The Discerning Texan
All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
-- Edmund Burke
Sunday, May 29, 2005
Halting the Runaway Court
A very timely piece, bordering on the "must-read", is up on the US News site today from John Leo, entitled "Time to fix the Court".
In light of the "compromise" this week over judicial filibusters, it would be disingenuous for Democrats to immediately revert back to this unprecedented tactic simply because they would prefer that the President to nominate so called "moderates" to the Court (e.g. if Ruth Bader-Ginsberg is a "moderate", then I am a communist..).
Leo correctly points out that Court nominations are so critically important to Conservative thinkers not because the laws they "enact" will be more Conservative in nature; but rather because Originalist judges alone understand that it is not the Constitutional right of the Supreme Court to enact laws at all. And for Democrats to filibuster simply because they cannot win at the ballot box needs to be shown for what it is: blind partisanship and shallow disregard for the Law of the Land.
The Constitution clearly intended for the people to enact the laws and for the Court to interpret the laws strictly in the light of whether they violate the one legal document that IS the law of our land, the Constitution:
As soon as the filibuster deal was announced, we began to hear the argument that President Bush should sustain the spirit of compromise by naming a moderate as his first selection to the Supreme Court. This suggestion, floated mostly by Democrats and faithfully carried in headlines and news reports as a neutral idea, boils down to this: It would be needlessly provocative for Bush to name a Supreme Court justice who reflects his party's basic conviction that something is very wrong with the courts.
Here is the dominant Republican concern in two short sentences, as framed by blogger Mickey Kaus (a conservative Democrat, as it happens): "In the post-Warren era, judges . . . have almost uncheckable antidemocratic power. The Constitution has been durably politicized in a way that the Framers didn't anticipate."
Burt Neuborne of New York University law school said recently that his fellow Democrats may be making a mistake by depending so heavily on judges to establish law without seeking true public support.
Well, that's one way of putting it.
Another is simply to say that the Democrats consistently rely on judges to impose legislation that they can't get through the normal democratic process because majorities don't want it. As a result, our politics and our courts have been deformed. A contempt for majorities keeps growing on the left, and contempt for the courts keeps rising on the right.
Megan McArdle, the sensible blogger at Asymmetrical Information, says Republicans are determined to pack the court because "it is the only way Democrats have left them to undo the quasi-legislation that liberal judges wrote."
Don't blow it. Democrats try to frame their case by saying that Republicans are attacking the independence of the judiciary. Not true. They are attacking the process by which the policy preferences of the left are removed from the democratic process and written into the Constitution. The current moment may be the one historic opportunity that the Republicans will have to halt and reverse this severe damage to the courts. If they blow this chance out of timidity or bipartisan niceness, many of us will conclude that the GOP is not really a serious party entitled to our support.
If it is true, as I believe, that the basic structure of the American government--an experiment that has been the most noble and durable form of governing ever divised--relies on the continuing integrity of our Constitution, and not the whims of a runaway Supreme Court to determine what the rule of law really means, then it is then imperative at this crossroads of history that the President not flinch from the duty he owes--not only to those who placed him into office with a Senatorial majority, but to the heirs of this great country--he MUST appoint Originalist judges to the Court--judges who will interpret, not try to re-write our Constitution, even if in doing so forces a historic confrontation in the Senate that shuts down the filibuster once and for all.
For this is how this country is designed to work. Anything short of a strict separation of powers, with three co-equal branches, and that oath the President took becomes empty and meaningless.
We have a historic opportunity to stop the bleeding now, before the patient is lost forever. We must not waver from this duty. And that goes for all of us: for the people who blog; and for people who should write newspapers, Senators, and even to the President himself--telling any and all who will listen that the time to fix this thing is now. Before it is too late for all of us and for those who will come after us.
The President took an oath to "preserve, protect, and defend the Constitution, so help me God." If those words mean anything to President Bush (and I still happen to believe they mean everything to him...if not to quasi-traitors like John McCain and Arlen Specter), then we must not only support the President in expecting him to nominate only justices to that court which will respect the integrity of our Constitution, and who will return the lawmaking powers to legislators who must answer to the people for their acts, rather than to justices who must answer to no one; we must also bring whatever level of pressure we can muster on the Republicans in the Senate, particularly the "Benedict Arnold 7".
