Originally published October 2002.

A fully-staffed, balanced, and independent judiciary is necessary for the protection of our safety, freedom, and civil rights. Yet today the American justice system is imperiled by an extraordinary number of federal judicial vacancies and by the efforts of special interest groups to prevent the confirmation of qualified judicial nominees and thereby politicize what Alexander Hamilton once referred to as our government’s “least dangerous” branch. Of course, political battles over judicial nominees are nothing new. But unlike previous judicial confirmation fights, where special interest groups sought to defeat a particular candidate for the federal bench, the current assault is being waged not simply against a specific individual but against certain judicial philosophies.

In particular, the radical Left has declared war on the bedrock principles of judicial restraint and federalism — and all those who dare to adhere to them. By painting judicial nominees with a broad brush, the special interest groups hope to avoid having to challenge a particular nominee’s qualifications (an almost impossible task, given the resumes of the individuals thus far nominated by President George W. Bush). These groups seek to defeat nominees they do not like without having to engage in messy smear campaigns such as the one launched against Clarence Thomas in 1991. The Left’s strategy is simple: convince the American public that judicial restraint and federalism imperil the rights of women and minorities and then label adherents to these philosophies as “hostile to civil rights” and unfit for federal judicial service.

In an attempt to respond to these unfounded attacks, the IWF presents this position paper on judicial restraint and federalism — two of the cornerstones of American democracy. This paper will examine briefly the role of the courts in American law and provide context for the current debate over federalism and judicial restraint. By defining these principles for a lay audience, we hope to shed some light on the constitutional context for the current confirmation battles. And we hope to educate the public as to why — contrary to the view espoused by radical special interest groups — judicial adherence to principles of restraint and federalism is critical to the preservation of democracy, liberty, and freedom for all Americans.