Posted on 05/31/2005 7:45:39 PM PDT by CHARLITE
Ever since Brown v. Board of Education, liberals have used judicial activism as a substitute for political persuasion. But we shouldn't ask judges to make laws.
It is difficult to imagine a more fundamental assault on the separation of power than this spring's shameless attacks on the judicial appointments process. With their threats to end the right of filibuster and to measure judicial nominees by political standards, Republicans like Rep. Tom DeLay and Sen. John Cornyn brought partisan warfare and violation of basic principles to a new low. Either they do not understand the essentials of our constitutional system, or their yearning for unchecked power has addled their wits and corrupted their morals. The American people have firmly rejected this Republican effort to subvert both legislative and constitutional tradition.
In the face of President Bush's unrelenting use of judicial appointments to rally his party's base, it falls to Democrats to take the lead in repelling this onslaught against the judiciary. But they should do so in the right way -- on constitutional principle. As Alexander Hamilton argued in Federalist 78, in a constitutional republic the "complete independence of the courts is peculiarly essential." The courts must be "truly distinct from both the legislature and the executive" -- that is, both separate and different.
The judiciary is supposed to be a check on the legislature, not an alternative source of legislation. In recent decades, however, Democrats have failed to preserve this distinction carefully enough, and they've paid for their carelessness. We should not assume that because the people reject Republican attacks on an independent judiciary, they support Democrats' understanding of the judiciary's role in our republic. The politically resonant attack on Democrats as elitists reflects, in part, an unwise reliance on the courts to do what Democrats could not accomplish -- not readily, perhaps not at all -- through the legislative branch.
During the early years of the New Deal, President Franklin Roosevelt confronted, and eventually overcame, a conservative Supreme Court. He did this in the name of the people, manifested in massive congressional majorities, to further the constitutional goal of providing for the "general welfare." But when liberals addressed the issue of race after World War II, the New Deal majority, sustained by a North-South coalition, began to splinter. Thwarted in the Congress, opponents of legal segregation turned to the courts. In so doing, they turned the New Deal on its head, pursuing liberal ends through counter-majoritarian means.
Brown v. Board of Education was a wager on history. It rested on the hope that the executive branch would enforce school desegregation against local resistance, that the U.S. Congress would accept at long last its responsibility to enforce the 14th Amendment, and that when faced with a stark choice, the American people would endorse the moral imperative of equal citizenship for all. Liberals won that bet, but they misunderstood their victory. They concluded that Brown represented, not an exceptional moment in the history of the republic, but rather a template for rapid social progress in the face of opposition that could thwart majoritarian processes.
During the ensuing decades, liberals increasingly resorted to the courts to achieve results they could not obtain through legislatures, on issues such as school prayer (Abington v. Schempp, 1963), criminal procedure (Miranda v. Arizona, 1966), and abortion (Roe v. Wade, 1973). But these legal victories came at a price that mounted over time. Many citizens who had been part of the New Deal coalition came to believe that the courts were cramming decisions down their throats without even consulting them, let alone gaining their assent. And they came to believe that the courts were doing this at the behest of political and academic elites whose sensibilities were at variance with those of the American people. As a result, opposition to a court-centered politics became a staple of the conservative populism (pioneered by George Wallace and skillfully appropriated by Richard Nixon) that has done so much to turn Republicans into a national majority.
Many liberals cannot comprehend how a party that systematically promotes the interests of economic elites through tax cuts and corporate deregulation has wrested the mantle of populism away from them. They might begin by looking in the mirror and acknowledging that the court-centered gains they promote and celebrate often come at a fearful long-term political cost.
It is time for liberal activists to return to first principles and to reexamine (as many liberal scholars have begun to do) the meaning of Brown. In that unanimous decision, the Supreme Court frankly acknowledged that the text and history of the 14th Amendment yielded at best "inconclusive" results on the question of whether separate-but-equal policies were consistent with the "equal protection of the laws." Rogers Smith, a liberal political scientist who has done as much as anyone to make the issue of race central to the study of the American institutions, argues that the holding in Brown was certainly a "legitimate, good, and right decision -- in some ways a magnificent decision -- but not because it was constitutionally authorized." From this standpoint, the Brown decision parallels Lincoln's suspension of habeas corpus during the Civil War -- namely, the pursuit of constitutional ends through extra-constitutional means.
Put less provocatively: Brown exemplifies not constitutional jurisprudence, but rather constitutional statesmanship of the highest order. As such, it was an exceptional act, reserved for a question that goes to the core of our national history and identity. It should not be regarded as a template for judicial action in less extraordinary circumstances.
Some judges with impeccable liberal credentials endorse this approach. In her Senate confirmation hearing, Ruth Bader Ginsburg told the judiciary committee that "we must always remember that we live in a democracy that can be destroyed if judges take it upon themselves to rule as Platonic guardians."
She went on to criticize the Supreme Court's decision in Roe v. Wade on the grounds that it pre-empted normal, ongoing legislative action. Without a national ruling, she said, "the people would have expressed themselves in an enduring way on this question" through state-by-state laws. She noted that Roe had mobilized the opponents of abortion rights in a way that ordinary legislative processes did not. And in a notable lecture at New York University just months before her nomination to the court, she offered a general thesis that liberal legal activists would do well to ponder. Changes at a measured, deliberate pace, she said, "seem to be right, in the main, for constitutional as well as common-law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable."
