Enola Gay to Senator Frist. On Target. Over…

A group of Senators from both sides of the aisle are attempting to avert a vote on the Senate rules that would remove the 60 vote requirement for cloture on debate regarding a President’s judicial nominees.

This would put the nomination of federal judges nearer the same footing as some other business to which the Senate must, from time to time, attend.

For example, you already can’t filibuster a federal budget resolution, a resolution authorizing the use of force, international trade agreements, or legislation under the Nuclear Waste Policy Act of 1982. The “Nuclear Waste Option” was never necessary.

Requiring a majority of Senators to vote yes or to vote no on judicial nominees does not set a prececdent for limiting speech, and there’s been precious little debate regarding judicial nominees on the floor of the “world’s greatest deliberative body” in any case.

It isn’t about speech.

The Constitution allows the Senate to make its own rules. They have changed over time, including those rules regarding filibuster. The proposal to exempt judicial nominations from filibuster changes only that. Legislation can still be filibustered.

It is not about checks and balances.

And spare me the comity BS. When Harry Reid called the President of the United States a “loser” in a speech to middle-school students, he demonstrated the full range of Demorcrat civility. And when he referred on the floor of the Senate to the contents of Judge Henry Saad’s FBI file, a file neither Reid nor Saad are allowed to see, he revived visions of Tail-Gunner Joe.

Compromise? I think not. Still, some Senators are bypassing the leadership to see if some vote swapping arrangment can be made to preserve the “sacred institution.” So far, the schticking point seems to be the Demorcrats insistence on reserving the right to filibuster judicial nominations under “extraordinary circumstances.”

The problem, of course, is how they might define “extraordinary”, or “circumstances, or, for that matter, “is”.

In fact, this reservation means that anything they would promise is no promise at all. Only a fool would accept it. Still, if one were a wavering Republican, one could look to history. What do Demorcrats consider mainstream?

If one wanted guidance here, one might look to judges nominated by a Demorcrat President and praised by Demorcrat Senators as “deep thinkers’, “outstanding jurists”, and “exemplary judges.”

Fortunately, Edward Whelan at National Review Online has supplied some examples of what are considered “mainstream.” judges by Demorcrats.

I include excerpts, but it is worth reading the entire series. The 2nd and 3rd are much shorter than the first.

Putting Judicial Nominees in Perspective
Rosemary Barkett was nominated by President Clinton to the Eleventh Circuit Court of Appeals in 1993 and was confirmed in 1994.
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• Dougan versus State is a 1992 Florida Supreme Court case. Dougan was the leader of a group that called itself the Black Liberation Army and that, according to the trial judge, had as its `apparent sole purpose * * * to indiscriminately kill white people and thus start a revolution and a race war.’ One evening in 1974, he and four other members of his group, armed with a pistol and a knife, went in search of victims. They picked up a white hitchhiker, Steven Orlando, drove him to an isolated trash dump, stabbed him repeatedly, and threw him to the ground. As Orlando writhed in pain and begged for his life, Dougan put his foot on Orlando’s head and shot him twice — once in the chest and once in the ear — killing him instantly. Subsequent to the murder, Dougan made several tape recordings bragging about the murder, and mailed them to the victim’s mother as well as to the media. The following excerpt from one of the tapes aptly illustrates the content: “He was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

The Florida Supreme Court upheld the death penalty for Dougan. Justice Barkett and another Justice joined a remarkable and very disturbing dissent by Justice McDonald in which she voted to reduce the death penalty to life imprisonment, with eligibility for parole in 25 years[:] “This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.

Notably, Republicans did not filibuster.

Putting Judicial Nominees in Perspective, Part II
On May 5, 1994, President Clinton nominated district judge H. Lee Sarokin to be a judge on the U.S. Court of Appeals for the Third Circuit. As Senator Hatch accurately stated at the time, Sarokin had earned a reputation as a stridently liberal judicial activist. Indeed, Sarokin described himself as a “flaming liberal” as a judge. The Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent.” The New Jersey Law Journal had reported that Sarokin “may be the most reversed federal judge in New Jersey when it comes to major cases.” A broad range of police and victim’s groups announced their opposition to his nomination.
…
A mere five months after his nomination, Judge Sarokin was confirmed over Republican opposition.

There was no filibuster here, either.

Putting Judicial Nominees in Perspective, Part III
Imagine, if you will, that a Democrat President nominated a judge whose constitutional and policy views were, by any measure, on the extreme left fringes of American society.
Let’s assume, for example, that this nominee had expressed strong sympathy for the position that there is a constitutional right to prostitution as well as a constitutional right to polygamy.

Let’s say, further, that he had attacked the Boy Scouts and the Girl Scouts as organizations that perpetuate stereotyped sex roles and that he had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.

And, to get really absurd, let’s add that he had called for an end to single-sex prisons on the theory that if male prisoners are going to return to a community in which men and women function as equal partners, prison is just the place for them to get prepared to deal with women.

Let’s further posit that this nominee had opined that a manifest imbalance in the racial composition of an employer’s work force justified court-ordered quotas even in the absence of any intentional discrimination on the part of the employer. But then, lo and behold, to make this nominee even more of a parody of an out-of-touch leftist, let’s say it was discovered that while operating his own office for over a decade in a city that was majority-black, this nominee had never had a single black person among his more than 50 hires.

Imagine, in sum, a nominee whose record is indisputably extreme and who could be expected to use his judicial role to impose those views on mainstream America. Surely such a person would never be nominated to an appellate court. Surely no Senate Democrat would support someone with such extreme views. And surely Senate Republicans, rather than deferring to the nominating power of the Democrat President, would pull out all stops—filibuster and everything—to stop such a nominee.

Read the article for the conclusion. This judge was nominated and confirmed as a Justice of the Supreme Court.

It is clear that any deal allowing the Demorcrats to substitute the judgment of Ted Kennedy, Harry Reid, Debbie Stabenow, Chuck Schumer and Robert Byrd for other Senators’ right, and responsibility, to “advise and consent” on the judges the President proposes, is an erosion of the electoral process and an attempt to further transfer power to the unelected.

Update: 22-May-05. Some typos corrected.