The coming battle over the nomination of Clarence Thomas to the Supreme Court results from abuse of the judicial process, both by members of the judiciary and by the public at large.
Judges should not legislate under the guise of interpretation. This is what is called judicial activism. Instead, judges should apply the law as it is written, having interpreted it as accurately as possible based on its language and the legislative record, to the facts of a particular case. This is what is called a strict constructionist approach.Obviously, if a judge is a strict constructionist one need not worry whether he's a liberal or conservative or a mugwump. As long as he remains faithful to the law as it's written, whatever his personal ideology is will not come into play.
On the other hand, if he's a judicial activist, then his ideology is relevant because how he legislates under the rubric of interpretation will be determined by his ideology.
Judicial activism, you see, aborts the democratic process by violating the separation of powers. Unelected judges impose legislation on the people that the people's representatives refused or neglected to pass.
Which brings us to the present. Judicial activism for those with little respect for the democratic process is just fine as long as the judicial activists share your political agenda, but when they don't, well, you're in deep trouble.
Thus you see liberals today horrified at the prospect of a so-called conservative court. Now they want the Senate to require nominees to pass an ideological test - to find out if they agree with liberals on a shopping list of issues.
Of course, if anyone had suggested such a procedure when a liberal Democrat was in the White House, they would have been excoriated for trying to politicize the courts. Why, liberals would have said, judges only apply the law - how dare you inquire into their political beliefs?
I'm quite comfortable enjoying the liberal discomfort because I've always been for strict constructionists and against judicial activists, be they liberal or conservative. The Constitution does not give the Supreme Court the power to legislate and it shouldn't, though it often has.
For example, the Bill of Rights has always said that a defendant in a criminal case has a right to counsel. The Warren Court decided to go farther and under the guise of interpretation, legislated that the taxpayers will be required to provide counsel at their expense. This created public defenders and contributed to the collapse of the criminal justice system.
Prior to that decision, criminals provided their own lawyers or if they were indigent and insisted on one, the court would appoint one. Thus it's not true that indigents were routinely denied counsel. But the Warren Court nevertheless institutionalized what had previously been done on a case by case basis, even though nothing in the Constitution could possibly be construed as requiring public defenders.
A right to something never implies an obligation on the part of others to provide it. I have a right to travel but that does not mean the taxpayers must pay for the airline tickets.
Many American liberals for years hailed judicial activism. They rationalized this wrong on the grounds that if the democratic process simply refused to address an issue (in the manner they wanted), then the courts have no choice but to do so. Like all rationalizations, that one is devoid of reason.
One might just as well say that if the democratic process doesn't produce the answers you want, then the Army has no choice but to impose them on society. If you're going to abort the democratic process, why limit usurpation to judges?