from the Washington Examiner
President Obama, in making the case for the Republican Senate to consider his appointment to replace deceased Supreme Court Justice Antonin Scalia, lamented that the process of confirming nominees has gotten "worse and worse" over the years.
In his remarks, Obama complained about how every presidential nomination is now contested, an example of how "the venom and rancor in Washington has prevented us from getting basic work done." He observed that judicial nominations had "become just one more extension of politics."
Obama is right in this limited sense. In an ideal world, the confirmation process ought to be relatively uncontroversial, but over the decades, the level of controversy over appointments has escalated, and judicial nomination fights have become especially pitched partisan battles.
Though he is correct in observing this, Obama will never acknowledge the true reason why this is the case. The reason is that the federal government has grown so big, and has seized so much power, that every federal official or member of the judiciary can wield outsized control over the lives of the citizenry — far more than was ever intended by the nation's Founders.
In modern Washington, appointed bureaucrats can issue sweeping regulations imposing billions of dollars in costs on industry, small businesses, and consumers; they can determine what type of health coverage every citizen must buy; and can make individuals pay more for electricity.
It wasn't supposed to be this way. Originally, the federal government was to be one of limited powers. Whatever power wasn't explicitly granted to Washington, or ruled out, was to reside with the states and their people. When that's the case, it allows citizens to debate divisive issues amongst themselves, giving them a voice in the process, and allowing for regional differences to exist on particularly contentious issues.
As for the judiciary, it was conceived as the "weakest" branch of government, as described by Alexander Hamilton in Federalist No. 78. Hamilton explained that the judiciary "has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment…"
Over the decades, liberals have sought to control more and more aspects of people's lives from Washington. When they've been stymied at the legislative level, they've try to implement changes through executive fiat or by appointing judges they're confident will impose their ideological agenda by inserting new meaning into the Constitution.
So it's no surprise that, in this environment, every federal appointment has become contentious. And it's especially understandable that we've reached the point where we are now: a place at which the death of one single man, who was never elected to anything, could have dramatic implications for every individual living in this country.
Scalia, perhaps more elegantly than anybody, wrote about this disturbing trend throughout his judicial career.
In his famous 1992 dissent in Planned Parenthood v. Casey, Scalia argued that the reason why the abortion issue had remained so contentious, and the subject of regular marches and protests on the Court for decades, is that the Court had short-circuited any process for hashing out the emotionally charged issue at the state level, "by citizens trying to persuade one another and then voting."
Instead of carrying out the limited role envisioned by the Founders, Scalia argued, the Court had morphed into an "Imperial Judiciary," in which justices substituted their own arbitrary value judgments over the actual written meaning of the Constitution. Given this, Scalia argued, it was only natural that the Court should devolve into a political body subject to popular pressure, and that confirmation proceedings would become political circuses.
"If, indeed, the 'liberties' protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours," he wrote. "Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward."
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