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Perfect Storm in Atlanta Chapter 8: Mutual Aid

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Beyond the Judicial Filibuster

by Christopher Chantrill
March 25, 2005 at 10:57 am

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ON MARCH 17, the Senate Judiciary Committee sent for consideration by the entire Senate the nomination of William G. Myers III to a seat on the 9th Circuit Court of Appeals. Democrats have threatened to filibuster. Republicans have threatened to change the Senate rules to eliminate filibusters on judicial nominations. Right now, things are shaping up for the Battle of the Judicial Filibuster.

Battles like these are rare because they are expensive and because they are risky. Republicans choose to fight the battle over filibusters now because they don’t want to fight it over a big Supreme Court nomination this summer when the stakes are so much higher. And Democrats? Yes, what exactly do Democrats expect to gain from a fight?

It would be nice to get conservative judges confirmed in the Senate, but the judge problem is much bigger than that. The problem is judicial activism, the growing practice of legislating from the bench.

Tom Bethell identified the source of the problem years ago in The American Spectator. He called it the Strange New Respect phenomenon. It goes like this. A rabid conservative goes to Washington with a Neanderthal record of starving widows and throwing orphans out into the street. But five years later an article appears in The Washington Post expressing “strange new respect” for the conservative and marveling at his “growth” in office. Just like Sally Field, he wanted people to like him, and so he stopped punching into the wind, eased off on the sheets, and found that he didn’t need all that wet-weather gear when he was running with the liberal wind. Here is Tom Bethell writing in 1992 about the Strange New Respect for Justice Souter.

What conservatives need to do is reverse the Strange New Respect syndrome. Judges need to forget that cooking up some nice dish on the liberal menu will help them win friends and influence people. They need to believe that the risk is all the other way. They need to fear that if they serve up that liberal mac-and-cheese one more time the customers are going to come raging through the kitchen breaking things. But how do they get into the minds of judges in that way? Today, activist runaway judges get lionized in the mainstream media. Even if they get overturned by evil Republican appellate judges—and very often they do not—they are still boosted as heroes, they still get their pensions, and they still get to feel they are on the side of the angels.

Changing judges’ minds will require a long march through the institutions, a task for which conservatives have not shown much enthusiasm, and it will require some big wins in the war of ideas. Meanwhile there is the Gandhi-Nehru strategy that pushed the British out of India: using knowledge of the beast and its ways to deplore its double standards, expose its hypocrisies, take advantage of its faith in due process, and provoke it into outrages like the Amritsar Massacre that shame and delegitimize its power. David Horowitz is using this strategy against the nation’s universities with his campaign for an Academic Bill of Rights.

What judges need to learn is that the American people have a right to the government they deserve. If the representatives of the American people write a law, Justice Kennedy, that permits execution of 17-year olds in certain aggravating circumstances and a jury decides to send a 17-year old to the electric chair, that is their right, even if you don’t like it. There’s a name for that sort of thing. It is called “self-government.”

The jury, like the family, the church, the union, and the voluntary association is one of the “mediating structures” between the individual and the megastructure of big government. Twenty-five years ago in To Empower People Peter Berger and Richard Neuhaus argued that “mediating structures are essential for a vital democratic society.” If their power is rooted out by activist judges then they wilt away and cannot provide shelter for the individual against the power of big government. The lively public square dries out into a desert whipped by the raw wind of political power.

Here’s the dirty little secret. Judicial activism riles people up. If liberals would just tell their activist judges to ease off a little then the conservative movement would lose energy, and liberals could get back in the saddle again. Think of that!

Any horseman knows that you can get a horse to do anything for you if you train him with a gentle bit and a light touch on the reins. But put in a spade bit in his mouth and yank on the reins like a liberal judge and you’ll get a nervous, jumpy horse that is nothing but trouble. Sooner or later, he’ll buck you off.

Meanwhile there’s still that irritating problem of the judicial filibuster.

Christopher Chantrill blogs at americanmanifestobook.blogspot.com.

Buy his Road to the Middle Class.

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Faith & Purpose

“When we began first to preach these things, the people appeared as awakened from the sleep of ages—they seemed to see for the first time that they were responsible beings...”
Finke, Stark, The Churching of America, 1776-1990

Mutual Aid

In 1911... at least nine million of the 12 million covered by national insurance were already members of voluntary sick pay schemes. A similar proportion were also eligible for medical care.
Green, Reinventing Civil Society

Education

“We have met with families in which for weeks together, not an article of sustenance but potatoes had been used; yet for every child the hard-earned sum was provided to send them to school.”
E. G. West, Education and the State

Living Under Law

Law being too tenuous to rely upon in [Ulster and the Scottish borderlands], people developed patterns of settling differences by personal fighting and family feuds.
Thomas Sowell, Conquests and Cultures

German Philosophy

The primary thing to keep in mind about German and Russian thought since 1800 is that it takes for granted that the Cartesian, Lockean or Humean scientific and philosophical conception of man and nature... has been shown by indisputable evidence to be inadequate. 
F.S.C. Northrop, The Meeting of East and West

Knowledge

Inquiry does not start unless there is a problem... It is the problem and its characteristics revealed by analysis which guides one first to the relevant facts and then, once the relevant facts are known, to the relevant hypotheses.
F.S.C. Northrop, The Logic of the Sciences and the Humanities

Chappies

“But I saw a man yesterday who knows a fellow who had it from a chappie that said that Urquhart had been dipping himself a bit recklessly off the deep end.”  —Freddy Arbuthnot
Dorothy L. Sayers, Strong Poison

Democratic Capitalism

I mean three systems in one: a predominantly market economy; a polity respectful of the rights of the individual to life, liberty, and the pursuit of happiness; and a system of cultural institutions moved by ideals of liberty and justice for all. In short, three dynamic and converging systems functioning as one: a democratic polity, an economy based on markets and incentives, and a moral-cultural system which is plural and, in the largest sense, liberal.
Michael Novak, The Spirit of Democratic Capitalism

Action

The incentive that impels a man to act is always some uneasiness... But to make a man act [he must have] the expectation that purposeful behavior has the power to remove or at least to alleviate the felt uneasiness.
Ludwig von Mises, Human Action

Churches

[In the] higher Christian churches... they saunter through the liturgy like Mohawks along a string of scaffolding who have long since forgotten their danger. If God were to blast such a service to bits, the congregation would be, I believe, genuinely shocked. But in the low churches you expect it every minute.
Annie Dillard, Holy the Firm

Conversion

“When we received Christ,” Phil added, “all of a sudden we now had a rule book to go by, and when we had problems the preacher was right there to give us the answers.”
James M. Ault, Jr., Spirit and Flesh

Living Law

The recognition and integration of extralegal property rights [in the Homestead Act] was a key element in the United States becoming the most important market economy and producer of capital in the world.
Hernando de Soto, The Mystery of Capital

presented by Christopher Chantrill

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