Four years since President Bush first nominated Priscilla Owen for a seat on a federal appeals court, the U.S. Senate confirmed the Texas judge for the position.

Why has the vetting of judicial nominees become so political? Because the judiciary has become so political. The Supreme Court now acts as the third house of Congress. The court abolished school prayer by deciding that something within the words "Congress shall make no law respecting an establishment of religion" forbade localities from allowing students to say the Lord's prayer. A decade later, seven Supreme Court justices found in the Constitution a right to privacy, a word that has eluded all other readers of that document. A "right to privacy" was thus interpreted as a right to an abortion, and the court thereby repealed the laws of all fifty states. Just this year the court prohibited states from executing juvenile murderers, deeming a punishment employed in the Founders' time up until our own (save for a brief, court-dictated respite) as unconstitutional.

Democrats can continue to lose elections, but so long as liberals control the courts they can control public policy. This is why Democrats fight so hard to block jurists who will read the Constitution rather than read into the Constitution. The slow realization among Republicans of what the other side has been up to for more than a half century is why the Republicans have begun to fight.

Indeed, that was my observation as well. Democrats betray that we are just voting men into the office of SC justice. We've gotten to the point where all the judges have to do is point to a continuity with previous decisions to argue that new things ought to be done.

But Democrats have also shown their disloyalty to the concept of democracy. So what if a majority of Americans elected George Bush. So what if a majority of states have elected a majority of republicans to the Senate, the elitist view of the minority "needs to be heard". Thus stipulating that they are okay with whatever the people decide if they buy in to their principles.

To the dems, the few elite are the last bastion against "substandard judges" (elite classification) and, through judges, enforcing an ever-widening constitutional orthodoxy.

I know the following by a misspent past that I won't get into, but when William O. Douglas retired, Playboy ran a story called (something like) "The Last Democrat". The irony failed to penetrate the liberal "minds" at Playboy: 250 million people in the US, and there can be a last democrat. With one man gone, the majority of the court---using powers given to it by a majority-approved 200-year old process--could no longer decide what was good for the people, and thereby curb the tide of whatever rot lay in the other popularly-elected branches at all other levels.

"Why has the vetting of judicial nominees become so political? Because the judiciary has become so political. The Supreme Court now acts as the third house of Congress."

WOW, so simple and so well said Dan!

Scalia's speech on this topic, which can still be found in C-Span's online video archive, is the best presentation on the subject you're likely to hear. He makes much the same point. It's very worth noting, as he does, that he was confirmed 98-0 by the Senate. Does anyone think that Antonin Scalia could get through the gauntlet of today's confirmation process?

Doesn't the President owe his office to five justices on the Supreme Court making law among themselves?

Concerning the Supreme Court, it's unfortunate that one of the expected retirements is Rehnquist. He, along with Thomas and Scalia (though Rehnquist is not on a par with these), make up the conservative third of the court. Even if Bush is able to replace him with a conservative, the balance will not shift. At best, there could be four conservatives on the bench (assuming Stevens, 85, could be replaced by a conservative).

Not that we should expect much. It's hard to believe that seven of the nine were appointed by Republican presidents.

On the lower courts and the "deal" that traitorous-7 gave away, I am curious to see how it will play out. Once Pryor and Brown are confirmed (Owen was confirmed yesterday), I expect Frist to bring the Myers and Saad nominations to the floor. It will then be interesting to see if the Democrats can coherently filibuster them having just confirmed three judges that they believed to be more extreme (i.e., it may be hard to argue under those circumstances that Myers and Saad are "extraordinary"). If they cannot - that is, if DeWine and Graham can be persuaded that the Democrats have broken the agreement - then we're right back to the "constitutional option."

Maybe I'm just drinking the Kool-Aid, but on reflection, it seems to me that the Republicans may have the upper hand. We'll see.

The President owes his office to the fact that he won the required number of electoral college votes in the 2000 election, including the election in Florida.

The US Supreme Court ruled that Florida had to follow its own electoral rules rather than change them post facto to accommodate a particular election or candidate. The Florida Supreme Court at the time was essentially rewriting election law after an election had just occurred. This untimely State Court intervention was rightly ruled invalid.

Hello Guido: I completely see why dems think this way. It infuriates them that they think the SC undermined democratic results. That is the conservative experience, normally. The If I recall correctly, all 9 justices agreed that the Florida SC was full of it and had made bad, BS decisions in favor of Gore; 7 agreed there was something they could do to change the bad FL SC decision; the 5 that made the decision ended the recounts altogether. Ironically, as the major study by the Washington Post, etc., showed later, Bush would have won in practically all recount scenarios on the table, and certainly would have won given the FL legislature trump card anyway. So, it's not true that the SC was overturning democracy or something. After all -- I can't recall a time during the night or the recount month that followed when Bush was behind in votes.

