Judicial Extremism

Editor’s note: This is the last scheduled post on Mount Virtus for the next 10 days or so. The author is taking a self-imposed “blog vacation” but shall return to his wit and witticisms after the Memorial Day weekend holiday. May God bless our brave but media-beleaguered men and women in uniform both today (on Armed Forces Day) and on Memorial Day. They and their families remain in our thoughts and prayers. Until then, enjoy the following….

Throughout the crescendoing rancor of the ongoing debate over the judicial filibuster, the Senate Democrats and their MSM allies perpetually reassert two suppositions:

1) That President Bush’s nominees are radical and outside the “mainstream.”
2) That Republican Senators should not implement the so-called “nuclear option” because it would hurt their party in some future day when the roles are completely reversed.

In light of this, you need to go read the hard-hitting three-part essay on National Review from Edward Whelan, president of the Ethics and Public Policy Center – found here, here, and here. The three-part essay certainly adds some perspective to the Senate Democrats’ claims! Take especially Whelan’s third installment, a true gem:

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.

That makes sense, doesn’t it? I’m not even going to enter the calculus of how much more “out of the mainstream” this hypothetical liberal judicial nominee is than any of President Bush’s selections. At least be fair-minded for a moment and admit that such a jurist’s views as described above would garner no more public support – and probably considerably less – than those espoused by the most conservative Bush nominee. Right?

So you think the Republicans would have to throw out all the stops, including use of the filibuster, to prevent such a liberal candidate from reaching the federal bench? Aha, then! They’re hypocrites, right?

You don’t have to be overwhelmingly clever to figure out I’m leading you to the punchline of Whelan’s essay:

Well, not quite. The hypothetical nominee I have just described is, in every particular except his sex, Ruth Bader Ginsburg at the time she was nominated to the Supreme Court in 1993.

President Clinton nominated Ruth Bader Ginsburg on June 22, 1993. A mere six weeks later, on August 3, 1993, the Senate confirmed her nomination by a 96-3 vote.

(The source for the information in the second through fourth paragraphs is “Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law,” co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974. The information in the fifth paragraph can be found in the transcript of Ginsburg’s confirmation hearing.)

And thus the Democrats’ liberal obstructionist tactics are exposed for the desperate ploys they are. Or maybe in your fantasy world, the views Ginsburg touted are in fact mainstream… in which case, there is nothing more this blog can do for you.