Accuracy in Media

There are many ways to honor those courageous Christian adventurers and pioneers seeking religious freedom and a new life, commonly called “Pilgrims.”  None of us is responsible for the achievements or sins of our forefathers, notwithstanding all the leftists who continually advocate some kind of apology for ancestral sins.  However, this writer has a special interest in Thanksgiving.  His eight-times great-grandfather, who also signed the Mayflower Compact, was a Pilgrim and presumably was present at the harvest feast thanking God which history recognizes as the first Thanksgiving.

Perhaps it is not an undue stretch as this Thanksgiving approaches to recognize, and give thanks for, the Federalist Society.  Founded 25 years ago, the Society just completed it momentous Annual Meeting, in Washington, D.C.  President George W. Bush was the principal speaker.  Chief Justice John G. Roberts, Jr., as well as Justices (in order of seniority) Antonin Scalia, Clarence Thomas and Samuel A. Alito, Jr. spoke.  A number of prominent Federal judges, United States Senators and Representatives, Attorney General Michael R. Mukasey, Secretary of Labor Elaine Chao and academics participated, as well as leaders of the Bar (the latter two groups exemplifying the fact that a significant number of academics and attorneys, if undoubtedly and unfortunately a minority, are traditionalist). 

The President’s opening remarks reflect his good humor:

Thank you all. [Applause] So much for the dress code. [Laughter – most guests in black tie, President in a business suit] I’m honored to be with you.  I appreciate being with an organization that understands the value of free speech – so much so that [the Federalist President] asked if I’d give one. [Laughter] I told him I’d be happy – but I warned him that if you invite me back for the 30th anniversary it’s going to cost some billable hours.  [Much laughter, bearing in mind the majority of the audience was attorneys.]

The President proceeded to point out that “In just a quarter century, the Federalist Society has transformed itself from a student organization into a vital national institution…[with] a reputation across [the] ideological spectrum for open debate and intellectual vigor.  Members…believe…[that] our written Constitution means what it says…”

The President then correctly pointed out that the Founders “had a clear understanding of tyranny” and provided a tripartite separation-of-powers Federal Government – Executive, Legislative, Judiciary, each to “resist the temptation to encroach on the powers the Constitution accords to others.”  He also correctly noted the unfortunate reality that “some [Federal] judges…make law instead of interpreting [it]….”  While the phrase may be a bit trite and unduly simplistic, it is of value because many people understand it – some judges go beyond the letter of the law, usurping the Congressional power to legislate and the Executive power to administer.

President Bush specifically noted the oft-misunderstood and oft-misapplied phrase, a “living Constitution.”  In fact, the late Justice William J. Brennan, Jr., and a few others to the contrary notwithstanding, the Constitution lives when judges apply its language – specifically including its many limitations – as written, not when they update, revise or restate the language to grab or expand powers which do not exist in the written document.

Suffice it to say that among Bush nominees to the Federal Bench many have been shamefully treated by some Senators, while those nominees have been, and continue to be, a worthy and competent roster.  Leftist Senators greatly have harmed the Federal Judiciary in what progressively more obviously is disproportionately an attempt to radicalize the Judiciary while holding open as many vacancies as possible in anticipation of a far more liberal President and Senate of the 111th Congress after January 20, 2009.

The Senatorial obstructionist record speaks for itself.  As of November 15, 2007, the following statistics recount the story:

1.  There are 11 United States Courts of Appeals nominations pending before the Senate.

2.   Six such nominations, pending in the Senate Committee on the Judiciary, are to fill vacancies constituting “Judicial Emergencies,” as that term objectively is applied by the Administrative Office of the United States Courts.

3.    Three such nominations first were sent to the Senate more than 16 months ago – still no vote.

4.    In the last two years of the preceding three Presidential administrations the Senate confirmed an average of 17 Court of Appeals nominations.

5.     The Senate has confirmed only five this year, roughly half the period of the last two years of the present Administration.

6.   The United States Courts of Appeals for the 1st-11th, District of Columbia and Federal Circuits annually adjudicate more than 30,000 cases, fewer than 100 of which are reviewed by the Supreme Court of the United States.  Quite clearly, those Senators effectively blocking – rarely voting down, instead deliberately delaying – the pending nominations, have jeopardized, and are jeopardizing the functioning of the Federal Judiciary.

Notwithstanding Senatorial dereliction, and on a more salubrious note, let us offer a tribute and thanks to the Federalist Society.  The Society devotes itself, by publication and programs – including occasionally lively debates – to furtherance of the separation of powers and of sound and traditional law as envisioned not only by the Founders who wrote THE FEDERALIST PAPERS (Alexander Hamilton, John Jay and James Madison), and more specifically FEDERALIST ## 47, 48, 51 and 78, but by all the Founding Fathers who addressed the subject of separation of powers and judicial independence and objectivity.

Guest columns do not necessarily reflect the views of Accuracy in Media or its staff.

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