The controversy will soon come to a head over a few of President Bush’s judicial nominations, and the Senate Democrats’ filibuster of them. (*)
The essence of the controversy concerns the political views of the judges.
Conservatives define the issue as whether judges can be filibustered, or whether they deserve “an up or down vote.” In society, “up” is usually positive, “down” is negative. Bush wants an “up” vote.
Liberals might define the issue as whether “Bush’s radical judges should get a free pass,” but they are taking a lower-key approach.
The real problem is that these days judges in effect make numerous public policy choices for the country. Marriage, military policy, homeland security, the environment, civil rights, abortion rights, and many other of the most controversial issues of public affairs now rest on judicial determination. We are a free people who are too cowardly to make our own decisions on these troubling questions through the normal political process.
That is wrongful. It is too much to ask of judges, especially ones not accountable to the public at the ballot box. The law is not a battleground. The judicial branch should be an equal branch of government and not more and not less. We have judges to interpret the law and thereby to do justice. Judges cannot work miracles. They cannot make everyone happy.
American society remains deeply split between three groups: those deeply enmeshed in politics who identify with the red states, those deeply enmeshed in politics who identify with the blue, and those who are caught in the middle. The third group is the largest in number.
Why does this debilitating split cotinue to haunt the republic? It is because we citizens are lazy. Instead of engaging, discussing, debating, and contemplating, we resort to slogans and catch phrases.
If we reverse course and take on our challenges, we can eventually again reach a stage of basic political consensus. We can address those hot political issues in the course of elections and with our democratically-elected legislators. Judges can go back to their job of interpreting the law. Judges will still have brighter tints or darker shades in their personal political views, but once on the bench they will have less discretion and less policy-making power. It won’t matter as much who is judge.
Far from a great turning point in history, the filibuster controversy is but a symptom of the sickness that rots our country from within.