Judicial Crisis


Republicans are angry about Democrats bottling up judicial nominees in the Senate's Judiciary committee. Just like the Democrats were when the Republicans did it to Clinton's nominees.

Nobody can argue that this is not a bad situation. I would argue that delegating the role of the entire senate to one of its committees is unconstitutional. Nominees should go straight to the floor of the Senate for a vote. No hearings or blocking tactics allowed.

What I find interesting about the issue is that it is the result of the abandonment by the courts themselves of judicial restraint. Each branch of government has its own role. The Legislature is supposed to establish policy by enacting laws; the Executive carries it out; and the Judicial decides cases and interprets the law.

Of course, in practice, strict application of this division is unworkable. The two political branches often differ about policies. I have no problem with that, but the judicial branch has a trump card established by Marbury v. Madison. It can "interpret" the Constitution in such a way that it can impose its own views on policy on the other two branches. The concept of judicial restraint is that judges should refuse the invitation to make policy and defer to the other branches.

Enter Roe v. Wade. SCOTUS intervened in the arena of policy to create a woman's right to abortion, and thus rendered itself a third political branch. This is why we see spectacles like the hearings of Robert Bork and Clarence Thomas, and the lesser dramas of Judge Pickering, etc.

It used to be that one looked for judges who had brains and a clear sense of fairness and trusted that they wouldn't go too far astray. But now, they could decide great political issues that split the nation into angry camps, each with sufficient clout to block judges who might be sympathetic with the other.

Whichever side one agrees with on abortion, we should all see that paralysis of the machinery for appointing needed judges is not helpful.