Originalism, Judges, And Politics
By Ryan Walsh (04/19/05)
Wouldn’t it be cool if we had another government shutdown, like we did during the days of Clinton-Gingrich gridlock?
With no Congress to authorize new spending and fewer bureaucracies to issue regulations, libertarians and anarchists would have a field day. On the other hand, there is little doubt that a shutdown would do both Republicans and Democrats a lot of damage. The GOP would stand accused of squandering a once-in-a-lifetime chance to enact Bush’s richly conservative “opportunity society,” while Democrats would be thoroughly castigated for their pig-headed obstructionism.
But all of this is simply futile speculation, right? A congressional shutdown would never happen, would it? Well, it’s not out of the realm of possibilities.
As the clamoring over Bush’s appellate judge nominees reaches unprecedented levels of harshness, the specter of the so-called “nuclear option” looms in the not-so-distant future.
For those unfamiliar, this is how the parliamentary procedure called the nuclear option, if implemented, would play out. To circumvent Democratic filibusters, a bare majority of Senate Republicans—Vice President Cheney voting, if need be—would pass a rule change that would reduce the number of votes required to end debate over a judicial nominee from 61 to 51. In response to this bold maneuver, the Democrats would likely follow through on their threats to stifle the entire legislative agenda.
Why such drama? Blocking judicial appointments goes way back to Reagan. Besides, it was the Republicans who resurrected the obstructionist strategy with a vengeance during the Clinton years.
Though it may first seem as though the cycle has merely restarted under Bush, two important distinctions reveal the uniquely distasteful and unprecedented nature of today’s brand of Democratic judicial deadlock: (1) Never has a group of senators blocked a near 30 percent of a president’s appointments to the appellate courts, and (2) never in 200 years has a partisan minority of senators used filibusters to do so.
Yet even after factoring these truths into the political equation, a cloud of doubt and uncertainty gives some moderate Republicans and even some conservatives reservations about pulling the trigger on the nuclear option. But let’s not delve into the merits or demerits of the filibuster or the wisdom or foolishness of a rules change. For the remainder of this column, let’s look at a deeper question, which to put it formally is, “What’s the beef with Bush’s judges?”
Bush’s controversial assortment of appellate court nominees consists of many different people of diverse backgrounds and outlooks, but one attribute in particular unites them all. (And no, it is not membership in the Republican Party.) It’s a jurisprudential belief in a doctrine called “originalism” or “strict constructionism” or, even simpler, “judicial restraint.”
Originalism maintains that in order to preserve the vision of the Constitution, its text must be interpreted strictly. Thus, originalist jurists limit the various branches of government to their enumerated powers, holding them narrowly to the Constitution’s outlined divisions of power. In the words of the great intellectual and jurist Robert Bork, originalism “appeal[s] to a common sense of what judges’ roles ought to be in a properly functioning constitutional democracy. Judges are not to overturn the will of legislative majorities absent a violation of a constitutional right, as those rights were understood by the framers.”
What confuses the debate over judges is the pervasive notion that an originalist is always a political conservative and a loose constructionist or “judicial activist” is always a political liberal. That originalist judges turn out decisions that are often favorable to political conservatism does not in any way make originalism a “conservative” tenet in the political sense of the word. Originalism is a judicial philosophy of method not an agenda-driven ideology.
In fact, originalism can occasionally be a needle in the spine of the GOP. For example, the conservative Bush Administration believes it can throw around its federal weight to force states to ban medical marijuana. Yet a strict, originalist reading of the Commerce Clause finds no word or phrase by which the federal government can regulate any sort of non-economic activity, especially an activity expressly protected by state law. Or how about flag burning? After Congress banned the incendiary practice in the Flag Protection Act of 1989, self-professed originalist and Supreme Court Justice Antonin Scalia, citing the First Amendment’s declared right to free speech, joined his colleagues in overturning the new law, which had enjoyed popular support among conservatives.
Originalists understand that the interpretation of law should in no way be influenced by the trendy political currents of the day. That is why the issue of judges shouldn’t follow a format of left versus right. Instead, each side of the political spectrum ought to embrace Bush’s originalist judges and their doctrine, which holds that the courts aren’t the rightful arbiters of public policy but the people are.
How’s that for a nuclear idea?
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