Editor’s Note: For an alternative viewpoint, please see: Point: GOP’s Irresponsible Obstruction Will Have Consequences with Voters
Since President Obama nominated federal Judge Merrick Garland in March to serve on the U.S. Supreme Court, much effort on both sides of the political aisle has gone into determining his ideological leanings and how he would prospectively rule on the hot-button issues of the day. However, some senators running for re-election such as Republican Ron Johnson of Wisconsin are hearing far more from those opposed to Garland than those supporting him.
Why is this? There is an increasing “intensity gap” when it comes to voters’ opinions on which president, the current one or his successor, should get to nominate and fill the vacancy left by Justice Antonin Scalia’s passing. Most important of all, there has been a seismic shift in Americans’ view of the role of the court in our government. A recent Rasmussen Reports survey found that 81 percent of likely voters say “the selection of a new U.S. Supreme Court justice is important to their vote in November, with 60 percent who say it’s very important.”
It was not always so. For most of our history, Supreme Court nominees were proposed by the president and confirmed by the Senate with relatively little fanfare. Occasional controversies flared up, but for the most part the legal qualifications and jurisprudential approaches of nominees were not issues.
For much of American history, the courts occupied the role ascribed to them by Alexander Hamilton, who observed that the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” It “can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”
Yet over time, and especially since the 1960s, the Supreme Court began to be perceived as possessing a general power of ultimate constitutional interpretation, covering all people and trumping other branches of the federal government and the state governments. Other branches remained silent despite their duty to interpret independently the Constitution — a duty certainly intended by the Founders. This only fed the court’s outsized view of its authority. Over time, people gradually accepted this increasingly powerful role of the court despite its lacking constitutional sanction.
The distorted role of the court has been exacerbated by distorted decisions of the court that have appropriated legal territory not prescribed by the Constitution. Decisions proclaiming new rights concerning controversial social issues, supposedly on the basis of “substantive due process” under the 14th Amendment, have at once taken issues out of the hands of voters while warping the text the court had been entrusted to interpret. This is what is upsetting voters such as Senator Johnson’s constituents. For decades, such activist decisions by the court have disenfranchised millions of voters who feel they no longer have a voice in government.
It is therefore easy to see why these same voters are concerned about Merrick Garland’s nomination. Conservatives and liberals alike know Supreme Court nominations are incredibly important in an era when the court has claimed an outsized role and activist bent.
Social conservatives have reason to be wary about any nominee put forward by one of our nation’s most socially liberal presidents to date, who has not tempered his dogmatic advocacy of abortion, radical sexual autonomy, and dismissal of religious objections to his policies. When Planned Parenthood is even marginally supportive of a nominee, pro-life voters who want to see the horror wrought by Roe v. Wade recede should take note.
All Americans, regardless of whether they are socially conservative or conservative in any sense have reason to be concerned with anyone reflecting President Obama’s judicial philosophy. Justices are called upon to interpret the Constitution, not make law. That is not a social pronouncement, nor is it a conservative or liberal issue. It is a constitutional issue.
President Obama has not shown adherence to the limited role of the judiciary as reflected in our Constitution, and his nominees will only reinforce the bloated power the court has aggrandized to itself. This is why the Senate, under the leadership of Senate Judiciary Chairman Chuck Grassley, R-Iowa, and Majority Leader Mitch McConnell, R-Ky., has committed to refusing any hearings or any votes on Supreme Court nominees during this contentious presidential election year.
Perhaps under the next president, Americans will see a nominee who pledges fidelity to the Constitution and has the track record to support it.