For an "interpreting" judiciary, rather than a "legislating" judiciary wholly replects the intent of the Founders, and it is indeed the very heart of the difference between a Democratic Republic and a Judicial Dictatorship.
In light of the "compromise" this week over judicial filibusters, it would be disingenuous for Democrats to immediately revert back to this unprecedented tactic simply because they would prefer that the President to nominate so called "moderates" to the Court (e.g. if Ruth Bader-Ginsberg is a "moderate", then I am a communist..).
Leo correctly points out that Court nominations are so critically important to Conservative thinkers not because the laws they "enact" will be more Conservative in nature; but rather because Originalist judges alone understand that it is not the Constitutional right of the Supreme Court to enact laws at all. And for Democrats to filibuster simply because they cannot win at the ballot box needs to be shown for what it is: blind partisanship and shallow disregard for the Law of the Land.
The Constitution clearly intended for the people to enact the laws and for the Court to interpret the laws strictly in the light of whether they violate the one legal document that IS the law of our land, the Constitution:
As soon as the filibuster deal was announced, we began to hear the argument that President Bush should sustain the spirit of compromise by naming a moderate as his first selection to the Supreme Court. This suggestion, floated mostly by Democrats and faithfully carried in headlines and news reports as a neutral idea, boils down to this: It would be needlessly provocative for Bush to name a Supreme Court justice who reflects his party's basic conviction that something is very wrong with the courts.
Here is the dominant Republican concern in two short sentences, as framed by blogger Mickey Kaus (a conservative Democrat, as it happens): "In the post-Warren era, judges . . . have almost uncheckable antidemocratic power. The Constitution has been durably politicized in a way that the Framers didn't anticipate."
Burt Neuborne of New York University law school said recently that his fellow Democrats may be making a mistake by depending so heavily on judges to establish law without seeking true public support.
Well, that's one way of putting it.
Another is simply to say that the Democrats consistently rely on judges to impose legislation that they can't get through the normal democratic process because majorities don't want it. As a result, our politics and our courts have been deformed. A contempt for majorities keeps growing on the left, and contempt for the courts keeps rising on the right.
Megan McArdle, the sensible blogger at Asymmetrical Information, says Republicans are determined to pack the court because "it is the only way Democrats have left them to undo the quasi-legislation that liberal judges wrote."
Don't blow it. Democrats try to frame their case by saying that Republicans are attacking the independence of the judiciary. Not true. They are attacking the process by which the policy preferences of the left are removed from the democratic process and written into the Constitution. The current moment may be the one historic opportunity that the Republicans will have to halt and reverse this severe damage to the courts. If they blow this chance out of timidity or bipartisan niceness, many of us will conclude that the GOP is not really a serious party entitled to our support.
If it is true, as I believe, that the basic structure of the American government--an experiment that has been the most noble and durable form of governing ever divised--relies on the continuing integrity of our Constitution, and not the whims of a runaway Supreme Court to determine what the rule of law really means, then it is then imperative at this crossroads of history that the President not flinch from the duty he owes--not only to those who placed him into office with a Senatorial majority, but to the heirs of this great country--he MUST appoint Originalist judges to the Court--judges who will interpret, not try to re-write our Constitution, even if in doing so forces a historic confrontation in the Senate that shuts down the filibuster once and for all.
For this is how this country is designed to work. Anything short of a strict separation of powers, with three co-equal branches, and that oath the President took becomes empty and meaningless.
We have a historic opportunity to stop the bleeding now, before the patient is lost forever. We must not waver from this duty. And that goes for all of us: for the people who blog; and for people who should write newspapers, Senators, and even to the President himself--telling any and all who will listen that the time to fix this thing is now. Before it is too late for all of us and for those who will come after us.
The President took an oath to "preserve, protect, and defend the Constitution, so help me God." If those words mean anything to President Bush (and I still happen to believe they mean everything to him...if not to quasi-traitors like John McCain and Arlen Specter), then we must not only support the President in expecting him to nominate only justices to that court which will respect the integrity of our Constitution, and who will return the lawmaking powers to legislators who must answer to the people for their acts, rather than to justices who must answer to no one; we must also bring whatever level of pressure we can muster on the Republicans in the Senate, particularly the "Benedict Arnold 7".
For an "interpreting" judiciary, rather than a "legislating" judiciary wholly replects the intent of the Founders, and it is indeed the very heart of the difference between a Democratic Republic and a Judicial Dictatorship.
