No time to flinch in showdown on judicial nominees

It is painfully ironic that we should be promoting the spread of democracy abroad when democracy is shrinking at home. Over the years, the outcomes of our elections have meant less and less, as judges have taken more and more decisions out of the hands of elected officials.

Judges have imposed their own notions on everything from school administration to gay marriage, and have ordered both state and federal agencies to spend billions of dollars to carry out policies favored by the judges or have even ordered a state legislature to raise taxes.

This naked exercise of judicial power has been covered by the fig leaf of pretense to be "interpreting" laws and the Constitution by stretching and twisting words beyond recognition.

The merits of the particular policies or expenditures are not the issue. The real issue is much bigger: Are the people to have the right to elect their own representatives to decide issues or are unelected judges to take over an ever-increasing share of the power to rule?

This has happened gradually but steadily. Just as the late Sen. Daniel Patrick Moynihan referred to our growing acceptance of immoral behavior as "defining deviancy downward," so we have come to accept the steady erosion of democratic government as judges have defined democracy downward.

While people in various countries in the Middle East are beginning to stir as they see democracy start to take root in Iraq, our own political system is moving steadily in the opposite direction, toward rule by unelected judicial "ayatollahs," acting like the ayatollahs in Iran.

That is what makes the impending Senate battle over judicial nominees something much bigger than a current political squabble or a clash of senatorial egos.

One way to stop the continuing erosion of the American people's right to govern themselves would be to appoint judges who follow the great Supreme Court Justice Oliver Wendell Holmes's doctrine that his job was to see that the game is played by the rules, "whether I like them or not."

Judges with that philosophy are anathema to liberal Democrats in the Senate today. They know that the only way many liberal policies can become law is by having them imposed by judges, because voters have increasingly rejected such policies and the candidates who espouse them.

The Senate's Constitutional right and duty to "advise and consent" on the president's judicial nominees is being denied by a minority of Democratic senators who refuse to let these nominees be voted on. Since Republicans have a majority in the Senate, they have the power to change Senate rules, so that a minority of senators can no longer prevent the full Senate from voting on judicial nominees.

Such a rule change is referred to as "the nuclear option," since it would be a major change that could provoke major retaliation by the Democrats, both in obstructing current legislation and in the future using that same rule to ride roughshod over Republicans whenever the Democrats gain control of the Senate.

An aging Supreme Court means that there is now a perhaps once-in-a-lifetime opportunity to stop the erosion of democratic self-government by putting advocates of judicial restraint, rather than judicial activism, on the federal courts, including the Supreme Court.

Senate Democrats understand how high the stakes are. But do the Republicans? President Bush clearly does, but Republican Sen. Arlen Specter, chairman of the Judiciary Committee, either doesn't know or doesn't care about the larger Constitutional issues. He is siding with the Democrats in the name of compromise.

Sen. William Frist, the Republican majority leader, says he has the votes to change Senate rules to prevent a minority from denying the full Senate the right to vote on judicial nominees. Senator Frist also had the votes to prevent Senator Specter from becoming chairman of the Judiciary Committee, but he didn't do it. He chose to avoid a fight.

That is not a hopeful sign for what to expect when high noon comes on the president's judicial nominees.

Thomas Sowell is a senior fellow at the Hoover Institution at Stanford University. © 2005 Creators Syndicate, Inc.

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