May 31, 2003

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Today's Senate Confirmation Battles and the Role of the Federal Judiciary (Diarmuid F. O’Scannlain, Ninth Circuit Judge)
In short, to contend that the Constitution is an eminently mutable document ... renders the central fact of our nation’s founding -- namely, the promulgation of a written document designed to bind the will of future majorities -- a mere afterthought, if not a nullity. In so doing, it threatens to undermine the long-term health of the unique polity established by that great charter.

Judge O’Scannlain's speech is outstanding -- read the whole thing -- but here is one of the main points. The contention over judicial nominees is merely the natural consequence of the overthrow of the written Constitution and its replacement by judicial fiat. Once the judiciary is a law-making branch, then everyone else must contend to influence it, however they can. Confirmation is simply the most obvious point of influence.

Justice Scalia has clearly explained the link between judicial activism and contentious confirmations. See, for instance, Scalia: Politics play role in judiciary (Fairbanks Daily News-Miner, 5/10/2003):

The appointment of judges is an increasingly political process in which applicants personal views are becoming more important than their legal expertise, a panel of prominent judges led by U.S. Supreme Court Justice Antonin Scalia said Friday in Fairbanks....

Scalia ... said he's not surprised that judicial applicants' political views have become the major consideration in whether they are confirmed by the Senate.

"I've been predicting the current crisis for 20 years," Scalia said. "I don't think it's extraordinary that members of the Senate want to ask new judges what new rights will they acknowledge."

He added there's little that can be done to change the current situation, considering the checks and balance system for federal courts is the judicial selection process.

"You're not looking for good lawyers anymore; you shouldn't be looking for good lawyers," Scalia said. "You should be looking for people that agree with you."

Yet this contention, I think, will be the fever that breaks the infection. The judicial activists on the left will never change their behavior as long as it continues to work -- that is, as long as judicial fiat is treated as binding law, and leftists allowed to dominate the judiciary. Once those conditions change, they will reconsider their position. And judicial activism is so destructive of the rule of law that, I believe, liberals and moderate Democrats (spurred by Republican political majorities) will soon reverse their support for it.

So, onward! The more conservative the nominees, the sooner the fever breaks.

Posted by Paul Jaminet at May 31, 2003 12:19 PM
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