During the hearings on the Supreme Court nomination of Justice Sam Alito, a good and decent man, the American public saw the raw, ugly underside of the judicial confirmation battle: Ted Kennedy’s self-righteous, judgmental, holier-than-thou grilling of Judge Alito, and Mrs. Alito’s obvious hurt over how her husband was treated.
With good lawyers making far more money than federal judges, with nominees now facing a virtual firing squad at confirmation, it is no wonder studies now show half of those approached about being nominated to the federal judiciary say “no thanks.” And it is not surprising the “brightest and best” young lawyers are deciding to direct their legal careers away from a judicial tract. They simply are unwilling to subject themselves and their families to such a humiliating process where they are viewed as mere pawns in a bitter, highly partisan political fight, and not as real flesh-and-blood human beings with feelings and pride in their records.
When the “brightest and best” say “no thanks,” that should seriously disturb all Americans. If this trend continues, it will devastate our judiciary.
If Democrats think some Republicans won’t use the same tactics as those used by Sens. Kennedy, Charles Schumer and Dick Durbin the next time a Democrat is in the White House, they have to be living in fantasyland.
What brought on this unfortunate fight? The transfer of all the hot button social issues: Partial-birth abortion, abortion for teenagers without parental consent or even parental notification, same-sex “marriage,” references to God in the Pledge of Allegiance, at public buildings, ceremonies and institutions, display of the Ten Commandments in public places, rewriting history to delete all references to a religious motivation in the settling and building of America, and hard-core and child pornography — are being settled in the courts of our land rather than in legislative bodies.
The concept of interpreting the Constitution as a changing, living, mystery Constitution — a mystery because the meaning has been hidden for years, is unknown to people of ordinary intelligence, and known only to members of the Supreme Court and not even all of them — was what politicized the judiciary.
Politicizing the judiciary is wrong and bad policy. Our Founders never intended the judiciary to be political. The judiciary is unequipped to resolve political disputes. Involving it in political matters inevitably will cause the judiciary’s serious deterioration.
This battle not only threatens the quality, independence and diversity of the judiciary, it holds hostage civility and collegiality in the U.S. Senate and weakens that body’s ability to discharge its constitutional legislative responsibilities. Any problem that weakens two of the three co-equal branches of our government cries out for a solution.
Although the agreement of the “Gang of 14” allowed the confirmations of Justices John Roberts and Alito and a number of appellate nominees, the underlying major problem remains. A permanent solution is needed.
How can we solve this problem that has such serious repercussions? We need to transfer these hot-button political social issues back to the political arena where they belong.
To do so, I propose a constitutional amendment providing:
“The Constitution and the amendments thereto duly adopted in the future may be changed, modified, amended or added to only by amendment duly adopted as outlined in Article V of the Constitution. Neither the Supreme Court nor the inferior courts will create law, change, modify, amend, or add to the Constitution, but will interpret the Constitution and amendments in accordance with the common understanding of the relevant provision at the time it was adopted. This amendment does not affect the weight to be given prior decisions under the Doctrine of stare decisis.”
Such an amendment is consistent with the intent of the Framers of the Constitution, the separation-of-powers doctrine, and the sentiment of an overwhelming majority of the American people. Even opponents of the Bush judicial nominees say they do not want activist judges. If they are sincere, they will support this amendment. This is a responsible way to stop judicial activism and solve the judicial confirmation battle by eliminating the primary root cause.
The amendment process is feasible. Between 1933 and 1971, the Constitution was amended seven times, an average of one amendment every five to six years. We quit using the amendment process only after liberals discovered the Constitution can be changed easier by convincing five judges. The amendment process can work again if we try, and it is better to try than wring our hands and decry judicial activism.
The Constitution will be changed over time. The only question is whether it be changed by the people through their elected representatives or by five judges.
I urge Congress to submit to the states a constitutional amendment that will take the judiciary out of politics and reaffirm the strictly judicial role of judges.
Charles W. Pickering Sr. is author of “Supreme Chaos; The Politics of Judicial Confirmation & the Culture War.” He is senior counsel with the law firm of Baker Donelson Bearman Caldwell & Berkowitz. Judge Pickering was appointed to the U.S. District Court for the Southern District of Mississippi and was confirmed by the Senate unanimously in 1990. In 2001, he was nominated to the U.S. 5th Circuit Court of Appeals by President Bush. He retired from the federal bench on Dec. 8, 2004.