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Advice & Consent

To conservatives across the country, the prospect of progressives rewriting American history to achieve their own ends, while disturbing, isn’t surprising. From the lie that America was founded by a group of godless agnostics and atheists to the belief that the Constitution isn’t based on any sort of absolutes, revisionists are seeking to recast America as a country most Americans don’t recognize. One of the most pernicious and dangerous lies about our history, however, is that the three branches of the Federal government are intended to be co-equal. This supposed “fact” of history is not in the Constitution, and actually stands diametrically opposed to the thinking of many of our Founding Fathers.

James Madison, one of the three writers of The Federalist Papers, which made the case for the Constitution, actually wrote in Federalist 51 “In Republican government, the legislative authority necessarily predominates.” This principle was taken as commonly held, as it is imperative that the people’s representatives hold the reigns of representative government. What we have seen instead, particularly over the past sixty years, is a radical redefinition of the judiciary not only as a co-equal branch, but as a supreme branch that is supplanting the other two. Such a consolidation of political power in the hands of an unelected, unaccountable and unrestrained judicial branch will spell the end of limited and responsible government in America.

While this year’s presidential and senatorial elections are enormously important due to the state of the economy and the culture of the country, they are also critical to the structure of the courts. President Obama, in keeping with his party’s proclivity toward activist judges, has appointed stunningly activist justices to the Federal judiciary. From Elana Kagan and Sonya Sotomayor on the US Supreme Court, to his appointments to the appellate courts, President Obama has sought to stack the judiciary with judges willing to rewrite the law from the bench. Such an activist judiciary spells disaster for the representative institutions of this country, and the rise of a ruling oligarchy that will reign in black robes. The framers of the Constitution clearly understood the dangers inherent in a supremacist judiciary, and provided tools to the Congress to deal with such dangers. Perhaps the most evident tool is that of the requirement of the senate’s approval of presidential nominations to Federal courts.

That’s why, in the wake of President Obama’s nomination of Andrew Hurwitz to the Ninth Circuit Court of Appeals, I’m surprised that some Republican senators are abdicating this obligation. Hurwitz is no run-of-the-mill judicial activist. As clerk to Jon O. Newman, the archliberal US District Judge for Connecticut, Hurwitz helped craft the argument used in the 1973 Roe v. Wade decision of the US Supreme Court. Hurwitz brags about the use of the courts to legalize abortion in America, which effectively by-passed the legislative process and the voice of the people. Thus, the position of a conservative in the US Senate should be to stop this man’s confirmation to the court by whatever means at his or her disposal. The “advice and consent” clause of the Constitution is there to protect America from the bad decision of a president pertaining to a judicial nominee. In the case of Andrew Hurwitz, I think it’s pretty clear that he has little to no respect for the intent of the Constitution that legislation rest with the legislature; therefore, a confirmation of Hurwitz to the court represents a clear and present danger to the republican institutions of this country.

Nevertheless, in a misguided, even if well-intended, effort to curry Democratic favor for up or down votes on the judicial nominees of Republican presidents, several Republican senators are saying they’ll vote cloture on Monday. Cloture is the process whereby debate is ended, and a filibuster is broken, allowing the Senate to vote with a simple majority on whether or not to confirm a nominee to the court. While this may sound reasonable at first blush, as conservatives like you and I are in favor of a fair vote, most conservative court nominees put forth by President Bush were filibustered by the Democrats in the Senate. Virtually none of the Democrats in the Senate ever voted to end debate and give these nominees and up or down vote on the floor. Therefore, Republican senators who think they’ll disarm Democratic opposition to future conservative nominees by voting to give the Democrats their guys are dreaming. It’s akin to offering a palm branch to a radical; they’ll just use it as a weapon against you.

Unfortunately, one of the three Republican senators who voted for Andrew Hurwitz in the Senate Judiciary Committee was Lindsey Graham of South Carolina. Additionally, there has been speculation that Senator Graham has considered joining with Senator John McCain to vote for cloture, thus paving the way for Hurwitz’s confirmation to the Federal bench. Now, I’ll be the first to say that Senator Graham’s record on protecting life is impeccable, and I believe in this instance he was not well informed prior to the committee hearing, but we have reached out to him prior to the vote on cloture. For two reasons, South Carolina conservatives cannot accept a vote for cloture on this nominee: 1.) it allows one of the most judicially active jurists of a generation on the Federal bench and 2.) It is not negotiating from a position of strength with regard to ending the practice of filibustering judicial nominees.

If Senator Graham wants to end the practice of filibustering judicial nominees, then let’s do it the right way. Giving the Democrats another judicial radical isn’t going to change their minds about filibustering future conservative nominees. Instead, vote against this judicial activist and then let’s have the parties sit down and talk about a change to the rules of the Senate. For a man as astute as Graham on military matters, he seems to have forgotten the wisdom he applies in foreign affairs: that unilateral disarmament invites further aggression on the part of your still-armed enemy.

Please urge pro-life Senator Lindsey Graham to vote no on cloture for Judge Andrew Hurwitz. Call Senator Graham at one of his office locations, information is provided below.


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