Wednesday, June 15, 2005


We know the numbers by now -- before the filibuster controversy, President Bush had the vast majority of his judicial nominees approved by the Senate without fuss or mention. Why such a controversy over a small number of judges? First, it is important to understand that it was a controversy the Republican leadership created. There is nothing unusual about a few nominees not meeting approval, especially when they are nominees such as this. Let's rephrase the question, then: why did the Republican leadership -- executive and legislative branches both -- care so much about such a small part of the judical branch?

It's a long history, but it can be told in short order. The judicial branch, in the past 30 or 40 years, has expanded individual rights and group protections in some fundamental ways. This appeals to citizens on the political left. However, many citizens on the political right feel that the expansion of these rights infringes inevitably on the rights of others. Abortion and affirmative action are two good examples -- the rights of the unborn, in the language of social conservatives, and the rights of non-minority applicants to places at jobs and colleges. (Categorizing either of these as rights is controversial, and that's the essence of the disagreement.) As such, the court has become a concern for social conservatives, who feel as if the life they wish the country to lead is being corrupted by unelected judges. The reasons, for which the framers of the Constitution decided that federal judges should not be elected but appointed, are germane here. They were aware of the power the interpretation of law has over a society, and they deliberately placed that power out of the direct reach of an often fickle or unreasonable public sentiment. Indeed, they understood well that elections can have the effect of totalizing what is in reality only partial: a judge elected (as President Bush was also) with little over half of the votes would nevertheless by making law for the whole land. This is, in fact, the reason we ought to be especially careful with judges, and especially cautious about the desire of ideological camps to place judges on the bench, whom they expect to implement an agenda that speaks only to their hopes and fears.

So the real clash is not over judges, but over visions of the country, and the real question is: are the visions compatible? This debate is often characterized as religious vs. secular, or even evangelical vs. non-evangelical. This is inaccurate. The vision of social conservatives, as it would be enacted by a controversial nominee like Janice Brown, does not reflect even the evangelical constituency. For example, Janice Brown envisions a radically weakened federal government and a world in which the most wealthy have free reign to pursue their material ambitions. The latter contradicts the basic value many evangelicals put on fairness and social justice; the former would play havoc with programs essential to a vision of realizing equality of opportunity. Evangelicals and other religious communities who endorse such programs as social justice and stewardship of the earth, as God’s creation, have begun to make their voices heard.

Much of the fuel that feeds this fire is the sense among social conservatives that their values are under attack and that their community is being dismissed. This, however, assumes that the two competing political sides are also competing on an ethical plane that divides communities. Politically savvy social conservatives, who wish to ride this feeling of resentment to a position of great power in, say, the Senate, encourage the belief that the political divide on which they base their careers corresponds to a fundamental moral divide. I am glad to see, then, that the religious communities of the right and the religious community of the left are taking it upon themselves to find shared values and, on that basis, to work to help each other realize a compatible vision of America. Once we realize that a compatible vision, based on shared values is possible for people who now find themselves political opponents, I suspect we can find some judges everyone is confident will represent those common interests.


Blogger Meredith said...

An astute piece of writing. There's one phrase in it that I'd like to bring up because it really goes to the heart of a problem that is now claimed across the political spectrum as a wrong being perpetrated on the opposing end (I hope that's clear!).

You write "a judge elected (as President Bush was also) with little over half of the votes would nevertheless *by making law* for the whole land".

"Making law", for a judge, would constitute what many now like to refer to as "judicial activism", or "legislating from the bench". Making laws is the province of only one branch of our government: the legislative one. Neither the executive nor the judiciary should (or legally can) usurp that authority (executive orders are different).

One of the persistent falsehoods in our electoral politics seems to be that the president can promise certain kinds of change in the way the country is. Similarly, the judiciary's job is arbitrating based on the law, and the juridical traditions stemming from the Constitution and precedent built upon previous court rulings.

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