Dems' Power Grab Will Cost Them the War Over the Constitution in Court


ACRU Staff


December 6, 2013

This column by ACRU Senior Legal Analyst Ken Klukowski was published November 26, 2013 on

Winning a battle that costs you a war is no victory.

The silver lining from President Obama’s and Senate Democrats’ unprecedented power grab last week is that now a conservative Republican president can appoint a Supreme Court that will restore the Constitution to its historical place in our nation’s life, revitalizing limited government and safeguarding fundamental rights.

Had conservatives invoked the nuclear option, mainstream media outlets would have given it wall-to-wall coverage under the banner, “The Death of Democracy in America.” MSNBC hosts might have openly wept on camera. Instead, those outlets are virtually silent, and what little coverage they gave made this sound like a boring, inside-the-beltway bureaucratic parlor game.

Nonetheless, there is a shining silver lining in this situation over the long term, if–and only if–constitutional conservatives force the hand of Republican leaders to maintain this new standard once a Republican sits in the Oval Office and the GOP controls the Senate.

Constitutional government only thrives where all three branches of the federal government fulfill the roles the Constitution assigns to them. Beginning in the 1960s, to an unprecedented extent the Supreme Court began declaring new constitutional rights out of thin air and ignoring the text and original meaning of various provisions of the Constitution.

Liberal elites became enamored of this new way to trump democracy and remake American society in their image. They adopted the attitude that the ends justify the means, and would go to any lengths to preserve their ill-gotten gains.

As I discuss in detail in my 2011 book Resurgent, that was why Democrats changed the confirmation process for Supreme Court nominees when they took control of the U.S. Senate in the 1986 midterm elections. The two most accomplished and brilliant conservatives on the federal appeals courts were nominated to the Supreme Court. President Ronald Reagan nominated Antonin Scalia in 1986 before the election, and he was confirmed by a vote of 98-0. Reagan nominated Robert Bork in 1987 after the election, and Bork, despite having even better credentials than Scalia, was defeated.

A double standard emerged for conservative versus liberal nominees. Under Bush 41, conservative Clarence Thomas was barely confirmed 52-48. Under Clinton, known liberals Ruth Bader Ginsburg (extremely liberal) and Stephen Breyer were confirmed 96-3 and 87-9, respectively. Then under Bush 43 when Republicans held 55 Senate seats, conservative Samuel Alito was confirmed by just 58-42.

Furthermore, when Bush 43 took office, some liberals, led by Sen. Charles Schumer (D-NY), persuaded their Democratic colleagues to extend this double standard to presidential nominees for lower federal courts, winning approval from their leader, then-Sen. Tom Daschle (D-SD), who was defeated in 2004 by John Thune in part because of this unprecedented obstruction. Nonetheless, it has continued under Harry Reid’s leadership.

In a display of rank hypocrisy, Schumer turned 180 degrees, fully supporting last week’s power grab, and ironically is positioned to take over as the Democrats’ leader in the Senate if Reid goes the way of Daschle as a result of Reid’s many wrongheaded decisions.

But now that Reid and Schumer–with help from Obama, who personally lobbied wavering Democrats to go along–have changed the rules, conservatives may be the long-term beneficiaries. For decades, it has been easier to confirm liberals than conservatives to the federal bench. That no longer needs to be true.

For example, when then-Alabama Attorney General William Pryor was nominated to the U.S. Court of Appeals for the Eleventh Circuit, it became clear during his confirmation hearings that because he is a devout Roman Catholic who believes the teachings of his faith, he is personally pro-life. Even though he also made clear that as a lower-court judge he would be bound by Supreme Court precedent on abortion, Senate Democrats violated the constitutional guarantee that no one be subject to any religious test when being considered for public office, and obstructed Pryor’s nomination.

Eventually Pryor would win confirmation, along with some other nominees who were people of faith, but other conservatives were blocked. This double standard is intolerable and, under the new rule, can be brushed aside.

Now the constitutional balance can be restored if two things happen.

First, Democrats have long been unified in their desire for activist judges, because key parts of the liberal agenda cannot make it through the democratic process, since most Americans rightly reject them. But Republicans are deeply divided on judges.

Constitutional conservative Republicans are committed to see originalists put on the bench: judges who interpret each provision of the Constitution in accordance with what the voters of that time understood those words to mean. However, establishment Republicans only care about having “good Republicans” on the bench, many of whom are moderates who often ignore original meaning, some of whom turn out to be closet judicial activists who join liberals to declare the Constitution to mean whatever they want it to mean.

Thus, judges must become a deal-breaking issue during presidential primaries, especially in Iowa, New Hampshire, and South Carolina. And it must be made an unavoidable issue in every Senate primary.

Plenty of would-be presidential and senatorial candidates are committed to judges who are faithful to the Constitution. And this is a winning issue when properly framed to the voters. Most Americans prefer that judges stick to the Constitution and laws as written, and leave it to elected lawmakers and the voters to decide whether to create new public policy, allow new government powers, or recognize new individual rights.

So second, it must be a sustained effort among conservatives to elect only those Republicans who hold to these principles–which were deeply held by the greatest president in modern history, Ronald Reagan–and to effectively communicate these principles to the voters.

If these things happen, then in just a few short years there could be a reliable majority on the Supreme Court and lower courts of judges characterized by fidelity to the Constitution. Then from Obamacare to abortion, from the reach of the EPA to celebrating religious liberty, from First Amendment free speech rights to Second Amendment gun rights, the Constitution can be restored as a charter for limited government, and democratic self-rule restored to its proper place in our national life as Americans in every community and state will again be able to decide many matters for themselves.



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