Over at All Things Beautiful, Alexandra asks if its possible for liberals and conservatives to have a civil debate over the nomination of Judge Samuel Alito to the Supreme Court. After thinking about the issue, my own opinion is that while such a civil debate is possible, it is highly unlikely given the highly charged nature of political debate in America today.
The relatively congenial tone of the Roberts’ debate notwithstanding, I believe that the judicial nomination process is broken, perhaps irretrievably so. The Bork and Thomas hearings are the examples that everyone remembers, but there are also the examples of William Pryor, Miguel Estrada, Janice Rogers Brown and others appointed to a Court of Appeals position who were subjected to virulent, and in Pryor’s case blatantly anti-Catholic, opposition.
Why is this case ? The past 75 years of Supreme Court precedent have resulted in an America where the Supreme Court, and by extension the entire Federal Court system is, arguably, the most important institution in America. The decision of nine justices, or even a single Federal District Court Judge, can have an immediate and long term impact on the lives, families, property, and livelihoods of ever man, woman, and child in the country. More importantly, the Courts have become the means by which various interest groups have sought to enforce their goals on society.
Instead of just interpreting the law, the Courts are now the drafters of social policy. Why do you think that the annual pro-life and pro-choice rallies that take place in Washington, DC pass by the Supreme Court?
This is not the role that the Courts were intended to have under the Constitution, but it is the role that they have assumed. Unless and until there is a change in what has been referred to as the “Imperial Judiciary,” this is the world in which we will live.
In essence, the Courts are now political bodies as much as the Executive Branch and Congress, and abortion is the 900 pound gorillia, the one issue on which true compromise seems impossible for the people at both extremes. Because of this, the process by which these judges and justices are appointed and confirmed has become highly politicized. Politics is, and always has been, highly charged, contentious and sometimes down right nasty. As long as the judicial confirmation process is, due to the nature of the Judiciary, a political one, then it will take on all of the characteristics of the most virulent political debate.
I am interested in what Alexandra is proposing and will be keeping an eye on it. For now, though, my answer to Alexandra’s question is, no, I do not believe that a truly civil debate is possible. The stakes for both sides are too high. Perhaps I will be proven wrong.