Judicial Supremacy

Back when I was writing this post, I remembered an article written a few years ago by Charles Krauthammer that really brought me to the view outlined by last weeks' David Brooks column. Brooks opines that one of Roe v. Wade's legacies is the bitterness in politics these days, seen at its ugliest these days with the stalled judicial confirmations in the Senate. The reason for much of the bitterness is that the issue of abortion has been stolen from the people by judicial fiat. Those who find abortion a grevious practice have no recourse not because they lost the issue by vote of their representatives, but because some judges deemed the option of abortion a right (and on very shaky grounds at that). By virtue of the situation, the parties have come to believe that their only option now is to defeat or defend the right to abortion through the make-up of the Supreme Court. And appointments to the court have to go through the ringer of politics first: presidential (the president nominates all federal judicial candidates), and senatorial (the senate approves the president's nominees) elections. This set up has made abortion one of the top and most hotly contested issues, in political races throughout the country.

I tried to find the old Krauthammer article, but failed. Krauthammer's point was similar to Brooks': abortion is the issue that poisons politics and much of the anger in legislative and executive offices could have been avoided if only it had been left in the people's capable hands, rather than Roe v. Wade foisting a widely unpopular law on them instead.

Luckily, in the context of the judicial confirmation battles and impending use of the "nuclear option" to end the Democratic filibuster, Krauthammer returned on Friday with another very thoughtful column on the issue. You can read the whole thing here.

A preview:

Provocation is no excuse for derangement. And there has been plenty of provocation: decades of an imperial judiciary unilaterally legislating radical social change on the flimsiest of constitutional pretexts. But while that may explain, it does not justify the flailing, sometimes delirious attacks on the judiciary mounted by House Majority Leader Tom DeLay and others in the wake of the Terri Schiavo case.