July 6, 2005

"The Supreme Court Has Converted Itself From a Legal Institution to a Political One"

If you ever wanted further evidence of how political the Supreme Court nomination process has become, consider this 1981 quote from none other than Senator Ted Kennedy during the Sandra Day O'Connor confirmation hearings:

It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any single-issue interest group. The disturbing tactics of division and distortion and discrimination practiced by the extremists of the new right have no place in these hearings and no place in the nation's democracy.

To explain what has changed and the consequences from those unfortunate changes over the years, here is Robert Bork in a Wall Street Journal editorial (available for a fee) entitled Their Will Be Done:

...until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths.

Alexis de Tocqueville observed that "If each undertook himself to form all his opinions and to pursue the truth in isolation down paths cleared by him alone, it is not probable that a great number of men would ever unite in any common belief. . . . [W]ithout common ideas there is no common action, and without common action men still exist, but a social body does not."

Contrast Tocqueville with Justices Harry Blackmun and Anthony Kennedy. Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted "'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "At the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Neither of these vaporings has the remotest basis in the actual Constitution and neither has any definable meaning other than that a common morality may not be sustained by law if a majority of justices prefer that each individual follow his own desires.

Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the Court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic Constitution, and philosophical incompetence is lethal.

The Court's philosophy reflects, or rather embodies and advances, the liberationist spirit of our times. In moral matters, each man is a separate sovereignty. In its insistence on radical personal autonomy, the Court assaults what remains of our stock of common moral beliefs. That is all the more insidious because the public and the media take these spurious constitutional rulings as not merely legal conclusions but moral teachings supposedly incarnate in our most sacred civic document...ever-expanding rights continually deplete America's bank of common morality...

Democratic senators' filibusters of the president's previous judicial nominees demonstrate liberals' determination to retain the court as their political weapon. They claim that conservative critics of the Court threaten the independence of the judiciary, as though independence is a warrant to abandon the Constitution for personal predilection. The Court's critics are not angry without cause; they have been provoked. The Court has converted itself from a legal institution to a political one, and has made so many basic and unsettling changes in American government, life, and culture that a counterattack was inevitable, and long overdue. If the critics' rhetoric is sometimes overheated, it is less so than that of some Democratic senators and their interest-group allies. The leaders of the Democratic Party in the Senate are making it the party of moral anarchy, and they will fight to keep the Court activist and liberal. The struggle over the Supreme Court is not just about law: it is about the future of our culture...

...the stakes are the legitimate scope of self-government and an end to judicially imposed moral disorder.

That is why Shannen Coffin writes about this upcoming nomination battle in the following way:

...Within minutes of the announcement of O'Connor's retirement, the dinosaurs of the Left took to the airwaves to attempt to frame the debate. Planned Parenthood cried that "women's health and safety [are] on the line." People for the American Way shrieked that our "very national identity hangs in the balance." Kim Gandy, president of the National Organization for Women, declared "a state of emergency for women's rights." Nan Aron, of left wing Alliance for Justice, spelled out what was to come: "a fight that will shape our lives for decades."

All of the breathless talk was evidence of just how far the Far Left have slipped...

So what is left for the Left? The Court. More than any other time in our history, the gears of liberal social activism no longer turn beneath the dome of the United States Capitol, but have moved a few hundred yards across the street to the United States Supreme Court. Liberal groups like the ACLU, Planned Parenthood, and the National Abortion Federation, well aware that the electorate is not solidly (if at all) behind their agenda, have turned to the Courts to advance their mission. Every time the people of the country speak through their legislatures on the hot-button issues of the day abortion, homosexual rights, affirmative action, you name it the army of lawyers of the Left line up at the courthouse steps to put a stop to the will of the people...Unlike the conservative movement that seeks to limit the now pervasive influence of the Supreme Court in our daily lives, liberal activist groups need the Court. Their success in changing social norms, their access to bank accounts in the Hamptons and Hollywood, their very existence all depend on their ability to control its makeup.

It should come as no surprise that this summer will be a liberal political jihad...

Nothing is more telling about the desperation of the Left in modern politics than their warm embrace of Justice O'Connor over the last few days...

...she was a far cry from a Justice Brennan or Thurgood Marshall, the former standard bearers for the Left. For Ted Kennedy and Harry Reid to be embracing O'Connor as the model of a perfect judge speaks volumes to how far they have slipped in the American political debate.

...Despite their empty words of praise, leading Democrats in the Senate know that the best they can do is fight to the death on the president's nominee, demonizing that person no matter how esteemed or qualified. Anyone short of Ted Kennedy himself might not appease desperate liberals. So be prepared for judicial Armageddon. It may be the Left's last stand.

On an important philosophical level, here is a related posting entitled Rediscovering Proper Judicial Reasoning which uses a recent case to talk about the meaning of "original intent" in contrast to judicial activism.