Sunday, May 01, 2005

Gore Pushes Back

"Having gone through that experience, I can tell you --- without any doubt whatsoever -- that if the justics who formed the majority in Bush v Gore had not only all been nominated to the Court by a Republican president, but had also been confirmed by only Republican Senators in party-line votes, America would not have accepted that Court's decision ... "

"The founders gave no role to the House of Representatives in confirming federal judges. If they had believed that a simple majority was all that was needed to safeguard the nation against unwise choices by a partisan president, they might well have given the House as well as the Senate the power to vote on judges"

Al Gore -- April 27, 2005

Al Gore's speech is getting a lot of bravos on the left side of the blogosphere, but his speeches on what it meant to have the President lie to the people about weapons of mass destruction and to understate the abuses of Abu Gharib struck me as better.

Nevertheless, Gore is the only person pointing out, on a consistent basis, that the President wants to be the Emporer, and that the Emporer has no clothes. So if you have 10-15 minutes, you might want to read what he has to say.

Gore is quite good on the history of filibustering Judges in the Senate, drawing on his experience as Vice President [i.e. President of the Senate], Senator, and son of a Senator.

He is also good on the basic danger of making precipitous moves with the history of the Senate just to pass a particular agenda for a particular time. And in the raw politics of just how dangerous the Bush agenda is.

Where I think Gore is on shakier ground, and I think all liberals are, is when they complain about right-wing threats on Federal judges.

Some of the threats are death threats, and those Senators and Representatives making these statements, such as Tom deLay and the other jerk from Texas -- well they're Congressmen, and can hardly be held responsible for the crap that comes out of their mouths. In fact, there are statutes on the books to protect them from their own idiocy.

Other people who have called for violence against judges, and don't have the legal protection that Congressmen get, should be indicted for conspiracy to murder federal officials, and should rot in jail for a long time. These holy rollers say they get their call from God, but it sounds to me that they get the call from the drug lords in Colombia.

However, non-violent threats, such as threats of impeachment, or a cut-off of funds to the judiciary, or even the dissolution of entire courts that don't make the wackos happy -- all examples that Gore cited --- are not just totally constitutional, but seem to be exactly what the Founders had in mind as methods for keeping runaway judges in line. If the Republicans can make it stick -- God bless.

Just because the Democrats were too stupid to use these tools when they ran the place, doesn't mean the tools aren't there to be used.

As for the two quotes I used to start the piece, I strongly agree with Gore's statement about the legitimacy of the judiciary being a factor in the acceptance of the result of Bush v Gore.

As for the second quote about why the Senate, but not the House, gets to select Judges, Gore is right in his conclusion that the selection of judges is not meant to be democratic, but his reasoning, though popular, is wrong.

The reason that the Senate, not the House, gets to select Judges, is not because the Senate is "more deliberative". It is because in the original conception of the Constitution, the Senate was set up to represent the States, not the people.

If a bloc of States object to a judge, or to an entire judicial philosophy, the rest of the government is supposed to take notice. That is the political deal that the Southerners think of as "states rights". That is why Southerners were allowed to gum up the works for 200 years. Jesse Helms would be impossible without his right to filibuster, or threaten to filibuster.

Only twice in the last 200 years has the shoe been on the other foot. In the 1860s, when the Southerners thought that gumming up the works wasn't going to work, they kicked the table over and left. Now, that the Southerners see that the other side will be able to use the same gum they have been using all this time, they want to kick the table over again.

The notion that judges are are a democratic "power to the people" institution is the ill-effect of too much conservative Hollywood influence on the right-wing mind.

Judges are by their nature undemocratic. They are not there to see that the will of the people gets met. They are completely the product of the Constitution, and are there to see that the Constitution gets served.

The biggest mistake that the Democrats are making so far is their failure to remind people that the Constitution says that the Senate's power over judicial appointments is to "advise and consent." It is not to rubber-stamp the President's choice. It is not even, as is now the popular norm, to allow the President the people he wants. It is certainly not to give the nominee an "up-or-down" vote.

It is to "advise and consent." Telling the President that a nominee is too ludicrous to vote on should be part of anyone's definition of "advise".