That happened to be an extremely close election, marred with several enormous screw ups, and I'm not sure whether it makes sense to say that either Bush or Gore got more votes for sure. Given that situation, don't you think it's fair for the SC to force the FL SC to not change the rules mid-game? And what makes them activist, or "making law of themselves," since they were enforcing laws passed by legislatures -- both the congress and the FL legislature? My memory isn't clear, but isn't that right?

Dems just seem to be off on this one, but it seems healthy that they have gotten angry, at least once, at what they perceive to be judges usurping legislative power.

Love,
Short

Short: "it seems healthy that they have gotten angry, at least once, at what they perceive to be judges usurping legislative power."

But that is a dim perception. An executive officer had a deadline and a duty to certify the vote. The standing law allowed the legislature to intervene and even possibly appoint electors themselves in the case of an "emergency". The FSC wanted to halt everything because we were missing the principle of everyone's vote being counted. That's the way the courts work: "Hey we can find a principle that is being neglected here! Stop everything while we tell you how you are going to correct that a principle has been slighted."

It seems, there are no tradeoffs. The idea of a tradeoff would mean that some principle is always slighted rubbed rough. It doesn't seem that judges ever mourn over the principle of democracy unless they can construe problems in voting to be a denial of the one-man-one-vote principle of democracy. And if that cannot be fulfilled to their expectation, well nothing that the people have said before on the matter even matters.

Reader would say that this is the price we must pay for having judges upholding the rule of law, intelligently interpreting the law, and dealing with the issues of law. So in other words it's a tradeoff.

But just try to say to a liberal, "Okay, some people's vote's didn't get counted. A previous majority elected a majority of legislators, or voted on amendments, that handled this situation. So there is a majority will involved." They become purists on you, real quickly.

I think one of the problems is that the liberals in the court have begun to see themselves as "advocates of the people against cold, mechanical law". This is not totally a bad thing, IMO. But it is when it is seemlessly combined with the role of judge.

Sea King,
I don't know that I want the judge to act in the peoples' interest against the law written by the peoples' legal representatives in legislatures. For one thing, this seems backward. I don't think a judge has the sympathy for the public (read voting public) that legislators have. Ergo, the judge cannot represent the people's interests better than those legislators who wrote the law. He is trained in and charged with applying written law (written by the peoples' proxies) to real life situations. He is practically an advocate of the law, not its antagonist.

What gets me is that if the left-wing view of the role of the judge is correct, then no matter what the "real" motivations behind the ruling in Bush v. Gore, it was the right ruling. If the jurist's role is to read the plain text of the law to mean whatever he thinks it ought to mean in an enlightened society, then there can be no offense here, as long as the majority was acting in what they thought to be the best interests of society.

Notice that the rule of law suddenly becomes extremely important to leftists the second it can be seen to advance leftism--it is never hailed as a good in itself. The moment the actual words of the Constitution become an impediment to the implementation of leftist social policy, we start hearing obscurantist fulminations about living Constitutions and evolving standards.

Think about this the next time some left-winger starts ranting about, to take one example, whether the Founding Fathers were deists--which only makes sense if they actually endorse a view of the Constitution and Declaration that entails original intent. This, and theories about how many guns were actually used by private citizens in the 19th century or any other appeal to the traditions of the American people, only make sense if one is trying to claim that the meaning of the Consitution depends on what people have always thought it to mean. In other words, originalism. It's bad faith, plain and simple, and there's no getting around it.

The liberal perspective:

http://www.tnr.com/doc.mhtml?i=20050606&s=editorial060605

Webster,

I quite agree with you. In saying that their advocacy is not a totally bad thing, I thought of the original purpose of having an appeal process is to fit the general law to individual cases. Or to see to it that the "spirit of the law" was upheld even if the "letter of the law" would convict.

And it is also not bad in itself that somebody would think of themselves as an advocate for the people. The Constitution is supposed to serve as a protector of the people from the powers of elected government, and this would be somewhat consistent with the judiciary as preservers of the Constitution. Besides just being warm and fuzzy, that is.

The problem does not arrive from villains tying heroines to railroad tracks. We reach these problems as much as ignoring the balance of concepts that make up our pattern of democracy. One of them is, well....voting. The vote is the primary expression of the will of the people. We've gotten to a place that tolerance of the minority is quoted as a reason in everything.

Sage,

The left would just say that it simply ought not to mean that in an enlightened society. Didn't you notice how they castigated the electoral college as a relic. How they ridiculed it. Well one of the words for that sentiment is that it is not "enlightened" to have an electoral college. Therefore in your words and in their view of "an enlightened society" does not contain the electoral college if they lose by it.

Also note that sucession is unenlightened and parochial if they don't want to do it. Contributing to the collective funding of your society is only what a liberated, enlightened person would do. But when you lose an election and you want to secede because the blue states pay most of the bills for the redstate agenda, then secession is suddenly enlightened. None of the dems who entertained sucession ever said "Yeah, well it would be nice to secede, but that question has been settled by the Civil War." In fact, they thought that they could look into it, and find a principle by which secession was not as selfish as it would have been for Texas separtist on the loony fringe.