Jun 23

Judicial Confirmation

The threat of the “tyranny of the majority” has been recognized as a serious problem for democratic societies since the formation of American democracy. The solution to this problem the founding fathers envisioned was to establish a set of rights as a foundation for American democracy, and to set up a branch of government whose job it was to ensure and protect those rights no matter what the people wanted. This branch, the Supreme Court, was supposed to be independent and completely free of the interference or even the input of the electorate. We don’t get to vote for Supreme Court justices precisely because they are supposed to be a branch of government whose actions are beyond the say of the public, and free from the influence of the tyranny of the majority. This makes the current processes for confirming justices seriously problematic. Holding proceedings to determine the fitness of judges in a public forum virtually requires politicians to act as if their constituents political views should be reflected by nominees to the court, when this is precisely what establishing the court was intended to bypass.

So long as justices are competent and willing to use their judgment in protecting the rights of the people, no matter what the popular views of the citizens are about such protections, it is wrong for members of congress to stand in the way of judicial nominees. It is certainly wrong to do so out of concerns over “judicial activism,” whatever one takes that to be. It was recognized at the time of its creation that the bill of rights was artificially limited, and that laws would be created that violated our right without violating the bill of rights. Part of the proper role of any judge is to ensure our rights, even in the absence of precedence from the founding fathers. The real test of the proper conduct of a justice is whether or not they are willing to subjugate the rights of individuals to the interests of groups or the interest of government. Actions of that nature would be clear violations of the proper role of the judiciary in our society. Actions that seek to protect our rights, on the other hand, even when they go beyond those guaranteed in the initial formulation of the rights guaranteed by the founding fathers are part of the proper role of a judge. We should want wise people (Latinas or otherwise), guided by an underlying aim of protecting individual rights, to have the authority to do so no matter what the public wants.

There are any number of issues where there is room for legitimate debate over whether or not something is a right that ought to be protected on behalf of the people. Such debate can, of course, lead some to believe that the court is legislating contrary to our rights while the court can view itself as protecting them. However, on issues where great legislative minds strongly disagree, deferring to a less informed public hardly seems a superior alternative. In the long run, it is likely better to defer to the informed, if debatable judgments of those whose function is the preservation of our rights against the threat of democracy than subjugating all of us to the whim of the people at any given time. The long view of the preservation of our rights is what made the founding father’s decision to create an independent judiciary sound, and it has led to the long-standing preservation of our rights in this country. There are any number of issues where I would likely strongly disagree with the views of any of the recent appointments to the court by either party in power. Despite this, I think it is a good thing that the people don’t have a direct say in who gets chosen for those seats. I also think it is a problem for the long-term preservation of our freedoms that people of vision and independent thought are so often kept from prominent positions on the court due to the inappropriate influence of the public through the televised and lengthy processes of judicial confirmation that judges are now subject to.

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