Frankenstein and the Battle over the Judicial Filibuster
A couple of thoughts on the ongoing confrontation over judicial nominees…
I am a bit concerned that in their zeal to win the battle over the judicial filibuster Republicans and their conservative supporters may be seeking to win a battle at the expense of the war.
A common refrain from the Republican side is that the Democratic filibuster in some ways constitutes religious discrimination against Catholics (or anyone) whose religious beliefs would cause them to question abortion laws or Roe v. Wade, etc. I have heard more than one conservative commentator lament something along the lines of, “If the Democrats had their way, anyone who took their faith seriously would be disqualified from the bench.” Or “One simply can’t be a devout Catholic and be confirmed by the Democrats.” It is certainly understandable that conservatives would use this argument because it paints Democrats into a corner of religious bigotry; furthermore, the charge is likely true, most Democrats would certainly love to exclude deeply religious Catholics from the bench. It is effective politics and puts the Democrats on the defensive rhetorically.
However, what is potentially damaging about this line of argument is that it implicitly concedes the much larger and more important point; that the religious views of judges should not matter at all, because judges should not engage in policy making when issuing their rulings. Rather than infusing their policy opinions into court rulings, judges must be experts at interpreting and applying the policy judgments of others; therefore, their religious views are and should be irrelevant.
Hypothetically, a devout Catholic or Evangelical judge may have to rule that a given statute is indeed constitutional or legitimate in a given state even though it violates their religious convictions (say allowing abortions). Their private views should have no impact upon their interpretation of the law and what it allows or does not allow. Therefore when Republicans argue that devout Catholics or Evangelicals are being excluded because of their religious views, they are implicitly conceding the point that their views should matter at all.
The religious views and convictions of the judges should be a non-issue for both parties. Democrats should not bring it up as a source of disqualification and Republicans should not use it as a tool to pry Democrats into a corner.
The only views that should matter are the judges’ views on the limits of their power and their role as judges.
Republicans should take the occasion of this confrontation to remind the American people why this conflict over judicial nominees matters. More is at stake than the mere policy preferences of either party. What is at stake is the very soul of the Constitution and the survival of written constitutionalism in America. The United States cannot maintain a written constitution in perpetuity if its text is subject to the whims of the Supreme Court. Its text must be honored as authoritative until altered by an “explicit and authentic act of the people,” which is how George Washington put it in his farewell address. The judicial philosophy of most Supreme Court justices and of those judges the Democrats would like to appoint undermines this fundamental aspect of our American system of written constitutionalism.
Democrats have advocated and defended a judicial philosophy that allows the judiciary to engage in policy making with very little Constitutional restraint. They have in effect turned the Supreme Court into a counter-majoritarian legislature that is insulated from public opinion or the more representative branches. By empowering the Supreme Court to act as a sitting Constitutional convention over the decades the Democrats have created a “monster.”
Like a Democratic Frankenstein, the Supreme Court has long done left wing bidding on key cultural touchstone issues such as abortion, school prayer, death penalty, criminal justice, etc. Only now having created this powerful tool, the Democrats are fearful that they will lose control of the Court and now the monster, their creation, may turn on them.
Having lost Congress and lost the Presidency, and threatened by the portent of becoming a national minority party, the Democrats are panicked and deathly afraid of losing control of this counter-majoritarian legislature (aka Supreme Court) to the Republicans. They are on the verge of becoming victims of their own un-constitutional jurisprudence. This is why they are willing to risk so much and expend so much political capital on this confrontation.
The Republicans, particularly conservatives, have long advocated the proper role of a constitutionally limited and responsible judiciary. In their zeal to pin Democrats in the corner, conservatives need to avoid embracing rhetoric that subtly concedes this larger goal. Moreover Republicans must resist the corrupting temptation, to tame the “monster” by appointing justices that will pursue conservative policy from the bench. So far they have resisted this temptation, but they should also avoid rhetoric that implies they haven’t. Instead they must stay focused and simply engage in the long struggle to restore the judiciary to its proper function as an interpreter and not a creator of the law.
