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Washington Examiner


Why Politicized Judges Spark Rancorous Confirmations

July 15, 2009

By James R. Copland

Always entertaining, the confirmation process took a turn toward the theater of the absurd this week, as the Judiciary Committee’s Democrats welcomed their newest member, Al Franken (D-MN), a man of no legal training or experience but a sharp wit and comedic presence cultivated in his years on Saturday Night Live.

No one following this process seriously doubts its outcome. As Sen. Lindsey Graham (R-SC) noted, President Obama’s pick for the Supreme Court, Appeals Court Judge Sonia Sotomayor, will be confirmed unless she has “a complete meltdown.”

But notwithstanding the near-certainty that the theatrical confirmation hearings are irrelevant to the Senate’s ultimate vote, the process opens a public window onto a very real conflict over the proper role of the courts and the rule of law.

These disagreements are hardly new: The judiciary’s power to overturn congressional statutes as unconstitutional is itself far from clear in the plain text of the Constitution, and the Supreme Court’s decision to this effect in the seminal 1803 case Marbury v. Madison was anything but uncontroversial.

In the last century, President Franklin D. Roosevelt flirted with a constitutional crisis when he threatened to “pack” the Supreme Court with new justices after the Court rejected various elements of his New Deal on constitutional grounds. The early twentieth-century critiques of judicial overreach thus came from the Left, who only turned away from their democratic-populist message in the civil rights era.

This history helps to expose the opening statements of some Senate Democrats, including Franken, which caricatured conservative critiques of “judicial activism.” The senators’ arguments run essentially as follows: Republican-appointed justices have proven as likely, or more likely, to overturn the “will of the people” as expressed through laws enacted by Congress; thus, “activism” is merely in the eye of the beholder.

This argument only makes sense if one defines judicial activism as the “counter-majoritarian difficulty” in overturning the majority will, an implicit critique of the power of judicial review itself. But while some of the liberal philosopher-kings of the legal academy have wrestled mightily with the counter-majoritarianism inherent in judicial review, this has never been the concern of serious conservatives.

Instead, the conservative critique of judicial activism is rooted in concern for the rule of law, i.e., the application of known principles to resolve cases, without arbitrary discretion. Written constitutionalism with judicial review necessarily implies that the courts police the political branches, but such policing should flow from the written text; when courts instead venture into “penumbras” and “emanations,” they turn themselves into but another political branch and undermine their legitimacy and the rule of law itself.

Deconstructing the rule of law has been the major project of leftists in the legal academy over the last century. The legal realists rejected the notion of objectivity in judging and purposely sought to de-legitimatize judicial constraints on Progressive- and New Deal-era government expansion. Later, various scholars under the “critical legal studies” umbrella specifically embraced race- and gender-conscious interpretations of the law.

When President Obama advocates “empathy” in judging and Judge Sotomayor flirts with race and gender as acceptable drivers of judicial outcomes, they echo these leftist academic movements and thus understandably provoke conservative reaction.

No one questions that legal ambiguities abound, and mainline conservatives differ over the proper decision rules for resolving such cases, but tipping the scales of justice for a particular party in litigation is antithetical to the rule of law as traditionally understood.

In deconstructing the rule of law, however, the Left has openly embraced the notion that judging is merely an extension of the political process. It should hardly be surprising, then, that the judicial confirmation process has devolved into little more than politically charged theater.

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