Letting judges rule at root of angst over Kavanaugh
Sunday, October 7, 2018
Every few years, whenever there is a conservative Supreme Court nominee up for confirmation, it seems that our entire country stops and goes to war. What can possibly be at stake to engage people at this level?
Let me offer an historical perspective. Our founders never intended for the Supreme Court, or any court, to have the power to make laws, but rather to be a referee. However, weak legislators, fearing election-threatening backlash, have given up their power to the courts and unelected bureaucrats in the administrative state, who have aggressively filled the leadership vacuum.
The cultural divisions of the 1960s sent liberal activist judges into the courts to decide policies for which they could not get a majority in the Congress or in state legislatures. Roe v. Wade, which legalized abortion based on fragile constitutional thinking, became a model over the past 30 years for turning to the court to control the outcome of liberal policy preferences. The late Justice Anton Scalia said it best, following the Obergefell decision legalizing gay marriage: “My Ruler, and the Ruler of 320 million Americans from coast to coast, is a majority of the nine lawyers on the Supreme Court.”
What is wrong with this practice of allowing unelected ideological judges to create policy they cannot get passed through the legislative branch?
Courts in authoritarian regimes operate in order to enforce a certain kind of political ideology. Look, for example, at China’s thoroughly politicized court system, in which you are judged not by whether you are right or wrong, but whether you have certain attributes the communist regime favors.
But the genius of the American political system is that the rule of law was supposed to be politically neutral, to be about due process, to be about rules that weigh evidence to ensure they are applied fairly to all citizens who are assumed innocent until proven guilty.
If the rule of law is applied differently based on gender, as preferred by the “Me Too” movement, then the next trending social issue will have a different set of rules, and the edifice of our legal system — innocence until proven guilty — will collapse. Liberal democracy literally means “rule by the people,” where the people have a voice. But this tactic is fundamentally undemocratic. Allowing unelected judges, removed from the American people, to create policy, has created this excessive power and is the reason for the chaos and level of panic.
Our founders always believed that an elected congress, who is closest to the people, should be the most important branch of government in terms of reflecting the will of the nation. As an ardent constitutionalist, Judge Brett Kavanaugh embraces returning power to its proper place in the legislative branch. Uncorroborated accusations, if allowed to stand, threaten not only our democracy but every one of us individually.