Judicial Activism and Obama’s Judicial Vacancy Problem

Published Wed, Oct 19 2011 9:58 AM

On October 5, Justices Antonin Scalia and Stephen Breyer appeared before the Senate Judiciary Committee to speak about the role of judges under the Constitution. Senators on both sides of the aisle were quick to come to the issue of why so many judicial vacancies still exist on the federal bench. Of course, it has been widely reported that President Obama has not made filling these vacancies a high priority in his administration. Furthermore, Judicature has reported that the Obama administration’s “judicial selection machinery suffered from organizational and coordination weaknesses.” Nevertheless, Justice Scalia offered an additional reason why the judicial selection process has slowed to a grinding halt: The Living Constitution.

Liberals have long clung to the idea that the Constitution is a living, breathing document, and thus, should reflect the views of contemporary society. Activist judges that employ this kind of judicial interpretation interject their own political beliefs or policy preferences at the expense of reading the actual text of the document. Furthermore, it is a usurpation of the legislative function as judges that have adopted this philosophy have created rights in the Constitution that simply do not exist. This runs contrary to what Scalia referred to as “the real distinctiveness of America which is the separation of powers.” Scalia said that judges should apply constitutional values as they “were understood by those who adopted the amendment” instead of formulating their own ideas about what modern society needs or would want. Justice Breyer, for his part, defended the Living Constitution, asserting that changes in technology and societal beliefs must be considered in matters of constitutional interpretation. Scalia rightly countered that he was not able to discern the beliefs of modern society and argued these matters should be taken up at the voter’s box.

Scalia ultimately reasoned that confrontational judicial nomination proceedings and judicial vacancies were a symptom of this philosophy. The justice noted that instead of the Senate focusing on the right questions such as whether or not a judicial nominee is “a good lawyer,” members must pose the question, “what kind of new Constitution will you write?” Scalia ended by saying he was “hopeful the Living Constitution will die,” Justice Scalia provided some great advice to a President that has both failed to make the judicial nomination process a priority, while at the same time, nominated various individuals to the federal bench that even his Democrat friends in the Senate could not even support. Instead of nominating controversial judges that would impose their own ideas of what the Constitution ought to mean, the President would do well to appoint judges that do not desire to rewrite the Constitution with their own views.

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