Wednesday, September 21, 2005

The People's Court

The Moose wonders whether the donkey has more to say than nada on judges?

While everyone knows that Democrats oppose Bush judicial nominees, does anyone know where the Party stands on the role of the courts? Are they happy with judges circumventing legislative bodies on issues such as gay marriage and the pledge? Why should progressives cede the issue of judicial activism to the right? After all, Democrats are supposedly the party of the people. Yet, the right has been able to seize the mantle of judicial populism.

Of course, there are unique cases when the Court should defy the "majority" to uphold a democratic principle - Brown v. Board is an example of such a heroic decision. But, that does not mean that as a rule the Court should transform itself into a super legislative branch.

Bill Galston made this point in an illuminating piece in Blueprint a few months ago,

"The judiciary is supposed to be a check on the legislature, not an alternative source of legislation. In recent decades, however, Democrats have failed to preserve this distinction carefully enough, and they've paid for their carelessness. We should not assume that because the people reject Republican attacks on an independent judiciary, they support Democrats' understanding of the judiciary's role in our republic. The politically resonant attack on Democrats as elitists reflects, in part, an unwise reliance on the courts to do what Democrats could not accomplish -- not readily, perhaps not at all -- through the legislative branch...

"...Brown exemplifies not constitutional jurisprudence, but rather constitutional statesmanship of the highest order. As such, it was an exceptional act, reserved for a question that goes to the core of our national history and identity. It should not be regarded as a template for judicial action in less extraordinary circumstances."

It is particularly unfortunate that the left cedes the issue of judicial over-reach to the right because it enables conservatives to promote a judicial agenda that favors money power. The courts' intervention on hot button cultural issues is what garners the anger of many middle and low income Americans who would otherwise be attracted to an progressive economic message.

However, lefties have become far too reliant on the judiciary to settle issues such as abortion, gay marriage and church-state matters. It is easy for Republicans to characterize Democrats as elitists who rely on the least democratic branch of government to pursue liberal social engineering.

Ironically, it would be disastrous to the Republican political coalition if the Court actually overturned Roe. It would tear the Party apart as the issue would return to the states. While Republicans have given lip service to protecting the "culture of life", the actual right to an abortion has not truly been in jeopardy. That would change if Roe was negated and many Republican moderates and women would leave the party.

Maybe, an increasingly conservative court will force progressives to take their case to the people. A little while back David von Drehle wrote a perceptive piece in the Washington Post on the courts and liberalism,

"In earlier times, when the courts were a conservative force in American government, progressives knew how to take their case to the voters. They had no alternative. The reforms of a century ago -- trust-busting, workers' rights, women's suffrage and so on -- came via the ballot box. Conservative courts could have the same effect now."

Democrats need to forge a judicial message other than just "no." The Party has no discernible legal philosophy other than the expansion of "rights" by any means necessary. The only other thing that the American people identify with the Democrats is their reflective opposition to Bush's nominees for the court. Both parties are hostage to the interest groups. Consider this quote from the New York Times about the aftermath of an interest group meeting with the Senate Minority Leader,

"He got the message loud and clear, didn't he?" Kim Gandy, president of the National Organization for Women, said of Mr. Reid on Tuesday."

What about consulting the folks who are in the check-out line at Wal-Mart and Target? The American people can only be perplexed by the near Pavlovian opposition to Roberts. How believable will the opposition be if the next nominee is truly a threat to the Republic? There are precious few statesmen and a slew of predictable panderers to parochial partisan interest groups.

Democrats might consider trusting the people again.

-- Posted at 8:25 AM | Link to this post | Email this post