The press has been treating the coming battle to fill a Supreme Court vacancy as largely a matter of politics.
But is that so?
The American Thinker, one of the most thoughtful blogs going, takes issue:
“Esteemed jurist Robert Bork was interviewed by Tony Snow about a week ago. When commenting on the contentiousness and acrimony that attend these inside-the-beltway debates — the filibusters and bluster, the posturing and maneuvering — Bork made the point that this state of affairs only exists because we view judicial appointments as a political issue as opposed to a legal one. Of course, Bork should know, since so victimized was he by the politicized judicial confirmation process that his name has become an adjective and verb. But what exactly did Bork mean? What is the correct way in which to judge judges?
“As some of you know, Bork was referring to the fact that a Justice?s sworn duty is to rule on the constitutionality of law, and lower federal court judges do so, too. In other words, a judge?s job is to determine whether or not a given law is allowable under our Constitution and then strike it down or allow it to stand on that basis. In light of this, it follows that a judge?s politics should matter not a whit, since, unlike politicians, the Constitution doesn?t change its tune to suit its audience.”
In a splendid tutorial on judicial nominations, Thinker explains how all too many judges have found a way around just reading the Constitution:
“You see, quite a long time ago those on the left discovered that they had a problem: they wanted to institute left-wing reforms but realized that a pesky little document called the ’United States Constitution? stood in their way. They wanted centralized authority but the Constitution mandated states? rights. They wanted big government but the Constitution prescribed subsidiarity. They wanted a secular society but the Constitution allowed for the infusion of the public sphere with religious sentiments and symbols. They wanted a constitutional right to expression of every conceivable kind, including pornography and flag burning, but the Constitution was silent on those issues.
“Now, they knew that this infernal screed could be altered legally through something called the ’Amendment Process.’ But this required, mercy me, that the vast majority of the people — most of those affected by the Constitution — agree to effect the change. After all, this was no tidy communist dictatorship where governing contrary to the will of the great unwashed was just a stroke of a red pen away. Nor was it a pure democracy, where a transitory fit of collective emotionalism that garners your proposal 51 percent of a popular vote could carry the day. Holy hammer and sickle, Vladimir, what is an aspiring Master of the Universe to do?”
As Thinker recounts, two schools of thought developed–the notion that the Constitution is a living document versus the idea that judges simply read and apply one of the best governing documents ever devised by man.
The left fears that a read-the-document guy (or gal) would be detrimental to some of their goals and might even review some of the bizarre uses to which the Constitution has been put.