Regarding the ongoing struggle over President Bush’s judicial nominees, earlier this month I suggested that Democrats would do better to concentrate on conservative challenges to the regulatory state than on divisive cultural issues like abortion and religion.
Simply put, many conservative jurists propose to wind back the clock to 1935, when the federal courts interpreted the Constitution’s commerce clause – which allows Congress to regulate interstate commerce – very narrowly.
The key tenets of the latter-day “Constitution in Exile” movement, to which several of Bush’s court nominees likely subscribe, would undermine or annul a host of important New Deal and Great Society measures, ranging from the legalization of unions and establishment of a federal minimum wage, to Title II of the 1964 Civil Rights Act (which forbids segregation in hotels, restaurants and all such places of public accommodation).
I can’t place enough stress on the implications of this under-reported ideological struggle. Jeffrey Rosen’s work on the question is critical reading for anyone who cares about preserving the New Deal state. So, too, is Morton Mintz’s fine article in this week’s online edition of the American Prospect.
The filibuster “compromise” was lopsided enough, with Democrats conceding virtually all power to block President Bush’s appointments, and Republicans securing confirmation for three of the most extremist judges elevated to the circuit courts in recent history.
With right-wing pressure groups now leaning on Sen. Mike DeWine (R-OH) and Sen. Lindsey Graham (R-SC) to void this lame, asymmetrical agreement, the debate over federal authority assumes new primacy.