TCS Daily


The Real Place for Politics

By Ilya Shapiro - January 20, 2005 12:00 AM

Last week in this space, the talented young New York Post writer Ryan Sager assembled a formidable list of judiciary-related Congressional actions to argue that Republicans are increasingly engaged in the nefarious behavior of which they accuse their liberal enemies: politicizing the courts.

If I have his argument correctly, House votes to strip federal courts of jurisdiction to hear challenges to the constitutionality of the words "under God" and the Defense of Marriage Act, and to censure the Supreme Court for citing foreign legal authority, as well as the Senate's proposed rule change on filibustering judicial nominees, subvert the Founders' delicate constitutional structure. To paraphrase Sager: As much politics at the front end (before confirmation) as you can bear, hands off the robed guardians of the law thereafter.

Sager's argument is not without merit, and indeed should find much favor in those conservative circles where both "legislating from the bench" (e.g., Roe v. Wade) and applying first principles to strike down modern laws (e.g., U.S. v. Lopez) are examples of judicial activism. By changing long-established traditions -- federal jurisdiction can only be expanded; filibusters are sacrosanct -- in the name of partisan ends (however sympathetic or popular those ends may be), Republicans undermine the very judicial independence, the very rule of law, that they purport to champion.

The distinction that both Sager and those who call originalists like Justice Scalia "conservative judicial activists" miss is that the debate in which they think they're engaged is not one about whether two wrongs make a right, but instead one about what is right in the first place.

Jurists who do not subscribe to the view that the Constitution is a living document that evolves within the context of the society which it governs would be remiss in their duties in letting stand laws which do violence to original understandings of constitutional jurisprudence. In striking down legislation that goes against the principle that our federal government is one of limited and enumerated powers, they could not be further from the positivism -- inventing law from whole cloth -- of their "progressive" colleagues.

Similarly, politicians who observe that great damage is being done to the balance of powers and other aspects of constitutional design would be failing to uphold their official oaths in not acting to correct the ex cathedra assertions of a judicial branch run amuck. Jurisdiction-stripping should be the least of our concerns: Congress and the agencies to which it ostensibly delegates its powers establish every day how a given law or regulation is to be reviewed. And the "political question" doctrine, among others, exists to remove from the courts controversies which can only be left to the popularly elected branches. For example, an executive official impeached by Congress cannot file an appeal in the judiciary.

(I will refrain from discussing here the limited matters to which the authority of federal courts extends under the Constitution; indeed most of the cases in federal court are there merely because Congress passed a law making something a "federal case." The nuances and historical development of federal jurisdiction make up one of the most fascinating and difficult courses in law school, and while I would be delighted to discuss the subject, it goes far beyond the scope of both this forum and this young lawyer's competence.)

Having said that, one aspect of the "politicizing the judiciary" refrain that increasingly gnaws at many a craw is the reluctance to exercise the so-called "nuclear option": changing the Senate cloture rule. Contrary to Mr. Sager's assertions, prolonged filibusters do not indicate some sort of increased scrutiny of judicial nominees, and eliminating this unconstitutional perversion of the confirmation process would not cause the sky to fall on 200 years of delicately balanced parliamentary procedure.

Though Sager is in good company -- George Will favors other tactics for dealing with Democratic obstructionism as well -- his line fails because, to paraphrase an old chestnut, Senate rules are not a suicide pact. If the minority party continually insists on preventing up-or-down votes on the president's nominees -- which is different than holding them up in committee or threatening to reject them, as the Republicans did under Clinton -- it is the majority's duty to restore the constitutional order, unless it believes that "advise and consent" means 60 votes rather than a mere majority. (For more on this, see Sen. Orrin Hatch's recent piece, "Crisis Mode," n National Review Online.

Similarly, if judges cite foreign legal authority or otherwise engage in Ninth Circuit-like behavior, who but the political branch can correct this misuse of power? As every sixth-grader in this country once knew, ours is a system of checks and balances, and it is up to Congress, primarily through its power of impeachment (including threats and hearings) to guard the guardians of the federal law. There is nothing unseemly here; the people, from whom the power of the courts ultimately derives, elected Congress to do just that. Don't take it from me; the Federalist Papers say as much without even having to go into their penumbras and emanations.

If this is politicization, then it's "good" politicization, in the sense that it brings the judiciary into its proper place within the polity -- and Senators are fully within their rights to vote against a nominee simply because they disagree with how he would rule on the controversial issues of the day. That which (mostly) Democratic jurists and legislators are doing is a travesty, and rectifying this state of affairs would mean righting a great wrong.

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