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Supreme Court of the people
By Bruce Walker
The shrinking empire of Leftism has few bastions remaining. Surely the greatest hope which Leftists have is for federal judges, particularly the Supreme Court, to undo all that the people want to have done. Several conservative commentators have noted different strategies which might be employed to win the battle of court confirmations.
Changing the Senate rules has been suggested by many people, and I recently raised the idea of amending the Constitution to provide that recognition of the Judeo-Christian faith is expressly allowed, while providing an explicit tool to end abuse of militant secularists waging Christophobic Jihad against the tolerant Christian majority.
Another commentator observed that there was some merit in compelling Democrats in the Senate to filibuster might be a good idea. I agree: who spent most of the 1980s complaining about "gridlock"? What is more obstructionist than a filibuster?
One observed, as I have also in the past, that Earl Warren was Governor of California, not a federal judge, when he was made Chief Justice; Lewis Powell was President of the American Bar Association when he was made Associate Justice of the Supreme Court. Nothing requires that the nominee be a sitting judge.
That is the right idea, although a good case can be made for an even more radical approach to selecting nominees: why nominate lawyers at all? Nothing in the Constitution requires a law degree to serve on the Supreme Court or on the federal bench. Indeed, any law or custom which created that would itself be unconstitutional.
Why not nominate Republicans from safe districts in the House of Representatives and who have clear records of support for ending partial birth abortion, protecting the traditional marriage and preserving a modicum of broad religious expression in public educational and civic life? Instead of selecting judges, who tend to be remote from the people, or lawyers, who are perceived as having their own agenda, choose bright, young, articulate and serious men and women for that role into which the Supreme Court has increasingly evolved: self-anointed referee of every public issue.
Democrats have resisted the nominees of President Bush because they do not agree with the policies these nominees would take. Why not attack that position head on? Democrats have made the selection political and only political. That is fair, as long as they accede the rest of us the right to wage political battle as well.
President Bush could nominate people wide the sort of broad life experience required for those who assume that they should be deciding every issue, because every issue is ultimately public, every public issue is ultimately federal, and every federal issue is ultimately a constitutional issue (or so the Left says.)
Why not make the Supreme Court of Lawyers instead the Supreme Court of the People? And why not make this a direct political and electoral battle? Let Leftists tell constituents that only lawyers are smart and wise. Surely no position could be less popular in American society today.
Moreover, nominating non-lawyers would open up a brand new area of political combat. House members from a state with Democrat senators filibustering his or her nomination could go back home and ask why the senator or senators did not want a native son or native daughter on the Supreme Court. There would be nothing at all unethical about that.
If President Bush nominated, say, Congressman George Radanovich of California, who is smart, young, attractive and politically savvy, then this native Californian could begin a direct campaign against the two old ladies who serve as senators for the Golden State and make their insistence that only Leftist lawyers serve on the federal bench a prominent senate campaign issue.
Beyond that, if Democrats in the Senate hedged by saying that they did not know how a particular nominee would vote on certain issues, a House member who was not an attorney could say exactly how he intended to vote and exactly what he thought the Constitution meant. If the nominee was asked if he would vote to reaffirm Roe v. Wade, for example, the nominee could say:
"I do not believe that the United States Constitution, which allows states to legalize or criminalize murder, was ever intended to take away from the states the right to legalize or criminalize abortion. I will vote, if confirmed, to continue to maintain that past laws passed by states on abortion are unenforceable, but that each state can in the future enact new laws to regulate abortions like state regulate cruelty to animals, the practice of medicine, the rights of parents and many other areas. I trust the people of each state and their state legislators to make intelligent decisions."
These nominees could also say that the Supreme Court will, if they are confirmed and if they are a majority, give advisory opinions on issues not before the Court. So if, say, Congress intends to pass a campaign finance law but wants to know whether the language seems constitutional to the Supreme Court, Congress could request and the Supreme Court could issue an advisory ruling on the language.
The sensible thing for Senate Democrats to do is to allow President Bush to appoint honest, serious and intelligent judges, as presidents before him have done since the beginning of the Republic. But if the Left insists on waging political war, then we should wage it too. We should insist that the Supreme Court, like the rest of government, derive its powers from the people, and we should begin that argument by making the Supreme Court itself the Supreme Court of the People.
Bruce Walker is a contributing editor with Enter Stage Right. He is also a frequent contributor to The Pragmatist and The Common Conservative.
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