May 20, 2005
By Pascal Fervor
This is about situational ethics. When two principles collide, the proper course of action is to decide which rule has prominence.
As you read the following ask yourself, “which rule would I prefer altered?” You will have an old rule changed or a pattern of breaking rules continued. Let’s assume for now that you have no other choices. Which do you choose?
The old rule altered: the filibuster. The filibuster is the Senatorial practice that keeps an issue forever in debate and thereby prevented from coming to a vote of the Senate. For the most part there was an unwritten agreement among partisans not to filibuster judicial appointments. The sole exception was the ethical cloud over the elevation of a Justice (Fortis) by an unpopular president (Johnson). The current fracas came about because one set of partisans (many believe to be desperate) have forsaken past unwritten rules and have invoked the filibuster on judicial candidate review along partisan bias alone. Thus the alteration currently under consideration is to formally institutionalize what was formerly expected of Senators as a matter of honor, courtesy and decorum. When the Left is desperate it is precisely not the time for the Right to give in. To give in would invite wider and wider excess from the Left.
The pattern of breaking rules continued: rule being broken is that laws and constitutional articles mean what they say (“original intent”). There has been on-going argument in the legal community that displease those favoring individual liberty but that has been favoring authoritarians. Those favoring liberty believe that diversions from current law formerly required formal alterations, subject to vote by representatives elected by the people. But the authoritarians like that the judicial arm of government has incrementally increased its authority over America by finding new meanings for old words and phrases (the “living document” partisans).
This latter situation has a majority of people begging that the courts formally be checked through the other branches of government.
Mostly one party, but also statists in the other party too, the Left, wish to block the gradual dilution of rules breakers in the courts. They are attempting to accomplish this by blocking the appointment to the appeals court of judges who appear to be adherents of original intent. Letting the Left do this guarantees that the number of judges who believe that it is solely their judgment (even whim) what the rule of law may be – arbitrarily according to them – are unchecked. This is contrary to what the people want.
So how are you going to convince Americans that this is the issue around which the filibuster argument revolves?
The legalists have been bending the rules of language itself. They make claims that laws have more latitude than any that was agreed after long senatorial debate. Ironically, some of those laws may have been passed even after compromises hammered out after themselves having being subject to legitimate filibuster; i.e., over substantive issues there and then, and not over political ideology of candidates as we are witnessing now.
But not satisfied with the legitimate hammering out of law democratically, Leftist activists and their kinsmen sitting on the courts have used judicial activism to thwart those painfully employed but properly carried out legislative mechanisms. This is the rule breaking currently undergoing correction by formal means: the seating of (hopefully) original intent adherents.
The lay public has seen judicial activism. They dislike it. I believe they already see it, or may be made to see that it is on a par with any cheats who weasel on contracts after the ink has dried and the execution begun. Americans may be made to see that the Democratic Party and their few buddies in the Republican Party are attempting to prevent the correction of this rule breaking that Americans dislike the most.
Please, blogosphere and talk radio callers: Contrast these two choices. Make the distinctions clear to your fellow Americans. You know full well which rule Americans will recognize must be formalized (the filibuster) so that another more pressing rule (laws mean what they say) may be fixed.
.© Copyright, PascalFervor.com, 2005, All rights reserved.