Rule by lawyer-kings?

Lino Graglia on the Senate's battles over judicial nominees:

The battles in Congress over the appointment of even lower court federal judges reveal a recognition that federal judges are now, to a large extent, our real lawmakers. Proposals to amend the Constitution to remove lifetime tenure for Supreme Court justices, or to require that rulings of unconstitutionality be by more than a majority (5-4) vote, do not address the source of the problem. The Constitution is very difficult to amend--probably the most difficult of any supposedly democratic government. If opponents of rule by judges secure the political power to obtain an amendment, it should be one that addresses the problem at its source, which is that contemporary constitutional law has very little to do with the Constitution.. . .

The claim that the court's rulings of unconstitutionality are mandates of the Constitution, or anything more than policy preferences of a majority of the justices, is false.

Amen. The only thing I would add is to point out that responsibility for the current rancor and ugliness of confirmation battles should be laid at the foot of the courts themselves, who have made their decisions political, and themselves higher than democracy. When the stakes are this high, it's no wonder that the appointment process has gotten so vicious.

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