Kyl | Desert Beacon

>Of course Senator John Ensign (R-NV) and the other ultra-right Republican members of the Senate are going to filibuster any Supreme Court nominee sent to Capitol Hill by the Obama Administration. Did anyone really believe they weren’t? Is anyone truly fooled by the table setting the GOP is currently doing to establish their rationalizations for their impending filibuster? Does anyone believe they won’t filibuster no matter who the nominee might be?

Friends of the Filibuster

For all of their histrionics about “up’er down votes” during the Bush Administration tenure, and for all of their impassioned oratory about “the President has the right to his appointments” in years gone by, their strategy thus far is to filibuster first and ask questions later. Senator Ensign now holds the dubious honor of a 90% “filibuster maintenance” vote, the highest of any member of the Senate. [Filibusted] The “Elite Eight” obstructionists still include Ensign, Tom Coburn (R-OK), Jim Inhofe (R-OK), Sam Brownback (R-KS), Jim DeMint (R-SC), Jim Bunning (R-KY), John Cornyn (R-TX), and David Vitter (R-LA).

By June 2008 Republicans in the U.S. Senate had used the filibuster on 73 bills, not all the filibusters were successful, but the rate of their obstructionism set records; easily passing the old record of 62 cloture votes. [HuffPo] A glance through the Senate voting records for the second session of the 111th Congress doesn’t show much reduction in the use of this tactic. [Senate] However, instead of proudly announcing that the Party of No intends to filibuster away on the Obama Administration’s nominee, the GOP leadership seems to be whining “The Devil Is Going To Make Me Do It.

The Eternal Litmus Test

On May 3, 2009, “Ensign said that he hopes Obama doesn’t have a litmus test in selecting a nominee to fill Justice David Souter’s seat and that the next nominee shouldn’t be someone who would legislate from the bench. “They need to get back to interpreting the law, and ultimately too many times lately they point to international law instead of the U.S. Constitution,” Ensign said on “Fox News Sunday” when asked about the possibility of a filibuster. “We need to get back to what the Supreme Court is supposed to be about.” [Politico]

Senator Ensign’s touched all the right buzz words, like “litmus test,” and “legislate from the bench,” and that the candidate should not ” make laws based on what they want to see in the Constitution.” These comments come with equal measures of hypocrisy and projection. There are no litmus tests on the Left or in the Center even remotely analogous to the Right’s Pro-Birth litmus test. Office of Legal Counsel nominee Dawn Johnsen is characterized as a “partisan activist” with “radical pro-abortion views” for serving as NARAL’s legal director by GOP Senators certain she will “politicize” the OLC; as if the Bush Administration’s OLC wasn’t the poster child for politicization. If this much attention is garnered by a nominee for an OLC position, how much more will be paid to a Supreme Court candidate?

Whose Judicial Activism?

Senator Sessions added his own version of a litmus test, he “has made clear that Republicans will be prepared to quiz the nominee to make sure that he or she will not be an “activist” on the bench. Such activist judges are “a threat to the rule of law” because they would allow their personal views to trump their commitment to the law, Sessions said.” [NatJourn] Interesting, when Chief Justice Roberts entangled the wording of the Fair Pay Act in legalese, and narrowed the question to a single point on which the argument for denying equal pay for equal work could be made – this wasn’t “judicial activism.”

Jeffrey Toobin summarized Justice Roberts’ brand of activism: “After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” [New Yorker]

Senators Sessions and Ensign clearly have different recipes for sauce for Republican activist geese, and Democratic or centrist ganders.

The Empathy Test

Senator Jon Kyl (R-AZ) weighed in with his litmus test. The nominee cannot be a person with empathy. “Sen. Jon Kyl made clear he would use the procedural delay if Obama follows through on his pledge to nominate someone who takes into account human suffering and employs empathy from the bench.” [G/AP] [DB] Senator Kyl added the “out of the mainstream” line to his clarification. “Senate Minority Whip Jon Kyl (R-Ariz.) said Sunday that the GOP will closely scrutinize the temperament of President Obama’s nominee for the Supreme Court, and will move to block any candidate whose decision-making is based on emotion or is out of the mainstream of American thought.” [The Hill]

Therefore, if any nominee is not in the mold of Justice Roberts’ activism on behalf of the empowered and elite, then his or her “activism” will trigger the filibuster. If any nominee is inclined to interpret the applicable laws in the context of modern American society, then the filibuster will be triggered by the Senators’ opposition to “social engineering.” If any nominee has spoken out for reform or modification of laws from outside the framework of the narrow Republican base definitions of “mainstream” (i.e. any non-evangelical or religious conservative, gun rights advocate, and homophobe), then the Senators will pull the trigger and fire their filibuster. And, the filibusterers will moan… If the President hadn’t nominated an “activist,” or he hadn’t “nominated a partisan,” or he hadn’t nominated someone for his or her “empathy,” then “we” could have supported him. In short, we (the filibustering Senators) aren’t doing this because we want to …. the Devil Made Us Do It.

Thus much for accountability and taking responsibility. Opponents of the President could possibly attract more support if they would stop sounding like such weaklings, and be honest about their positions, without doing all the current window dressing and table setting.

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What Senator Kyl wants in a Supreme Court nominee: “Sen. Jon Kyl made clear he would use the procedural delay if Obama follows through on his pledge to nominate someone who takes into
account human suffering and employs empathy from the bench.” [G/AP] (emphasis added)

And, there we have it — The Anti-Empathy, Pro-Psychopathic Party? Perhaps Senator Kyl might want to do some quick research on what happens with non-empathic people. For example:

“A defining element of a psychopath is that they do not and probably cannot
empathize with other people. They are often good at imitating this, but in doing
so they are using it in a cold and manipulative way. This lack of empathy is one thing that makes a psychopath so dangerous. If we cannot empathize with others then we are unlikely to care about them. Psychopaths can this easily objectify other people, treating them like ‘things’ and even killing them without any remorse.” [CM.org]

Or, this from research on narcissists:

“In clinical terms, empathy is the ability to recognize and interpret
other people’s emotions. Lack of empathy may take two different
directions: (a) accurate interpretation of others’ emotions with no
concern for others’ distress, which is characteristic of psychopaths;
and (b) the inability to recognize and accurately interpret other
people’s emotions, which is the NPD style.” [Halc]

Some people are urging the President to appoint a woman, some a member of the Hispanic community, still others another member of the African-American community; but, only Senator Kyl is advocating for the Narcissists and Psycopaths of the country. I hope they appreciate his efforts.