“The democratic integrity of the law . . . depends entirely upon the degree to which its processes are legitimate. A judge who announces a decision must be able to demonstrate that he began from recognized legal principles and reasoned in an intellectually and politically neutral way to his result. Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy.” – Robert Bork,The Tempting of America
The hype and angst surrounding Elena Kagan’s nomination to the highest court of the United States proves the truth of Robert Bork’s statement in his book, The Tempting of America, that the Supreme Court is the “trump card” of American politics. Liberals are in full-blown spin mode and conservatives are sharpening their long knives. Why? Because, as Bork explains, judges decide what the Constitution means. “When the Supreme Court invokes the Constitution, whether legitimately or not, as to that issue, the democratic process is at an end.” Hence, the importance of judicial philosophy.
Does the nominee believe that the words of the Constitution have objective, propositional meaning, or are they merely empty vessels into which the justices may pour their own meaning? Does the intent of the Framers and their original understanding of the language set forth in the document act as a pole star for the guidance of modern day justices, or is the Constitution a document that is ever changing, evolving with the times like our standards of decency and taste? Will international law shape the outcome of cases that appear before the court or will the history and traditions of the American Republic weigh more heavily in the balance? Does the nominee come to the bench with a political or social agenda, or is she content to let the people and their elected officials set those agendas for the country?
Inquiring minds want to know, because ideas have consequences?especially when they emanate from the Supreme Court.
Judicial philosophy determines how justices rule because the lens through which they look at cases determines what they see. And, in a very real sense, how judges rule determines who rules in America. Will we be a government of, by, and for the people or will we be ruled by judicial oligarchs who confuse power with authority and prefer their own ideas to those of our duly elected legislators?
For those who believe in the democratic process, who believe that the people should govern through elected representatives subject to the constraints of the Constitution, the stakes couldn’t be higher. And for those who view “results oriented jurisprudence” as the preferred manner of advancing social change, the stakes are equally high. (After all, the democratic process can be painfully slow, cumbersome and inefficient!)
It remains to be seen how the nomination of Ms. Kagan will play out and how the Senate will respond to her nomination in its role of advice and consent. But the American people should pay close attention to the way the court is being shaped and to the arguments that will be advanced for and against Mr. Obama’s nominee. Courts matter, and an imperial judiciary is one that threatens to gnaw away at our democratic foundations.
May God grant us judges who have the humility to understand that in the American system of government, it is our Constitution, not our judiciary, that reigns supreme.
Attorney Ken Connor is the Chairman of the Center for a Just Society in Washington, DC, and the former President of the Family Research Council. He served as counsel to Governor Jeb Bush in Bush v. Schiavo during the Terri Schiavo case, and is co-author of “Sinful Silence: When Christians Neglect Their Civic Duty.“
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