Gearing up for a fight

David Limbaugh

7/29/2005 12:00:00 AM - David Limbaugh

Senate Democrat leaders, after briefly masquerading as "uniters, not dividers," appear to be gearing up to fight the nomination of John G. Roberts. Bring it on, ladies and gentlemen -- and Sen. Kennedy.

 I doubt their opposition will be designed to defeat Roberts. He is way too qualified, clean and amiable. He is light years away from the gang of 14's "extraordinary circumstances" excuse to invoke a filibuster. And, he's supported by high-powered lawyers in both parties, from the Beltway to Harvard.

 The fanfare over the release of decades-old legal memos, and, ultimately, Roberts' judicial philosophy is aimed at laying a foundation for opposing Bush's next high court nominee.

 More importantly, it will feed the perpetually outraged malcontents known as the Democrat base. I suspect they're feeling abandoned following Hillary Clinton's most recent Sister Souljah moment in which she suggested the unthinkable: unity among the Michael Moore and Moveon.org crazies and the rest of the party.

 But since we dare never underestimate the tenacity of the Democrat saboteurs, nor the squishiness of certain Republican moderates, we better take the Leahys and Schumers at their word and assume they mean business when they signal their readiness for battle.

 Sen. Schumer, who but for his colleague Sen. Leahy, would deserve the highest award for political posturing and chutzpah, issued a veritable threat to the White House over three potential pitfalls facing Judge Roberts' confirmation.

 Schumer warned that the White House's refusal to turn over every last document, no matter how remote or irrelevant, was "strike one" against the nominee. Robert's unwillingness to answer questions about past and future Supreme Court cases would be "strike two," and the Republicans' Sept. 29 deadline for voting on the nomination could be "strike three."

 The tyrannical, would-be Umpire-in-Chief Schumer issued an edict from his minority pulpit declaring there will be "negative consequences" if one or more of these "strikes" accumulate against Roberts.

 Meanwhile, Sen. Kennedy weighed in on the bogus documents flap, saying the attorney-client privilege doesn't shield Roberts' writings as deputy solicitor general because "that office works for all the American people, not just the president."

 Under Kennedy's reasoning, this privilege can never be invoked, or waived, absent a plebiscite. Tell me if I'm mistaken, but I can't recall Kennedy pressing President Clinton to release documents he fraudulently sought to conceal under the executive privilege umbrella on the grounds that "the president and his entire staff works for all the people."

 Elsewhere, Sen. Leahy was unwittingly auditioning for a stand-up comedy gig as he righteously announced, during an interview on Vermont Public Radio, that he will vote against Judge Roberts if he seems likely to pursue an activist philosophy. Leahy said, "I want to find out if he's going to be as active as … people like Justice Scalia and Justice Thomas, who have almost willy-nilly overruled things."

 To devout liberals like Leahy, Kennedy and Schumer, an activist Supreme Court judge is one who would roll back precedent established by rampant liberal judicial activism. They know "judicial activism" has a negative connotation, just like "liberal," which they euphemize as "progressive," so they simply turn it completely on its head, accusing its fiercest opponents -- Scalia, Thomas, etc. -- of being its practitioners.

 How can we trust people who so freely distort the language? To understand the magnitude of Leahy's deception, consider the type of judge he views as "a judge of proven competence, temperament and fairness." Edward Whelan, writing for National Review's "Bench Memos" blog, reminds us that Leahy so described Clinton nominee Lee Sarokin, who Leahy supported in 1994 for confirmation to the Third Circuit Court of Appeals.

 According to Whelan, Sen. Hatch stated that Sarokin was known as a "stridently liberal judicial activist," and one who described himself as a "flaming liberal" as a judge. Whelan adds, "The Third Circuit had lambasted Sarokin for 'judicial usurpation of power,' for ignoring 'fundamental concepts of due process,' for destroying the appearance of judicial impartiality, and for 'superimpos[ing his] own view of what the law should be in the face of the Supreme Court's contrary precedent."

 If Sarokin is such an activist that he would defy Supreme Court precedent while legislating from his lower bench, imagine what he would do on the Supreme Court. Yet this is the type of guy Leahy considers a model jurist -- as he falsely labels judges with reverence for the Constitution and their proper role under it, as "activists."

 I welcome a public fight in the Senate chambers over the Roberts nomination. Then, television viewers can see for themselves just how extreme these people have become as they seek to paint Judge Roberts "outside the mainstream," in yet another egregious example of their willful distortion of the language.