State Senator Mark Green Commentary: Why the Delay on Federal Judges?

Why are there still more than 30 federal judge nominees awaiting a floor vote by the U.S. Senate? These well-qualified nominees are broadly-supported and have all been approved by the Judiciary Committee.

At a time when federal courts are desperately needing new judges to handle their caseload, these nominees are still stalled. Why? After reading Scalia Speaks, the collected speeches of the late Justice Antonin Scalia, I understand why.

In the not-to-distant past, judges were voted into the Judiciary in a bipartisan fashion. In fact, the vast majority of judges were approved with resounding majorities if they were not unanimous. The litmus test was minimal and usually revolved around the individual’s commitment to the original meaning of the Constitution. What did change the method of picking our judges has larger ramifications than the delay for these judges. It actually threatens the very existence of our democracy.

The problem began with the creation and permeation of the concept of a living Constitution. From our nation’s founding until the 1950s or so, the analysis of the Constitution was intended to be the original meaning of the words contained in the document. During the era of the Warren Court post-World War II, the Supreme Court took a bold step and began making decisions as if the Constitution could be interpreted differently in different cultural and social situations. The expression was that the document “evolves over time.” What results is the undoing of democracy.

Instead of being governed by a legislative branch that makes laws, the new “lawmakers” of the land become the whim of nine judges on the Supreme Court. They can easily create and restrict rights according what they believe the Constitution “ought to say” in today’s setting. There are numerous examples. So how does all of this relate back to these judges?

If the justices can undo a law passed by a state legislature or by Congress based on their biases, then the only real way to have any say so in the future of our country is to pick the judges based on what and how they will regard what “ought to be” in the Constitution. The fight for Supreme Court justices is now the greatest battle that occurs in Washington, DC. The litmus test is built for each side based on how the nominee will respond to a myriad of political and social issues, most never mentioned in the Constitution. The impact on democracy is so severe, people actually vote on many candidates for no other reason than who they will support for the bench. The Judiciary has overtaken the legislative branch, and democracy is now at best picking who the next justice will be.

Federal judges get the same scrutiny as they rule on cases that ultimately make it to the Supreme Court. Many times the Supreme Court decides to not hear cases–leaving the final word with the Circuit Courts, or sometimes even District Courts. Federal judges are an integral part of this massive problem. These judges sit in the middle of the fight for each side’s best efforts to ensure what they think the Constitution “ought to say,” is so interpreted.

So, will these judges be confirmed soon? Probably, hopefully. Regardless, the impact of the Living Interpretation of the U.S. Constitution has led us down a path of destroying the very separation of powers envisioned by our Founders, and disrupted the elected voice of the people. So ends democracy.