Alito, Miers and what the debate reveals to Independents

I had a few thoughts on this that I wanted to share, because they stand outside the debate of how "moderate" or "liberal" or how "conservative" current selections for the Supreme Court, or indeed, any judge's chair, should be these days. In my opinion the question of whether one is an originalist or strict-constructionist comes closer, but even this barely grazes the main issue.

The real issue should be WHY has the Supreme Court taken on such a numinous, almost governing role, in our society in the first place? And by extension, how to start to correct or provide reasonable checks for this. Whether one disagrees or agrees with whether something like RvWade or the ruling this summer on Imminent Domain was faulty law or not (I believe both were) , the real concern is the elevation of the selection of Supreme court members to a significance to now so dominate, and even captivate the public mind. This has been particularly true since the so-called "Borking" of Robert Bork's nomination in 1987 but has reached a fever pitch at present. It has almost become more significant than which party controls Capitol Hill, and in the writer's opinion, this is a travesty of constitutional intent and process.

Yet one hears little questioning of the legitimacy of all this in the first place. What has happened to the legislature? What has happened to the idea that major changes should ultimately reside to some degree in the popular will as expressed at the ballot box, and not through pressure groups? True, the people still allegedly have the power to elect the Chief Executive, the President of the United States, and he will appoint judges in rough conformity with the mandate upon which he ran for office. But the abuses of the confirmation process are undermining this. It has gotten to the point where certain very narrow and unyielding interests on both sides are able to effectively sabotage the entire Presidential election outcome by blocking nominees. This must stop, and the real pressure needs to be to move to a full Senate form of confirmation that is less dominated by litmus tests either liberal or conservative, and more reflective of the national body politic as a whole.

But this is only a first step --- the other must be to re-examine the character of both the length of the terms, and how appointed, of those sitting on the bench. If they are going to regularly, almost unilaterally, shape and determine law for the whole society, then their needs to be some revision of the process -- perhaps including either term limits or direct election, to restore a check. As it is, one of the branches of the government has become dangerously close to not only being unaccountable, but also immune to influence and the general will. Ultimately, tyranny by minority is far more dangerous, for the majority by nature tends to find a balance in its variety and large numbers cancelling its extremes out. But when a minority rules - as the litmust test approach is increasingly empowering, then a few warped minds can take the whole down a dark and uncertain path.

- Anthony