Jewish World Review July 7, 2005 / 30 Sivan, 5765

Thomas Sowell

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Judicial havoc: Part II | When it comes to judicial nominees, especially nominees to the Supreme Court, you might think that the only thing that matters — the thing that trumps all other considerations — is whether the nominee is for or against legalized abortions.

Many people are too young to realize that there was never a federal ban against abortions before Roe v. Wade created a "Constitutional right" to abortion out of thin air. Before that, the federal government had nothing to say about the subject and the various states had a variety of laws regulating abortions.

Political hype has long since drowned out the truth on this subject, as on so many other subjects.

What is even more dangerous than this political fixation on abortion is the underlying notion that judicial nominees are to be confirmed or voted down on the basis of how they might rule on particular policy issues.

The separation of powers means not only that judges should stay out of policy issues that belong to legislative bodies but also that the Senate should respect the judicial branch and not try to predetermine how judges will rule on legal issues.

What Senate liberals of both parties want to do is extract some kind of commitment that judicial nominees will not reverse Roe v. Wade. Judicial nominees should not be chosen by the President to reverse Roe v. Wade or rejected by the Senate if they don't pledge to uphold it. Respect for the Constitutional separation of powers should apply to all three branches of government.

President Bush has said that there will not be a policy litmus test used to select judicial nominees but the Senate has not made any such pledge when it comes to voting on these nominees. Senate liberals want to micro-manage the judiciary, their last bastion of power in a world where voters have repeatedly rejected liberalism at the polls.

The upcoming Supreme Court confirmation battles in the wake of the retirement of Justice Sandra Day O'Connor are seen by too many people in terms of the Senate's comity and consensus. You can always get a consensus by surrendering.

With Senate Democrats united and Senate Republicans divided, comity and consensus mean letting the minority party determine what kind of Supreme Court will be making laws for our children and grandchildren to live under. What is the point of having elections if the winners are going to act like losers and vice versa?

Too many conservative Republican administrations have put too many liberal judicial activists on the Supreme Court already by trying to avoid confirmation battles and trying to get along with Senate Democrats.

Statements by Republican Senators Specter and Warner after the retirement of Justice O'Connor suggest that, once again, the Republicans' favorite exercise may be running for the hills. All the people who contributed their time and donated their money to get Republicans elected may well be forgotten in the Senate Republicans' desire to get along with the Democrats.

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When the shoe is on the other foot and the Democrats control the White House or the Senate, there is no such effort to appease Republicans. The Clinton administration put hard left judicial activists Ruth Bader Ginsburg and Stephen Breyer on the Supreme Court, and the Republicans could like it or lump it.

Some media pundits wonder whether the Democratic Party will destroy itself politically, with shrill and irresponsible outbursts by people like Howard Dean and Senator Dick Durbin alienating moderate voters. But the Republican Party can destroy itself by alienating the very people who voted them into office, only to see the Republicans' nerve fail when it comes to fighting for the things that got them elected.

The media add to the confusion by constantly labeling judges "liberal," "conservative" or "moderate," rather than distinguishing judges who are activists who ad lib versus judges who follow the laws as written, including the Constitution.

That is the distinction that will determine whether this country will live under the rule of law as a self-governing people or whether we will continue to become more and more subject to the fiats of unelected judges. That issue trumps comity, consensus and particular policy issues combined.

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