Issues like gay marriage or abortion may stir up controversy in the media but most of that controversy is about which policy is desirable. The more fundamental question is: Who is to decide?
Those who say that voters, not judges, should decide are not in the "mainstream." They are considered to be "extremists."
The easy way out for any President is to nominate people who can be easily confirmed by the Senate. Even conservative Republican Presidents have put liberal zealots on the Supreme Court or have nominated people who carried the "moderate" or "conservative" label, but who lacked the intellectual depth or the backbone to resist fashionable trends toward judicial activism.
To President Bush's credit, he has tried to stop the steady drift toward arbitrary judicial rule by nominating people like California Supreme Court Justice Janice Rogers Brown who have a track record of opposing judicial activism.
A President who is trying to make a fundamental change in the federal judiciary and a chairman of the Senate Judiciary Committee who wants to continue the "mainstream" trends are in a fundamental contradiction, no matter how much each side tries to paper over the difference with nice words.
With so many federal court vacancies, and with several Supreme Court vacancies almost certain to occur during the next four years, this may be the last chance in our lifetime to reverse the trend toward government by unelected judges.
That is infinitely more important than putting Senator Arlen Specter in charge of the Senate Judiciary Committee because of his seniority.
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