We are going to have a Supreme Court confirmation hearing this summer. The mainstream-media chatter is centering on “filibuster or no filibuster?” — a silly discussion in the absence of an actual nominee. But the debate promises to be politically significant, in no small part because the public is rather conservative in its judicial outlook, and the president and his nominee will be anything but. On Fox News Sunday, Bill Kristol explained:
I’m struck when you listen to the Tea Party activists. They often talk about we need to be constitutionalists, we need to be constitutional conservatives. I think Michele Bachmann used that phrase in talking with you just a couple of minutes ago.
And I think having a — one thing that motivates conservatives today is the sense that the Constitution has become a nothing. I mean, it’s no – – there’s no constraint on government. It’s just — government does whatever it does.
And I think the notion that there’s a kind of constitutionalist agenda on the right to oppose the progressive agenda on the left has actually gone further down into the populace, you know, than constitutional-type issues normally do.
So I think a big debate on the Constitution, a serious debate, actually, in the Senate this year would be good for Republicans, good for conservatives. I think the nominee would most likely get confirmed in any case.
Despite liberals’ best efforts to convince the public that the Constitution is “living,” the public doesn’t think judges should just make stuff up. And it tends to dislike the ends — gun control, abortion on demand, racial preferences — that liberal justices reach. So a robust discussion of the nominee’s judicial philosophy — specifically about whether that nominee thinks there is some judicial license beyond the text of the Constitution to upend the policy decisions of the elected branches of government, and also about what the nominee understands as the meaning of basic concepts like “equal protection” — is not only healthy but also a boon to conservatives, who can remind the public of what it is they believe and what their opponents do. What happens to democracy when judging is untethered from the meaning of the texts that judges interpret? What happens to the scope of the federal government when the meaning is drained from the Commerce Clause and the Tenth Amendment?
No wonder the Democrats don’t want a prolonged fight over this justice. It’s not going to help their electoral prospects — which are already dim.
