Senator Reid’s Judicial Nominee Proposal is Like Hiring a Plumber to be an Architect

You’ve probably heard this one before: The United States Senate is a legislative body comprised of 100 rich people who would like to be President someday. On June 28, Democratic Senate Minority Leader Harry Reid told the press about his crass proposal to expand the career prospects of this distinguished body. In advance of the probable retirement of the Chief Justice of the Supreme Court, Reid said that any of three Republican Senators— Mel Martinez, Mike DeWine, or Mike Crapo — "would be outstanding Supreme Court members." Although Reid claims that the justices told him that it would be a good idea to "start calling people from outside the judicial system," one wonders whether fishing an alligator out of the political swamp is what the justices really suggested.

With apologies to these Republican gentlemen who presumably had no say in Reid’s decision to float their names, sending a Senator to the Supreme Court is like hiring a panhandler to organize a senatorial fundraiser: the recruit possesses some sense of what the job entails, but he lacks the proper disposition. The proposal epitomizes the mind set of senatorial Democrats who see the Supreme Court as some sort of superlegislature, therefore entitling Senators to badger nominees about their policy dispositions rather than focus on their credentials.

A senator makes policy based on her personal views and those of her constituents, strikes compromises to build a record of achievement, guns for votes and campaign cash, and courts the media. A judge, on the other hand, is supposed to be nonpolitical and to subvert personal policy positions in favor of neutral principles that protect individual rights. (Sorry, Senator, but no cameras are permitted in the Supreme Court chamber.) Senator and judge play two very important, but very different roles in our constitutional system, and thus, we can’t expect senators to change their dispositions overnight. For President Bush to appoint any senator, Republican or not, would set a bad precedent.

True, senators have become justices in the past. For example, President Franklin D. Roosevelt appointed New Deal ally, KKK member, and previous Senator Hugo L. Black to the Supreme Court in 1937 as a part of his court-packing scheme. Sandra Day O’Connor, a former state legislator, is famous for acting as the swing vote in so many cases that no one is quite sure what her judicial philosophy is. If one includes governors, Earl Warren and his activist legacy come to mind. But even if politicians have been appointed in the past, today the Supreme Court is already perceived by the public as being too political, which is damaging the Court’s legitimacy as a neutral check on democratic passions. An Associated Press poll conducted May 17-19 reports that 43% of Americans believe that judges usually base their decisions "mostly on their personal beliefs and political opinions" rather than their interpretations of the law. Appointing politicians to the court would only make the political perception a reality.

There are also subtle separation of powers concerns with appointing senators to the Supreme Court. How much influence will former colleagues have when the senator-turned-justice is asked to interpret or even strike down a piece of legislation dear to her friends? Will the Senate become so hostile to judicial nominees that only Senators can hope to be confirmed? Will Court positions become plums for lucky Senators; a retirement home for those who can let go of their dreams of becoming President? A slot on the superlegislative Court has much to offer: the prestige, the light work load, the ability to accomplish what one failed to do by constitutional amendment while in the Senate, and, best of all, life tenure with no more elections. Ah, what a life.

Because all three Senators named by Reid are pro-life, the proposal is probably a facade that the Democrats wish to throw in the President’s face at some opportune moment. Republicans should use Reid’s suggestion to their advantage. If the Democrats charge that a nominee is "extreme" because he or she does not see a fundamental right to abortion written in the constitution, ask Democrats why they proposed these three "extreme" pro-life Republican senators who believe the same thing. And if the Democrats argue that the nominee, someone like Miguel Estrada or Janice Rogers Brown, doesn’t have sufficient federal bench experience? They’re far better qualified than a senator.

Some observations from Ayn Rand

"It is futile to fight against, if one does not know what one is fighting for."

"Whoever claims the right to redistribute the wealth produced by others is claiming the right to treat human beings as chattel."

"The right to vote is a consequence, not a primary cause, of a free social system -- and its value depends on the constitutional structure implementing and strictly delimiting the voters' power; unlimited majority rule is an instance of the principle of tyranny."

"A collectivist tyranny dare not enslave a country by an outright confiscation of its values, material or moral. It has to be done by a process of internal corruption. Just as in the material realm the plundering of a country's wealth is accomplished by inflating the currency - so today, one may witness the process of inflation being applied to the realm of rights. The process entails such a growth of newly promulgated 'rights' that people do not notice the fact that the meaning of the concept is being reversed. Just as bad money drives out good money, so these 'printing press rights' negate authentic rights."

"The only proper purpose of a government is to protect man's rights, which means: to protect him from physical violence. A proper government is only a policeman, acting as an agent of man's self-defense, and, as such, may resort to force only against those who start the use of force. The only proper functions of a government are: the police, to protect you from criminals; the army, to protect you from foreign invaders; and the courts, to protect your property and contracts from breach or fraud by others, and to settle disputes by rational rules, according to objective law."

Ayn Rand (1905 - 1982)