Thomas Sowell
High Noon for judges: Part I
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It is painfully ironic that we should be promoting the spread of
democracy abroad when democracy is shrinking at home. Over the years, the
outcomes of our elections have meant less and less, as judges have taken
more and more decisions out of the hands of elected officials.
Judges have imposed their own notions on everything from school
administration to gay marriage, and have ordered both state and federal
agencies to spend billions of dollars to carry out policies favored by the
judges or have even ordered a state legislature to raise taxes.
This naked exercise of judicial power has been covered by the
fig leaf of pretense to be "interpreting" laws and the Constitution by
stretching and twisting words beyond recognition.
The merits of the particular policies or expenditures is not the
issue. The real issue is much bigger: Are the people to have the right to
elect their own representatives to decide issues or are unelected judges to
take over an ever-increasing share of the power to rule?
This has happened gradually but steadily. Just as the late
Senator Daniel Patrick Moynihan referred to our growing acceptance of
immoral behavior as "defining deviancy downward," so we have come to accept
the steady erosion of democratic government as judges have defined democracy
downward.
While people in various countries in the Middle East are
beginning to stir as they see democracy start to take root in Iraq, our own
political system is moving steadily in the opposite direction, toward rule
by unelected judicial ayatollahs, acting like the ayatollahs in Iran.
That is what makes the impending Senate battle over judicial
nominees something much bigger than a current political squabble or a clash
of Senatorial egos.
One way to stop the continuing erosion of the American people's
right to govern themselves would be to appoint judges who follow the great
Supreme Court Justice Oliver Wendell Holmes' doctrine that his job was to
see that the game is played by the rules, "whether I like them or not."
Judges with that philosophy are anathema to liberal Democrats in
the Senate today. They know that the only way many liberal policies can
become law is by having them imposed by judges, because voters have
increasingly rejected such policies and the candidates who espouse them.
The Senate's Constitutional right and duty to "advise and
consent" on the President's judicial nominees is being denied by a minority
of Democratic Senators who refuse to let these nominees be voted on. Since
Republicans have a majority in the Senate, they have the power to change
Senate rules, so that a minority of Senators can no longer prevent the full
Senate from voting on judicial nominees.
Such a rule change is referred to as "the nuclear option," since
it would be a major change that could provoke major retaliation by the
Democrats, both in obstructing current legislation and in the future using
that same rule to ride roughshod over Republicans whenever the Democrats
gain control of the Senate.
An aging Supreme Court means that there is now a perhaps
once-in-a-lifetime opportunity to stop the erosion of democratic
self-government by putting advocates of judicial restraint, rather than
judicial activism, on the federal courts, including the Supreme Court.
Senate Democrats understand how high the stakes are. But do the
Republicans? President Bush clearly does but Republican Senator Arlen
Specter, chairman of the Senate Judiciary Committee, either doesn't know or
doesn't care about the larger Constitutional issues. He is siding with the
Democrats in the name of compromise.
Senator William Frist, the Republican majority leader, says he
has the votes to change Senate rules to prevent a minority from denying the
full Senate the right to vote on judicial nominees. Senator Frist also had
the votes to prevent Senator Specter from becoming chairman of the Senate
Judiciary Committee but he didn't do it. He chose to avoid a fight.
That is not a hopeful sign for what to expect when high noon
comes on the President's judicial nominees.
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JWR contributor Thomas Sowell, a fellow at the Hoover Institution, is author of several books, including his latest, "Applied Economics: Thinking Beyond Stage One." (Click HERE to purchase. Sales help fund JWR.) To comment please click here.
