Disrobing our masters

Jonah Goldberg

4/13/2005 12:00:00 AM - Jonah Goldberg

Last time I checked, activist federal judges weren't riding into towns on horseback, whoopin' and a-hollerin', burning crosses on lawns and lynching folks for no good reason.

I bring this up for the benefit of James Dobson, who needs to spend a couple minutes breathing into a brown paper bag before he does his next radio show. The other day, while discussing federal judges, Dobson had this to say: "I heard a minister the other day talking about the great injustice and evil of the men in white robes, the Ku Klux Klan, that roamed the country in the South, and they did great wrong to civil rights to and to morality. And now we have black-robed men."

Uh, yeah. We do have black-robed men. But - I want to be perfectly clear - the robes really aren't the interesting part. Dobson is committing what logicians call a "category error." Lots of folks wear robes. Hugh Hefner wears one all day. That doesn't mean he lynches people, nor does it mean he's freelancing the meaning of the constitution.

Dobson's hyperbole is a symptom of the runaway nature of the fight over judges in Washington. I say "in Washington" rather than "in America" in part because this is a debate about the division and nature of federal power.

On this score, the Democrats deserve far more blame than the Republicans. It's simply a historical fact that liberal Democrats (and the progressives before them) have empowered the courts to run roughshod over democratic and republican principles. It's almost impossible to think of a major area of life in America where a judge somewhere hasn't ruled in flagrant defiance of the democratic will of the people as expressed in a referendum or through the state legislature.

Sometimes this is necessary, of course - but only sometimes. In the last few decades, however, judges have often seemed less inclined to defer to the will of the people than to indulge their own sense of what's good for them. And several Supreme Court justices, unable to find their own views reflected in American laws, have even claimed the prerogative of fishing in the laws and court decisions of foreign nations for useful precedents.

This drift in the courts has suited liberals just fine. Stymied at the polls, they have run with the ball wherever the field is open, in this case the courts. And that's why Democrats can talk as absurdly as Dobson, often from the well of the Senate. Just last month, Sen. Robert Byrd - that actual former Klansman and towering titan of Southern gothic asininity - compared the "nuclear option" - i.e., the attempt to impose majority rule in the Senate - to Hitler's rise to power. And Senate Minority Leader Harry Reid calls the GOP's desire to reform Senate rules to end filibusters on judicial appointments an example of Republican craving for "absolute power"! Zoiks!

Naturally, each side is convinced the other started this endless spiral of absurd rhetoric, bad faith tactics and hypocrisy. It's certainly true that Republicans tried all sorts of stuff to block Clinton's judges and that Democrats were once much more favorably disposed toward filibuster reform.

But, again, the point is that such maneuvering is the natural consequence of giving judges more power than they deserve or need. Debate over judicial appointments used to be more decorous, largely because the stakes were lower. If we empowered the head of the U.S. Postal Service to rule vast swaths of our lives, we'd have huge confirmation battles over the postmaster general.

For good or ill - and I certainly think for ill - the days of decorum are over for the foreseeable future. Judges are unilateral legislators, unchecked by democratic accountability. Liberal judges have held sway for so long that any conservative judge who tries to undo what has been done will inevitably look "activist" in his own right. And let's be honest, some conservative judges are perfectly happy with an imperial judiciary, so long as it's a right-wing imperial judiciary.

Perhaps the best way to correct the courts' drift away from democratic accountability is to increase democratic accountability elsewhere. My unoriginal solution: real filibusters. Senators like the current filibuster rules because blame is diffused in the confusion of institutional logjam, parliamentary procedure and generic partisan squabbling. The old system required senators to pack a thermos and ramble from a podium for hours or days on end. Restoring the old school filibuster would put a human face on these fights. It would give partisans someone to jeer and someone to cheer. It would create drama and force the media to explain why that fuddy old senator is reading from the phone book. And, best of all, it would allow voters to punish or reward specific senators at the polls for stopping the people's business.

That would inject some democratic accountability into the only available vein. After all, nothing focuses the mind of a senator more than watching a colleague get fired - save perhaps seeing judges burn a cross on his lawn.