Edith Jones, a fifth circuit judge and possible Supreme Court choice, argues that the “reigning legal philosophy” is responsible for the bitter politics that surround judicial nominations. Jones charged that legal elites (“mandarins of the law”) have long since come to view the courts as agents of social change. Federal judges, and later state judges, caught on to this heightened view of their power. Then, as judge-made law invaded politically sensitive areas, it provoked a political reaction. Jones thinks it will take decades to repair the damage and return to assessing Supreme Court nominees according to their brains and fairness rather than their propensity (or lack of it) for advancing their politics on the bench. According to Jones, writing in the University of Richmond Law Review, “The restoration of more civil and objective selection processes will not occur until the reigning legal philosophy becomes less ambitious and overweening.” This will come about, Jones says, only “when the rule of law is again tethered to respect for the executive and legislative branches of government, to traditional legal craftsmanship, to continuity, to moral values, and to limited social aims.”
Exactly right. It’s almost impossible to read much commentary about the role of the courts without stumbling across arguments for more judge-made law, often couched in fancy rhetoric about “a living Constitution” or the alleged need to read the Constitution “in light of societal needs and evolving legal policy.” (U.S. liberals aren’t unique: In approving gay marriage, Canada’s Supreme Court said, “Our Constitution is a living tree, which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”) In part, relying on judges for political decisions is the result of a conscious strategy within the Democratic Party, as political analyst William Galston of the University of Maryland said last week.
Galston, a former aide to President Bill Clinton, says his party “convinced itself that, especially on social issues, the principal vehicle of advance would be the court.” It’s easier to find a judge or two to rule your way than to go through the drudgery of building a majority for normal democratic decision making, particularly if you are pushing a liberal agenda in a conservative age.