With President George W. Bush’s cabinet all but filled, a battery of Senate confirmations is still impending – those to the courts system. Taking into account the ill health of Chief Justice William Rehnquist, there is a great possibility that Bush will make appointments to the Supreme Court.
There has been great concern over the possibility that Bush might make conservative appointments to the federal court system. This anxiety primarily stems from the fact that Republicans have control over the House, the Senate, and the White House. Now, the lone bulwark that can still be clung to – the way that remains by which an agenda can be imposed on the ignorant, toiling, uneducated masses – is in danger of also having a conservative tinge.
Heaven forbid that the legislative and executive branches – both elected for the people, by the people – should enjoy a constitutional system of checks and balances over the un-elected judicial branch. However, I say “heaven forbid” without the intention of breaking Michael Newdow’s and the Ninth Circuit Court of Appeals bizarre interpretation of the First Amendment. Fundamentally, the fact that one’s agenda hinges on the makeup of the court system is like a football team having the punter as its leading scorer – it’s not exactly a reassuring sign.
Bush was criticized for using the term “mandate” to describe the majority he enjoyed in the last election. Putting things into perspective, however, these same critics will as soon rely on a decision made by three Circuit Court judges – rather than 59 million Americans – who lie both geographically and politically far away from much of America. Considering the way that these judges underhandedly circumvent the legislative process, the decisions that come from many of our courts today have the legitimacy of an Ashlee Simpson concert.
The same branch of government that is spewing outlandish decisions today is also responsible for delivering such pathetic rulings known as Plessy v. Ferguson, Korematsu v. United States and Scott v. Sanford. In all cases, judicial activism and loose construction was used to morph the Constitution and other federal laws. Therefore, give conservatives a little slack when they might show concern about the way “loose constructionists” use their position to “interpret” laws.
If it is a purportedly “living” document, the judges handing down these decisions violently sent the Constitution to the ICU in critical condition.
Since members of Congress or presidents did not make these judgments, the American people could not answer to these judicial fiascos by voting errant judges out. The problem of a runaway court system can be solved by appointing jurists who practice judicial restraint. Bush wants to appoint such judges.
The court can provide a sense of order. In Brown v. Board of Education, they upheld – rather than “interpreted the meaning of ” – the Fourteenth Amendment and ensured that all had the right to a decent, integrated education. However, even then, a battery of legislation – provided through directly elected legislative branches – was needed to complete integration in the following years.
The recent examples of Stevens, Souter, Kennedy and O’Connor show that a Republican appointee to the court system does not mean one more branch of government will fall to conservatism. The latter two – though they gave Bush the presidency by striking down the rule bending and Jedi mind tricks used to count ballots in Gore’s favor – are often at odds with Bush’s conservative agenda. Ironically, the former two dissented in Bush v. Gore, and have done an admirable job of counterbalancing conservative opinions in the government through out their careers. “Daddy’s friends” indeed. Furthermore, with moderate Arlen Specter at the helm of the Senate Judiciary Committee, this sense of balance is sure to continue. In the next four years, the Supreme Court will be fortified by restraint, moderation and jurisprudence.
Scott can be reached at firstname.lastname@example.org.