The Federal Judiciary

The New York Times ran an op-ed explaining the Federalist vs. Republican war over the judiciary in the early years of the Republic. In one sense, the article was an attempt to embaress Tom Delay for his embrace of extreme congressional tactics for asserting congressional supremacy over the judiciary (although DeLay usually succeeds in embaressing himself quite well on his own in this regard).

In a more important sense, this op-ed only underscores the fact that the "legitimacy" of the federal judiciary has been eroding with time. Conservatives have been warning liberals for decades that judicial activism would only serve to weaken and deligitimize the federal judiciary in the long run. If liberals are now shocked, shocked, that conservatives are finding a growing constituency in favor of legislative action to curb judicial activism, then they only have themselves to blame.

The so-called nuclear option being considered by Republicans is a case in point. One subtle effect of successfully executing the nuclear-option will be a slight further erosion of the legitimacy of the federal judiciary: future judicial nominees that would have been defeated by a filibuster had the nuclear option not been carried out will be more vulnerable to accusations that their partisanship interferes with their judgement. The likely alternative to some deligitimizing rules change in the Senate is a series of progressively more strident escalations of the judicial confirmation wars that will only lead to more extensively damaging proposals being made by one party or the other.

My best-case scenario for a change in the way federal judges are nominated and confirmed is one that makes the least impairment to their independence and legitimacy. A neglected virtue of the nuclear option in the long term is that it might serve to deter some future "DeLay option" that liberals might find to be much, much worse.