Lindsey Graham: “[Only Some] Elections Have Consequences”

Let us be blunt. Sonia Sotomayor should never sit on the Supreme Court. Even without the hints of bigotry, she lacks the judgment, understanding and skill needed to make her a competent jurist, and she certainly does not display the kind of outstanding legal mind that should be elevated to the Supreme Court. She is, at best, a poser, and, at worst, an inconsistent tyrant.

Yet, she will be confirmed, and that’s fine. Everybody loves a fool, and history will simply add her to the growing list of albatrosses hanging around the well-feathered neck of Obama’s legacy.

But this post is not about Sonia Sotomayor. This post is about Lindsey Graham (RINO, SC) and those like him in either party.

Graham announced yesterday that he will support nominee Sotomayor because, as he put it, “elections have consequences.” But that is not a valid basis for supporting a President’s nominee. Indeed, the Constitution does not envision the Senate as a rubber stamp for a President’s appointments. Instead, the Senate is called upon to provide “advice and consent” on appointments, not to approve them without complaint.

If a nominee is inadequate, it is the duty of every Senator so finding to stand up in opposition to that nominee, and to demand that the President nominate someone else, someone the Senator can support. That’s called checks and balances. That’s how our government works. To surrender this role on the basis that the President has won an election is to abdicate one of the primary constitutional functions of a United States Senator.

Remember, Senator, the oath of office for Senators requires Senators to pledge to support and defend the Constitution and to faithfully discharge the duties entrusted to the office:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Nothing in there says, “unless the other guy won an election.”

Nor can Graham's submissive desires be attributed to some political courtesy extended by one party to another. Indeed, the Democrats extended no such courtesies when they smeared Robert Bork, Douglas Ginsberg or Clarence Thomas, or when they prevented John Tower from becoming Reagan’s Secretary of Defense (an historical first), in a party-line vote, because of suggestions of “womanizing” and “alcoholism.”

And speaking of elections, might one wonder why Senator Graham only recognizes the consequences of the election of the President? Was the Senator himself not elected to represent the people of South Carolina? How does declaring an intent to ignore that mandate in favor of rubber stamping a President recent-elect satisfy that election? Or do only some elections have consequences?

Now admittedly, Graham also stated that he felt that Sotomayor was well-qualified. And if that had been his sole reasoning, one could quibble with his conclusion but not challenge the good faith basis of his decision. But he had to add that extra piece. . . his abdication of his role. . . his declaration of submission, and that is the problem.

It absolutely pains me to say this, Senator Graham, but look at Robert Byrd. Agree with his politics or not, Byrd fully understands his role as a check on the power of the Executive.

And let me not limit this criticism merely to the submissive Senator Graham. This criticism should be extended to every member of Congress or the Senate, in either party, who fails to represent the people they have been elected to represent, and who fails to faithfully discharge the duties of their office.

Representative democracy only works when the representatives represent. It does not work, when they decide to make up their own rules.

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The Democrats Have A Death-Grip On The Senate--Or Do They?

Amidst all the other news of the past week, one item which got surprisingly little press was the "filibuster-proof" supermajority attained by the Democrats in the Senate with the concession of Minnesota Senator Norm Coleman to Saturday Night Live comic Al Franken. Maybe even Democrats and their compliant press figured out that it's just not that easy.

The Minnesota Supreme Court finally finished off its dirty work of selectively choosing which election laws it would apply to secure the victory of the foul-mouthed TV and Air America shock comic Franken in the race against incumbent Senator Coleman. After ruling that Franken had received "the highest number of votes legally cast," it declared Franken the candidate who should be certified to the Senate as Minnesota's next Senator. As for "legally cast," since the court itself chose which votes were legal, its conclusion was inevitable given the highly political makeup of the court. The court stuck to "the letter of the law" where convenient, thereby disenfranchising many military absentee ballots. On the other hand, when it came to voting irregularities involving missing and "discovered" ballot boxes and double-counts for Franken, the court ruled that the "spirit of the law" was more important than the letter of the law.

Coleman originally considered a federal appeal, and even though his cause was just, he finally came to realize that when it comes to the application of state election laws, the U. S. Supreme Court will find every way possible to defer to the findings of the state courts. So Coleman personally called Franken to concede the election, giving the Democrats 60 votes in the Senate, enough to invoke cloture (shutting off a filibuster). To add insult to injury, the court ordered Coleman to pay Franken $75,000 to defray Franken's costs on appeal. Note: "Bush v Gore" was not a divergence from that rule. In the Bush-Gore case, the Florida Supreme Court didn't interpret state elections laws--it rewrote them from the bench.

So, the game is over, right? Not so fast, my friends. "Filibuster-proof" is in the eye of the beholder. If this were a simple matter of mathematics, then the game is indeed over. But that assumes that all Democrats are both safe votes and safe bets, and that simply isn't the case. So it really comes down to "reliable" votes, and those mathematics are not nearly so clear.

Who are the clear and present dangers to Democratic absolutism? To start with, recent convert Arlen Specter of Pennsylvania has begun to demonstrate that he can be a pain in the posterior of Democrats as easily as he was a pain for the Republicans. Snarlin' Arlen, as he is affectionately known, has already expressed his displeasure with much of Sonia Sotomayor's jurisprudence. Specter is miffed that he did not automatically get his chairmanship of the Judiciary Committee back when he turned his coat and became a Democrat. He suffers from a very serious case of humility-deficiency, as well as certain physical ailments. And by leaving the Republican Party, he left them with only three wobbly "moderates" (aka "RINOs")--Olympia Snowe and Susan Collins of Maine and George Voinovich of Ohio (and he's only good until the end of 2010, since he has announced his retirement). The remainder of the Republicans are very likely to vote against cloture should the opportunity arise.

