TWO TERRIBLE SUPREME COURT DECISIONS, ONE IN D.C. AND ONE IN CALIFORNIA — THANKS TO “REPUBLICAN” JUDGES
TWO TERRIBLE SUPREME COURT DECISIONS, ONE IN D.C. AND ONE IN CALIFORNIA — THANKS TO “REPUBLICAN” JUDGES
By
Ken Eliasberg
It never ceases to amaze me how inept Republicans are at politics — in an era when the courts have called the shots, and in an arena where the Dems have had their way with us, what do we do? We appoint Judges who lean left!! I don’t get it. Two recent court decisions are glaring examples of Republican ineptitude — The U.S. Supreme Court’s decision on enemy combatants held at Guantanamo Bay and the California Supreme Court’s decision on Gay marriage. Both decisions, it should be noted, overrode the clear expression of the will of the people, in effect making the Judicial branch of government something in the nature of an institutional monarchy. And, while I shall deal briefly with these disturbing issues in this discussion (and at greater length in future discussions), what really concerns me here is the decision-making that went in to appointing some of these judges. That is, do Republican executives ever bother to vet the people to whom they give great and enduring power?
Let me spell it out for you. Seven of the U.S. Supreme Court Justices were appointed by Republican Presidents (all but Ginsburg and Breyer — 2 Clinton appointees who vote reliably left, in accordance with the political leanings of the President who appointed them). Yet the Court, notwithstanding this very substantial Republican majority, votes left at least as often as they do right. How does that happen, except through negligence or dereliction (not on the part of the judges who make the decision, but on the part of those placing the judges in a position to make such a decision)?? The California Supreme Court is even more lopsidedly Republican based — 6 of the 7 Justices owe their place on the bench to Republican governors. Three of them voted with the lone Democrat appointee to legalize gay marriage! Frankly, I regard this as an outrage — again,not that they voted the way they did, but that they were placed in a position to have a vote by someone who quite clearly was remiss in his vetting responsibilities. In other words, I’m not as upset with the Judges as I am upset with the derelict executives who put them on the bench. The one area where an executive has a unique opportunity to secure his country and stamp his legacy (a matter with which most executives seem overly concerned) in the history books, and they approach it with something between indifference and negligence. I don’t get it!!
And we can’t blame Democrats when, given the opportunity to solve a problem, we make no effort to do so. I cannot tell you how disheartening it is to vote for an executive and then have him so carelessly carry out one of his most important functions. And the public understands this. When George Bush tried to slip Harriet Miers through, they rose up in indignation, and their voice was, fortunately, heard. We got Alito, a darn good judge. The Miers effort was so typically Republican, a combination of cowardice and misplaced loyalty (“W’s” glaring weakness). His major concern in picking Justices was to avoid a confrontation. Ergo, his first choice was Roberts, a good man, but picked primarily because his nomination looked like it would go through without a fight, i.e. “no paper trail.”
Think about that; the Republican Party has spent years grooming some outstanding judges, men and women who understand their role as judges (as opposed to quasi legislators). Does our President pick one of them? Not unless he first determines that the potential nominee has no paper trail. And that is so typically Republican — avoid a fight at all costs. Do Dems worry about this? Hell no!! They send up Justices who are left of Karl Marx and don’t bat an eyelash. Why shouldn’t they? They know that their gutless Republican buddies will just lie down and roll over for any left-wing nominee. Good for them! At least they know what they are doing back there — following the wishes of the people who sent them there!! As noted, you have no idea how discouraging it is to get behind a leader who confuses principals with either popularity or, worse yet, cowardice. If you want to know why the Republican Party is hurting, here’s a perfect place to start your inquiry — giving the enemy the tools with which to defeat you!!
Am I suggesting that you secure a guarantee up front as to how a potential nominee will vote. Of course not! You cannot compromise the Judiciary or any other branch in this manner. But you can, by acting prudently, determine the nominee’s judicial temperament, judicial philosophy, and, based on his or her history, get a pretty good idea as to how he or she will rule on sensitive and important isuues. That is, are we talking about an “originalist” — one who believes that a judge should adjudicate — or a “living constitution” individual, i.e. one who approaches decsion-making as a tabula rasa on which he can leave whatever imprint his political leanings suggest is appropriate. In short, if you make any kind of thoughtful examination — if you do your due diligence — you can be fairly secure in predicting how a given nominee is going to respond to his duties
Democrats seem to easily grasp this simple rule of common sense; Republicans just don’t seem to get it (perhaps they should try harder). You will notice that Judges appointed by a left-wing executive almost always vote in accordance with the philosophy of the left-wing executive who appointed them. I don’t recall any instance of a left-wing appointee who veered right (although I’m sure there must be one extant; I haven’t exhaustively researched the point, but I’ll bet the farm such situations are few and far between). On the other hand, the number of cases in which a conservative appointee has drifted left are legion. Heck, one of our most liberal courts was headed up by Earl Warren, the former Republican Governor of California and an Eisenhower appointee.
I often get the impression that Republicans would do better to consult a ouiga board in the selection process than by utilizing the procedure that they currently employ.
I’ll deal with the merits of these decisions some time down the road. For present purposes it will suffice to say that the U.S. Supreme Court decision not only overrides a previous Supreme Court decision, as well as the accommodation worked out by the President and the Congress, but it will cost a fortune to implement. Moreover, the cost in terms of dollars and delays will pale into insignificance compared to the cost in American lives. In this regard, I commend Justice Scalia’s dissenting opinion to your attention. The California Supreme Court’s decision on Gay marriage disrespects how things should be done in a Democracy. If we are to move the center of marital gravity, it seems to me that this is a decision that the people should make via some legislative expression (i.e. an act of a legislative body or a referendum or initiative), and, having spoken, the role of the courts should be to listen not contradict. Thus, in my opinion the California Supreme Court has usurped a democratic function rather than give voice to one.