For years, I had pled with conservatives and liberals alike on this seemingly academic issue. The filibuster rule in the United States Senate must be preserved. We need to keep this dilatory tactic for the good of the Republic. We must not allow the majority to ram through any kind of legislation they want to, at the expense of the dedicated minority.
Sure, it made sense. The U.S. Senate serves as the upper chamber to protect the interests of all states, and prevent the larger states edging out the smaller ones. The U.S. Senate was supposed to serve as the more elite branch of government, to “cool the passions” of populist sentiment, according to George Washington.
Unfortunately, the elitist temperament today has become just as dangerous to our republic as populist sentiments had been in the 1930s and 1940s. Furthermore, the Democratic Party has turned into a bunch of neck-tied anti-social injustice warriors hell-bent on forcing a destructive, anti-constitutional agenda onto the entire country. Two years ago, the Democratic US Senators attempted to pass a bill severely curtailing the Bill of Rights!
The Democratic Party has become the Regressive-Socialist-Communist Party, and they have no interest in fighting to ensure the protection of minority rights from majority rule. Their efforts are now the tyranny of the minority altogether, which the Framers fought against when they scrapped the cumbersome Articles of Confederation with our current United States Constitution. They will never stop using the filibuster, but not because they care about this country’s founding principle.
Combine this conflict with the confirmation of federal judges, particularly for the United States Supreme Court, and now it’s time to announce “Washington D.C. we have a problem!” The well-coiffed SJW-Democratic U.S. Senators are like wild animals cornered and facing ultimate capture. They are fighting to the death, fully aware that wavering on highly-qualified Supreme Court nominee Neil Gorsuch will dry up whatever George Soros money and grassroots volunteers they have depended on.
When it comes to the appointment of federal judges, however, the role of the US Senate has gotten considerably more complicated. The Supreme Court has become the final arbiter on our laws as well as the sense and legacy of our Constitution. This conflict is all wrong and must be resolved in a more thorough fashion. How did this happen? At first, the politicization of judges seems to have begun in the 1930s with Franklin Delano Roosevelt threatening to pack the Supreme Court with fifteen justices. FDR’s idea died a quick death, but the legacy of an activist court goes further. Forget Plessy v. Ferguson, and go back further than Dred Scott v. Sanford.
The original decision which set in place this obscure and ultimately destructive judicial tyranny: Marbury v. Madison. Then Chief Justice John Marshall may have had his heart in the right place, but his precedent has slowly eroded representative democracy and republican governance. Since when does an unelected justice get to decide which laws are and are not constitutional? When did the rapping of an old gavel determine whether a law would withstand final scrutiny or fail?
Alexander Hamilton outlined very persuasively the relative weakness of the judicial branch of government. The court system was never supposed to serve as a law-making or policy-making body. Why else would John Jay give up such an easy gig (he was the first Supreme Court Chief Justice) for an ambassadorship? The Framers viewed the court as small time for ambitios minds. Want a robust political future? Want to impact policy for decades to come? Get off the bench! Yet after 220 years of getting away with striking down laws and rewriting statutes, the Supremes and their circuit and district court inferiors have gotten too big for the black dresses.
How do we get out of this mess?
First, the Republicans are right to get rid of the filibuster for all judicial nominees. Just vote for them. Confirming Gorsuch will ensure a constitutional originalist, a strict constructionist who recognizes his role as a dispassionate umpire rather than a partisan zealot. Will Republicans regret this decision, however? Not if our elected official get serious about the core problem: ending judicial tyranny at all levels of the federal courts system.
Then talk about ending the role of judicial determinism in our legal culture, too. Judges in federal jurisdictions should ensure proper trial by jury in district courts, proper application of laws at the appellate and final Supreme Court levels. They should not wander into writing laws or arrogantly assume that their decisions determine whether laws remain on our books or get whisked off into the ash-heap of hasty repeals. This is a real problem, people, and it’s time for expert legal minds, elected officials, grassroots activists, and political pundits to face this issue. Time for a re-examination and ultimate repeal of Marbury v. Madison. It’s time to govern like 1787 (ratification of the US Constitution) and not like 1803, when judicial review was enacted by judicial fiat by Chief Justice John Marshall.
But what about the need to check and balance popular sentiment in the country? Very easy. The U.S. Senate should still act as a check on the popular vote. Right now it cannot, since US Senators are popularly elected, and thus more susceptible to political party pressures rather than Constitutional guarantees.
So, here's the way out of these judicial nominee landmines:
1. Repeal the filibuster. It is, after all, the Constitutional Option
2. Confirm Gorusch
3. Undo the Marbury v. Madison legacy of judicial review
4. Repeal the 17th Amendment, and give back the U.S. Senate to the states, and restore the power of state legislatures to elect U.S. Senators.
Not easy, granted. But I think that Trump is ready to lead this iconoclastic agenda for the greater good of the country, and if 2018 turns out as I expect it to, the U.S. Senate and House of Representatives will step closer to stable supermajorities (with the few remaining common-sense Democrats) to fix these underlying problems.