that might have the court really looking at what the law is, rather than what they think the law should be.

You see, that is the problem that really faces the Democrats. They fear that putting another Antonin Scalia or Clarence Thomas on the court, or anyone in the Robert Bork mode for that matter, would mean that the court would stop looking to Europe or the rest of the world for guidance in making rulings and establishing law (see for example this decision, found via CNN.com, linked: High court: Juvenile death penalty unconstitutional).

What these idiots seem to forget is that if they do their job, and do their job correctly, what the court decides really doesn't matter. This is something that all Democrats seem to have forgotten, as well as many Republicans. What do I mean? Well think for a second, perhaps it will come to you. But then again, it hasn't come to the Congress-critters in many moons, so I'll spell it out here: IF YOU DON'T LIKE THE DECISIONS OF THE COURTS, PASS NEW LAWS -- MAKE SURE THEY CAN PASS CONSTITUTIONAL MUSTER, OR MAKE THEM AMENDMENTS -- BUT DON'T LET STAND DECISIONS YOU (and the majority of the citizenry of the U.S. for that matter) DON'T AGREE WITH.

You see that is the ultimate fix for either side. If the law isn't what you want, or the effect of the decisions that are passed down by the court are not what you want, then the legislative branch can always fix the problem. If they can muster enough votes, they can pass new laws. If the laws they passed were deemed unconstitutional, then they can amend the constitution to do the right thing. Yet both sides seem to forget this ability and instead they choose to fight judicial nominees of either side fearing that the nominee may be the one that establishes new law, or helps to toss out already decided legal precedent in favor of finding new intent or in favor of correcting injustices in the legal system.

I still wholeheartedly support jurists that follow the law and read it as intended. I don't favor judges that bring in outside influences (such as world opinion) in deciding our laws. I also (as in the Juvenile death penalty case) prefer judges that are smart enough to leave decisions in the hands of the public (such as letting a jury determine if a juvenile was mature enough to be tried as an adult and face adult penalties for crimes they commit). Ironically, I have to snicker a bit about this comment -- given the decision that the court recently handed down in the Kelo case. (Again, reference from CNN.com, linked: High court OKs personal property seizures). In that case, they clearly stated, (paraphrasing somewhat) that it was not up to them (the high court) to determine what was in the best interests of the localities that would use the power of emminent domain. Instead they deferred back to the localities to make those decisions -- even in cases such as Kelo, where the localities could make a decision that would take private property and hand it over to another private entity all in the name of increased economic benefit to the community. Amazingly enough, in that case, again, the decision was that localities -- at least via local politicians -- were smart enough to make their own decisions, while in the Juvenile death penalty case, the court opted to take away that decision making power.

I could go on about the stupidity of the decisions in the 10 Commandments cases, where the court basically made no decisions and instead left each and every individual case subject to being reviewed. Again, seemingly contradictory to their decision in the Kelo case (but then again, perhaps not, since each locality will be the primary point of review for any Commandment's that may be posted or displayed in their areas).

I continue to hope that anyone that does make it onto the court is someone that will help make a decision that will guide once and for all. Make decisions that make sense and provide easy to follow guidance for the country to follow. Don't make half-hearted decisions that leave everyone scratching their heads going "huh?" At least, that is my hope.

Other comments especially welcome.""

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