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July 3, 2005
The Leftist View Of SCOTUS: More Politicians, Please

Democrats have apparently decided to be helpful in the upcoming judicial nomination process. Instead of caterwauling at the mere mention of the SCOTUS opening, they now have people floating suggestions in the media for "acceptable" choices. Norm Orenstein advises Bush to look outside the judiciary altogether and select a politician instead:

Choosing judges, especially at the Supreme Court level, has taken on a heightened importance -- and presidents and their partisans want to make sure they know what they are getting. A track record at the federal appeals court level is a much safer predictor of behavior at the next level up than service in the U.S. Senate, or as a governor or in other political office.

But having a court that consists largely or only of nonpoliticians has serious costs for the public. Not only are judges less inclined to think broadly of the country and its social and political divide, they are more likely to look at decisions with tunnel vision, not thinking through the problems of maintaining the court's standing with the public and of implementing difficult and divisive decisions.

Orenstein actually describes the entire problem with the Leftist viewpoint perfectly in this paragraph. Justices aren't supposed to think broadly on our "social and political divide". Their job is to apply the law and determine if Constitutional violations have occurred. The Legislature exists to deal with social and political dissent, and to pass laws that take all of that into account. The people elect their representatives to represent them in Congress, allowing the social debate to take place within the confines of the Constitutional framework and to reach a political resolution.

When the judiciary starts thinking about anything outside of Constitutional law, it intrudes on the legislative power that the Constitution specifically invested in the people. It creates a dynamic where a handful of unelected and unaccountable academics start making up rules that cannot be counteracted by the action of the people without doing damage to our underlying Constitution. And as we have seen with abortion, it doesn't assuage the social and political divide at all, but merely deepens and extends it until it warps everything it touches, including the judiciary and the process we use to staff it.

The last thing we need is more politicians on the Supreme Court. I'd argue that we need to get rid of the ones, like David Souter, Stephen Breyer, and Ruth Bader Ginsburg, that we already have.

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Posted by Ed Morrissey at July 3, 2005 8:45 PM

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