The Fallacy of Balance
With the recent retirements from the US Supreme Court much has been made of the importance of maintaining a "balance" on the bench, largely by those who feel that their particular philosophy will come up short if the existing balance is changed. In other words liberals are concerned that a conservative George Bush would appoint conservatives to the bench. Imagine, a democratically elected President having the gall to fulfill a campaign promise. Horrors!
Why were there no liberal cries for maintaining balance on the Court when Bill Clinton replaced the conservative Byron White with the liberal Ruth Bader Ginsburg? Why no liberal gnashing of teeth when FDR radically altered the makeup of the Court in the 1930's?
It would seem that we need to completely set aside the false notion of "balance" on the Court entirely. The idea that we somehow presently have an arithmetically and philosophically perfect ideological see-saw arrangement on the Court, with O'Connor as the fulcrum, is laughable in sense that it is just not true. Further, there is no requirement that we have such an arrangement anyway even if it were possible. And what is the underlying suggestion of such a notion? That we've achieved a state of constitutional nirvana and that no particular judicial philosophy should be advanced at the expense of the status quo?
Those who make that argument fall into the trap of admitting that their paramount concerns are ideology and outcomes as opposed to process or the impartial application of the Constitution. Harry Reid himself has admitted the importance he places on results and his disagreements with the results of a more conservative judicial philosophy. What happened to the cries of "no litmus tests"?
Given that much of liberalism's policy victories in our country have come via the judiciary, it is not surprising to find that the liberal judges who've provided those victories are less likely to adhere to an originalist philosophy. What we have today, and what the liberals want to maintain, is outcome based adjudication.
Look also at the example of liberal angst at the possible breakup of the Ninth Circuit Court of Appeals. The Ninth covers forty percent of the land mass of the lower forty-eight and over twenty percent of our population. It is the most backlogged court in the country, handling an average of six-thousand more cases per year than the other circuit courts. How can such a court be counted on to provide timely access to the judicial process?
For liberals the issue is not efficiency, but ideology. The Ninth Circuit is consistently the most liberal "outcome based" court in America (this being the "anti-Pledge of Allegiance" court) and liberals don't want to upset the "balance" of a court that brings home the ideological bacon. Balance has become a euphemism for maintaining the status quo of liberal dominance.
Liberals have further argued that it is the role of a Supreme Court nominee to somehow perform the function of uniting the country. Nonsense. The role of a Supreme Court Justice is clear, or should be, but it is oftentimes forgotten by those who serve on its bench.
What conservatives want is not results driven by ideology as a guiding factor, but rather the results gained from an original interpretation and application of the intentions of those who wrote and ratified the Constitution. What we need are judges who will exercise judicial restraint and leave policy and politics to the two elected branches of our government. In other words conservatives prefer the rule of law, not of men or an unelected judicial oligarchy.
The United States is a country with a federal democratic-republican form of government and with an extremely open political system. Politics itself is a process of people agreeing and disagreeing or important subjects. We have two major political parties precisely because great numbers of Americans DO disagree over a great many things. And these differences are to be settled within a political arena created by our Constitution not by unelected judges.
Such an attitude is not a judicial philosophy as such, but rather an acknowledgement of the reality of what our Constitution was intended to provide. Anything which veers from that basic premise whether left or right could rightfully be termed as an "activist" philosophy, which is usually in pursuit of specific outcomes. Given that, how can the notion of balance even be an issue?