The Democrats Fight Against Democracy and the Constitution

George C. Landrith

With Sandra Day O’Connor’s recent resignation from the U.S. Supreme Court and the expected resignation of Chief Justice William Rehnquist, there is no shortage of talk about who should replace them. Senate liberals demand that the President “unite America” by nominating a moderate, consensus candidate. They further demand that the President consult with them and allow them to pre-approve the nominee.

Senator Chuck Schumer (D-NY) argues that these nominations are “an opportunity for President Bush to bring the country together.” By this, Schumer means that the President should appoint the sort of judge that John Kerry would have appointed had he won. The fact is, it doesn’t much matter who the President appoints; Senate Democrats will label them unacceptable and extreme. Yet, it is the liberals who make the extreme and unreasonable demands. All conservatives request is that the President keeps his campaign promise to appoint judges who will faithfully interpret the Constitution and not abuse their lifetime appointment to impose their political will on America.

Schumer also demands that the President work with Senate Democrats to find acceptable nominees and cites Bill Clinton’s conversations with Senator Orrin Hatch (R-UT) as the precedent. There is one problem with this example – President Clinton worked with Senate Republicans because they were the majority party in the Senate. Someone needs to remind Senator Schumer that Senate Democrats are in the minority – one that has been shrinking over the past decade precisely because of the extremism of folks like Schumer, Ted Kennedy and Senate Majority leader Harry Reid (D-Nev.).

Bill Clinton never won a majority of America’s votes, yet he won the election and as a result won the right to appoint two justices to the Supreme Court. He had to work with the majority party in the Senate, just as President Bush must now work with the majority party in the Senate. Even with a Republican Senate majority, Clinton was able to appoint two of the most liberal justices now sitting on the Court. Clinton did not appoint moderate, consensus candidates. He did not use his choices to “unite” America. Nor did Republicans demand that he do so.

Elections have consequences – one of which is that the winners wield the power and the losers do not. That is called representative democracy. Because President Bush won the election, he gets to name the judicial nominees. The Senate gets to approve or disapprove. As a result of the last three elections, Republicans are the majority party in the Senate. Senate Democrats wish it were otherwise, but it is not. They have the right to vote no if they like, but they do not have enough votes by themselves to stop the confirmation of the President’s nominees. To give them power they have not won at the ballot box, would be to permit them to steal from the majority of American citizens their right of self-government – the very definition of tyranny.

The “judicial nomination” talk currently emanating from many Senate Democrats is calculated to overturn the results of numerous elections over the last six years. It seems they support democracy only when they win. When they don’t win, they support whatever gives them the benefits of winning – even if it means stealing the right of self-government from the majority of American citizens. They are shameless political opportunists seeking to aggrandize their own political power – nothing more.

The President must ignore their temper tantrums and appoint Supreme Court justices who will faithfully interpret the Constitution. No more judges who disregard the Constitution or rely upon opinion polls and foreign law. Fidelity to the Constitution must be the standard. Nor should the President take a chance on those who are basically conservative, but are politically pragmatic in their jurisprudence and lack a proven track record of constitutional fidelity. We’ve had years of justices who play politics. We need a court that will faithfully interpret the Constitution and leave the politics to the elected officials. That is what the President promised, what America wants, and what the President must deliver – even if Senate Democrats and extreme special interest groups vitriolically oppose him.

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Mr. Landrith is a graduate of the University of Virginia School of Law, where he was Business Editor of the Virginia Journal of Law and Politics. He had a successful law practice in business and litigation. In 1994 and 1996, Mr. Landrith was a candidate for the U.S. House of Representatives from Virginia's Fifth Congressional District. He served on the Albemarle County School Board. Mr. Landrith is an adjunct professor at the George Mason School of Law. He is recognized as an authority on constitutional law and jurisprudence, federalism, global warming, and property rights.

george@ff.org