The Democrats’ resistance to President Bush’s judicial nominees what Brian Anderson of the Manhattan Institute called “Schumerism” — rests on an increasingly rickety two-legged stool. Leg 1: a shrill insistence that they are “right wing extremists” who are “out of the mainstream”; and Leg 2: a rejection of originalism/textualism/strict construction in favor of a “Living Constitution,” i.e., a document that must be continuously revised by wise judges to adapt to changing times and conditions.
I bet you can already see the problems. Let’s start with Leg 2: if a judge interprets the Constitution in a way the Schumerists dislike, that is not wise living constitutionalism but “right wing judicial activism.” This can be regarded, accurately, as nothing more than rank hypocrisy, but it is hypocrisy that reveals an underlying theoretical problem. Progressive hopes notwithstnding, “Living” organisms do not inevitably grow stronger and better. Sometimes they get sick; sometimes appendages have to be amputated; sometimes they need drastic grafting or medical intervention. In short, if you put all your interpretive eggs in the “Living Constitution” basket, you have no principled grounds for objecting to eggs that sometimes get broken or made into a distasteful omlette. That’s the damndest thing about History: things change, and not always for the better.
Now for Leg 1: streams don’t always flow in straight lines. Sometimes they meander; sometimes the Corps of Engineers dams them up or redirects them. What was in the middle of the river a generation ago may now be high and dry on either the left or right bank. Notice that the Schumerists have never defined this “mainstream” they’re so fond of. Can a majority of the people in the country be “out of the mainstream”? If not, what is the justification for preventing the nominee of a popularly elected president from coming to a vote in the Senate, where presumably the accountable representatives of the people of all the states would reject anyone who really was “out of the mainstream”?
Moreover, if legal texts are not really contraining, if law is nothing more than “ideology,” as Schumer himself suggests by his call to vote judicial nominees up or down based on their ideology, then on what basis does a minority party claim the right to frustrate the desires of the majority?
The Democrats have been quite clear on their partisan interests, on what judicial outcomes they prefer. But they have been incoherent, and are becoming more so, about the jurisprudential principles (if any) underlying their partisan objections to Republican judicial nominees.
Part of the problem is that we have allowed our black-robed masters to aggrandize to themselves way too much power. Generally, it wouldn’t be so earth-shaking important who gets onto SCOTUS if we would rein the justices in. Specifically, if SCOTUS hadn’t invented a “right” to abortion, the likes of Schumer wouldn’t have to be incoherent in their approach to judicial appointments because their precious ideology wouldn’t hang in the balance of a change of a handful of votes. Particularly, the Democrats’ intransigent hysteria about SCOTUS and abortion betrays their implicit acknowledgement that SCOTUS, not the federal constitution, is where a woman’s “right” to “choose” originates.
No right regarding practices or technologies that were unavailable or undiscovered (or unsafe) in the 1700s originates from the constitution. This is irrelevant.