Yes, Let’s Have Constitutionalist Judges, Not Ideologues

July 11, 2005

I have often wondered whether liberal politicians and journalists, most of whom surely believe they are more sophisticated and enlightened than their conservative counterparts, truly don’t understand the concept behind the intricate balance of powers the Framers incorporated into the Constitution or simply don’t care.

Washington Post columnist E. J. Dionne Jr. asked in a recent column, “Should a temporary majority of 50.7 percent have control over the entire United States government? Should 49.3 percent of Americans have no influence over the nation’s trajectory for the next generation? We are deciding whether one ideological orientation will hold sway over all three branches of government … Today’s Republican majority, based on Bush’s 50.7 percent of the vote in 2004, has no inherent right to exercise near-total control over that ‘most powerful branch.'”

I have written before that liberals seem to be arguing that the president should effectively compromise his judicial appointment power by choosing not just conservative judges, but liberal ones in proportion to the percentage of popular votes John Kerry received.

That sounds absurd on its face, but that’s clearly the message Democrats were sending when reminding us that the popular vote was close so the president has no mandate to “stack the courts” with his preferred conservative nominees.

Now E.J. has come along and validated my conclusion. And as I read it, I’m still incredulous that someone of his supposed stature could put this in print. Our Constitution doesn’t require the chief executive to dilute his agenda commensurate with the votes his opponent received. It’s up to elected members of the opposition party to advocate their party’s agenda.

The answers to E.J.’s questions are these: No, a relatively narrow majority (nor an overwhelming majority, for that matter) does not have an inherent right to exercise near-total control over the “entire U.S. government” or “that ‘most powerful branch.'” It is entitled to precisely that amount of influence it is able to muster under the Constitution. Under the Constitution, the president is entitled to appoint judges, and the Senate has the advice and consent power.

Senators of the majority party are not required to push their agenda with only 50.7 percent intensity. It’s an adversary system — they may promote their views with 100 percent of their energy, and it is up to the minority party to advocate their dissenting views.

Surely Dionne knows this. But for all his seeming concern over the separation of powers, does he understand that an independent, non-political judiciary is indispensable to it? (It is not supposed to be an ideological check on the executive and legislative branches, but a systemic check against constitutional abuses inflicted by those other two branches.)

Or is E.J. just cynical, believing that regardless of what the Constitution provides, the liberal policy agenda justifies any means of attaining it, including ignoring the Constitution, when convenient?

It’s hard to take liberals seriously when they declare that President Bush’s judicial nominees must be respecters of the Constitution and not conservative ideologues.

How can liberal senators, such as Chuck Schumer, expect to pass the laugh test when decrying the intrusion of political ideology into judicial decisions as they openly defend such a practice when it emanates from their side?

Democrats have long considered the judiciary the third policy-making branch to compensate for their consistent failure to control the other two branches. Only recently have they begun to urge that the president’s judicial picks be those who will honor the Constitution. It’s not just their insincerity that’s offensive, but also their obvious belief that the public is clueless enough to fall for their deception.

If appellate justices were to honor their constitutional role, they would interpret rather than make law, which would inevitably result in the reversal of precedent that has bastardized the Constitution in furtherance of policy ends.

We’re not just talking about reversing the abortion decisions, which would not automatically illegalize abortion, by the way, but return the issue to the states. Consitutionalist judges would also honor the Framers’ concept of federalism and resist the temptation to impose federal policy on the states in derogation of states’ rights on other issues. And they would hopefully restore a sane interpretation of the Commerce Clause, which has been one of the main culprits activist judges have used in expanding federal power to a degree only the anti-Federalists anticipated.

Conservative jurists don’t see the judiciary as a policy-making branch, but as a law-interpreting institution that will only influence policy to the extent that it reverses precedent established by activist judges, most of whom — over the past 50 years — have been liberals.

If Democrat senators were sincere in their insistence that the president’s appointees respect the Constitution, they would enthusiastically confirm all nominees in the mold of Antonin Scalia and Clarence Thomas.