After watching a little of the nomination process and listening to endless discussion in the media, I’ve reached a conclusion about the whole sordid affair.
Before the Alito nomination I would have said the entire process was about nothing but politics. The Robertson nomination was fun to watch. He handled the hapless Democrats as deftly as a circus juggler. Biden and the gang came off looking like politicians at their worst, and everyone shook their heads,
tsk tsking the way they were playing politics with the nomination.
But after watching the far more serious, far less entertaining Alito endure the same histrionics, I realize that the process is not about politics as much as it is about power. Before, I would have laid 1,000 to 1 odds that the primary motivation for the ridiculous charges leveled at Robertson and then Alito had everything to do with the Dems wanting to look good for their left wing financiers. Now I think I would have lost that bet.
Because it’s not politics; it’s power.What we saw in Kennedy, Biden, Schumer and the others wasn’t so much a show for their pals at Planned Parenthood and PFAW as much as it was the frustration of futility. Futility in the face of power that they can not match.
While our blessed Forefathers designed the government to have three branches of equal power, the last few decades have seen the balance of power shift significantly to the judiciary. More and more federal judges have taken more and more power for themselves content that their lifetime appointments inure them to any consequences. And they are
right.
While judicial accountability has theoretically existed all along, it has atrophied through severe disuse. Constitutional amendments are so difficult to enact as to offer no deterrence whatsoever to judges who feel the need to create law by fiat. And since elections don’t come into play the only other form of accountability comes through impeachment. And while I find that judges who abuse their power by creating rather than interpreting law are more than worthy of impeachment, there are precious few Senators with the mettle to actually bring such an action to bear.
So the power of the judiciary grows. And nowhere has it grown more than at the peak—the Supreme Court.
So there the Senators sat, faced with a man whose unassuming presence belied the awesome power he holds—that of an unelected, unaccountable king. Already as a member of the federal appeals court he was beyond them. What’s the worst they could do? Not vote for him? Even if his nomination wasn’t practically guaranteed, they couldn’t do worse than send him back to his lofty perch. It was like sailors on the deck of the Titanic firing rifles at the iceberg, chipping away a few ice cubes before drowning in the shadow of its awesome mass.
So they wailed and moaned in the face of a power they’ll never have. In a few years the Senators face the electorate. Every week or month they face lobbyists and PACs and 50,000 people all with a list of wants and demands. All of whom they have to try to placate in order to maintain their meager position. Justice Alito will never have to deal with any of them. His black robe may not shield him from personal attacks and hatred, but his power is secure. For as long as he lives he and 8 other tyrants can make the law whatever they want it to be. And no Senator can stop them.
Indeed, it’s all about power.
For the record, while I chastise the Dems for their silly questions, I am not any more pleased with the Republicans. The Dems at least are somewhat honest straightforward about their intentions. They understand how the system now works, and they make no excuses for working it to the max. They don’t have a problem with activist judges, but they want one who will rule on the left side of the spectrum.
Republicans on the other hand also understand how the system works. And while they like to moan and groan about activist judges, they haven’t used their majority to do anything meaningful about it. No impeachment of power-mad justices, no proposed amendments to limit their out-of-control behavior. They just ask everyone to play nice and act like the system works. Don’t question the nominee about his politics because politics have no part in deciding cases. All the while knowing that politics play a huge role in deciding cases.
So while I’ve castigated the Dems on the committee, I believe the worse behavior is that of the Republicans. Lacking the courage to challenge the faulty system and fix the problem, they still refuse to play the game by the rules as they exist now. They’re the worst of fence sitters, rubber stamps for a new generation of black-robed despots.
I certainly hope that Justices Roberts, Alito, and the rest will resist the awful temptations of office. But should they decided to taste of the fruit, there will be no one to stop them. For they have all the power.
Note: I do have some ideas on how to fix all of this, but as this post has gotten so long already, I’ll contribute them later.
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