In Judicial Appointments, Politics Is No Match for the Constitution
By Peter Sprigg
Sometimes, following the debate over judges seems to be like watching a tennis match. Take the debate this spring over threatened Democratic filibusters to block President Bush's appellate court nominees. Democrats said the filibuster was a time-honored tradition. Republicans said it stymied the democratic process. Democrats ominously described one parliamentary maneuver as "the nuclear option." Republicans referred to it as "the constitutional option."
When the Senate's bipartisan "Gang of 14" reached an agreement to break the deadlock, the volleying didn't stop. The seven Democrats said they'd let three nominees go through. The seven Republicans said they'd let two be blocked. The Democrats said they would filibuster only under "extraordinary circumstances." Republicans said "extraordinary circumstances" could not include a nominee's ideology.
Now that Supreme Court Justice Sandra Day O'Connor has announced her retirement, the stakes are higher. Conservatives want a nominee who opposes affirmative action. Liberals want a nominee who supports it. Conservatives want a nominee who thinks abortion is wrong. Liberals want a nominee who thinks abortion is a right.
Serve and return, smash and lob, follow the bouncing ball. So it must seem to many observers, who see the whole debate as a cynical struggle for power, and nothing more.
But this is a grave misreading of the situation. The debate is not about whose policy preferences will be enshrined into law. It is about whether it is even the role of the courts to make policy decisions. It's not about the purposes for which the vast power of the Supreme Court should be used. It is about whether courts should have such vast power to begin with.
The answers to such questions are not simply a matter of opinion. On these issues, based on the Constitution, one side is right and one side is wrong. Here are the facts:
1) We have a written constitution, not an unwritten one. Its provisions are determined by the actual words on its pages, and the meaning of those words is what it was when they were written down. "Rights" and "powers" not clearly expressed by those words have no constitutional validity.
2) The Constitution (as liberals are fond of pointing out) is not frozen in the 18th century. It must be able to change with the times, and the Founders anticipated this and provided for it. However, the provision they made was not for an omnipotent Supreme Court to change the meaning of words. The way our Constitution adapts to changing times is through amendments to its text. It was a constitutional amendment that ended slavery--not the Supreme Court. It was a constitutional amendment that gave women the right to vote--not the Supreme Court.
3) The United States is a democracy. It was "we, the people" who established our Constitution. Our founding document, the Declaration of Independence, says that governments-including courts-derive "their just powers from the consent of the governed." Of course it is true that the people, through their Constitution, have imposed limits on their own exercise of political power. They may not, spurred by transient political passions, pass laws that violate the over-arching principles of that Constitution. But those limiting principles are themselves ones the people have freely agreed to in the text of their Constitution.
4) Our government consists of three branches, which exercise checks and balances upon one another. Historically, one of these has been the power of the court to strike down legislative or executive acts. But this power must only be used in support of the Constitution itself. When it is used, instead, merely to substitute the policy judgment of the court for that of the other branches, it is no longer a "check" or a "balance"--it is a tool of tyranny.
The real question for judicial nominees is not their personal views on abortion or marriage, or even whether they are "conservative" or "liberal." This is not a tennis match. Only someone who affirms the truths above is even fit to serve on this court.
And yes, the pun is intentional. Game, set, match.
Peter Sprigg is vice president for policy at the Family Research Council in Washington.