Federal Judiciary

How Not To Depoliticize Judicial Confirmations

By AndrewHyman

Professors Ilya Somin (blogging at the Volokh Conspiracy) and Rick Hills (blogging at PrawfsBlawg) suggest a culprit behind the recent spate of hotly contested judicial nominations. Here's how Professor Somin puts it:

One of the reasons why judicial confirmations are so hotly contested is that political movements have found that it is much easier to "change" the Constitution through creative interpretation by sympathetic judges than to go through the almost insuperable obstacle of the amendment process?. Some judges inevitably fear that if they don't "adjust" the Constitution to take account of changing conditions, great disasters might occur because Article V makes it too difficult to enact the needed changes through the amendment process.

I emphatically disagree that the constitutional amendment process needs to be made any easier. For one thing, the experience with Prohibition suggests that we would get a lot of lousy constitutional amendments if the hurdles were lowered. The current amendment process is not really so difficult: if 51% of the people, in each of a sufficient number of states, demand an amendment then they can get it under the current system. In other words, 51% of the people in a state can require that 100% of their state and federal legislators support a particular proposed amendment. We don?t need to make this process any easier.

What we really need is a better system for stopping judges who want to change the Constitution through creative interpretation. Judges are supposed to expound the Constituton, not alter it. The first step in this regard might be to add language to the judicial oath explicitly requiring judges to swear they won?t try to alter the meaning of a law, or try to say what a law should mean, or try to exploit or enlarge ambiguity in a law beyond the law's intended meaning, or support any prior judicial decision that does any of these things.

Anyway, the liberal forces that have driven the recent politicized confirmation battles would not be at all happy or satisfied with lowering the hurdle for constitutional amendments. For example, Senator Edward Kennedy says: "Our reluctance to amend the Constitution has served the nation well." Ending that reluctance would not end judicial activism.

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Full post as published by ConfirmThem on March 15, 2008 (boomark / email).