Who sits on the Supreme Court for life may be more important than who sits in the White House for four years. With vacancies to fill among federal judges in general and vacancies expected to occur on the aging Supreme Court in particular, the stakes are very high in the judicial appointments made in the next few years. We and our children will be living with the consequences for a long time.
This looks like an opportunity that may come just once in a lifetime to make judicial appointments that will stop the courts' dangerous pattern of continually eroding away the voting public's right to govern themselves through their elected representatives.
Both political parties understand the historic high stakes in these appointments. Senate Democrats have dug in and refused to allow some judicial nominees even to be voted on by the full Senate because these were judges who believe in applying the written law, not imposing judges' personal notions as the law of the land.
With the agenda of the political left increasingly rejected by voters at the polls, the only way to get the items on that agenda enacted into law is to have judges who will decree the liberal agenda from the bench. Too many judges have already done that on everything from gay marriage to racial quotas and the death penalty.
It is not these or other particular issues which are the highest stakes. The highest stakes are democratic self-governance versus judicial fiats that threaten to make a mockery of the American system of government by elected officials.
Some Republican Senators are considering reacting to the Democrats' obstruction of judicial nominees by a change in the Senate rules that would no longer allow a minority of Senators to prevent the majority from voting on these nominees.
Putting in this rule change to stop the filibustering of judicial nominees would be a long overdue show of backbone on the part of the Republican Senators. But George Will's column in the December 8th issue of Newsweek argues that this is a bad idea.
Putting a stop to filibustering judicial nominees could mean sliding down a "slippery slope" toward declaring "the illegitimacy of filibusters generally," according to Will. But, after more than two centuries of American history, it is not at all obvious what benefit this country has ever received from filibusters.
It is all too easy to recall how Southern Democrats for decades blocked attempts to give blacks basic civil rights by filibustering such legislation in the Senate. That was surely not our country's finest hour.
Filibusters, like judicial activism, make a mockery of the voter's right to self-governance. Both are ways for a willful minority to block the majority.
As for slippery slopes, we are already on a very slippery slope toward irreversible laws created by judicial activists. Even judges who respect the Constitution as it was written and legislation as it was passed also respect judicial precedents.
Conservative judges are not inclined to reverse long-standing precedents on which millions of people have relied, even if these judges think the original decision should not have been made the way it was. With activist judges guided only by their own ideology and conservative judges reluctant to overturn precedents, the agenda of the left is easy to enact from the bench and hard to dislodge afterward.
If both the liberal agenda and the whole process of judicial lawlessness that serves it are ever to be stopped, Senate Republicans will have to face the question that Ronald Reagan used to ask: "If not us, who -- and if not now, when?"
George Will warns that someday the Republicans will be in the minority and Democrats can then use the proposed rule change to keep them from blocking legislation they don't like. But judicial nominations are too fundamental an issue, at a time when we stand at a legal crossroads, to worry that a rule change will, in effect, escalate the political arms race.
The alternative to this political arms race is to stay disarmed in the face of a ruthless adversary who recognizes no limits of propriety or even decency, as their treatment of Judge Robert Bork and Judge Clarence Thomas amply demonstrated long ago.