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Judge Dread

A showdown over the U.S. judiciary was a long time coming.

11:25 AM, Apr 7, 2005 • By DUNCAN CURRIE
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TO A CASUAL EUROPEAN OBSERVER, the row over President Bush's judicial picks may seem a bit dippy. Democrats fight tooth-and-nail to block mid-level nominees. Republicans talk of a "nuclear option" to break the impasse. Democrats warn they'll bring Senate business to a halt. Republicans dare them to try. Our transatlantic friend might scratch his head and wonder, How could an ostensibly minor, non-legislative issue--who sits on a few appellate courts--implode the entire U.S. Senate?

There's no simple answer. But any substantive explanation must begin with abortion and Roe v. Wade. In The Right Nation, their 2004 treatise on American conservatism, John Micklethwait and Adrian Wooldridge probe why Europe settled its abortion debate long ago but the United States didn't. They cite three key factors: religiosity (secular Europe vs. devout America), fundamentalism (technocratic Europe vs. moralistic America), and the American right's knack for cultural politicking.

But here's the needle that sews these threads together: "European countries liberalized abortion through legislation and, occasionally, referenda. This gave legalization the legitimacy of majority support, and allowed countries to hedge the practice with all sorts of qualifications." In America, by contrast, the Supreme Court took the matter out of politicians' hands--and thus ramped up the stakes. "By going down the legislative road," Micklethwait and Wooldridge write, "the Europeans managed to neutralize the debate; by relying on the hammer blow of a Supreme Court decision, the Americans institutionalized it."

The hammer blows in Roe and its companion case, Doe v. Bolton, came down more than 32 years ago. But passions remain as white-hot today as they were in 1973. Perhaps more so. The controversy pivots not just on whether abortion should be legal, but on whether judges should be deciding such questions in the first place. Prior to Roe, an organized pro-life movement didn't exist. Post-Roe, it's become one of the most effective lobbying forces in U.S. politics. Thus the chief lesson of Roe: When citizens lose at the ballot box, they feel defeated. When they lose by judicial fiat, they feel cheated.

All of which should help clear up the European's befuddlement. In modern America, the judicial wars and the culture wars are inextricably linked. Conservatives rail against "activist" judges inventing "rights" out of whole cloth. Liberals fret about "extremist" judges rolling back those very same rights. Yet both sides agree on at least one point: Control of the federal judiciary means everything. Hence the Democratic filibusters of 10 of Bush's appellate nominees in 2003 and 2004. Hence the Republicans' desire to change Senate rules. Hence the ominous threats of a "nuclear winter" in Congress.

Neither party should be particularly surprised by this. A showdown over the judicial branch was a long time coming. After all, if judges begin wielding de facto legislative powers--a phenomenon that has mushroomed ever since Roe--and Congress blithely acquiesces, then judicial confirmation hearings become almost like Senate campaigns. In such an environment, vetting a nominee's partisan credentials seems only logical.

This is especially true at a time when so-called moral issues--abortion, euthanasia, cloning, same-sex marriage, capital punishment, etc.--are all the rage on the front pages and TV shows. As the heart-wrenching Terri Schiavo ordeal demonstrated, the philosophical gap between MoveOn Democrats and Dittohead Republicans on these matters is yawning. Though it's not polite to speak of a culture war, both sides believe they are engaged in one. And, understandably, both sides think their path to victory runs through the courts.

But each tends to overlook the crux of the problem. The underlying threat to American self-government is not merely "right-wing" or "left-wing" judges--but the imperial judiciary itself. Yes, most judicial activism these days occurs on the social left. Conservatives are wholly justified in their high dudgeon. But when they base their arguments on a narrow critique of "liberal" judges, rather than a critique of usurping judges generally, conservatives unintentionally concede a vital point: namely, that American courts should be reaching a sociopolitical consensus for the American people.

In fact, the Founders intended no such role for the courts. Divining and defining the popular will on, say, abortion, same-sex marriage, and the death penalty is properly the duty of the U.S. Congress and state legislators. But for several decades now, American politicians have shirked that duty. Congress has also ducked its constitutional obligation to lasso a renegade judiciary. The result: an unchecked court system with metastasizing powers and an insatiable appetite for legislating.