Politicizing the Courts
by Tibor R. Machan
When Judge Robert Bork, whom President Ronald Reagan nominated for the U. S. Supreme Court, was rejected by the Senate Judiciary Committee, there was much consternation about how this is dirty pool. Justices aren't supposed to be chosen because of their views on abortion or private property rights, the complaints rang out. It is their record as interpreters of the U. S. Constitution and whatever other legal document that's supposed to guide their judicial review that should count.
And this is basically the theory that lies behind what high court judges and justices are supposed to do in a country that has a constitutional system of government. The idea is that the country was founded and continues to be organized on the basis of certain basic principles of justice that its constitution embodies. So, whatever public policy decisions are passed by various legislative bodies are supposed to be reviewed, upon challenges from the citizenry, with an eye to whether these decisions are consistent with or do violence to the basic principles on which the country's legal order rests.
The simplest instance of such a review in action would be if the majority of some legislative body decided to try to establish one religion as dominant, with government backing; or, if such a majority were to vote to establish some kind of regulatory agency to supervise the profession of journalism. A court would immediately respond to a challenge by striking down such efforts as unconstitutional on grounds that they conflict with the explicit guidelines of the First Amendment of the U. S. Constitution.
If only matters were so simple! Unfortunately apart from the First Amendment to the U. S Constitution, nearly all other provisions of that document are quite imprecise - or have been made so by various court decisions that are taken as influential precedents judges and justice can invoke to back up their opinions.
Take the Second Amendment's provision that the people have a right to bear arms. It sounds like it could mean either that individual citizens have this right or that certain groups of them, say, members of state militias, have it. The debate about that has raged for decades. Or take the idea, expressed in the Ninth Amendment, that apart from those rights enumerated in the Bill of Rights, there are others that are retained by the people. Some hold that this means rights such as privacy or freedom of travel or even to smoke pot. Others completely dismiss that portion of the U. S. Constitution; as if when the framers wrote the Ninth Amendment they were in an altered state of consciousness. Or, again, what exactly does "public purpose" mean in the Fifth Amendment? Over the years courts have taken that term to mean either something fairly specific, such as strictly public oriented matters - building of court houses, police departments, roads, or military bases - or anything for which there is a sizable political demand among the citizenry - including a park, tennis courts, land to be leased to tax generating big businesses.
Now when the basic legal document of a society embodies a great many ambiguities, the selection of judges and justices will cease to be dependent upon who is best qualified to apply constitutional principles to cases that come before the courts. Instead, the decisive issue will be political - meaning, it will have to do with the moral or political convictions of the judges and justice who have been nominated. That is because the constitution has stopped being the fundamental standard of sound legality. No ambiguous document can fill such a role because it leads to mutually conflicting rulings. Instead, what is legal will have turned into what this or that judge or justice wants to be legal.
All the hoopla surrounding recent court nominations - why one party in Washington is putting roadblocks up against the nominations of the other party - has to do with the fact that judges and justices no longer qualify because of their constitutional astuteness but on the basis of what their personal moral or political agendas happen to be. In short, the principle "Government by law, not by men," is now a pipe dream.
The Constitution is now what Al Gore called "a living document," or, rather, an unruly book of conflicting and constantly changing beliefs and goals; and the nomination and ratification process has turned into a public brawl about which judge or justice will have the opportunity to impose his personal moral ideals on the rest of society.
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