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Should ideology matter?
By Thomas L. Jipping
The Constitution is pretty clear when it comes to picking judges. The president nominates and, subject to Senate approval, appoints them. Since the power to make law belongs to the people and legislatures, judges can only apply that law to decide cases. Judges do not have the power to make law.
What if the people ban abortion and I think abortion should be legal?
What if the people say the federal government can only regulate interstate
commerce and I want it to regulate the entire economy? You get the drift
- what if I don't like the law the people make? Well, I'm part of the
people and if I don't like we do, I can try to change it. But if the people
don't make the law under which they have to live, they do not govern themselves
and they are not free.
That puts the whole issue of judicial activism in better perspective. Judicial activism is judges making law. You know, sticking extra sentences or paragraphs in the Constitution or re-writing sections of statutes. There's no right to abortion in the Constitution, so the Supreme Court put one in. The Constitution only bans a narrow establishment of religion, so the Supreme Court broadened it to ban a wide endorsement of religion. The Constitution allows the feds to regulate interstate commerce, but the Supreme Court said this also covers a farmer growing crops on his own land to eat at his own table. The people did one thing when making the law, but the Court did something entirely different by changing the law.
It does not matter what law the courts make. Don't be so short-sighted
that the circumstance of the moment leads you to abandon your character.
Don't sell your birthright for a bowl of stew.
Last Tuesday's hearing [in the Senate Judiciary Subcommittee on Administrative Oversight and the Courts] was an effort to make all this tyranny go down a little easier. Those who don't like the law the people make believe they have a better shot at the courthouse than at the statehouse. They want judges who will make law, knowing that most of these activist judges will produce liberal results. Hence the title "Does Ideology Matter?" It's their way of asking whether judges should be picked based on the results they produce rather than on their respecting the law the people make.
If judges do not have the power to make law, then ideology does not matter. If judges can only apply the law made by the people, then the results they reach are the results of the law (that is, of the people) and not the results of the judge. Ideology may matter in political campaigns, it may matter in legislative debates, it may matter in popular referenda, but it does not - indeed, it must not - matter in choosing judges.
Ideology only matters in choosing judges if judges may make law. If judges may make law, we are not free. It's really not complicated at all. If ideology matters in choosing judges, freedom does not matter for anyone.
Thomas L. Jipping is Vice-President for Legal Policy at the Free Congress Foundation.
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