More than 40 years ago, Ronald Reagan delivered a televised address called "A Time for Choosing" about the ideological choices Americans faced in the 1964 presidential election between Lyndon Johnson and Barry Goldwater. The speech was to form the basis for Reagan's own presidential candidacies in 1976 and 1980.
Republicans and the nation are now faced with another time for choosing in the matter of confirming judges to the federal bench. For at least the last four decades, liberal Democrats have imposed their ideas and values on the nation without the benefit of a debate or public consent. On the most contentious of issues, such as religious expression in public places, abortion and what constitutes a family, a judicial elite has handed down rulings frequently out of sync with the Constitution and the will of much, if not most, of the citizenry.
Senate Republicans now have a once-in-a-lifetime chance to do something about judicial freelancing by confirming judges to the federal bench who will adhere to the Constitution and the laws of the United States, as they swear to in their oath. This is not what many modern judges have been doing. Too many have decided legal issues based on their personal preferences. If Republicans squander this unique opportunity to repair our broken legal system, they no longer deserve to be in charge of government.
Some Republican senators have expressed concern that "comity" might be irreparably harmed if they vote to change Senate rules that they themselves created and which are not in the Constitution. The new rules would apply only to judicial nominees, and the filibuster would still be available for nominees to other offices and for all other issues. Other senators worry that if Republicans "do this" to Democrats, they will not be able to block judges nominated by a future Democrat president.
These arguments are irrelevant to the greater task at hand, which is putting the courts back within their constitutional boundaries instead of permitting their continued violation of the separation of powers by making law themselves.
If this constitutional reconstruction project works, Republicans won't need to worry about what happens 20 or even 40 years from now. They will have performed in such a way that a new generation will grow up knowing how the Constitution is supposed to work, just as many now living have known nothing but judicial tyranny, which serves neither the law nor the public.
Vice President Dick Cheney stepped into the judicial wars last Friday when he spoke to the Republican National Lawyers Assn. He pledged to cast the tie-breaking vote should the Senate deadlock 50-50 on the question of changing Senate rules. Apparently addressing vacillating Republican senators, Cheney said, "On the merits, this should not be a difficult call to make." Speaking of Democrat filibusters to keep qualified judges off the bench because of their conservative approach to the Constitution, Cheney added, "The tactics of the last few years, I believe, are inexcusable."
Some Democrats, like West Virginia Sen. Robert Byrd, who once favored majority rule when his party ruled the Senate, oppose it now that Republicans hold the majority. In the 1970s, Byrd and his fellow Democrats voted to end filibusters and in favor of a simple majority when it suited their political and legislative goals. Democrats, then, didn't worry about a loss of comity and what Republicans might do to them a decade or two later. They simply used the power they had to achieve their objectives, which is precisely what Republicans should do now.
There is only one reason to have power, and that is to use it. If Republicans don't use it, they deserve to lose it. The Constitution is not, as the late Chief Justice Charles Evans Hughes cynically observed, "what the justices say it is." The Constitution is what the Constitution says it is. Do Republican senators believe that?
We should soon know the answer to this question, because it's nearly time to choose again.