The sad state of our debates on judicial appointments is a direct consequence of the strategy by liberals to enact their agenda through the courts. I can't improve on what Justice Scalia said about it in his dissent in Casey (1992, excerpt):
What makes all this relevant to the bothersome
application of "political pressure" against the Court are
the twin facts that the American people love democracy and the
American people are not fools. As long as this Court thought (and the
people thought) that we Justices were doing essentially lawyers' work
up here - reading text and discerning our society's traditional
understanding of that text - the public pretty much left us alone.
Texts and traditions are facts to study, not convictions to
demonstrate about. But if in reality, our process of constitutional
adjudication consists primarily of making value judgments; if we can
ignore a long and clear tradition clarifying an ambiguous text, as we
did, for example, five days ago in declaring unconstitutional
invocations and benedictions at public high school graduation
ceremonies, Lee v. Weisman, 505
U.S. 577 (1992); if, as I say, our pronouncement of
constitutional law rests primarily on value [505
U.S. 833, 1001] judgments, then a free and
intelligent people's attitude towards us can be expected to be (ought
to be) quite different. The people know that their value judgments
are quite as good as those taught in any law school - maybe better.
If, indeed, the "liberties" protected by the Constitution
are, as the Court says, undefined and unbounded, then the people
should demonstrate, to protest that we do not implement their values
instead of ours. Not only that, but the confirmation hearings for new
Justices should deteriorate into question-and-answer sessions in
which Senators go through a list of their constituents' most favored
and most disfavored alleged constitutional rights, and seek the
nominee's commitment to support or oppose them. Value judgments,
after all, should be voted on, not dictated; and if our Constitution
has somehow accidentally committed them to the Supreme Court, at
least we can have a sort of plebiscite each time a new nominee to
that body is put forward. JUSTICE BLACKMUN not only regards this
prospect with equanimity, he solicits it.
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