Beyond The Judicial Filibuster

ON MARCH 17, the Senate Judiciary Committee sent for consideration by the entire Senate the nomination of William G. Myers III to a seat on the 9th Circuit Court of Appeals. Democrats have threatened to filibuster. Republicans have threatened to change the Senate rules to eliminate filibusters on judicial nominations. Right now, things are shaping up for the Battle of the Judicial Filibuster.

Battles like these are rare because they are expensive and because they are risky. Republicans choose to fight the battle over filibusters now because they don’t want to fight it over a big Supreme Court nomination this summer when the stakes are so much higher. And Democrats? Yes, what exactly do Democrats expect to gain from a fight?

It would be nice to get conservative judges confirmed in the Senate, but the judge problem is much bigger than that. The problem is judicial activism, the growing practice of legislating from the bench.

Tom Bethell identified the source of the problem years ago in The American Spectator. He called it the Strange New Respect phenomenon. It goes like this. A rabid conservative goes to Washington with a Neanderthal record of starving widows and throwing orphans out into the street. But five years later an article appears in The Washington Post expressing “strange new respect” for the conservative and marveling at his “growth” in office. Just like Sally Field, he wanted people to like him, and so he stopped punching into the wind, eased off on the sheets, and found that he didn’t need all that wet-weather gear when he was running with the liberal wind. Here is Tom Bethell writing in 1992 about the Strange New Respect for Justice Souter.

What conservatives need to do is reverse the Strange New Respect syndrome. Judges need to forget that cooking up some nice dish on the liberal menu will help them win friends and influence people. They need to believe that the risk is all the other way. They need to fear that if they serve up that liberal mac-and-cheese one more time the customers are going to come raging through the kitchen breaking things. But how do they get into the minds of judges in that way? Today, activist runaway judges get lionized in the mainstream media. Even if they get overturned by evil Republican appellate judges—and very often they do not—they are still boosted as heroes, they still get their pensions, and they still get to feel they are on the side of the angels.

Changing judges’ minds will require a long march through the institutions, a task for which conservatives have not shown much enthusiasm, and it will require some big wins in the war of ideas. Meanwhile there is the Gandhi-Nehru strategy that pushed the British out of India: using knowledge of the beast and its ways to deplore its double standards, expose its hypocrisies, take advantage of its faith in due process, and provoke it into outrages like the Amritsar Massacre that shame and delegitimize its power. David Horowitz is using this strategy against the nation’s universities with his campaign for an Academic Bill of Rights.

What judges need to learn is that the American people have a right to the government they deserve. If the representatives of the American people write a law, Justice Kennedy, that permits execution of 17-year olds in certain aggravating circumstances and a jury decides to send a 17-year old to the electric chair, that is their right, even if you don’t like it. There’s a name for that sort of thing. It is called “self-government.”

The jury, like the family, the church, the union, and the voluntary association is one of the “mediating structures” between the individual and the megastructure of big government. Twenty-five years ago in To Empower People Peter Berger and Richard Neuhaus argued that “mediating structures are essential for a vital democratic society.” If their power is rooted out by activist judges then they wilt away and cannot provide shelter for the individual against the power of big government. The lively public square dries out into a desert whipped by the raw wind of political power.

Here’s the dirty little secret. Judicial activism riles people up. If liberals would just tell their activist judges to ease off a little then the conservative movement would lose energy, and liberals could get back in the saddle again. Think of that!

Any horseman knows that you can get a horse to do anything for you if you train him with a gentle bit and a light touch on the reins. But put in a spade bit in his mouth and yank on the reins like a liberal judge and you’ll get a nervous, jumpy horse that is nothing but trouble. Sooner or later, he’ll buck you off.

Meanwhile there’s still that irritating problem of the judicial filibuster.

Christopher Chantrill blogs at www.roadtothemiddleclass.com. His Road to the Middle Class is forthcoming.

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