The time is long gone when experience, character, and judicial temperament were the things that counted most in evaluating nominees for federal judgeships. More blatantly than ever before, this struggle now is about ideology.
E.J. Dionne writes in The Washington Post that the central issue of the Senate confirmation wars is the “new conservative judicial activism” on things like civil rights, environmental policy, and labor law. That strikes me as off-target on two counts.
First, at least from a conservative perspective, what Dionne calls “judicial activism” is not some unprovoked power grab by the right but a necessary correction of course after a long period of liberal domination of the federal courts.
In this view, the real activists were liberal judges who bent the law and Constitution to give us the state of affairs that now exists — a situation in which exaggerated “rights” claims combine with current notions of political correctness in an ongoing campaign against traditional values.
Second, it is hard to swallow the idea that issues like those mentioned by Dionne, important though they are, really are central. Instead, what’s happening bears out an observation by Father Richard John Neuhaus, editor of First Things — that the revolutionary shift in the policy debate over the last 30 years reflects the triumph of the 1960s counter-culture slogan “the personal is the political.”
Before the ‘60s, Father Neuhaus remarks, policy debate was mainly about “great economic and military questions, issues of national security in the face of the Communist threat, and…racial desegregation and ending poverty.” Now it concerns “the proper roles of men and women, same-sex unions and divorce and having children and a host of other questions once thought not to be political, and all of them somehow entangled with and ever returning to the conflict created by Roe v. Wade” — that is, abortion.
The federal courts play a leading role in this fight. And that, more than anything else, is why confirming federal judges has become such a bloody process. Ask Robert Bork and Clarence Thomas. They were not subjected to “borking” — character assassination, that is — for their views on environmental policy and labor law. Nor will that be true for any future court nominee who gets borked in the Senate.
It goes without saying the great prize in all of this is the Supreme Court, now divided 5-4 on a host of sensitive issues. The shift of just one justice could make an enormous difference. Who will go first? Justice O’Connor, a supporter of Roe v. Wade, recently squelched speculation she would quit when the present term ends. Now the guessing has shifted to Chief Justice Rehnquist, a critic of Roe. Age and health make other justices possibilities as well.
Despite what E.J. Dionne says, abortion is the biggest issue at stake here, though hardly the only one. Along with controverted questions like the ones he mentions, add assisted suicide, gay marriage, and church-state relations to the list of topics that could wind up in the federal courts — and eventually, the Supreme Court — fairly soon. No wonder we’re having a battle royal over federal judges. It is called the culture war.
(This article courtesy of the Arlington Catholic Herald.)
