The stage has been set for Washington’s latest battle over the shape and character of the federal judiciary. Last week, the Senate Judiciary Committee voted along party lines to advance the nominations of Janice Rogers Brown and Priscilla Owens, both conservative judges blocked by the Democrats during President Bush’s first term, to serve on federal appellate courts. If Democrats again filibuster the two women, Republican leaders appear poised to force an up-or-down vote, even if it means detonating the so-called nuclear option.
And this is just one
area where the fight over the role of judges in our federal constitutional
structure is taking place. For
conservatives, the stakes are high – which is why it would behoove some of us
to pause and take a deep breath.
Both House Majority
Leader Tom DeLay (R-Tex.) and a fellow Texas Republican, Sen. John Cornyn, have weighed
in with rash, counterproductive remarks.
Some of the more over-the-top
rhetoric from a recent conference
has been repeatedly quoted in order to present constitutionally based opposition
to judicial activism as, well, slightly unhinged.
There’s plenty of
hyperbole and excess on the other side, too.
Even the most conservative Bush nominees are unlikely to push for the
judicial overthrow of the New
Deal or see themselves as part of some dark “Constitution in Exile”
conspiracy. But that doesn’t make
conservative missteps any less harmful.
have helped create confusion about the conservative position on the courts.
Instead of a constitutionalist effort to keep judges away from de facto
policymaking and impose checks on judicial power commensurate with those on the
other branches of government, many now see a populist attack against an independent
judiciary based more on opposition to unpopular rulings than fidelity to the
rule of law. Bouts of conservative recklessness have also played into the
opposition’s hands: Just as the Oklahoma City bombing was used to tar
legitimate criticisms of big government, talk of activist judges is being linked
to a climate of courtroom
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So let’s dispense
with the notion that Brian
Nichols was motivated by the federal judiciary’s overly expansive
interpretation of the interstate commerce clause and stop quoting Joseph Stalin
in support of constitutionalism. What’s
left of the conservative critique of the judicial status quo?
Our legal culture has
in recent decades undergone a shift away from the supremacy of the Constitution
and written law to the supremacy of court rulings.
This is at variance with the expectations of the Founding Fathers and,
predictably, has tempted judges to make law rather than interpret laws.
The judicial branch has seen its power increase at the expense of the
other branches of government. Worse,
judges have been free to act as the final arbiters of their own powers.
This development has
also adversely affected the elected branches by making them more
constitutionally lackadaisical than they otherwise would be.
If the Constitution has no independent meaning outside of what the
Supreme Court says it means, why should the president or a member of Congress
pay attention to such trivial matters as the constitutionality of their actions?
Nine people in black robes are employed to settle those issues for them.
sometimes seem to use judicial activism as shorthand for any ruling they
dislike, it’s a habit they have developed as their liberal opposite numbers on
the federal bench have repeatedly read their own policy preferences into the
law. In Roe v. Wade,
the most famous (or infamous) example, Harry Blackmun wrote as if he decided
upon the desirability of legal abortion first and sought a constitutional
rationale later. In devising the
trimester framework, he was engaged in policymaking rather than constitutional
interpretation. Many liberal legal
academics who agreed with the kind of abortion policy Roe
enshrined said as much at the time.
We now have decades
of legal precedent – upheld even by the conservative appointees of Republican
presidents – on issues ranging from abortion to the First Amendment’s
establishment clause that differ not only from what could reasonably be
described as the Framers’ original intent, but also from the interpretations
of the Constitution accepted by all sides for most of our country’s history.
It’s no accident; it’s the logic of a “living” Constitution.
You don’t have to
sign onto any “Constitution in Exile” project to acknowledge this.
Cass R. Sunstein, writing in the Washington
Monthly, charged that “right-wing activists” seek to restore “the
Constitution as it existed in 1932, before Franklin Delano Roosevelt’s New
Deal. Under this Constitution, the
powers of the national government were sharply limited.”
Well, what happened to this Constitution?
In this context, some
of the more outlandish statements about the power of federal courts begin to
make more sense, even when they are not justified.
Often when judges decide to play legislators, the American public ends up
more polarized than ever before. Social
conservatives feel disenfranchised. To
many, judge-made law does not seem more legitimate but less.
And in addition to being unpopular, it is extra-constitutional.
review is a valuable constitutional check against executive and legislative
powers, but there is no good reason for court powers to be unchecked.
This will require the confirmation of judges whose philosophy respects
the limits of those powers. It may also at times necessitate that the elected branches
exercise their constitutional authority to regulate the jurisdiction of the
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stripping is admittedly controversial and even some constitutionalists worry it
will be abused to endanger minority rights.
But unlike FDR’s court-packing scheme (to which critics have compared
such proposals), it is a recourse provided for under Article III of the