How Constitutional Corruption Has Led to Ideological Litmus Tests for Judicial Nominees

CATO ^ | 8/6/2002 | Roger Pilon

[WindMinstrel]

Executive Summary

The 2000 presidential election was widely understood to be a battle for the courts. When George W. Bush finally won, following the Supreme Court's split decision in Bush v. Gore, many Democratic activists simply dug in their heels, vowing to frustrate Bush's efforts to fill vacancies on the federal courts. After Democrats took control of the Senate in May of 2001, they began calling explicitly for ideological litmus tests for judicial nominees. And they started a confirmation stall, especially for circuit court nominees, that continues to this day. Thus, 8 of Bush's first 11 circuit court nominees went for over a year without even a hearing before the Senate Judiciary Committee, and most have still not come before the committee.

As the backlog of nominees grows, Democrats are quite explicit about the politics of the matter: their aim is to keep "highly credentialed, conservative ideologues" from the bench. The rationales they offer contend that judges today are, and perhaps should be, "setting national policy." One such "policy" they abhor is "the Supreme Court's recent 5–4 decisions that constrain congressional power." Thus the importance, they say, of placing "sympathetic judges" on the bench, judges who share "the core values held by most of our country's citizens." In a word, everything is politics, nothing is law.

The battle between politics and law takes place at many points in the American system of government, but in recent years it has become especially intense over judicial nominations. That is because judges today set national policy far more than they used to—and far more than the Constitution contemplates. Because the original constitutional design has been corrupted, especially as it relates to the constraints the Constitution places on politics, we have come to ideological litmus tests for judges. The New Deal Court, following President Roosevelt's notorious Court-packing threat, politicized the Constitution, laying the foundation for several forms of judicial activism. After that it was only a matter of time until the judiciary itself had to be politicized. We are reaping the fruit of that constitutional corruption.

That will not change until we come to grips with the first principles of the matter—with the true foundations of our constitutional system. Yet neither party today seems willing to do that. Democrats have an activist agenda that a politicized Constitution well serves. Republicans have their own agenda and their own reasons for avoiding the basic issues. Thus, it may fall to the nominees themselves to take a stand for law over politics, the better to restore the Constitution and the rule of law it was meant to secure.

Full Text of Policy Analysis No. 446 (PDF, 19 pgs, 224 Kb)

[poet]

My concern is that bush is not using the tremendous influence of his office to fight for the nominees. He should go before the American public and make them aware of the obstructionism of the dems.

If the dems are allowed to continue as they are, chances are that the supremes will not overturn the CFR, which in my opinion has little chance at present of being declared unconstitutional.
Some of you will say that he has to pick his spots. My reply is what is more important than keeping activist "judges" off the courts. Take a good look at the corruption of the lower courts.

[WindMinstrel]

Are there any conservative activist judges? Is it possible to be both "conservative" and an activist judge at the same time? I don't think that's possible.

[steve50]

The price we pay when our legislative/executive aren't confined by the Constitution. If it's a living-breathing document then the right to interpet it is more important than the document. It will get worse before it gets better,imho.

[poet]

I agree. The liberals want activist judges, not conservatives. We want them to abide by their sworn oath to uphold the constitution