Saturday, April 23, 2005

Judges and Roe v. Wade

There's a lot of controversy these days about "activist judges." Some say the judiciary has gone too far in certain cases, establishing by judicial fiat that which never would have been enacted by the people's representatives in the legislature. In the partisan struggle in the Senate over judicial nominations and in the aftermath of the Schiavo case, both sides regularly hurl intemperate words at judges or potential judges. Clearly, this has gone too far.

Charles Krauthammer, a reasonable conservative, has defended judges against the more extreme attacks of other conservatives:

Provocation is no excuse for derangement. And there has been plenty of provocation: decades of an imperial judiciary unilaterally legislating radical social change on the flimsiest of constitutional pretexts. But while that may explain, it does not justify the flailing, sometimes delirious attacks on the judiciary mounted by House Majority Leader Tom DeLay and others in the wake of the Terri Schiavo case.

DeLay is threatening judges involved in that case with unspecified retribution. He said that Supreme Court Justice Anthony Kennedy should be held "accountable" for using international law in deciding a recent (death penalty) case. He wants congressional hearings to reinterpret the "good behavior" clause of lifetime judicial tenure to make good behavior mean not what it has meant for two centuries -- honesty and propriety -- but good constitutional behavior. Do we really want Congress deciding that?

...the answer is not to assault the separation of powers. Certainly not to empower Congress to regulate judicial decision-making by retroactively removing lifetime appointees. The non-deranged way to correct the problem is to appoint a new generation of judges committed to judicial modesty.

David Brooks, in a thoughtful column well worth reading, traces most of the controversy and bitterness we suffer today over judicial nominations, the Schiavo case, and liberal-conservative relations in general to Roe v. Wade (1973). I think he has a point. When the Court applied an invented "right of privacy" to the narrow issue of abortion, it interrupted the process of consideration by the states, in whose legislatures such decisions rightly belong. As Brooks wrote,

Justice Harry Blackmun did more inadvertent damage to our democracy than any other 20th-century American. When he and his Supreme Court colleagues issued the Roe v. Wade decision, they set off a cycle of political viciousness and counter-viciousness that has poisoned public life ever since, and now threatens to destroy the Senate as we know it.

When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that's always existed on this issue. These legislative compromises wouldn't have pleased everyone, but would have been regarded as legitimate.

Instead, Blackmun and his concurring colleagues invented a right to abortion, and imposed a solution more extreme than the policies of just about any other comparable nation.

Religious conservatives became alienated from their own government, feeling that their democratic rights had been usurped by robed elitists. Liberals lost touch with working-class Americans because they never had to have a conversation about values with those voters; they could just rely on the courts to impose their views. The parties polarized as they each became dominated by absolutist activists.

Unable to lobby for their pro-life or pro-choice views in normal ways, abortion activists focused their attention on judicial nominations. Dozens of groups on the right and left have been created to destroy nominees who might oppose their side of the fight. But abortion is never the explicit subject of these confirmation battles. Instead, the groups try to find some other pretext to destroy their foes.

Each nomination battle is more vicious than the last as the methodologies of personal destruction are perfected. You get a tit-for-tat escalation as each side points to the other's outrages to justify its own methods.

Brooks believes that "unless Roe v. Wade is overturned, politics will never get better." I understand his point, and I think he's right about the broad negative impact of Roe v. Wade on our political culture. As I discussed at greater length in an earlier post, I don't think it should be overturned, at least not until there's a national consensus on how to deal with abortion, and it's hard to see that happening. Congress certainly doesn't have the political backbone to deal with it, and neither side really wants to see the issue returned to the states, where it rightly belongs, because it doesn't permit them to achieve total victory.

I think the only answer at this point in our political history is to let democracy work. The President should exercise his power to nominate judges he thinks best qualified. If the people don't like his nominees, they can throw his party out at the next election. The Senate should give or deny it's consent by simple majority vote, as is consistent with the Constitution. If Senate rules and tradition have been so perverted in recent years as to prevent that from happening, then the rules should be changed. Again, if the people don't like what their Senators do, they can make their views known at the next election.

As far as "activist judges" are concerned, I agree with Krauthammer that the rational solution is to select judges committed to judicial modesty. I hope the President, with the advice and consent of a majority of the Senate, will do so. I think such judges would interpret the Constitution carefully, without regard to international opinion and fashions and passions of the moment, and that's how it should be. I also think such judges would be reluctant to trash precedents, even one as problematic as Roe v. Wade, and that's also how it should be.

I'd like to see the day when judges are as likely to irritate the left as the right.


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