We have a big problem in our Federal Government– there’s too much power in the different branches, such that the people that serve us in these offices become way bigger than it was intended. When the Founders created the US Constitution they knew that the best government was the accountable government, and that the most accountable government is that which is closest. They intentionally created a system where things would move slowly– whether it’s two houses of Congress with different makeup, the Electoral College, or the fact that the Constitution was supposed to be a list of things Government could do– the people were supposed to be the ultimate authority.
As we’ve watched the three Supreme Court Justice Confirmations and the past two Presidential elections, we’re seeing our system breaking down, because positions of power are too powerful.
A Textualist or Originalist Judge is one that attempts to stick to the original meaning of the text– what the lawmakers meant when they made the law. The antonym, or opposite, would be an Activist Judge, that looks for places in the law that can be reinterpreted. A good example of an Activist Judge is those that approved Roe v. Wade– a right to abortion found in the right to privacy.
During the late 1980 and following, the left has used the courts and activist judges to create a slew of “rights” from the bench. Abortion, Same Sex Marriage, and the like could never make it in a majority of America– Americans had laws and Constitutional Amendments on the books against these things in many states. So the left found the right court cases, in the right districts, got them to the Supreme Court where the court ruled in favor of the left, and a new right was born.
Except there’s always the possibility that new justices could be confirmed to seats on the court and reverse these gains. It’s not an easy task, as you have to find another case and then persuade the justices to throw out precedent. For years, the GOP would hold out hope that, if they could just win the Presidency, then they could appoint justices that would overturn these rulings. So many pro-lifers vote Republican to get justices on the bench that would overturn Roe and as this goes on, the fight over every justice confirmation gets more heated as the left believes they are just one vote away from losing something given to them by the courts.
Confirmation hearings weren’t meant to be this way. Advise and consent didn’t usually mean to fight over every justice, but that is where we are if the justice is coming from a Republican President.
Textualist judges do not always rule in favor of the GOP, whereas a liberal activist judge can be expected to always rule in favor of left wing causes they are passionate about– unless there is absolutely no way not to. If we had more of these, or this were the standard– an umpire, rather than an activist– then the American people should be confident that they are upholding the legislation instead of trying to make their own.
Right about now, all the talk is about how many of President Trump’s executive orders a President Biden would undo. And why is this? Because Presidents make a lot of promises. Because of this, and because the legislature is really difficult to get things through, especially when things are close, Presidents have done what they could through Executive Orders. Whether you fund Planned Parenthood or abortion overseas, what to do with immigration, how to balance priorities for the Department of Justice, can you divert money from the Department of Defense to build a border wall…
All of these things, and many more, have been done through Executive Orders. Which means, if you get a President of the other party, they can immediately be undone by a new order. Because rules like this do not have to go through the long legislative route, and because so much power can be wielded through the administrative state, a President has more power than he was originally supposed to have, although they would argue that they don’t have enough– because they are not a king or something.
So, we have this fight not just over the different policy goals, but about actual outcomes because of the Executive Orders that will be removed or put in place with no real decision as to whether the previous plan was better or worse. It’s gotten even worse than that, because President Trump seemed to take the tack that he was going to erase Obama and his legacy, so he went about removing a whole bunch of President Obama’s legacy, and now former VP Biden is talking about trying to erase President Trump.
If we would keep our elected leaders in their lanes, and make people follow the Constitutional process, we would have far less contentious elections and confirmations, and maybe we wouldn’t be so far apart.