You may remember Judge Charles W. Pickering, whose recess appointment by President Bush to the Fifth Circuit Court of Appeals infuriated liberals, since the Senate had already rejected his nomination. He wrote a book about his experience in the nomination process, “A Price Too High,” which I heard him discussing on C-SPAN a few weeks ago. While he was accusing his opponents of distorting his record on civil rights etc., I was intrigued by his opinions about liberal activist judges and their failure to properly interpret the Constitution according to its true meaning. My goal in interviewing Judge Pickering was to try to understand exactly how conservative judges achieve this ability of interpretation and liberal judges don’t or can’t or won’t.
Unfortunately, I do not think I accomplished my goal. I simply could not follow Judge Pickering’s logic. This is about all I could discern from his argument: If conservatives agree with a court’s decision, then the interpretation is in accordance with the true meaning of the Constitution. If they don’t agree, then an activist liberal judge has hijacked the Constitution and legislated a liberal philosophy. He did admit that conservative judges made bad decisions in 1857 (Dred Scott on slavery) and 1896 (Plessy v Ferguson on separate but equal).
This interview convinces me that Kipling was right: “Oh East is East and West is West and never the twain shall meet…” Even though I am a lawyer, I will be the first to admit that I am very naive when it comes to the judicial system. When I went to law school I was impressed with the wisdom of the Warran Court when it made controversial decisions back in the ’60s. I, like a lot of people, thought that at some point the Supreme Court went a little too far in protecting the criminal from being convicted, but that is why I thought over a period of time the Court would swing like a pendulum, back to the middle. I am sure, just like Judge Pickering, I am a product of my upbringing. Liberal or conservative, I always thought that judges could or should transcend their personal views and rule based on the idea that the law is the law. Even though Judge Pickering espouses the same belief, I don’t think he and I are talking about the same thing.
Judge Pickering and I did agree that the mistake America made as a result of Roe v. Wade was to politicize the nomination of judges, to establish abortion as a litmus test for judges. Over the years the litmus test has been expanded to include gay marriage, prayer in schools, the pledge of allegiance and a few other things. However, Supreme Court appointments were, at times, controversial even before Rowe.
Judge Pickering does have a solution to this problem and I agree with him for the most part. The solution: amend the Constitution! Truthfully, that is exactly what the Constitution provides. If you don’t like Rowe v Wade, don’t politicize the judiciary, get your supporters together and pass a constitutional amendment to overrule the Supreme Court. Congress has passed many laws to overrule Supreme Court decisions; it is just that abortion would require a constitutional amendment.
Judge Pickering points out that until the 1970s the US averaged passing one amendment to the Constitution every 11 years. He also said that there had been no amendments since 1971 (26th Amendment, Voting Age 18), but the 27th Amendment passed in 1992 restricting pay raises for Congress. I am sure we all remember the Equal Rights Amendment that was submitted to the states for ratification and failed. Funny, but that was a liberal proposal.
It all makes me wonder why in all these years since Rowe, the Congress has not submitted to the states a constitutional amendment on abortion. I am sure there may be many reasons, but I think there is a good chance that neither the Democrats nor the Republicans want this issue resolved. Just keeping the controversy stirred up and focused on judges and the courts insures that certain segments of the voting population will be lined up on one side or another.
Can you imagine the important things we could focus on in this country if the abortion issue went away?
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