Monday, April 25, 2005

Injustice Sunday

The conservative "Justice Sunday" event--a giant talkathon against the filibuster--has of course ended (and aren't they smug about their accomplishments?). Legal Fiction watched the show (and I salute him for it, it means I didn't have to!) and has, as usual, essential commentary.

LF works his way across several points, many of which I have my own observations about. So let's take a look, shall we?
Interestingly, there was a heavy emphasis tonight on constitutional and legislative procedure. You heard over and over that the Senate was neglecting its constitutional duty to 'advise and consent.' Each speaker demanded an up-or-down vote as the Constitution requires. Frist himself didn't even mention religion – it was strictly about process and the nominees’ right to an up-or-down vote. To an average listener, this doesn't sound unreasonable at all. The Constitution says the Senate shall 'advise and consent,' and it doesn't appear to being doing so by denying an up-or-down vote on the nominees.

Though it seems reasonable, this constitutional argument won’t work. The Constitution does say 'advise and consent,' but it never defines 'consent.' What is or isn't 'consent' is determined by internal Senate rules. In other words, the Senate gets to decide how it approves of everything from legislation to treaties to nominees.

I think that LF is making this way too complex. When the constitution says with the "advice and consent" of the Senate, it means the senate must take affirmative action. My Oxford Essential Dictionary defines "consent" as "to express willingness; agree." If the Senate doesn't "express willingness", then it is withholding consent. It can explicitly deny consent of course, via a "no" vote, but that does not mean that consent is a yes/no dualism. I too, can expressly consent to go to the park, or expressly say I don't want to, or just not do anything at all. In the latter case, I certainly am not consenting to a park trip. If the Senate takes no action, it is legitimately withholding its consent from the nominee.

One more thing, that I shouldn't even have to add: Contrary to what Justice Sunday participant and FRC chief Tony Perkins has insinuated in the past, the senate is perfectly justified in not consenting to a nominee. Perkins said, and I quote, that the "Senate's role is to 'advise and consent' when it comes to judges, not 'block and dissent,'" implying that dissenting from the president's picks for the judiciary is unconstitutional. Under that logic, even rejecting a presidential nominee WITH an up/down vote would be unconstitutional. Oh, and one more question: If the Senate is abdicating its "consent" duties, I wonder if the President actually sought the "advice" he is constitutionally required to obtain? [crickets chirping]

The other point LF makes is on the self-delusional sense of assault that the Christian right experiences.
When I wrote my post on the Outrage Industry, one of the commenters suggested calling it the Persecution Industry. I'll stick with my phrase, but the commenter was correct too. The Justice Sunday leaders require outrages and persecutions to feed their movement. And you could see that tonight. Even though their language was toned down, the big theme was persecution. The Christian faith is under attack. Pryor and Pickering were discriminated against because of their religious faith, and you could be next (Mohler said 'you and yours' could be next). Babies are being killed. Pornography is everywhere. Marriage is being undermined. Even the title of the event referred to the 'filibuster against faith.' Everywhere, oh everywhere, the secular Left is attacking us. Even though Republicans control all branches of government, people of faith are being persecuted. And the persecution is so great that it requires breaking the Senate rules.

Outrage Industry, Persecution Industry, or Fetishizing our own oppression, it is all the same. The Christian Right needs to get a grip. I'm sorry, but at the point where you're seeing anti-Christian bias at The Air Force academy, you know you've been smoking some strong stuff. Get off the brink and maybe we can have a rational discussion about what our country really needs.

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