By Charles Krauthammer
Thursday, April 06, 2017
For euphemism, dissimulation, and outright hypocrisy,
there is nothing quite as entertaining as the periodic Senate dust-ups over
Supreme Court appointments and the filibuster. The arguments for and against
the filibuster are so well known to both parties as to be practically
memorized. Both nonetheless argue their case with great shows of passion and
conviction. Then shamelessly switch sides — and scripts — depending on the
ideology of the nominee.
Everyone appeals to high principle, when everyone knows
these fights are about raw power. When Democrat Harry Reid had the majority in
the Senate and Barack Obama in the White House, he abolished the filibuster in
2013 for sub–Supreme Court judicial appointments in order to pack three liberal
judges onto the D.C. Circuit Court of Appeals.
Bad karma, bad precedent, he was warned. Republicans
would one day be in charge. That day is here and Republicans have just stopped
a Democratic filibuster of Neil Gorsuch by extending the Reid Rule to the
Supreme Court.
To be sure, there are reasoned arguments to be offered on
both sides of the filibuster question. It is true that the need for a
supermajority does encourage compromise and coalition building. But given the
contemporary state of hyperpolarization — the liberal Republicans and
conservative Democrats of 40 years ago are long gone — the supermajority
requirement today merely guarantees inaction, which, in turn, amplifies the
current popular disgust with politics in general and Congress in particular. In
my view, that makes paring back the vastly overused filibuster, on balance, a
good thing.
Moreover, killing the filibuster for Supreme Court
nominations (the so-called nuclear option) yields two gratifications: It allows
a superb young conservative jurist to ascend to the seat once held by Antonin
Scalia. And it constitutes condign punishment for the reckless arrogance of
Reid and his erstwhile Democratic majority.
A major reason these fights over Supreme Court
nominations have become so bitter and unseemly is the stakes — the political
stakes. The Supreme Court has become more than ever a superlegislature. From
abortion to gay marriage, it has appropriated to itself the final word. It
rules — and the normal democratic impulses, expressed through the elected
branches, are henceforth stifled.
Why have we had almost half a century of massive street
demonstrations over abortion? Because the ballot box is not available. The
court has spoken, and the question is supposedly settled for all time.
This transfer of legislative authority has suited
American liberalism rather well. When you command the allegiance of 20 to 25
percent of the population (as measured by Gallup), you know that whatever
control you will have of the elected branches will be fleeting (2009–10, for
example). So how do you turn the political order in your direction? Capture the
courts.
They are what banks were to Willie Sutton. They are where
you go for the right political outcomes. Note how practically every argument at
the Gorsuch hearings was about political outcomes. Where would he come out on
abortion? Gay marriage? The Democrats pretended this was about principle, e.g.,
the sanctity of precedent. But everyone knows which precedents they selectively
cherish: Roe v. Wade and, more
recently, Obergefell v. Hodges.
Liberalism does not want to admit that the Court has
become its last reliable instrument for achieving its political objectives. So
liberals have created a great philosophical superstructure to justify their
freewheeling, freestyle constitutional interpretation. They present themselves
as defenders of a “living Constitution,” under which the role of the Court is
to reflect the evolving norms of society. With its finger on the pulse of the
people, the Court turns contemporary culture into constitutional law.
But this is nonsense. In a democracy, what better
embodiment of evolving norms can there be than elected representatives? By what
logic are the norms of a vast and variegated people better reflected in nine
appointed lawyers produced by exactly three law schools?
If anything, the purpose of a constitutional court such
as ours is to enforce old norms that
have preserved both our vitality and our liberty for 230 years. How? By
providing a rugged, reliable frame within which the political churnings of each
generation take place.
The Gorsuch nomination is a bitter setback to the liberal
project of using the courts to ratchet leftward the law and society. However,
Gorsuch’s appointment simply preserves the Court’s ideological balance of
power. Wait for the next nomination. Having gratuitously forfeited the
filibuster, Democrats will be facing the loss of the Court for a generation.
Condign punishment indeed.
No comments:
Post a Comment