Ripon College Days

The past month has seen an extraordinary flurry of activity surrounding the nation's highest court and the judiciary in general-so often the forgotten branch of government. The President's nomination of Harriet Miers to replace Sandra Day O'Connor was withdrawn by Miers herself after criticism mounted all sides He has since named Appellate Judge Samuel Alito as his choice to be the next associate justice on the Supreme Court. Now furor has once again arisen over the Senate's "advise and consent" role in the judicial nomination process. The arguing started even prior to the election with Republicans threatening the "nuclear option" to break judicial filibusters. The hearings on, now Chief Justice, John Roberts reignited it. (That shining moment in recent American history even saw Roberts' adoption records scrutinized by left-wing interest groups.) Now the recent appointments have stirred the embers once again.

The Founders would surely be horrified at much of what has transpired recently. They had designed the judiciary carefully, setting it up to be an independent branch of government-free from political pressures and changing public opinions. It was in the name of that independence that judges received lifetime appointments and had their salaries constitutionally protected against political revenge. Such independence did not necessarily denote complete equality of power however. Of all the branches, only the selection of judges required involvement from another branch. Article III of the Constitution, which describes the judiciary branch, is both full of details regarding what courts may or may not do and practically devoid of any detail (in contrast to the sections about the legislative and executive branches) regarding requirements for appointment.

The most recent court battle has largely been due to the mythical idea that just such a requirement exists. Believers maintain that for over a decade the court has had a certain amount of balance. According to that school of thought, there were four liberals, four conservatives and O'Connor-the "swing vote." That balance, they argued, should be maintained when the President announced prospective replacements. Such an idea however is without constitutional merit. The idea of a "swing vote" is entirely a creation of the media machine. FDR certainly took full advantage of his power to nominate without regard to the previous make-up, and by the end of his four terms he had named eight of the nine serving justices on the Court (and attempted, through his court-packing scheme, to name many more!). If Rehnquist had retired a decade ago, would Harry Reid (D-NV) have so vehemently expected Clinton to nominate a "conservative" to replace him? The idea is preposterous.

That mythical sense of balance plays into a larger question on the role of judges in government. The phrase "activist judge" has been bandied about so much recently as to almost be devoid of meaning, but the idea it represents remains relevant to the debate. To put it succinctly, activist judges, whether political conservatives or liberals, are those that seek to "legislate from the bench." Too often Democrats have called for such activism to be the norm. Senator Charles Schumer (D-NY) has suggested that the nomination process is so important because judges are in a position to "make" law. Such activism is clearly not found in the Constitution. Now, the latest turn-of-phrase employed by the Democrats is whether a nominee is "out of the mainstream"-a mainstream which too often only includes those who support abortion rights, affirmative action, and other "liberal' causes. Therefore, Judge Alito is being labeled as "out of the mainstream" for his past dissent on a ruling that overturned a law that a woman must notify her husband when seeking an abortion. By that standard, apparently 70% of Americans are also, "out of the mainstream." Such litmus tests should never be applied, lest judges lose their independence.

Unfortunately, support for judicial activism is no longer an idea advocated only by the left. The furor over Harriet Miers was, in large part, due to conservatives who feared that she did not have sufficient "conservative" credentials. They questioned her commitment to ideals such as overturning Roe v. Wade-a stance which makes them no different, or better, then the activist-loving Democrats. (That is not to say that Roe should be considered settled law, completely impregnable-that matter is open to debate-but to specifically seek out judges who will overturn it, amounts, not only to judicial activism, but hypocrisy as well.) This mistake was only compounded by President Bush's rush to assure supporters that Miers' had a strong Christian background (much as several Democrats had previously suggested that strongly held, Christian beliefs might well disqualify a nominee). Even that implicit suggestion, by either side, amounts to a religious test, something the Constitution expressly forbids.

There is not doubt that Supreme Court justices are powerful, and, in that, I agree with Senator Schumer. As the final arbitrator of what is and is not constitutional, justices have enormous power-especially considering the length of service that usually follows a confirmation. Perhaps however, that power would not be so great-the debate would not be so bloodthirsty-if the traditional, original idea of the judiciary still meant anything. Judges are to interpret the laws while the legislature and, to a lesser extent, the executive, make them. The ideal judge would hand down decisions, at least occasionally, that they felt were constitutional, even while personally disagreeing with the ramifications of them. That is much less likely in the case of an activist judge.

It is time for common sense to once again rule in this furious debate over judicial nominees. Both sides need to calm down and evaluate nominees not through the media-driven lenses of "pro-choice" or "anti-affirmative action" but rather, with an eye for legal qualifications. During the confirmation hearings for John Roberts, Senator Schumer said of him, "There's no question that Judge Roberts has outstanding legal credentials and an appropriate legal temperament and demeanor." Such an opinion should be all that is required for a judge seeking confirmation. Not only should there be no religious test, there should also be no gender, race, sexual orientation, (fill in your own adjective) or political ideology test. "Legal credentials" and "appropriate legal temperament" should be all that is required for a President, elected by the American people, to nominate whomsoever he (or she) wants to the judicial branch. The Senate, barring any concerns over those legal credentials, should then move to confirm-or at least vote on in a timely manner. This must be done if the Supreme Court is to avoid truly becoming a Supreme Mess. Still I hope that something good will come from this; perhaps the public will gain some understanding of how our government truly works. One can only hope that the lessons learned will be true to the Constitution (as the Founders wrote it)-regardless of who was judging the matter.

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