Lindsey Graham: “[Only Some] Elections Have Consequences”

Let us be blunt. Sonia Sotomayor should never sit on the Supreme Court. Even without the hints of bigotry, she lacks the judgment, understanding and skill needed to make her a competent jurist, and she certainly does not display the kind of outstanding legal mind that should be elevated to the Supreme Court. She is, at best, a poser, and, at worst, an inconsistent tyrant.

Yet, she will be confirmed, and that’s fine. Everybody loves a fool, and history will simply add her to the growing list of albatrosses hanging around the well-feathered neck of Obama’s legacy.

But this post is not about Sonia Sotomayor. This post is about Lindsey Graham (RINO, SC) and those like him in either party.

Graham announced yesterday that he will support nominee Sotomayor because, as he put it, “elections have consequences.” But that is not a valid basis for supporting a President’s nominee. Indeed, the Constitution does not envision the Senate as a rubber stamp for a President’s appointments. Instead, the Senate is called upon to provide “advice and consent” on appointments, not to approve them without complaint.

If a nominee is inadequate, it is the duty of every Senator so finding to stand up in opposition to that nominee, and to demand that the President nominate someone else, someone the Senator can support. That’s called checks and balances. That’s how our government works. To surrender this role on the basis that the President has won an election is to abdicate one of the primary constitutional functions of a United States Senator.

Remember, Senator, the oath of office for Senators requires Senators to pledge to support and defend the Constitution and to faithfully discharge the duties entrusted to the office:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Nothing in there says, “unless the other guy won an election.”

Nor can Graham's submissive desires be attributed to some political courtesy extended by one party to another. Indeed, the Democrats extended no such courtesies when they smeared Robert Bork, Douglas Ginsberg or Clarence Thomas, or when they prevented John Tower from becoming Reagan’s Secretary of Defense (an historical first), in a party-line vote, because of suggestions of “womanizing” and “alcoholism.”

And speaking of elections, might one wonder why Senator Graham only recognizes the consequences of the election of the President? Was the Senator himself not elected to represent the people of South Carolina? How does declaring an intent to ignore that mandate in favor of rubber stamping a President recent-elect satisfy that election? Or do only some elections have consequences?

Now admittedly, Graham also stated that he felt that Sotomayor was well-qualified. And if that had been his sole reasoning, one could quibble with his conclusion but not challenge the good faith basis of his decision. But he had to add that extra piece. . . his abdication of his role. . . his declaration of submission, and that is the problem.

It absolutely pains me to say this, Senator Graham, but look at Robert Byrd. Agree with his politics or not, Byrd fully understands his role as a check on the power of the Executive.

And let me not limit this criticism merely to the submissive Senator Graham. This criticism should be extended to every member of Congress or the Senate, in either party, who fails to represent the people they have been elected to represent, and who fails to faithfully discharge the duties of their office.

Representative democracy only works when the representatives represent. It does not work, when they decide to make up their own rules.

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Rebuilding the Republican Party: Opposing “Czars”

One of the most fundamental principles of the Republican Party must be the protection of the Constitution. The Constitution is the agreement under which we the people have created the government and wherein we the people have carefully outlined the limits of its powers.

Key among those limitations sits the separation of powers. By dividing the government’s power between its three branches, the Constitution prevents any one branch from becoming too powerful. The creation of “czars” violates that separation and endangers our freedoms.

The Constitution is clear: the Legislature creates the laws, the Executive enforces the laws, and the Judiciary ensures that the other two branches don’t overstep their powers.

The use of czars upsets this balance because it allows the Executive to make law and it eliminates judicial review. This is illegal under the Constitution, it violates our agreement with the government, and it leads to the types of abuses the Constitution was meant to prevent. Our government is a government of laws, not of men. The use of czars flips this on its head and makes our government totalitarian in nature.

To understand this point, let’s begin with a brief outline of how the law actually comes into being: note the level of public review in each phase. All laws begin in the legislature -- the Congress, our elected representatives. Once approved, the law is sent to the President to be implemented and enforced. At that point, interested parties may challenge the constitutionality of the law in court.

To implement the law, the President instructs the relevant cabinet official(s) to review the law and to issue appropriate regulations. The official’s agency then prepares proposed regulations. The agency must give the public notice of its intent to issue those regulations and an opportunity to be heard, i.e. anyone may come forward and comment on the proposed changes. If the government fails to give proper notice, or it denies someone the right to be heard, then the regulations will be struck down as a violation of due process and the procedure must be repeated.

After the hearing period, the agency may issue the new regulations -- which can now be challenged in court on the basis that the regulations exceeded the scope of the law or that they are inherently unconstitutional.

Once implemented, everyone to whom the regulations apply must follow those regulations. If an agency violates those regulations, its action can be challenged in court as illegal.

Now let’s compare that to the czar process.

In the czar process, particularly as Obama is using it, the Executive selects one person to meet with representatives of a particular industry or interest. That person meets with those individuals privately and advises them of the steps that the Executive would like them to take. Standing behind these “suggestions” is the threat that if the industry fails to agree, necessary loan funds or approvals will be withheld.

This is essentially lawmaking even though the industry’s compliance is ostensibly “voluntary” because that compliance is obtained under duress -- you and I might call it extortion.

However, unlike true lawmaking, the public has no say in the laws that are produced, the public has no opportunity to review or challenge the existing regulations, and there is no court oversight of the constitutionality of the law or regulations, of the scope of the regulations, or of the implementation. These laws are made in private and they are aimed at specific individuals, and they cannot be reviewed in court because there techinically are no laws or regulations to review.

None of this is allowable under the Constitution.

Indeed, even Robert Byrd (D-WV) has stated in a letter to Obama that the use of these czars is a violation of the separation of powers:

The rapid and easy accumulation of power by White House staff can threaten the Constitutional system of checks and balances. At the worst, White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials. . .

As presidential assistants and advisors, these White House staffers are not accountable for their actions to the Congress, to cabinet officials and to virtually anyone but the president. They rarely testify before Congressional committees, and often shield the information and decision-making process behind the assertion of executive privilege. In too many instances, White House staff have been allowed to inhibit openness and transparency, and reduce accountability.

I never thought I’d agree with Robert Byrd, but he’s right. And the Republicans need to recognize that he is right. What Obama is doing is totalitarian in nature. He has pushed aside the Constitution and claimed unto himself the power to make law, in private, without the involvement of the Congress, the Judiciary, or the people. This cannot be allowed to stand because the consequences are too dangerous to the continued existence of constitutional government in the United States.

Step up Republicans, defend our rights.

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