Wednesday, July 06, 2005

Prepare for Borking

The Democrats are serious about derailing Bush's pick for the Supreme Court. The only problem with that plan is that we don't yet know the identity of that person. Byron York offers a very good assessment of what is to come (courtesy, RealClearPolitics).

It doesn't take a genius to deal properly with the questions that the Senators will throw out. And probably the best way for any nominee to show their quality would be for them to rephrase the Senators' questions to get to the crux of what is really being asked to avoid the "loaded question". For example, Sen. Schumer, Kennedy or Durbin asks:

"Do you believe that the principle of stare decisis applies to Roe v. Wade? The question asks whether the legal principle that decided matters should remain undisturbed applies to Roe v. Wade. The real question is will you disturb Roe v. Wade? Here's the way the nominee handles the issue effectively:

"I believe stare decisis applies to all matters settled in the law."

So when the follow-up question hits about Roe, because they won't leave their sacrament alone, the heavy answer can come this way:

As I said Senator, settled matters should remain settled, but we cannot pick and choose the matters to which stare decisis applies. It either does for all or it does not for any. It applied to Bowers v. Hardwick [1986 holding that states could criminalize sodomy], at least until Lawrence v. Texas [2003 holding that they couldn't] was decided. So the courts can and throughout history do on very rare occasion correct their earlier holdings, recognizing that they may not have gotten it exactly right, or maybe even got it completely wrong. So yes, settled matters should remain so, but that rule should not exist for the particular benefit of any single case, nor should we presume that that rule is more important than the integrity and justness of the law itself.

Which answer they'll hate. And when they want to go further and get into the "living document" twaddle:

Senator, the stare decisis principle you just laid out is in direct conflict with the "Constitution as a 'living document'" paradigm which you are now trying to advance. Either the law as written by the Congress and approved by the President says what it says and governs us as such, or it says whatever the individual reader wants it to say depending upon the prevailing mores of the day, but it cannot be both. If one wants the Constitution to say a particular thing that it does not expressly say, the
Founders provided us with a process, so far exercised 27 times, where we changed
the meaning of the document. That way the people, whom the Constitution
protects, can decide through their representatives both in Washington and in the
various states how they will allow themselves be governed. But a Court cannot simply put meaning into the Constitution because they--however rightly or wrongly--believe that it ought to be there. The ought comes from the Congress, not from the Courts.

Beyond that, the Founders who believed that the people should have various individual rights even before the Constitution was written, were dissatisfied with the fact that it did not expressly confer various rights which they felt were fundamental rights. Therefore, they drafted the first ten Amendments to guarantee those rights. Doing this adds meaning to the document, and therefore "life". A court writing meaning into the document that is not plainly there detracts from and rather twists the meaning of the document, making it more of an unclear guideline than a clear demarcation of the rights of individuals versus those of the state. If one wants to find new rights, they can be added by Amendment. The Founders did not provide an alternate approach to the changing of the Constitution's meaning.
All of which will send the Democrats into an unqualified filibustering fit. And the nominee will be a racist, bigot, homophobe, anti-woman, roll back the rights hatemonger. But it will outline the fact that the law may be born in politics, but that it cannot continue to be influenced by it once it hits the books, unless of course modified by the same process that gave it birth.

The Dems know that their radical left agenda won't get passed by originalists any more than it would be passed by the Congress or the states, hence their opposition to them. And given that a filibuster is a guarantee anyway, it probably wouldn't hurt for the originalist nominee to point out the inconsistencies in the Dems' arguments.

ADDENDUM

John Hinderaker at Powerline posts that Charles Schumer was overheard discussing a filibuster one way or the other. He points out that Bush loves Thomas and Scalia. Which makes me think that he will not appoint Gonzales, unless he is convinced that Gonzales is a guaranteed originalist who will not make new law. And then he'd have to appoint a new Attorney General for a new set of Senate Judiciary Committee hearings. And the thought of seeing that again is more than I can bear.

1 Comments:

Blogger Gary Gross said...

Peter, That's the perfect way of answering their questions. And I totally agree that that 'answer' would send Kennedy, Schumer, Boxer & Leahy into a accusation-filled tirade filled with hyperbolic soundbites that every network & newspaper would frontpage or lead with.

4:20 PM  

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