A Brake, Not An Accelerator

Over at Tapscott's Copy Desk, Mark has been pounding away at the President and congressional Republicans, seeming not-at-all upset about the prospect of GOP losses in November if it ultimately restores a more conservative cast to congress as a whole, and even discounting the potential impact on the Supreme Court.

Mark Tapscott has recently become a friend. Upon meeting him, it's obvious that he's a wonderful guy, and incredibly smart, too. But here, I must respectfully disagree.

On the topic of the relevance of the upcoming elections to the Supreme Court, he's written:

Adding a third Bush appointee of the same quality as Roberts/Alito would probably insure a working conservative majority for a generation.

But there are no guarantees that Scalia, Thomas, Alito and Roberts will all remain healthy. Odds are greater for a Ginsburg departure, but we cannot assume the next exit from the Court will be from the left side.

Far more important, however, is that it may not make much difference. If the "experts" are to be believed, a third Bush appointee is most likely to be Attorney General Alberto Gonzalez. Maybe Gonzalez would be another Scalia. More likely he would be another David Souter.

Second, Supreme Court appointments are important but they aren't the most important consideration in these matters. Elevating the Court to such prominence is a sort of conservative echo of the liberals dependance upon the federal judiciary to impose decisions that ought instead be made in Congress.

But here's the thing. In the wake of the Miers debacle, is the President more or less willing to make the Gonzalez nomination with Republicans in the majority, or with Democrats there? If conservatives did want to object to a Supreme Court nomination, they're obviously in a stronger position to do so with the GOP in control. If there's anyone who cares even less about what conservatives think than John McCain, it's got to be Harry Reid.

In fact, putting the Democrats in the majority may actually facilitate the nomination and ultimate confirmation of AG Gonzalez. As a rumored "moderate" and a qualified jurist of Latino ethnicity (which means Dems would be afraid of losing Latino votes through opposing him), the nomination could be reasonably justified as the most likely to get through a Judiciary Committee chaired by Patrick Leahy.

Second, Mark faults other conservative commentators for "elevating" the importance of the Supreme Court to the point where they become an "echo of the liberals dependance upon the federal judiciary to impose decisions that ought instead be made in Congress." Let's be clear. It's wrong to use the Supreme Court as a way of contravening or avoiding the electoral process. The problem is that liberals have done it, still do it, and will continue to do it.

Adherents of judicial restraint are needed on the Court, not to enact conservative policies, but to stop the egregious judicial activism that too often rises from places like the Ninth Circuit. Failing to secure the right majority on the Court could eventually mean that people like Stephen Reinhardt are effectively drafting federal law on matters like the right to die, abortion and other similar matters (if a non-conservative majority rubber stamps his reasoning in these controversial cases, or refuses to take them up).

In short, a solid Court is needed -- not as an accelerator for the implementation of judge-made conservative law, but as a brake on the left's attempts to impose judge-made liberal laws.