Whats at Stake in the Judiciary Wars?
For the past several decades, and especially over the past five years, the political battles centered around the federal judicial appointment process have increased dramatically. While there have been occasional flair-ups since the founding of the republic, (such as John Adams' Federalist judiciary packing and FDR's over attempt to expand and pack the Supreme Court), the nomination and confirmation process of federal judges has largely been, politically speaking, a rather dull affair.
It has always been understood by both parties that, once a president is elected, being the only federal officer elected by the nation as a whole, he is entitled to fill judicial vacancies with pretty much whomever he pleases, so long as they meet basic qualifications of maturity and experience as collectively understood by the members of the Senate, (no laughs please). As far as our Constitution is concerned, the appointment power is one of the fruits of electoral victory.
This basic understanding of the process, and everyone's role in it, began to undergo change as more and more judges began to see their role in our federal system differently than had been previously understood. In short, many of them began to think of themselves less as "umpires" and more as "players" in the game of politics.
To continue with the analogy, image the confusion that would break out in a baseball game if one team's players were also given the ability to make the rules (or interpret them) and to call their own balls and strikes. Hard to imagine that team losing many games, is it?
This new attitude has been predominantly an affliction of liberal jurists, and it is causing havoc with our political system. The lack of impartial arbiters who will apply our Constitution and laws faithfully without attempting to alter their meaning via interpretation or remedy any deficiencies (real or imagined) leaves citizens to feel that the rules of the game aren't defined or enforced. This in turn causes political tensions to increase as voters see their voices being ignored.
The breakdown began when judges began to take sides in policy debates and try to achieve (or enforce) policy outcomes, in essence becoming a new "supra-legislative class" with the ability to strike down laws and make new ones on a whim.
Along with the new attitude came the inevitable spate of judicially imposed political outcomes and offenses on a variety of issues. From abortion, to prayer in schools, the definition of marriage, public religious displays and, most recently, property rights, the courts have usurped the political process at every level.
This has provoked the political battles over judicial appointments witnessed in recent years as liberals sought to deny conservatives seats on the federal bench in order to protect their newly developed center of power. From Robert Bork's confirmation hearings, to those of Clarence Thomas, and more recently the unprecedented obstruction and filibusters in the Senate to block the appointment of circuit court judges.
As each action has a reaction, conservatives then began to organize in order to fight back in support of their nominees, which has lead to a more controversial nomination process especially when Republicans are doing the nominating.
People get involved in politics (at whatever level) to express a preference for particular policies and outcomes. Conservatives, confronted with an activist judiciary, have now zeroed in on judicial reform as the only long term means of keeping their policy victories won in the political process from being frustrated and negated by radical judges.
Everything from education vouchers and tax credits, to restrictions on abortion, the definition of marriage, to property rights and the protection of public religious displays will be impacted by the shape of our federal courts and whether or not the courts choose to respect the political process.
What's at stake in the judicial wars? In many ways it is representative government itself.