The U.S. Senate is in the midst of another Supreme Court justice confirmation hearing, which means, yet again, we’re going to endure several more days of politicians grilling a nominee on issues that they are too scared or lazy to resolve themselves. Indeed, current nominee Samuel A. Alito Jr. spent most of yesterday getting hammered on questions regarding abortion and presidential powers. These are certainly important potential issues that the Supreme Court may need to review over the coming years, but only because the politicians on both sides of the aisle who supposedly make our nation’s laws are deferring their role as advocates for their constituents on the tough issues to the court system.
The American public has been subjected to several years of predictions of apocalyptic scenarios from both political parties about how one vote change on the Supreme Court could completely alter the landscape regarding issues such as abortion, presidential powers, civil liberties, gay marriage, corporate ethical obligations, the teaching of evolution and intelligent design in public schools, etc. Even if this were the case, and I really believe that the doomsday scenarios are overblown (by all accounts, the overall lack of interest in the hearings outside of partisan interest groups shows that most Americans agree with me), the politicians willingly allowed this to happen through their actions or, more commonly, their collective inaction. The two major political parties let this happen because if they actually backed up their words with legislative action, they wouldn’t have an easy judicial bogeyman to blame to score votes and fundraising dollars from their respective bases.
Take the Democrats, for instance, on the issue of presidential powers. They overwhelmingly supported the Patriot Act the first time around, yet now claim during the Act’s renewal process that President Bush has overstepped his bounds and that government agencies are trampling over civil liberties. Even worse, a number of Senate Democrats like Ted Kennedy and Patrick Leahy, who supported the bill originally, are now blaming Dubyah for “ramming through” the provisions of the Patriot Act. Wait a second – didn’t these guys actually read an act that many people believe (for the record and in case you were wondering, I don’t personally believe this) was a clear trampling of people’s rights before they gave it their full-fledged support? And now they’re worried about some memos and speeches Samuel Alito wrote supporting a more expansive view of president’s authority under the Constitution. Ignorance of the text of the law should never be an excuse for voting for it in the first place.
At the same time, the Republicans could have made substantive moves for its social conservative wing by advancing a partial-birth abortion bill that actually passed constitutional muster. By constitutional muster, I mean that any ban on partial-birth abortion had to have an exception to law where the procedure was medically necessary to protect the health of the mother. If the Republicans had simply done this, there would be a partial-birth abortion ban in place today. Instead, the Republican Congress (along with a whole lot of Democrats from red states and districts), knowing full well that it wouldn’t survive a Supreme Court challenge, passed a bill banning partial-birth abortion without the medical exception. Like the Democrats regarding presidential powers, the Republicans used the Supreme Court as a crutch by stating that the judiciary had made the definition of a medically necessary too broad. As a result, the Republicans were able to milk another election year’s worth of campaign donations to fight liberal “activist” judges.
So, when politicians from both parties trumpet over the coming days on how Samuel Alito will be the deciding vote on a plethora of issues, they may be right, but they have only themselves to blame for putting America in this situation. Legislators have shirked their responsibilities to make the laws in the midst of the fervor over the judges are merely charged with interpreting those laws.