Obama has exercised his prerogative to nominate an individual to fill the vacancy at the Supreme Court. He has nominated Merrick Garland, the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit. Now it’s time for Senate Republicans to exercise their prerogative by ignoring his request for confirmation.
Here is why.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
So said Sen. Ted Kennedy on the Senate floor on June 23, 1987, just 45 minutes after Robert Bork was nominated by President Reagan to replace the retiring Justice Lewis Powell.
Our Founders envisioned the judiciary as the weakest branch of government in terms of influencing the political direction of the country. After all, in a democratic republic, it’s the elected representatives through the principles of federalism who must decide the critical societal questions of the time. Judges are not elected precisely because they were to have “neither force nor will” in directing our society, rather they were to interpret and apply the statutes as passed by Congress.
Even those Founders who believed the courts had the power of judicial review to strike down statutes also believed the courts were to exercise that power only on rare occasions and only when laws flagrantly violated the plain meaning of the U.S. Constitution at the time it was adopted. And even in those instances, the court was never regarded as the universally binding “law of the land”; rather all three branches of government had co-equal authority in guarding the constitutional boundaries. After all, if the judiciary was to be the final arbiter of the Constitution, how could it have been said that it would be the weakest branch of government and not the most powerful?
Yet, throughout the 20th century, and crystalizing during the Warren-era, Democrats used the court system as the primary means of achieving social transformation, rewriting the Constitution, and redefining fundamental rights. When Reagan finally made a concerted effort to stop this undemocratic transformation by nominating a man who merely respected the role of the judiciary as our founders envisioned, Democrats viciously smeared his Supreme Court nominee, inventing a new term in the English language, “Borking.” Four years later, Democrats savaged Clarence Thomas, the first Republican African American Supreme Court nominee, with the worst personal attacks imaginable, almost derailing his confirmation.
Democrats had become too cowardly to work the democratic process in pursuit of their goals, so they sought to constitutionalize their political agenda through the unelected branch of government, out of the reach of the people. As such, they only nominated those who would supplant the Constitution for the Democratic Party platform and blocked any Republican nominee who would uphold the original vision of the court and the Constitution. Thus, within a few decades, the court had become the most consequential branch of government. Elections only mattered to the extent that they enabled the victor to change the orientation of the court. This is the bed the Democrats have made.
Yet, despite the Democratic politicization of the court and the confirmation process, Republicans did not return the favor. They dutifully confirmed the first Democrat appointees in years—Ruth Bader Ginsburg and Stephen Breyer — with almost unanimous support. This, despite the fact that Ginsburg and Breyer were every bit as post-constitutional as Bork and Thomas were originalists.
This imbalance in approaches between the parties created a dynamic in which every Democrat-appointee was a radical liberal who promoted their agenda on the court. Whereas a number of Republican nominees — from Kennedy and Souter to Chief Justice Roberts–often side with the post-constitutionalists. Thus, even with Scalia on the court in his full glory, the Left still had a 5-4 majority to remake marriage — the building block of our civilization. And even the remaining slam-dunk issues, such as gun rights, hang by a bare 5-4 constitutional thread.
Now with Scalia’s untimely death, we’ve come full circle and conservatives will no longer roll over and allow Democrats to wage one-sided judicial warfare. With Republicans in full control of the Senate, Democrats will be forced to lie in the bed they made for over half a century on the court and for three decades during the confirmation process.
If Democrats want to return the court to its original role when it wasn’t the final arbiter of social transformation, then let’s shake on it, strip the courts of jurisdiction, and confirm Obama’s nominee. As Justice Scalia always taught, when you believe strongly in a policy change, “persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
Now that Democrats have transmogrified the court into a super legislature, let the next election determine the outcome of the Supreme Court, as it does every policy-making body.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.