The Importance of Judicial Nominees

The Standard has an article that sums up my opinion over the battle to appoint federal judges to a tee.

The controversy pivots not just on whether abortion should be legal, but on whether judges should be deciding such questions in the first place. Prior to Roe, an organized pro-life movement didn't exist. Post-Roe, it's become one of the most effective lobbying forces in U.S. politics. Thus the chief lesson of Roe: When citizens lose at the ballot box, they feel defeated. When they lose by judicial fiat, they feel cheated.

Currie points to Roe v. Wade as the crux from which all this judicial activism has spread. At this point I'm resisting just copying the whole article, which isn't too long, but won't.

A showdown over the judicial branch was a long time coming. After all, if judges begin wielding de facto legislative powers--a phenomenon that has mushroomed ever since Roe--and Congress blithely acquiesces, then judicial confirmation hearings become almost like Senate campaigns. In such an environment, vetting a nominee's partisan credentials seems only logical.

But each [ideological side] tends to overlook the crux of the problem. The underlying threat to American self-government is not merely "right-wing" or "left-wing" judges--but the imperial judiciary itself. Yes, most judicial activism these days occurs on the social left. Conservatives are wholly justified in their high dudgeon. But when they base their arguments on a narrow critique of "liberal" judges, rather than a critique of usurping judges generally, conservatives unintentionally concede a vital point: namely, that American courts should be reaching a sociopolitical consensus for the American people.

In fact, the Founders intended no such role for the courts. Divining and defining the popular will on, say, abortion, same-sex marriage, and the death penalty is properly the duty of the U.S. Congress and state legislators. But for several decades now, American politicians have shirked that duty. Congress has also ducked its constitutional obligation to lasso a renegade judiciary. The result: an unchecked court system with metastasizing powers and an insatiable appetite for legislating.

No wonder the U.S. bench is littered with so many partisan hacks. And no wonder both parties are willing to go to the mats over Bush's nominees.

Conservatives have crossed this line as well, but do so less often. Just as it's inappropriate to use the judicial system to decide social issues such as abortion, juvinile capital punishment, and environmental issues, it's borderline judicial abuse to work the system the way the conservatives did trying to interfere with Michael Schiavo's right to end his wife's life. I get really nervous when the federal government tries to overrule existing law and precident in the heat of the moment, and based on a single case, in which the right of a spouse to make decisions for his or her other is threatened. No thought get's put into it, and judicial precident is harder to overcome than legislation. Don't get me started.