Our basic argument on this side of the aisle in opposing the Nuclear Option is that the Republicans are not following the rules, that they are breaking the rules in the Senate to eliminate the filibuster, and that they are doing so to pack the courts with like-minded ideological extremists.
However, in order to be consistent with our arguments on this assertion, and assuming the nuclear option does occur, we must make sure that we act accordingly after the fact. The logical conclusion of our argument is this:
- If, the Republicans break the rules to implement new rules, then those new rules are illegitimate, not having been approved via the regular, established process.
- If any judges are approved under and according to illegitimate rules, then they are also illegitmate.
What this means below the fold...
In a free country, then the basic underlying rule is that no one can make you do anything without your consent. Consent is the basis for all things, including the process by which that consent is obtained. In government, this consent is gained via an established
agreed to representative process, generally outlined in the constitution. Thus, rules implemented without following the rules have not obtained that consent and thus are not really legitimate, acceptable rules. Can congress pass a law with only 49%? No, the rules require a majority. This is a basic one, but the rules of the Senate are still the accepted, consented-to rules. To change them, you must follow the process outlined. If you do not, then you have not REALLY (and legitimately) changed the rules. The rules are only changed if we accept them via the established process. After the Nuclear Option is implemented, consent can
implied by submission to those rules (anyone who has ever been arrested should know what "implied consent" means). Therefore,
we cannot submit to them under any circumstances.
This means that if the Republican approve these judges (or future laws...) via these unduly implemented rules, they are not legitimate, and we in the minority, in order to be consistent with that position, cannot treat them as such.
This means that we must do these things:
- File impeachment bills challenging each judge's legitimacy in the House EVERY year that they remain seated on the bench.
- Judicial Watchdog groups should protest outside these judges' Court and offices on regular occasion and advertise against their legitimacy in that court's district or jurisdiction.
- Any litigants that find their cases before these judges should demand that judge's recusal in considering their case on the basis that they were not legitimately appointed to the bench.
- If they do not recuse, any decision should be appealed (particularly if one of these judges was a deciding vote or the writer of the court's opinion) on the basis that they are illegitimate judges and have no authority to make rulings that are binding on free men.
- Refuse to respect or follow any such court ruling. This may get you put in jail for contempt of court, and you will thereby join the ranks of Ghandi and Martin Luther King for being arrested for political protest.
- Democratic Senators must act as if the old rules are operative and TRY to filibuster every protested nominee. This recurring piece of political theatre signals to the public which judges are not acceptable after that approval occurs and invokes actions 1-5 for resisting those judges. It also forces the Republicans to REPLAY the nuclear option (and their rule breaking) each and every time that they try to approve one of these judges. Think about people tuning in on C-span to watch each and every time. Then, consider how this affects things when this becomes a bigger and bigger issue over time (which it will as long as the pressure is consistently applied).
- Constitutional amendments to constitutionally restore the filibuster in the Senate should be proposed in both houses of congress and supported by city council resolutions, state legislative resolutions and public events.
Democrats in the Senate need to make sure the Republicans understand that this is the reality that awaits any nominees approved via illegitimate rules. And the courts that they seek to stack will thereby be tainted (and undermined) as a result, PARTICULARLY if those nominees become Supreme Court justices. We may not have the power of the government, but as the minority and as citizens we do have the power to yank the cloak of legitimacy from their shoulders. The political implications of this are huge, particularly when these questions of legitimacy spill over into the 2000 & 2004 elections, the Iraq War, and torture of prisoners (not meant to be an exclusive list).
Consider that ultimately, what we are arguing for and standing up for here is the Rule of Law. That is the question that we will be presenting to the courts, to the Republicans, and to the American people. The rules of the Senate are the "law" of the Senate. If they do not abide by the rules there, then the argument is easily made that they will not abide by the rules elsewhere. Indeed, there are plenty of examples to point to to demonstrate this. However, that which is not lawful and lawfully done cannot be submitted to, or you have surrendered the rule of law by accepting an illegitimate one. How far then, to simply accepting an imperial decree by the president as the law? There's not much difference, in principle. Thus, to accept these rules or these judges is to betray the highest and most sacred principles of our Republic. Surely, we and all Democrats can agree that we must stand up for that.
Please add your ideas for further opposition to illegitimate judges below.