Thursday, July 14, 2005

On the Judicial Branch

When I'm looking for a civilized fight, I go over to Dignan's 75 Year Plan. Lately they've been blogging a lot about the Supreme Court opening and how the Democrats are posturing. Kumar makes an argument from Democratic weakness that I think is spot on.

A couple days back, Dignan took me to task for several comments I made. My response is too long for the comment section on his blog, so I will respond here. You might want to read his initial post (complete with handy chart!) to get some background.

I wrote that the modern judiciary is as close to kings as we've got. They aren't kings, but they have the job for life and what they say goes. We do have checks and balances for the judicial branch, specifically removing/impeaching judges and amending the Constitution. However, anyone involved in the pro-life movement will tell you that neither is much of true political reality. It is much easier stop a bad judge prior to them getting on the bench than it is to overturn a ruling or remove them.

Dignan also took umbrage with the idea that Democrats may deny a floor vote on a nominee they disagree with. In fact, he declared, "This idea of denying a vote is so cowardly." Cowardly? To stand up against someone you believe is bad for the nation? Cowardly to use all the available options? Dignan is suggesting that Democrats should fight with one hand behind their back. I couldn't disagree more. Sure Democrats could vote against this nominee, but they know the numerical outcome: 55-45 in favor of Bush's nominee. If this nominee doesn't have moderate mainstream values, it would be stupid for Democrats not to fight with every tool they have.

Also, I argued that while Democrats are staticially in the minority in the Senate, they actually represent a bigger number of Americans than those in the majority. Dignan also doesn't like that at all. "The structure of the Senate is not intended to proportionally represent the population of the United States; it is intended to protect the minority interests of those states with a lesser population to ensure that the country isn't dominated by the large states such as New York and California."

Now this statement truly confuses me because Dignan appears to be making my point. We have the Senate to ensure that majority populism (in the form of the House of Representatives) doesn't run roughshod over the minority. Therefore, why would Republicans (or Dignan) have a problem with the minority fighting tooth and nail against a nominee who doesn't share their values?

Or maybe Dignan's argument rests on word "states" and isn't about minority protection. In which case I must ask, is the letter of the law superior to the spirit of the law? Sure Senators are from States, but they represent citizens, not those states when they are in Washington, D.C. Democracy is about people, not political units like States. The spirit of the law demands that those in the minority make their voice heard and ensure they aren't further marginalized!

But really this is all esoteric talk. The real question is what kind of Supreme Court nominee is Bush going to nominate? Democrats have already made it very clear they will not allow anyone who believes in the Constitution in Exile idea or who is a strict constructionist. Why is that? Is it because Democrats and social-progressives are naturally obstructionists?

NO. Democrats are against judges who subscribe to those judicial philosophies because they are bad for America. Judges who believe in the Constitution in Exile believe the the New Deal hijacked the Constitution and would roll back many New Deal provisions. This would hurt America. The Federal government would be unable to regulate many businesses and environmental practices. The Federal government would have to abolish the federal minimum wage. The Federal government would not be allowed to ban guns from schools. The Federal government might even have to abolish unions. These regressive actions would not move America forward into the 21st century, it would return us to the 19th century.

Judges who believe in strict constructionism are also bad for America. They believe the Constitution must be interpreted exactly as it is written without taking into account the spirit of the law. This isn't inherently bad, but in an age of increased surveillance - both online and off, strict constructionists deny the Constitution contains a right to privacy. While many believe it is inherent in the Bill of Rights, it isn't written there, crucial for strict-constructionists. The Supreme Court has declared that the Constitution does protect the right to privacy, which is the underpinning of most reproductive rights and freedoms in the U.S including contraception. A strict constructionist would undermine those rights.

Those aren't the values of America. The Democrats are right to insist on a mainstream Reagan-conservative. Democrats have even thrown out some names. They know full well they won't (and shouldn't) get a liberal judge, but they must fight for their principles.

If President Bush nominates a judge, as Justice Scalia said, who ensures the text is "interpreted neither strictly nor sloppily, but reasonably"; the Senate will confirm whoever he nominates.