The Discerning Texan

Jonah Goldberg discusses the problem with today's judiciary:

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.

And it has to be stopped. A good start is appointing judges who take the Constitution seriously.