WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  October 28, 2006

Topic category:  Other/General

America Still Needs A Republican-led Senate

For the sake of its critically important bastion against legislative and executive abuse, the federal judiciary, America needs MORE Republican Senators, not less, so that (1) judicial nominees will be voted upon in a timely way, as the Constitution contemplated, and (2) strict constructionists will preside in the federal courts instead of judicial activists favored by Democrats intent on forcing their unpopular agenda upon the people through judicial activists and under the guise of constitutional and statutory interpretation (example: Judge Anna Diggs Taylor, a Democrat who ridiculously ruled this year that the vital terrorist surveillance program is neither lawful nor constitutional when it is both and whose ruling has been stayed by a federal appellate court). 

Wendy E. Long, general counsel of The Judicial Confirmation Network, splendidly explained what is at stake and why: "A liberal minority needs federal judges to advance their agenda — allowing child pornography as free speech, mandating same-sex marriage, removing 'under God' from the Pledge of Allegiance, banning school prayer and preventing the death penalty for murderers and terrorists — because they can't win these issues at the ballot box."  Democrats will block judicial nominees who will undo the damage their judicial activists did if there are enough Democrats. 

John Spencer replacing Hillary Clinton as New York's junior Senator would be ideal.  He cannot match Mrs. Clinton's money, but he's a better match for New York.  He's a real New Yorker running to serve a full Senate term, not a carpetbagger trying to use New York as a stepping stone to the Presidency.  Another debate with Mr. Spencer (she suffered through two), and she may decide that running for president is too hard. 

Replacing Republican Senators like Rick Santorum of Pennsylvania, Mike DeWine of Ohio, Jim Talent of Missouri, George Allen of Virginia or Conrad Burns of Wyoming with their Democrat rivals would result in even more Democrat obstructionism.  So would Tennessee sending a Democrat instead of a Republican to replace retiring Republican Senate Majority Leader Bill Frist. 

Republicans have only themselves to blame for not campaigning on the judiciary issue sooner and harder.  It works well for Republicans, as it should!  Example: In 2004, Tom Daschle of South Dakota, the Senate Democrat leader lost his seat, largely because he led the Democrat effort to stop judicial nominees of President Bush from receiving the up-or-down vote to which they are entitled under the Constitution (which provides for approval by a simple majority, not a super majority). 

Republicans better hammer the issue NOW!

If the Democrats win control of the Senate, the chances of a strict construction, no matter how superbly qualified or what sex or color, replacing the aged Justice John Paul Stevens or Justice Ruth Bader Ginsberg during President Bush's second term become slim and none.

President Bush has led the charge to reclaim the federal judiciary from judicial activists like Judges Stevens and Ginsberg.   He appointed two superbly qualified federal appellate judges, now Chief Justice John Roberts and now Associate Justice Samuel A. Alito, Jr., to the United States Supreme Court during his second presidential term.  Twenty-two Democrats voted against Chief Justice Roberts, and all but four Democrat Senators (joined by but one RINO, Senator Lincoln Chafee of Rhode Island, voted against Justice Alito). The opposition to Justice Alito was shameful and shameless.

Justices like Roberts and Alito subsequently opposed giving Geneva Conventions protections to terrorists, but activist Justices like Stevens and Ginsberg did it, notwithstanding the language and intent of the Geneva Conventions and the judicial doctrine known as stare decisis, which judicial activists routinely invoke when the favor the status quo and ignore when they don't.

Ohio has been called God's country.  It has been said, "As Ohio goes, so goes the nation."  If Republican Senator Mike DeWine is replaced by a Far Left secular extremist like Democrat Sherrod Brown, look for "under God" to be dropped from "The Pledge of Allegiance" and "In God We Trust " to be removed from America's currency and coin. 

The proper role of a judge or justice is to interpret the law and the Constitution – not make up the law and deprive the people of the right to govern themselves in order to impose his or her personal or political agenda on the people.

Judicial activists read into the Constitution what suits them and read out of it what doesn't.  Remember Kelo: a majority of five ignored the public purpose language of the Constitution's eminent domain clause.  Even Justice Sandra Day O'Connor was mightily offended,

Judicial activists purport to find a sometimes dangerously broad right to privacy in the interstices of the Constitution, yet ignore the Constitution's text and intent to create a separation of church and state that would have been anathema to those who adopted the Constitution.  Will Thanksgiving and Christmas be banned as national holidays, on the ground that treating them as such is not maintaining the neutrality between religion and irreligion that the secular extremists demand, despite America's religious heritage, the Declaration of Independence (all men were "endowed by their Creator with certain unalienable rights") and the Constitution itself.

On October 20, a coalition of center-right groups, including the Coalition For a Fair Judiciary, Committee For Justice, Third Branch Conference, FRCAction, Fidelis America, American Center for Law and Justice, and Judicial Confirmation Network,circulated the following oath to U.S. Senate candidates: "I, ____________________, pledge to the voters of the State of ___________________ and the citizens of the United States that: I will work to see that everyone duly nominated to serve on the federal judiciary gets a fair confirmation process, including the following: 1) Nominees reaching the Senate floor shall get a timely up or down vote free from substantial delay, including filibuster; 2) If I serve on the Judiciary Committee, I will oppose any arbitrary obstacles that would prevent nominees moving out of committee, absent clear evidence of disqualification."

If a race between a candidate who takes the oath and one who refuses, the oath taker is clearly preferable.

"The coalition also provided the following letter for concerned citizens to send to their Senate candidates: "Dear Candidate X: One of the most important duties of a United States Senator is the review and confirmation of federal judges. The judicial confirmation process is broken. Recent years have seen abuse of Senate procedures such as filibusters, anonymous holds, and simply never calling a vote on numerous nominees. Men and women of outstanding character and experience have been blocked indefinitely by a process that increasingly sees ideological litmus tests as the legitimate measure of all nominees. The cost? At the least, a nominations process hopelessly twisted in partisan stalemate. At the worst, the Constitution itself undermined. With the likelihood that a United States Supreme Court vacancy will occur in the next few years, the importance to both parties of restoring reason and fairness to the confirmations process is of great significance. Voters need to know what they can expect of a U.S. Senator once he or she reaches that venerable chamber. Will you be a Senator who contributes to the obstruction and procedural abuse, or one who believes the rules should stay the same whoever is in the White House and Congress? Attached is a copy of the 'Fair Judiciary Oath' for your review. If you agree with the oath, please sign and return via fax no later than 5 PM EST, Wednesday, October 25, 2006."

Dick Morris recently suggested this kind of television commercial to illustrate "the concrete ways in which a Democratic victory would threaten our safety:

"We see and hear a wiretapped conversation, with a terrorist revealing his worst plans to his associate - and, inadvertently, to government eavesdroppers, too. Then, when he's about to spill the beans on when and where the next attack is going to come, the line should go dead, with a dial tone, with a machine voice saying 'This wiretap terminated in the name of privacy rights by the Democratic U.S. Congress.'

"The announcer can then say, 'If the Democrats win, the National Security Agency will never be able to listen in as the terrorists are plotting to attack us.'"

If the Democrats get their kind of judges, the terrorists will have reason to celebrate.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.

Copyright © 2006 by Michael J. Gaynor
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