Wednesday, May 18, 2005

Business as usual...

Another blog's surfing report had the following paragraph.

The huge fight over judicial nominations is really because now the judiciary has gained (and is constantly gaining even more) power than either the legislative or executive branches of our government. Nothing, but nothing, could have ever been further from the founders' intent. They would look at this situation and rage at such a system as being unfeasible and destined to end in tyranny. We have come a very very long way from where we started, yet the great evils of slavery and bigotry were largely overcome by popular agitation in a system with a more constrained judiciary. We should all pause and reflect on the practicial limits of the ability of reason and reflection of thirteen men to direct and order a society such as ours.

Nothing earth-shaking here. I doubt anyone would argue with the observation. It pinpoints the most glaring problem in US politics. A public debate, coming to a head this week with the Senate debate, indicates that most everyone has been reflecting on the same "problem."

We have not come to this place, however, because of some conspiracy on the part of judges. We are here simply because the other two branches, the two which depend on votes for longevity, have become so adroit at dodging issues and pointing fingers that legislation has by default become the mission of the judiciary. This week's debate is an extension of this dynamic as our two elected branches of government struggle with one another, not to craft legislation but to replace what they term "activist judges" who are activist in ways that they do not like with different "activist judges" apt to be activist in more appropriate ways.
I suppose we can think of the process as legislation by proxy.

Follow that? It reminds me of Bierce's definition of a Conservative as one enamoured of existing evils, as opposed to a Liberal, who wishes to replace them with new ones.

Thanks to modern techniques of fine-tuning electoral trends, analysing focus groups and producing elegantly-worded positions, candidates running for office are less concerned with job descriptions than image. They have learned to take their main constituents for granted while playing to the center. Voters not only allow but promote this unhealthy trend by treating elections with the same beauty-contest values that drive voting for American Idol.

At the risk of sounding trite, I have to point out that it is the role of lawmakers to make law. It is the role of the executive branch to enforce those laws. And it is the role of the judiciary to interpret those laws.
Isn't that what we learned in elementary school?

We witnessed a vivid example of how the legislative and judicial branches approach their respective roles in L'affaire Schiavo. In an embarrassing and inappropriate ad hoc manner they came together for the purpose of intervening in what has been a decades-long process of defining the legal boundaries of family members of persons who cannot, for whatever reason, speak for themselves. This trend has been neither secret nor controversial. In fact, it has been driven, like the abortion debate, by ordinary people facing real everyday struggles. As long as those painful struggles did not rise to the level of a national public debate, those painful struggles have been ignored, for practical purposes, by legislators and presidents alike.

1 comment:

MaxedOutMama said...

That is very interesting.... I am not sure if the legislature has abandoned the field or if political activists have abandoned the legislature.

I agree that the legislative has become less effective. IMO the executive seems to have gained too much power over the last two decades. (I'm thinking of such matters as the growth of regulatory power and the fact that we are fighting a war that Congress never declared officially.)

And yes, the way you see the battle over the judges sort of the way I see it. People who want to elect strict-constructionist judges are, in a way, seeking to "capture" the system from those who now hold it. Either way, people are seeking to influence the judiciary by controlling who gets appointed.

McCain-Feingold is a substantial restriction of First Amendment rights, yet the SC upheld it. The SC ruled that Congress's constitutional role of "declaring" a war is now irrelevant, as long as they fund it or don't actively object to it. A number of the decisions the judiciary has taken tend to weaken the role of the legislature substantially.

I am not saying that this is some sort of judicial conspiracy - it is the product of a series of judgements taken in individual cases which have the effect of widening judicial scope. But if the legislative role becomes weaker, then we have messed with the ability of the political minority to exert its influence, since the Presidency is an either/or proposition.