Judges
The Tribune ran a piece today (reprinted here) about the ongoing battle about filibusters and judges. The Republicans claim that Bush can't even get a hearing on most of his judicial nominees, and the Democrats claim that he has nominated "fanatics" to serve as activist judges.
It used to be that judges were evaluated not for ideology, but for competence. The shift, I think, can be traced to the notion of an activist court and the leftist idea of a "living Constitution."
Stop and think about it for a minute. If most judges really respected the Constitutionally mandated separation of powers, and their role in the intricate system of checks and balances, would their ideology be such a significant issue? No. It is only when judges are willing, as so many are today, to cast aside legislative (read: the people) intent that their political ideology becomes such a matter of issue.
Take abortion. Prior to Roe v. Wade, abortion was not inherently legal or illegal, nor would it automatically become outlawed if Roe v. Wade were reversed. (Which, by the way, will never happen in our lifetimes.) What Roe did was create a new constitutional right to abortion out of whole cloth and thereby trump any state legislatures' pronouncements on the issue. In other words, even if Roe never happened, abortion could still be legal in Montana if that were the will of the citizens.
But once the Courts embarked on the path of legislating from the bench, and trumping the peoples' will, judicial ideology became an important focal point. Remember that the legislature is not some abstract body, this is the body given a voice by our votes. And unless the Courts again begin to respect our wishes, it's only going to get worse.
7 comments:
Very well put. Why can't this kind of view point in the printed media.
The reason why the Democrats are firmly fillibustering the judges (which make up an extremely small number of the total nominees... 5%) is because they threaten to remove rights garunteed by the Constitution.
The decision in Roe v. Wade was based on a number of cases knows as the peenumbra cases, including:
1923: Meyer v. Nebraska
1925: Pierce v Society of
1942: Skinner v. Oklahoma
1965: Griswold v. Connecticut
1967: Loving v. Virginia
All of these cases were rooted in rights laid out in the Constitution (namely from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments).
Viewed in this light, the Senators threatening to fillibuster are certainly within their rights to CHECK judges that will obviously try to overextend the bounds of the judiciary!
I understand the "penumbra" argument. For example, in Meyer,, the Court said of the Fourteenth Amendment: "While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
I don't see anything about abortion in there, do you?
Finally, your comment actually makes my point (did you read the post?). You claim the need for filibuster due to conservative judges' willingness to legislate from the bench. Again, if the Judiciary respected the separation of powers, this would not be such an issue, would it?
Abortion doesn't have to be spelled out verbetim to mean that it is a right, and your citation of Meyer proves that: "While this court has not attempted to define with exactness the liberty thus guaranteed..."
Beyond that, other penumbra cases deal with concepts of privacy (Griswold), which is also not directly referred to within the Constitution.
Overall, it is the job of the judiciary to interepret the Constitution and protect rights. While I recognize your argument on the activist court legislating from the bench, and I can agree with it to a certain extent. However, I think there has to be a distinction between interpretations of existing law that remove rights in the status quo and interpretations that expand rights.
The Democrats will not stand by justices that seek to take rights away, regardless of whether they are conservative or liberal in ideology.
In your discussion of "rights" you have left out the right of the preborn person. Yet to be determined are the rights of this individual.
First of all, Cory, I appreciate your stopping in to discuss this stuff. You demonstrate that disagreement can be had without being nasty. That makes for pleasant discussions and hopefully some enlightenment on both sides.
I disagree with your premise. It is neither fair nor accurate to assert that Democrats stand by judges who protect rights. Democrats have no problem with gun control or campaign finance reform, both of which restrict the rights of the individual.
Also, I disagree with your premise (that I have heard from many Democrats in this debate) that it is always good to have more rights, and an 'activist judge' who always expands rights is almost by definition a good thing. In some areas, rights are a zero sum game.
Let's use a hypothetical, although one that is probably not too far off. If the Supreme Court were to 'interpret' the Constitution to find that sexual preference were a protected class, would that not then impose on others' rights to their religious beliefs?
Finally, you state that "[a]bortion doesn't have to be spelled out verbetim [sic] to mean that it is a right." That is an accurate statement.
Here's the problem, though. Are you saying that there was a constitutional right to abortion from the ratification of the Constitution until Roe v. Wade, but we just didn't know it? All of that trimester stuff was just lurking out in the ether? Or is it true that 7 individuals just decided that it was an idea whose time had come?
I just kinda accidentially stumbled onto this site so I'll try not to overstep any lines of decency.
First, I think it's important to note how this discussion about "activist judges" nearly immediately evolves into a conversation about abortion.
Second, the notion that judges are infringing on the "voice of the people" is in reality flawed. While it is structurally the correct thing to assert, it is by no means a smoking gun on the overeaching that the judiciary is accused of. We can take the fillibuster issue as a perfect example: had the republicans won a vote on rule change by party lines (plus or minus a couple of old rich guys) the losing minority would have actually represented MORE people than the "majority". We can even look to the bankruptcy bill, where the credit/finance industry lobbied for nearly 10 years at a cost of around 200 million dollars. Who stuck up for the 80% of Americans who would be influenced by the bill if they got cancer without having health insurance? The consumer rights lobby raised and spent close to 8million. So by no means does the legislative respresent the voice of the people.
The constitution was designed as a living document, and no thats not a "leftist" argument. The bulk of debate regarding the bill of rights was the concern that future generations would interpret the adoption of the first 10 amendments as the ceiling of rights which the constitution protected. Besides, could a constitution really survive the strain of nearly 200 years of social, technological, and political change if it was a static and not dynamic document?
Lets try a hypothetical: Lets say that societal norms allowed me to prevent blacks from entering my dining establishment, over the course of time the sentiment changes? What is the law to do? How should it react in the face of stare decisis? It must evolve and must change, otherwise its just a piece of paper and not a consitution.
Ok, enough for now. Sorry for the ranting.
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