Only in recent decades have Supreme Court nominee hearings become hyper-partisan media spectacles. Indeed, for most of American history, no Senate committee ever held public hearings before deciding whether to confirm a president’s pick. One reason that confirming a justice for the high court has become so contentious is that many people have increasingly looked to the judiciary, rather than to state legislatures and Congress, to enact their favored policies, according to Independent Institute Research Fellow William J. Watkins Jr., author of Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.
“At one time, Democrats sought change through innovative legislative programs such as FDR’s New Deal,” Watkins writes in an op-ed at American Thinker. “Now they prefer to promote political and constitutional change through the courts.”
The fundamental problem here is that the judiciary was never designed to play an activist role; interpreting the nation’s laws is distinct from making them. One consequence of agitating for the courts to rule on matters of policy, is that it bypasses the hard but potentially constructive work of building a political consensus for legislative action. Thus, the democratic process—grassroots persuasion and coalition-building that yields signed legislation—atrophies. Genuine, organic cultural change gets the short shrift. “With law and politics blended,” Watkins continues, “control of the high court is a greater prize than majorities in Congress or the occupancy of 1600 Pennsylvania Avenue, hence the left’s desperate measures to keep a qualified jurist off the Supreme Court.”