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Bench Memos

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Lamenting a Politicized Judiciary



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Political scientist Paul Carrese of the U.S. Air Force Academy has a thoughtful commentary in Sunday’s Denver Post about the unseemliness of the naked politics that now surrounds Supreme Court nominations. The heart of my friend Paul’s argument is this: “Raising any standard other than duty to the Constitution and an independent judiciary makes cannon fodder of nominees and the judiciary itself.” Quite true. Viewed from another angle, however, what is going on in current nomination battles is a struggle to define just what we mean by “duty to the Constitution,” or for that matter what “an independent judiciary” is and what it is for.

I see no alternative to hurling Supreme Court nominees in front of the cannon’s mouth until those questions are settled. Democrats believe, or pretend to believe, that the Constitution puts judges in charge of the “progressive” expansion of “constitutional rights” at the frontiers of the culture of death–the “rights” of unlawful enemy combatants, the “rights” of abortionists to take lives that could be saved, the “rights” of men and women to “marry” one another in impossible combinations of twos and threes and more. Republicans view it otherwise. Paul’s plea for a return to politically neutral standards for the selection and approval of justices is admirable, but is written for another age, I’m afraid. In the present age we need partisan politics, with all its ugliness, to save the independent judiciary from itself. We may need more of it than we have yet seen. The Supreme Court has been the Constitution’s worst enemy for most of the last century, and can hardly be expected to change its ways if the political temperature it inhabits is lowered.



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