This line of argument has implications for the way Democrats should defend the independence of the judiciary against Republican assaults. In the first place, we should refrain from imposing litmus tests on judicial appointments. The fact that a nominee may have worked against environmental regulations or voiced objections to New Deal-era jurisprudence is not by itself disqualifying. Nor are doubts about the wisdom or constitutional basis of Roe v. Wade.
Second, we should not support activists' use of the judiciary as a strategy for bypassing legislatures on contested issues. Whatever one's position on gay marriage (I happen to favor it), we should be critical of the tactics used in Massachusetts, California, and elsewhere to force this policy down the throats of a popular majority. Gay marriage is the kind of profound transformation best achieved through changes in public sentiment -- changes that will occur more rapidly in some jurisdictions than in others and that will not prove sustainable anywhere if imposed without public support. (For similar reasons, we should reject any effort to craft one-size-fits-all solutions, either positive or negative, at the national level. As even Vice President Dick Cheney recognizes, a federal constitutional definition of marriage is a bad idea.)
Finally, we should abandon rhetoric implying that judges are (in Justice Ginsburg's cutting phrase) "Platonic guardians" who safeguard us from the alleged bigotry and ignorance of popular majorities. We must acknowledge that as a party, we have opened ourselves to charges of elitism. We cannot be an effective party if we substitute litigation for mobilization. We cannot be a democratic party if we do not trust the people.
William A. Galston, a member of BLUEPRINT's advisory board, is a professor at the University of Maryland's School of Public Affairs and director of the Institute for Philosophy and Public Policy.
In the face of President Bush's unrelenting use of judicial appointments to rally his party's base, it falls to Democrats to take the lead in repelling this onslaught against the judiciary."
Hard to keep my head from exploding while reading this.
Yo, Gallstone. Show us where the Constitution says anything about a filibuster. The closest you will find is seven instances where a super-majority is required but appointing judges is not among them.
The second-closest you will come to anything about a filibuster in The Constitution is that section that says The Senate shall make its own rules as to how it wants to conduct business.
So, Billy, if the Senate wanted to change its rules on how many votes it takes to end debate on the nomination of a judge, they can do so CONSTITUTIONALLY.
Stick that in your hat and smoke it.
What's the difference between a New Democrat and a Democrat?
They all seem to spout the same incoherent babble...
A Democrat is a pig. A New Democrat is a pig with lipstick.
What's the difference between a New Democrat and a Democrat?
------
One is just younger than the other. They are both brainwashed DemoRats.
bump
That was as far as I made it. I guess he forgot about that election thingy way back in the dark ages of 7 months ago
The difference between calling someone a prostitute or calling them a hooker.
Just words.
Not any frothing at the mouth diatribes, no whining or handwringing.
"... they do not understand the essentials of our constitutional system, ..."
I only got to that sentence and I knew basically what he was going to say. But .. it's actually the dems who lie about the Constitutional system to confuse the issue.
This guy is avoiding the MAJORITY rule in the senate as a reason the republicans are allowed to do anything. Instead he insists it's a "yearning for unchecked power". We all know how "projection" works - so what this guy has now told us is .. it's the dems who are yearning for unchecked power .. not the repubs. The repubs just want to get an up or down vote and they're being accused of "yearning for unchecked power. Sheeeeeeesh!!
Its the Republicans fault because:
The judiciary is supposed to be a check on the legislature, not an alternative source of legislation. In recent decades, however, Democrats have failed to preserve this distinction carefully enough, and they've paid for their carelessness.
OK what am I missing here?
Yeah, there are some bad bits, but the rest of it makes sense.
Liberal judges themselves need to read this and take it to heart. They have created this crisis because they would not resist the temptation to exercise plenary power over the rest of us and bend us to their social liberal autocrat will. We've been playthings to the tin gods in black robes for almost 70 years. But now the backlash is threatening their power on several fronts. If they won't restrain themselves, then we will just have to restrain them with constitutional amendments or jurisdiction-sripping legislation. What else can we do if we are to remain a free and self-governing people?
I don't find any right of filibuster, nor even any power of filibuster in the Constitution. What I do find is that the President is to appoint judges and other officials with the advice and consent of the Senate. "of the Senate", not of a minority of the Senate.
Either they do not understand the essentials of our constitutional system,
Seems it's this dude that doesn't understand the Constitution. I imagine he's for restriction on keeping and bearing arms too.
Yep, first by trying to pack the court based on "political standards", and then finally in his third term, outlasting the Constitutionalist Justices and appointing, again using "political standards", Justices more amenable to his rape of the Constitution.
I like it. You're very funny, Texas Eagle! Thanks for the humor. Much appreciated. Now, it's easier to keep my head from exploding!
Char :)
Let's see at this supposedly nonpartisan source (http://www.senate.gov/artandhistory/history/minute/Filibuster_Derails_Supreme_Court_Appointment.htm), it says:
Fortas became the first sitting associate justice, nominated for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor consideration sparked the first filibuster in Senate history on a Supreme Court nomination.
I guess this shows how secure and aloof from politics the Democrats have remained in their Court appointees. Now about the independence of former Justice Goldberg . . . . . The judiciary is and always has been intensely political.
Exactly! How well you've put it, CyberAnt. Excellent formation. You're right. I've noticed that all of them project!........Hillary, Pelosi, K9 Boxer, T. Kennedy, Harry Reid.........and.........the WINNER IS.........Howlin' Howie Dean, for constant, congenital PROJECTION!
Do you agree? They're all bad, but Dean is the worst, unless you want to include Al Gore, along with Dean in the "equal projection" category!
Char :)
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