Wednesday, May 25, 2005

In victory, magnanimity?

James Taranto takes issue with me (indirectly) and Thomas Sowell (directly) in arguing that the Democrats who signed onto the judicial compromise did so because they knew their filibuster strategy had failed. His proof? In 2003, they made a political calculation to use the filibuster strategy believing that (1) Bush would be a one-term president; (2) they could successfully paint him as an extremist; (3) the Republicans couldn't break them. The voters sent this message: Daschle out, Kerry back to the Senate, Republicans winning in eight of nine hotly contested Senate races including Florida and North Carolina. Thus, Taranto argues that the compromise is a way to let the Democrats back down and save face.

This is a compelling argument. I agree that the compromise has put pressure on the Dems to play ball now (witness Barbara Boxer withdrawing her BS hold on the Bolton nomination for ambassador to the UN). But despite the stated willingness of Mike DeWine, Lindsay Graham and old lion John Warner to go nuclear if the Dems violate the compromise, I believe the Republicans gave up too much (two filibustered nominees sacrificed, two not covered by the no-filibuster pledge) and doubt both their resolve and their ability to invoke the constitutional option when the Democrats act in bad faith once again.

Instead, as Sowell notes, the most apt description of the compromise came from one of the more bipartisan Republican Senators:
While members of both parties are trying to put a good face on this political deal and the media have gushed about this "bipartisan" agreement, Republican Senator Charles Grassley was one of the few who called a spade a spade, when he characterized what happened as "unilateral disarmament" by the Republicans.

And the long term effects of this deal will only help those who want the courts, not the Congress or the President, which are elected by the American public, to be the final arbiter of constitutionality and policy. More Sowell:
The net effect of the Senate compromise is that this President and future Presidents will be under pressure to choose nominees who can get through the confirmation process without rocking the boat.

That is how conservative Republican Presidents in the past loaded the Supreme Court with liberal judicial activists from William J. Brennan to David Souter and wobbly Justices like Sandra Day O'Connor and Anthony Kennedy.

Somebody has to stand up for an end to this trend. As Ronald Reagan used to say, "If not us, who? And if not now, when?"

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