Has our government always worked this way?

“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda on everything from gay marriage to assisted suicide to the use of vouchers for private-school education.”

This month, we are witnessing one of the most important rituals of American democracy:  the confirmation hearing of a United States Supreme Court nominee.  This process has evolved over the past few decades, particularly since the failed nomination of Judge Bork.  The contentiousness has reached embarrassing levels.  Like most modern political practices, we continue to battle over nominees much as our forefathers did, but we do it in a way that shows little regard for the character and qualifications of the nominee.

Judge Gorsuch’s comment above shows that he is well aware of how the left wants to tip the balance of power to the courts.  They could not win at the ballot box.  The could not win in Congress.  They could not win the hearts and minds of the public.  The courts are their best option.  This is where they have drawn the red line that they will fight to defend.  Even here though, it appears that they will lose.

Judge Gorsuch warned the left of the dangers of their dependence on the courts. They can chalk up some wins, but they will be short lived if they have not adequately convinced the American public.  In his commentary, Liberals’N’Lawsuits,  Judge Gorsuch said:

“This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose. In constitutional litigation, too, experiments and pilot programs — real-world laboratories in which ideas can be assessed on the results they produce — are not possible. Ideas are tested only in the abstract world of legal briefs and lawyers arguments. As a society, we lose the benefit of the give-and-take of the political process and the flexibility of social experimentation that only the elected branches can provide.”

As broken as our Constitutional Republic seems, it still functions as it was designed.  In the end, many battles may be lost, but we usually get it right.​​​​​​​

The confirmation hearings have devolved into a silly charade.  They are an opportunity for bloated egos to show off how good they are at bullying and playing gotcha games.  Many of those criticizing Gorsuch for decisions that he never made will likely vote for him, unless they cynically believe that a no vote would win them more votes in their next election.  On the other side, it’s doubtful that anything will be found in his background that would cause a Republican to vote against him.  So, in the end, after a month of investigation and a week of hearings, no minds will be persuaded.

Second only to going to war, the choice of a Supreme Court Justice is a President’s most important decision.  The Supreme Court is where partisans, red and blue, get a chance to force their social agenda on the American public.  It’s a misuse of the court, while at the same time, the Court often offers our best opportunity to keep both sides under control.

As broken as we think our justice system is, it soars above the dysfunction of the Legislative and Executive branches.  It doesn’t always work as well as we would hope, but it does work.  It’s an ingenious tool designed by our ingenious Founders.

The Supreme Court works only because so many fight political battles to ensure that it will work.  It is always in danger from those who would subvert it.  It seems that we’ve bought some time in this battle, but we should never become complacent because of short term win.

“Eternal vigilance is the price of liberty.”

​In Liberty,
Ken Mandile
Senior Fellow
Worcester Tea Part