Tuesday, March 15, 2005

Let's Talk Judiciary

First, I disagree that people cannot control their own desires. Whether they should have to or not is a different story... Whether another is hurt in the process is important: many committed people avoid temptation to stray from their vows every day, we say they should abstain in that way. But anyway...

I enjoy the brief back and forth with Joslin on this issue, and I think this is what should be going on right now in this country. People should be discussing the merits of gay marriage and whether or not it should be endorsed by government. What is happening, unfortunately, is that the side that is currently losing is using the judiciary to skip the process of building a popular consensus behind their position. Whether on a statutory or on a national basis, this issue should be decided by the legislatures and they people who elect them, not by judges who create new laws and new rights outside of our democratic process.

One of my largest complaints about the Democratic Party right now is how they have been treating Bush's judicial nominations. They can talk all that they want about the fact that they have allowed confirmations on the vast majority of his appointments, but they ignore the fact they have continually blocked the highest level of appointments. They smear them with claims that they have made racist decisions, yet Judges Pickering and Pryor are both widely respected by black leaders and lawyers from their home states for their fairness. Judge Pickering helped destroy the Ku Klux Klan's power in Mississippi, but he is attacked by Senator Schumer for hurting civil rights by affording a cross-burner his full rights under the law. They complain about Republican efforts to end their filibustering of nominations, often making claims that the Republicans are abusing their power and are ending Senate tradition, but changing the rules of filibuster has been done numerous times in the past.

This all ignores some shortsightedness on the Democrats' part. It is true that judicial activism is a dangerous thing from a conservative stand point, but its danger is not limited to one ideology. Most of us will agree that the Jim Crow era is a terrible part of our history Well, judicial activism likely strengthened it. The Republicans in control at the end of the Civil War enacted the 14th Amendment specifically to protect the rights of freed slaves. Judicial activists, however, interpreted the amendment extremely loosely in regards to civil rights and also started to, in an activist fashion, construe it to protect the rights of big business. During the New Deal, activist judges kept on throwing out minimum wage laws. Additionally, recent Leftist activism in the courts with Roe and other decisions has made the selection of judges a politically-based, rather than merit-based process. This has altered the confirmation process in obviously negative ways.

The Democrats are fooling themselves if they think they can have all the "positives" of activist jurisprudence without all of the drawbacks when used in other ways. Also, they probably will be back in power some day. When they are, do they think that the Republicans will not do their own filibusters in revenge? I think that's an easy one to call.


*What is also not usually mentioned is that filibustering does not even exist in its traditional form anymore. In fact, instead of having to actually keep debating to prevent a vote on an issue, you can do a "procedural filibuster" basically claiming you will do it and not have to meet your boast. Going back to forcing true filibusters might be an alternative to going to straight majority votes ending debate on nominations. The consequences of that move, however, are unclear.*

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