Balancing an Unbalanced Court

“It won’t change the balance of the Court” will be repeated ad nauseum by writers and talking heads in the days to come as speculation abounds about who’s on the President’s Supreme Court “short list.” Irrelevancies, like big lies, take on the semblance of legitimacy the more they’re regurgitated.

First of all, where in the Constitution does it require the President to make certain that those appointed to the Supreme Court “won’t change the balance of the Court”? Since the answer is “nowhere,” it should eliminate further discussion of the irrelevancy. But, let’s indulge the question because those who ask care little about what the Constitution states. What do the liberals mean by “balance of the Court”?

It means there can never be more than three Supreme Court justices who are tagged as “conservative,” “originalist,” “strict-constructionist,” “having deeply held beliefs,” AKA, “anti-Roe.” Those who view the courts as back-up enforcement for their dead-on-delivery legislative proposals insist there must be at least five, preferably six, justices on the Court who are “pro-Roe.” It plays out as follows.

If and when Chief Justice William Rehnquist retires, the President is expected to nominate another conservative as his replacement. If the replacement is a conservative associate justice, such as Antonin Scalia or Clarence Thomas, and the person who replaces him is a conservative, the “balance of the Court” remains the same—three conservatives with four liberals and two switch-hitting “centrists,” all six of whom think abortion is a constitutional right.

The fact that the “balance” hasn’t shifted doesn’t mean that liberals will go quietly into that good night to contemplate the consequences of losing the presidency and four Senate seats in the last election. For them, the losers get to go to Disneyland too.

But the battle supreme will come when one of the switch-hitters or a liberal justice retires and the President nominates a conservative replacement, as he should. The outcry against “imbalance” will resound as if the earth is falling off its axis and a tsunami is approaching. It will, of course, trigger the “extraordinary circumstances” in the Gang of 14’s sell-out compromise, which will “justify” launching the filibuster once again.

A balanced Court should mean that only those who respect the written Constitution, its separation of powers and the limited role of a judge should be placed on the Court. It is the Constitution that’s being interpreted and what’s written ought to matter.

Consider. It’s the World Series and the commissioner of baseball is picking the six umpires from the National and American leagues for the seven-game series. Does it matter if all of them have shown a knowledge of and consistent application of the rules of baseball during the regular season? How about if, in addition to some “originalists,” and for the sake of “balance,” the commissioner names some umps who think the rules of baseball are “living” and “evolving”? Why not add a couple who’ve given speeches calling the “three strikes and you’re out” rule “arbitrary and capricious”? What if the commissioner names a few who think the national pastime would be enhanced if the rules of cricket applied across the pond were consulted in making calls? How about a few who want to give the least “diverse” team two outs instead of three, or require each team to have a couple of women? Do umpires have a right to re-write the rules? Should baseball fans care if activist umpires ruin the game in the name of balance?

A truly balanced Court requires a majority of “originalists” who respect our constitutional system and who will restore predictability, stability and consistency in our courts of law. It should have nothing to do with allowing offset jurists to “amend” the Constitution at will in order to enforce the rejected policies of those who lose elections.

For more information on the judicial nomination process, see CWA’s Web page, “Full Court Press.”