Like nails on a chalk board I keep hearing the right wing's refrain (in the style of Styxx)--"Activist Judges, Activist Judges!" And many on the left are unwitting accomplices. There has been no counterargument. We have not made a compelling case for why we oppose Bush's nominees in the court of public opinion and in most cases we haven't defended judges when they are accused of judicial activism
Well, the best defense is a good offense and its time to start attacking the right on this issue instead of making unduly complicated and legalistic arguments against the "nuclear option"--a subissue which doesn't exactly capture the imagination of the American people.
So, what is the real issue here? The issue is the President is attempting to pack the courts. The Senate majority is trying to bypass the democratic process in order to install a judiciary filled with judges who will let unconstitutional laws go unchallenged. The Congress is undoing 200 plus years in which this nation has had three co-equal branches of government so Congress can do what it wants whether it violates the our personal rights recognized in the Bill of Rights as well as those rights which, as Thomas Jefferson wrote, we are endowed with not by government, but by our Creator and so the President can pack the court with extremists without the advice and consent of the Senate.
Congress has already shown that it cannot be trusted. In the Schiavo case, with bipartisan support, Congress passed what is arguably a bill of attainder in violation of the Constitution in an attempt to replace the judgement of politically appointed federal judges for the judgement of local, democratically-elected judges. We are fortunate that those appointed federal judges, predominantly appointed by former Republican presidents, chose to uphold the decision of local courts and the wishes of Terri Schiavo.
But Congress and the President are determined to pack the courts with judges who are opposed to the concept of judicial review, judges who would take away our rights recognized by the Constitution and defended by our federal and local courts and instead let Congress have the final word on what rights we do and do not have. And so, it would be the ever-changin majority in Congress--an organization subject to the whimsy of elections, a fickle electorate and influenced by special interest money--who would decide what is and is not Constitutional.
Don't be lead astray. Don't be mislead. The President's efforts to pack the courts would result in a tyranny of the majority and would politicize the judiciary as never before. It was for these reasons that both the Republican minority and members of an overwhelming Democratic majority opposed FDR's court-packing plan in 1937 (7 of the 10 Senate Judiciary Committee members initially opposed to the plan were members of FDR's own party).
And it is for these reasons that Democrats and any member of the Republican Party who still believes in checks and balances within our government must oppose any effort by the President to eliminate the Senate's rightful role in advising and consenting to judicial nominees, particularly where the ultimate goal is to pack the courts with judges who will not defend our God-given and Constitutional rights.