March
8, 2005
Time For War
By William
Murchison
All the
gauzy talk of judicial filibusters, "nuclear options,"
and the like is about to take on flesh and dwell among us. This
is due to the U.S. Supreme Court's reminder last week of how deeply
it matters who sits on the federal bench, interpreting our laws.
When five
unelected justices, citing sociology and international opinion,
overturn (Roper v. Simmons) the laws of 20 states regarding capital
punishment for juveniles, well, my friends, that's nuclear. The
faster we scurry from our bomb shelters and launch a second strike,
the brighter prospects for sanity grow.
A little
lubricant here, for rusted memories.
The "nuclear
option" is political shorthand for a parliamentary maneuver
meant to prevent Democrats from continuing to filibuster the Bush
administration's judicial choices. The politicians call it nuclear
because once it's put in play, Capitol Hill warfare will escalate
fiercely. But war is going on right now. Surely we see that?
Among the
blue-state intelligentsia last week there was high-fiving over
the court's narrow vote to disallow the execution of a fine upstanding
Missouri youth who, at 17, had -- maybe just a tad impetuously
-- broken into a woman's house, kidnapped her, then thrown her
off a bridge, expecting her to drown. She failed to disappoint
him.
The five
justices who voted to prolong this worthy youth's existence --
Anthony Kennedy, David Souter, John Paul Stevens, Stephen Breyer,
and Ruth Bader Ginsberg -- cited not just "evolving standards
of decency," as interpreted by the five themselves, but also
the United States' seeming moral isolation in the world on account
of letting states execute 17-year-old offenders.
Now, if the
question of a higher age floor -- 18 years, say -- for capital
punishment prospects were to be argued in any ordinary forum,
we could expect to hear respectable arguments on both sides. A
slim majority of the Supreme Court, as increasingly is the case
(see the 2003 decision eradicating Texas' sodomy law), saw no
reason the nation should debate what was clear in the justices'
own minds, namely, the need for a major social change -- one the
outside world could applaud.
Here is where
we circle back to the matter of coming Senate battles over confirming
jurists the Bush White House believes less inclined to dictatorship
than, say, the five members of the Roper v. Simmons majority.
Maybe the
Bush nominees would pan out, maybe they wouldn't. Justice Kennedy,
a Ronald Reagan appointee and friend, was the author of, and deciding
vote for, this judicial atrocity. (Gosh -- as they exclaim in
Washington, regarding reformed conservatives -- "How he's
grown.") Bush 41 put on the court David Souter, who rarely,
if ever, sides with the court's three main opponents of judicial
megalomania -- Chief Justice William Rehnquist and Justices Antonin
Scalia and Clarence Thomas.
Up to now,
the fracas has concerned Democratic unwillingness to allow a number
of Bush 43's conservative judicial choices so much as an up or
down vote. Imagine in what mood a Rehnquist resignation, when
it comes -- and it could be any time, given the chief's thyroid
cancer -- will find the Senate Democrats. The chief justiceship
is the brass ring on the merry-go-round. If Bush nominates anyone
remotely like Scalia or Thomas for this hugely important job,
we're right back to the trashing of Robert Bork and what Thomas
denounced as his enemies' venture in "high-tech lynching."
Sigh. It
shouldn't be that way. But it is, given the imperial power modern
justices have assumed over our affairs. We can have all the Roper
v. Simmons decisions we like -- the world invited by our high
court to sit in judgment on America. Or the White House, and the
Senate's sometimes wimpy GOP leaders, can make known that the
confirmation of non-imperial judges is a non-negotiable matter,
starting now. Want war? Just try stalling a qualified judicial
nominee.
That's what
the Bushies not only can but should say -- loudly, insistently.
Copyright
2005 Creators Syndicate
Send
This Article to a Friend
