Political versus Parlimentary Tactics

It is a common observation that people often assume the attributes of their adversaries. This is not surprising, since adversaries compete in the same environment under a similar set of constraints. Successful strategies by one side are likely to be emulated by the other. However, it is possible that the adoption of the tactics of one's adversaries may subtly undermine one's integrity. During the Cold War, the defeat of Communism seemed so laudable that tactics that might otherwise be eschewed are ironically embraced. Though Americans never came close to duplicating the abusive policies of the Soviet block, we may have strayed further from our ideals than necessary. In a similar way, the competition for appointment of federal judges has threatened to force Republicans, the supposed conservatives, into compromising respect for traditional legislative institutions to match the tactics of Democrats.

If the Constitution and laws were interpreted properly to begin with, the stakes over judicial confirmations would be much smaller and the consequent animosity attenuated. Judges would sort out legal ambiguities in a way that arises organically from legal precedent. However, since the beginning of the last century, Liberals have used the courts to win victories by judicial fiat that could not be won in the court of public opinion. From the 1960s on, Democrats largely controlled the legislature and the courts. Without much judicial restraint, the country lurched to the Left. Since the Reagan Revolution, Democratic electoral power has ebbed. Both the legislative and executive branches of government are now under Republican control. Liberals are now the reactionaries, hoping the courts can maintain political victories that have been electorally defeated. The stakes have thus been raised.

After Ronald Reagan appointed Sandra Day O'Connor and Antonin Scalia to the high court, the Left panicked when Reagan had yet another opportunity for a judicial appointment to the US Supreme Court. Hence, when Judge Robert Bork was nominated, he was viciously opposed by the Left who even went so far as to check on his video rentals hoping to find compromising information. In the 1980s, we still indulged the illusion that judges were not overtly political appointees. Presidential nominations for the federal courts were generally accepted lest they lacked the appropriate legal credentials or were soiled by ethical problems. Bork's academic and legal background was impeccable and no particular ethical problems surfaced. Therefore, Democrats tried to paint Bork as an "extremist" that was too far outside the legal mainstream to be accepted, a charged most knew was, at best, an exaggeration. They succeeded in keeping Bork off the Supreme Court, but ignited a couple of decades of fireworks over judicial nominees.

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