Monday, August 11, 2003

Defeating "Schumerism" and Bringing Sanity to the Judiciary

Although it is all Arnold and WMD these days, it is worth thinking about another phenomenon taking shape on the domestic front. Brian C. Anderson of City Journal informs us of a new theory of judicial review called "Schumerism" which is the "regnant jurisprudential philosophy among Senate Democrats."

New York Senator, Charles Schumer, has waged a tireless battle against George Bush's judicial picks. Schumer assumes that there is no dispassionate reading of the Constitution; all readings are ideologically tinged. Therefore, Schumer seeks judges who would promulgate a generally Leftist view of things instead of judges who have integrity, intelligence, and respect for the law. Moreover, Schumer "preemptively defines conservative views as 'extremist' -- not even worthy of rebuttal, and certainly deserving no place in the judiciary."

"Originalists" claim to seek dispassionate readings of the Constitution, but Schumerist Democrats view this as naive at best and a cynical means of couching conservative ideology in a cloak of objective analysis at worst. All readings are ideological, says Schumerism.

Consequently, Schumerism is more nakedly partisan than the efforts directed at defeating the nominations of Robert Bork and Clarence Thomas, for with Bork and Thomas Democratic Senators still raised questions of temperament and integrity. Now it is all ideological. Arguments against Pricilla Owen, for example, consist of pointing out her decision that parents should play a role in deciding whether their minor daughter should have an abortion. Any contemplation of the limitation of abortion rights is now branded as "right-wing extremism."

At issue is not the fate of Miguel Estrada and Owen, but the future of the courts and judicial review. Anderson rightly points out that this twisting of the words of the Constitution to support liberal policy outcomes dates (at least) as far back as the idea of the "living" Constitution espoused by Oliver Wendell Holmes.

Of course, the elite media has accepted Schumerism as well (they can't be expected to read Federalist 78), making the GOP's best chance to fight Schumerism a popular appeal in the next election. If the GOP can seize two-thirds of the Senate this time, they may end the filibusters preventing endorsement of Bush's nominees and even change the current misunderstanding of the function of the judiciary.


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