One of the big confusions in the impending Senate fight over the confirmation of judicial nominees is that this is an issue about "liberal" judges versus "conservative" judges. The vastly more important issue is whether people who go into court should expect their cases to be decided on the basis of the law or on the basis of the particular judge's own philosophy.
The more we can keep judges' philosophy out of our legal system, the more we approach the ideal of "a government of laws and not of men." But we have been moving in the opposite direction for too long already and recent court decisions, including those of the Supreme Court, show a continuing trend toward judicial activism, relying on notions outside the law and even outside the country.
Liberals have rooted for judicial activism because this activism has favored liberal causes and liberal views on such issues as abortion, the death penalty, gay marriage, and racial quotas. But activism can be used by any judge for any purpose.
When Chief Justice Roger Taney said that a black man "had no rights which the white man was bound to respect" in the Dred Scott decision of 1857, he was turning his own personal opinion into the law of the land. As dissenting justices in that case pointed out, free blacks had exercised legal rights, including the right to vote, even before the Constitution was written, as well as afterwards. Taney was making law, not following law.
Liberals seem to be taking the same myopic view of judicial activism that they once took toward the institution of special prosecutors -- which seemed like a great idea to them when special prosecutors were going after Republicans but suddenly not so great when Bill Clinton became the target.
The issue of judicial activism is not just an issue of the moment. It is an enduring issue of great moment because it means the erosion of the American people's Constitutional right to govern themselves. If activist judges are allowed to continue to become increasingly our real rulers, what are elections for? Just to provide jobs for politicians?
Public acceptance of judicial coups has only led to increasing audacity in words and deeds by activist judges. Justice Anthony Kennedy's recent decision banning the execution of murderers under the age of 18 was a classic case in point. It was based, he said, on "evolving standards" and a "national consensus," as well as on what people were saying in other countries. Even if all of this were true, none of these things is statutory law, much less the Constitution of the United States.
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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