Given that Senate Majority Leader Harry Reid is not known for being a good herder of Democratic cats, he is also facing some grim realities as well. The occasionally senile Senator Robert Byrd of West Virginia is a sporadic fan of separation of powers, thus making him an unsure bet on Presidential appointments of less-than-stellar Supreme Court nominees and socialist schemes for the economy. And Byrd is in very poor health, having missed multiple crucial Senate votes over the past year. That makes Byrd an unsure bet on two counts.

Likewise, Senator Ted Kennedy of Massachusetts has been in deteriorating health since he had a seizure followed by surgery for brain cancer. He has appeared healthy in public appearances but insiders say he is good at putting on a healthy public front while becoming exhausted to the point of near-collapse in private.

There are Democrats from the Rust Belt who will vote for cloture on some issues but not on others. Rust Belt Democrats are not at all pleased with Obama's cap-and-trade scheme which will cost thousands of jobs in already-depressed states. The goofy new kid, Franken, has expressed serious doubts about the Obama health care bill (he called it "not feasible"). And several moderate Southern Democrats have expressed reservations about Sonia Sotomayor's statements about the law, race and legal precedent combined with her recent slapdowns from the Supreme Court.

Republicans will have to be very cautious in considering attempted filibusters. If they try too often and lose, they will appear to be weak and merely silly obstructionists. If they don't use them at all when the entire future of the Republic is at stake (cap-and-trade, Obamacare, the next two Supreme Court nominees), they risk looking unserious and cowardly. But given the shakiness of the Democratic cloture coalition, they can never simply ignore the possible use of the filibuster. All they have to do now is convince John McCain that he has been relegated to the back bench, and if he ever wants to be prominent in the Party again, he needs to stay out of power-broking with the Democrats who don't honor their commitments.
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Rebuilding the Republican Party: Opposing “Czars”

One of the most fundamental principles of the Republican Party must be the protection of the Constitution. The Constitution is the agreement under which we the people have created the government and wherein we the people have carefully outlined the limits of its powers.

Key among those limitations sits the separation of powers. By dividing the government’s power between its three branches, the Constitution prevents any one branch from becoming too powerful. The creation of “czars” violates that separation and endangers our freedoms.

The Constitution is clear: the Legislature creates the laws, the Executive enforces the laws, and the Judiciary ensures that the other two branches don’t overstep their powers.

The use of czars upsets this balance because it allows the Executive to make law and it eliminates judicial review. This is illegal under the Constitution, it violates our agreement with the government, and it leads to the types of abuses the Constitution was meant to prevent. Our government is a government of laws, not of men. The use of czars flips this on its head and makes our government totalitarian in nature.

To understand this point, let’s begin with a brief outline of how the law actually comes into being: note the level of public review in each phase. All laws begin in the legislature -- the Congress, our elected representatives. Once approved, the law is sent to the President to be implemented and enforced. At that point, interested parties may challenge the constitutionality of the law in court.

To implement the law, the President instructs the relevant cabinet official(s) to review the law and to issue appropriate regulations. The official’s agency then prepares proposed regulations. The agency must give the public notice of its intent to issue those regulations and an opportunity to be heard, i.e. anyone may come forward and comment on the proposed changes. If the government fails to give proper notice, or it denies someone the right to be heard, then the regulations will be struck down as a violation of due process and the procedure must be repeated.

After the hearing period, the agency may issue the new regulations -- which can now be challenged in court on the basis that the regulations exceeded the scope of the law or that they are inherently unconstitutional.

Once implemented, everyone to whom the regulations apply must follow those regulations. If an agency violates those regulations, its action can be challenged in court as illegal.

Now let’s compare that to the czar process.

In the czar process, particularly as Obama is using it, the Executive selects one person to meet with representatives of a particular industry or interest. That person meets with those individuals privately and advises them of the steps that the Executive would like them to take. Standing behind these “suggestions” is the threat that if the industry fails to agree, necessary loan funds or approvals will be withheld.

This is essentially lawmaking even though the industry’s compliance is ostensibly “voluntary” because that compliance is obtained under duress -- you and I might call it extortion.

However, unlike true lawmaking, the public has no say in the laws that are produced, the public has no opportunity to review or challenge the existing regulations, and there is no court oversight of the constitutionality of the law or regulations, of the scope of the regulations, or of the implementation. These laws are made in private and they are aimed at specific individuals, and they cannot be reviewed in court because there techinically are no laws or regulations to review.

None of this is allowable under the Constitution.

Indeed, even Robert Byrd (D-WV) has stated in a letter to Obama that the use of these czars is a violation of the separation of powers:

The rapid and easy accumulation of power by White House staff can threaten the Constitutional system of checks and balances. At the worst, White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials. . .

As presidential assistants and advisors, these White House staffers are not accountable for their actions to the Congress, to cabinet officials and to virtually anyone but the president. They rarely testify before Congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege. In too many instances, White House staff have been allowed to inhibit openness and transparency, and reduce accountability.

I never thought I’d agree with Robert Byrd, but he’s right. And the Republicans need to recognize that he is right. What Obama is doing is totalitarian in nature. He has pushed aside the Constitution and claimed unto himself the power to make law, in private, without the involvement of the Congress, the Judiciary, or the people. This cannot be allowed to stand because the consequences are too dangerous to the continued existence of constitutional government in the United States.

Step up Republicans, defend our rights.

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