It is incidental that these things are not all true. What do pretty words like "evolving standards" mean except that some people agree with you, even if the law says nothing of the sort? As for a "national consensus," we have elections to determine that and judges have no special expertise as pollsters.
What all this vaguely romantic verbiage boils down to is that judges can treat the Constitution as simply a grant of power to act as philosopher kings and respond to whatever constituency they prefer to the voting public. That is lawless law.
Such judicial behavior is not going to stop until it gets stopped. This might be done with Congressional restrictions on court jurisdiction, with Constitutional Amendments, or by the other branches of government simply refusing to obey some judicial decisions, as President Andrew Jackson did long ago.
Short of Constitutional confrontations, however, a less dangerous option would be putting on the judicial bench people with a track record of supporting judicial restraint rather than activism. But this approach is being blocked by liberal Senators -- mostly Democrats but with a big assist from Republican Senator Arlen Specter, Chairman of the Senate Judiciary Committee.
Liberals understand the enduring high stakes in these judicial nominations. But do the Republicans? Republican Senators have the votes to change Senate rules to stop Democrats from filibustering judicial nominees. But they are afraid the Democrats will become more obstructionist than ever on other Senate business.
If Senate Democrats are willing to disgrace themselves in public by blocking the functions of government during a war, so be it. Let them see how the public reacts to such irresponsibility. Or will the Republicans prefer to disgrace themselves by caving in?
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