King George and the zealots

Long live the king
by Gene Lyons

Wednesday, May 4, 2005

Very shrewdly, President Bush beat a tactical retreat on the role of religion in politics during his recent White House press conference.

Speaking soon after "Justice Sunday," a closed-circuit telecast in which certain of the Republican Party’s more fervid theologians decreed that Democrats had shown their enmity to "people of faith" by rejecting a handful of his judicial nominees, Bush was asked if that struck him as an appropriate characterization. After a bit of tap-dancing—the president said he didn’t agree with calling Democrats anti-God, but wouldn’t call it inappropriate, either—Bush eventually emitted a bit of bedrock Americanism. "I think faith is a personal issue," he said. "And I take great strength from my faith. But I don’t condemn somebody in the political process because they may not agree with me on religion. The great thing about America is that you should be allowed to worship any way you want. And if you chose not to worship, you’re equally as patriotic as somebody who does worship. And if you choose to worship, you’re equally American if you’re a Christian, a Jew, a Muslim. And that’s the wonderful thing about our country and that’s the way it should be."

Do not be deceived. In effect, Bush is playing "good cop" to James Dobson and Charles Colson and the rest of his right-wing fundamentalist allies’ "bad cop." What’s at stake here is the so-called nuclear option currently being pushed by Senate Majority Leader Bill Frist, R-Tenn., for killing the filibuster, cutting off debate in the U.S. Senate by a simple majority vote, abandoning 200 years of tradition for the purpose of converting the federal judiciary into an arm of the Republican Party and going a long way toward turning the president into a king.

In a tone of sweet reasonableness, Bush allowed as how "for the sake of fairness," the good folks he’d nominated deserved nothing more or less than an "up-or-down vote on the floor of the Senate."

He neglected to mention that since the Supreme Court gave him the presidency in a partisan 5-4 vote in 2000, the Senate has confirmed more than 95 percent (205 of 215) of the judges he has nominated, and that there’s no precedent in American history and nothing in the U.S. Constitution that says the rest deserve an up-or-down vote. Republicans prevented 60 of President Bill Clinton’s judicial nominations from getting a vote between 1995 and 2000 with no talk from Democrats of a "culture war" or a constitutional crisis.

Here’s what Article 2 of the U.S. Constitution says about the president’s power to make appointments: "He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court" etc.

Notice that there’s not a syllable implying a simple majority vote. That’s because the entire document was carefully crafted to prevent what James Madison called "factions" from seizing control of the country by winning one election. "A religious sect," he warned in Federalist No. 10, "may degenerate into a political faction." He might have been talking about "Focus on the Family," the Family Research Council and the rest of these hot-eyed zealots who mistake their own opinions for the voice of God.

The reason we have three separate branches of government and two houses of Congress is to prevent narrow majorities from trampling everybody else’s rights. The judiciary isn’t supposed to be subordinate to the president and his party but independent of them. "This point is of special importance," writes constitutional scholar Cass Sunstein, "in light of the fact that many of the court’s decisions resolve conflicts between Congress and the president. A presidential monopoly on the appointment of Supreme Court justices thus threatens to unsettle the constitutional plan of checks and balances."

Moreover, the U.S. electorate remains very closely divided. While Bush eked out a close win in the 2004 election, 45 Democratic senators chosen over revolving six-year terms represent more Americans than their Republican colleagues.

Seizing a narrow advantage now could eventually have explosive repercussions. Nobody understands that more clearly than Al Gore, who, yielding to a badly reasoned Supreme Court decision in 2000, gave up his presidential hopes in deference to the rule of law. "I can tell you without any doubt whatsoever," Gore emphasized in a speech last week, "that if the justices who formed the majority in Bush v. Gore had not only all been nominated to the court by a Republican president, but had also been confirmed by only Republican senators in party-line votes, America would not have accepted that court’s decision." The so-called nuclear option has nothing to do with conservatism; it’s radical utopianism in a religious disguise.