I am a bit concerned that in their zeal to win the battle over the judicial filibuster Republicans and their conservative supporters may be seeking to win a battle at the expense of the war.
A common refrain from the Republican side is that the Democratic filibuster in some ways constitutes religious discrimination against Catholics (or anyone) whose religious beliefs would cause them to question abortion laws or Roe v. Wade, etc. I have heard more than one conservative commentator lament something along the lines of, “If the Democrats had their way, anyone who took their faith seriously would be disqualified from the bench.” Or “One simply can’t be a devout Catholic and be confirmed by the Democrats.” It is certainly understandable that conservatives would use this argument because it paints Democrats into a corner of religious bigotry; furthermore, the charge is likely true, most Democrats would certainly love to exclude deeply religious Catholics from the bench. It is effective politics and puts the Democrats on the defensive rhetorically.
However, what is potentially damaging about this line of argument is that it implicitly concedes the much larger and more important point; that the religious views of judges should not matter at all, because judges should not engage in policy making when issuing their rulings. Rather than infusing their policy opinions into court rulings, judges must be experts at interpreting and applying the policy judgments of others; therefore, their religious views are and should be irrelevant.
Hypothetically, a devout Catholic or Evangelical judge may have to rule that a given statute is indeed constitutional or legitimate in a given state even though it violates their religious convictions (say allowing abortions). Their private views should have no impact upon their interpretation of the law and what it allows or does not allow. Therefore when Republicans argue that devout Catholics or Evangelicals are being excluded because of their religious views, they are implicitly conceding the point that their views should matter at all.
The religious views and convictions of the judges should be a non-issue for both parties. Democrats should not bring it up as a source of disqualification and Republicans should not use it as a tool to pry Democrats into a corner.
The only views that should matter are the judges’ views on the limits of their power and their role as judges.
Republicans should take the occasion of this confrontation to remind the American people why this conflict over judicial nominees matters. More is at stake than the mere policy preferences of either party. What is at stake is the very soul of the Constitution and the survival of written constitutionalism in America. The United States cannot maintain a written constitution in perpetuity if its text is subject to the whims of the Supreme Court. Its text must be honored as authoritative until altered by an “explicit and authentic act of the people,” which is how George Washington put it in his farewell address. The judicial philosophy of most Supreme Court justices and of those judges the Democrats would like to appoint undermines this fundamental aspect of our American system of written constitutionalism.
Democrats have advocated and defended a judicial philosophy that allows the judiciary to engage in policy making with very little Constitutional restraint. They have in effect turned the Supreme Court into a counter-majoritarian legislature that is insulated from public opinion or the more representative branches. By empowering the Supreme Court to act as a sitting Constitutional convention over the decades the Democrats have created a “monster.”
Like a Democratic Frankenstein, the Supreme Court has long done left wing bidding on key cultural touchstone issues such as abortion, school prayer, death penalty, criminal justice, etc. Only now having created this powerful tool, the Democrats are fearful that they will lose control of the Court and now the monster, their creation, may turn on them.
Having lost Congress and lost the Presidency, and threatened by the portent of becoming a national minority party, the Democrats are panicked and deathly afraid of losing control of this counter-majoritarian legislature (aka Supreme Court) to the Republicans. They are on the verge of becoming victims of their own un-constitutional jurisprudence. This is why they are willing to risk so much and expend so much political capital on this confrontation.
The Republicans, particularly conservatives, have long advocated the proper role of a constitutionally limited and responsible judiciary. In their zeal to pin Democrats in the corner, conservatives need to avoid embracing rhetoric that subtly concedes this larger goal. Moreover Republicans must resist the corrupting temptation, to tame the “monster” by appointing justices that will pursue conservative policy from the bench. So far they have resisted this temptation, but they should also avoid rhetoric that implies they haven’t. Instead they must stay focused and simply engage in the long struggle to restore the judiciary to its proper function as an interpreter and not a creator of the law.
posted by Lil' Mermaid | 2:24 PM
0 Comments:
Post a Comment
<< Home