TCS Daily

Why Judges Matter

By Ilya Shapiro - June 8, 2005 12:00 AM

Long before last November's election, Senate Democrats and Republicans were circling each other as tensions over judicial nominations rose. Then, just as it seemed we were heading for a definitive showdown that would produce but one winner in this zero-sum game -- either the president's picks would continue to be denied an up-or-down vote or the filibuster would be banished as a legislative technique for protecting minority concerns -- both sides blinked. Or, rather, the squishiest Republicans joined with the least interest-group-captured Democrats to foreclose the collision between the irresistible farce and the immovable objective.

It is not difficult to see who got the better of the compromise, which promised to allow votes on three circuit court nominees -- who overnight turned from "extremist," "unqualified," and "dangerous" to jurists deserving of consideration -- while preserving the right to filibuster under "extraordinary circumstances." That the agreement satisfied minority leader Harry Reid (D-NV) and disappointed majority leader Bill Frist (R-TN) was evidence enough of whose ox was getting gored.

As conservative groups, such as James Dobson's Focus on the Family, despaired at the deal being a "sellout," liberal organizations celebrated the entrenchment of their ability to punch above their political weight. "We are confident that a Supreme Court nominee who won't even state a position on Roe v. Wade is the kind of 'extraordinary circumstance' this deal envisions," explained Nancy Keenan, president of NARAL Pro-Choice America, in case anyone was unaware of the Ted Kennedy-sized loophole at the heart if the arrangement.

But why do judges matter so much in the first place -- particularly the obscure circuit court jurists who could no more overturn Roe v. Wade than could Mr. Dobson and Ms. Keenan pen a "memorandum of understanding" that approached the reasonable American middle rather than the extremes of the "pro-life" and "pro-choice" camps? Isn't this whole debate one solely for the legal elites and activists who drive debate within the two major parties?

After all, neither ideology nor constitutional theory matters in well nigh over 95% of cases decided by federal courts. The dockets of these courts are chock full of basic contract disputes, routine criminal appeals, and a whole host of filings that never even make it to oral argument. I know: I spent a year clerking for a judge on the Fifth Circuit, whose jurisdiction stretches across Texas, Louisiana, and Mississippi. Oh, it was a wonderful intellectual experience; we had cases in admiralty and immigration, complex state statutes and federal regulations. But almost every case resulted in a unanimous decision, regardless of the composition of the three-judge panel.

Yet it is precisely those cases that are not unanimous (or where it is fairly obvious that one judge would act differently than another) that lie at the heart of public discourse. From gay marriage to medicinal marijuana, terrorism to governmental regulation, the cultural and economic wars of the past few decades -- and their varied (and often opportunistic) conceptions of federalism and fundamental rights -- have found a new bloody battleground in the judiciary. As Boston University law professor Randy Barnett put it at a recent conference at the Heritage Foundation, we are in the midst of a rare, very serious, and hugely important argument about how to interpret the Constitution, which is at base a debate over how we govern ourselves.

This very American exercise -- even with the row over the European constitution, when was the last time you heard an argument over first principles in the French or German legislatures? -- showcases the fissures in the nation's political mosaic. And it is not about Republicans versus Democrats, or red states versus blue ones (though sometimes there are correlations), but about originalism versus everything else. Should we try to discern the meaning and intent of the Framers (and of the authors of subsequent amendments), or should we read evolving political understandings into our founding document? Is the Constitution the meta-law that outlines the limited and enumerated powers of the federal government, or is it a living, breathing document that encapsulates the justicial aspirations of every generation?

We see this jurisprudential conundrum again and again, but it was never on clearer display than in Lawrence v. Texas, the 2003 homosexual sodomy case. Justice Kennedy, writing for the majority, eloquently defended the right to privacy and human dignity. After Justice Scalia meticulously described how this majestic privacy was not to be found in the Constitution, Justice Thomas pointed out that, while he would not vote to criminalize sodomy if he were a state legislator, as a federal judge he was powerless to strike down such a law. (Recall, incidentally, that all three perspectives come from Republican appointees.)

So the debate over judges and filibusters -- which is not over yet -- is a microcosm of the titanic struggle between an empowered majority and a minority that can only seek recourse in the one unelected branch of government. And with circuit courts having the final say in all but a handful of cases nationwide -- not to mention employing the prime candidates for elevation to the Supreme Court -- the import of judges cannot be understated.

Ilya Shapiro, a Washington lawyer who last year clerked on the U.S. Court of Appeals for the Fifth Circuit, writes the "Dispatches from Purple America" column for TCS and can be reached at He last reported in from the Bermuda Triangle of American Politics.


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