What has happened to our federal justice system?
Senate Minority Leader Harry Reid (D-NV) has threatened to shut down business in the Senate (see here) if the Republicans limit the ability to filibuster judicial confirmation votes on the Senate floor. (Some people think that would be great). He wants to preserve a practice instituted by his predecessor, the former Senator Tom Daschle (D-SD) that created a new standard of essentially requiring 60 votes to confirm a federal judicial nominee. Although Senator Daschle’s defeat (and arguably the poor showing by Democrats in some congressional races in 2004) had much to do with this obstructionism, Senator Reid is adamant that it will continue.
Senate Majority Leader Bill Frist (R-TN) has threatened to use what has been dubbed “the nuclear option” to ensure that judicial nominees get a fair up or down vote on the Senate floor. It sounds ominous, and indeed, some former Republican senators argue that it would be a bad idea (here – requires registration).
The Senate didn’t used to get so worked up over judicial nominees. What the heck is going on here? Senator Robert Byrd (D-WV), one of the Senate’s leading rules and procedures experts recently admitted that the Senate technically doesn’t even need to vote to confirm a nominee. The Wall Street Journal editors suggested (here – requires registration) that this means that, “Fifty-one of the 55 Republican Senators can simply send the President a letter expressing their support for his candidates.”
The whole showdown issue has its roots in judicial history. Historian Arthur Herman details (here) how the Supreme Court was established merely to provide a common sense check and balance on federal laws passed by politicians. The Founders felt that this body would never exceed its role of merely interpreting the laws.
Any study of federal judicial history, however, shows that the federal judiciary has continually worked to expand its role. In the Right Nation, John Micklethwait and Adrian Woodridge argue that judicial legislation came to a head in the Roe v. Wade and Doe v. Bolton decisions. Duncan Currie, reviewing the book, says that in Western Europe abortion was legalized in over a period of time “through legislation and, occasionally, referenda.”
In the U.S., as we are all painfully aware, the Supreme Court effectively wrote a new law legalizing abortion. Duncan Currie says, “Thus the chief lesson of Roe: When citizens lose at the ballot box, they feel defeated. When they lose by judicial fiat, they feel cheated.”
Judicial legislation didn’t start with Roe, but that’s when it became mainstreamed. It has blossomed tremendously since then. One problem is that our Congressional leaders have largely been AWOL in their Constitutional duty to provide judicial oversight. Once a judge or justice is appointed, that’s the end of it. It has been many decades since any of these people have truly been called to task for their gross errors, arrogance, and legislating from the bench.
In a previous post I quoted Jonah Goldberg saying, “The meaning of the Constitution does not exist at all — outside the cranium of whichever justice provides the swing vote.”
In other words, when we are a nation of laws it does not matter so much who is appointed fill a judicial seat as long as the person is competent. However, now that judges create laws, a right expressly reserved for the legislative branch in the Constitution, we are becoming a nation of men rather than a nation of laws.
It naturally makes sense that since judges now legislate rather than merely interpret; their confirmations take on an air of an election campaign because personal ideology now matters. Anything Congress does can now be trumped by the judiciary. That is why Congressional leaders are fighting tooth and nail over this issue. The judiciary is everything.
Only a strong public outcry and a firm action by elected officials can reverse this trend. Is the public aroused enough over this issue to make it happen? Are we supporting candidates that have the will to do their job in this area? We might not be there yet, but there seems to be an increased vigor on this issue among American voters. Maybe we are on our way there.