There's a lot of talk in the 'sphere recently about the spate of 5-4, conservative decisions made by the Supreme Court this week. In particular, it was noted several times that the Rehnquist court would probably have come to the opposite decision, also 5-4, by virtue of switching out Sandra Day O'Connor's vote for Samuel Alito.
Although I disagree with most of the rulings, I have trouble working myself up into much of a lather over them. In particular, I had real problems with the way the Democrats, and liberals in general, behaved themselves during the Roberts and, particularly, the Alito hearings.
There is no constitutional right to an ideologically balanced Supreme Court. If a Supreme Court member dies or retires while the Democrats hold both houses of Congress and the White House, I will damn well expect them to nominate a liberal judge for the post. And, assuming that the person is intelligent, can write and think coherently, and generally is qualified for the position, I would expect that person to be confirmed.
Likewise, when the Republicans were in charge of the whole shebang, I supported their right to confirm qualified judges who they thought were good for the post. Of course Bush is going to nominated conservatives. And I think the Senate's job is to confirm that the person is qualified, not that they agree with the nominee's ideology.
If you don't want the Supreme Court to be packed with conservative crazies, win more elections. That seems to be a pretty good way to generally get the government to do the things you want it to do. If your views aren't popular enough to win many elections, then you shouldn't have much of a say in the makeup of the Court.
Now, this is not to say that it's all 'harmless, oh well, it'll all wash out in the end.' In particular, the problem is that, even if the country decides that they detest the conservative mindset tomorrow morning, we're stuck with Justices Alito and Roberts for another 25 or more years. To that end, it seems reasonable to encourage the Court to take a more limited view of itself and its powers, and to work to structure the system accordingly.
Our governmental system, although it certainly has problems, also has advantages. The Justices are immune from certain types of pressure, which could be considered corrupting, due to their lifetime appointments. But, those kinds of pressure can also be considered a good thing, as it is part of what encourages elected officials to actually represent the viewpoint of the citizens they represent. I think the Court has an important role to play, but it's really to everyone's benefit to keep it more limited, and let the legislatures, which are more immediately accountable to the citizenry, be in the business of making laws.
This does not, however, render me a 'strict constructionist.' Mostly, I think the job of the Court should be to guarantee that the Congress and the Executives don't run completely roughshod over the Constitution. I am definitely a believer in the
Living Constitution doctrine, which says that as cultural norms change, constitutional interpretations need to keep up. For instance, you could never convince me that the Founding Fathers would consider it one of the primary, most important rights imaginable for an 18-year old to be able to walk into a gun shop and purchase a rifle whose only imaginable purpose is the mass slaughter of human beings. They'd be much more interested, I suspect, in
Network Neutrality, whose passage would guarantee free access to future media distribution networks.
So, in short, Democrats: win more elections, and quit crying in your non-fat-half-caff-sugar-free-hazelnut-lattes about the results of elections you already lost.
