Let's have a fair look at our nation's most recent foray into something teetering on the edge of becoming what I might term, at least in these PG-13 rated pages, a fiasco. Justice Sandra Day O'Connor recently announced her retirement, and President Bush has nominated Judge John Roberts. Our national scene, with a certain flair that it has in situations like this or Terri Schiavo or Monica, is foaming at the mouth -- waiting, as always, to turn something that has the potential to be truly insightful into a sideshow.
What do we have a chance to do here? Well, we have a chance to have a candid discussion on our Constitutional principles, to put it lightly. We have a nice opportunity to wonder out loud about the virtues of affirmative-action-like policies in the instance of a woman, specifically sought out for a historically all-male job because she was a woman, being replaced by a man. But instead of these, what do we get? Dubya standing at a podium rattling off "judicial activist" and "legislate from the bench" like an auctioneer and ol' Teddy Kennedy slurring his words with his pants around his ankles.
One should not be nave enough to expect the Republicans to want anything other than a conservative on the bench or the Democrats anything other than a liberal; or, in fact, for either side to realize that those words, even if we accept their modern American meaning (which one should not), mean very little in reference to an Associate Justice of the United States Supreme Court. So rather than typify our College's motto and scream until blue in the face to no avail, I will simply say this: we must play by the rules of the game.
President Bush, for better or for worse, won re-election last year. Try as they may, the Democrats on Capitol Hill cannot change the fact that "he [the President] shall nominate by and with the Advice and Consent of the Senate judges of the Supreme Court" (U.S. Constitution, Article II, Section 2). While the intention of the founders is somewhat vague when they phrase it "by and with," it is beyond doubt that it has come to mean (partly through Article I, Section 5, where each House sets its own rules) that the President submits a nominee to the Senate, which may do one of two things: vote yea or nay, with a simple majority providing its "Advice and Consent." Or it can filibuster, in which case if there are not 60 votes to defeat the filibuster, the nomination dies. While it is a nice gesture (and one that went entirely unnoticed in the mainstream media), President Bush really has no obligation whatsoever to meet with Senator Leahy and take his concerns to heart. Like it or not, George Bush and not John Kerry won the election, and this nomination process is one of the consequences. Theoretically, 49.9 percent of Americans could disagree with this outcome, but our Constitution is based upon majority rule. Nothing about that says "majority rule except-when-it's-really-close-then-we-have-to-take-into-account-the-minority-too." I like majority rules as much as many Democrats do right now; the difference is that I am an outsider objecting in theory whereas they are insiders objecting because they have the short end of the stick this year.
If, by chance, one disagrees with the nomination process in principle and not as it pertains to this particular appointment, then he has a recourse to action: Article V. We often hear it come out when the crazies get really excited by the full moon: we need an amendment to "protect marriage," to make burning our flag punishable or we need a redundant equal-rights amendment. Let's start amending our Constitution in useful ways, shall we? And not in a pointless, anarchic way, either -- I know some are chomping at the bit to amend our Constitution the same way our framers "amended" the Articles of Confederation. I mean in important ways.
The Constitution gives Congress the power "[t]o regulate Commerceamong the several States" (Article I, Section 8). Since, as we all know, a butterfly flapping its wings in Australia can change weather patterns in Europe, where does this power end? Is there any activity in which you engage that some spiteful legislator could not connect to "Commerce" if you disgusted him enough? While we're at it, let's amend the Fifth Amendment so that "public use" is defined. Because remember, if we don't, those nasty, arch-conservative Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer might strengthen that takings clause. Wait -- evil Justices Rehnquist, Scalia, and Thomas dissented. Oops.
Maybe Roberts won't be that bad after all. In the meantime, where are my congressmen? I have some amendments to write.
