The Rise and Fall of Checks and Balances

Will Alito feel constrained by his relatively narrow victory and therefore bring a sense of caution to his new job? There's no reason to think so. When William Rehnquist joined the court in 1972, he showed no sign of embarrassment from receiving just 68 votes in the Senate.

NPR - 1/13/06

When I wrote "The system is no longer checking itself" I had the kernel of a larger idea swirling around my mind. With the Alito hearings, referenced in the NPR article linked above, that worrisome concept has crystallized. The sad conclusion I have reached is that we, as a nation, are systematically destroying the main, inherent and highly necessary strength of the judicial branch of our government. Lest you think this is an attack on Alito, my point applies equally to any SCOTUS candidate who would currently make the short list of a president from either party.

The executive and judicial branches share one key trait - their members are elected by the people and must periodically stand for reelection. This, at least in theory, holds them accountable to the citizens and prevents the government from straying too far from the wishes of the majority of the electorate. One of the true pieces of genius exhibited by the founders when they designed our government was to remove the judicial branch, in large part, from such restraints. The reason this was important is that the judiciary needs to act as a neutral third party - an impartial observer who will not be beholden to the shifting tides of political opinion, answerable only to the rule of law and the structure provided by the constitution.

For a number of decades, this seemed to work, at least a majority of the time. There were exceptions, of course, but our judiciary seemed to maintain a bulwark against excess by the other two branches and keep the opposing political pugilists from pulling a Mike Tyson and gnawing off somebody's ear. What the founders seem to have failed to take into account - and it seems painfully obvious in retrospect - is that if you allowed elected partisans to appoint our highest judges at the federal level, their selections would eventually result in the devolution of the quality (measured in terms of impartiality and lack of partisanship) of the justices who would rise to the top.

As soon as politicians began to see the power of the judiciary as a tool to be used for ideological advantage and not as an impartial check on the other branches, the system was effectively doomed. Every judge who established a "paper trail" where he rendered a decision, be it ever so carefully constructed and constitutionally correct, which dismayed one party or the other, would forever disqualify themselves from consideration for promotion. Should they be a truly neutral judge and render a later decision which angered the other party, (as will so often happen when the law is truly viewed in an impartial manner) then they would be out of favor with the other party as well. In this fashion, every judge who ruled impartially and failed the partisan litmus tests of those who are responsible for promoting them effectively eliminated themselves from consideration for advancement to the highest levels. It was Darwinian evolution in reverse. The best were bred out of the system - or at best locked into low level positions - while only those who were consistently partisan ideologues rose to prominence.

A key component of the "Reagan Revolution" was to launch a decades long plan to make over the Supreme Court in a mold which would be more friendly to goals held dear by conservatives. Liberals as well have long been stressing the importance of electing Democratic presidents to keep the court shifted to the left. Both of these philosophical goals are equally poisonous to the original system of checks and balances, and have now left it gasping in its hospital bed, delirious from a toxic overdose of partisanship.

I have no proposal to right this situation. Attempting to convince either party to surrender what they view as the most powerful and useful tool in their arsenal would be a fool's errand. The judiciary, originally conceived as the neutral referee between warring parties and branches of government, has been trimmed like a nightmare of topiary sprouted from poison seeds. I fear we face a future where the red-blue divide will never be healed and open warfare between the two sides will be the only option left to us for as long as our government lasts.