Court More Representative Than Extremist Republican Leadership

Conservatives are pushing the use the judiciary to move the country further to the right, claiming that moderate decisions made by Republican dominated courts have been too liberal. Jeffrey Rosen, a law professor at George Washington University, argues in the New York Times Magazine that the courts have been more moderate than Congress, and more representative of the views of the American people:

Yet even as interest groups were bemoaning the fact that a handful of centrists had narrowly prevented the Senate from blowing itself up, the country as a whole was applauding the compromise. An independent poll conducted by Quinnipiac University found that 55 percent of respondents thought the filibuster should be used to keep unfit judges off the bench, as opposed to 36 percent who thought it should not. Moreover, the country seemed less worried about partisan judges than about partisan senators and representatives. In the days before the deal, a CBS News poll found that 68 percent of respondents said that Congress ''does not have the same priorities for the country'' as they do. By contrast, the Quinnipiac poll found that a 44 percent plurality approved of the way the Supreme Court is handling its job.

Put another way, it would seem that, on balance, the views of a majority of Americans are more accurately represented by the moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O'Connor, than by the polarized party leadership in the Senate, led by Bill Frist and Harry Reid. Congressional Republicans and Democrats are pandering to their bases, wooing conservative or liberal interest groups that care intensely about judicial nominations because they're upset about the current direction of the Supreme Court. Meanwhile, the country as a whole seems to be relatively happy with the court and appears to have no interest in paralyzing the federal government over a confirmation battle that would do little to affect the court's overall balance -- a battle that is likely to take place this summer if Chief Justice William Rehnquist steps down.

How did we get to this odd moment in American history, when unelected Supreme Court justices are expressing the views of popular majorities more faithfully than the people's elected representatives? The most obvious culprit is partisan gerrymandering. In the 2000 elections, 98.5 percent of Congressional incumbents won their races definitively (75 percent of them by more than 20 percentage points), thanks to increasingly sophisticated computer technology that makes it possible to draw House districts in which incumbents are guaranteed easy re-election simply by catering to their ideological bases. As a result, Democrats and Republicans in Congress no longer have an incentive to court the moderate center in general elections. This, in turn, has created parties that are more polarized than at any other point in the past 50 years. And since more than half of the current senators previously served as representatives, the radically partisan culture of the House is now contaminating the Senate.


(Comment: While the public is dissatisfied with the current extremist policies of the Republican controlled Congress, it remains to be seen whether Congress would continue to be viewed as extremist and out of touch with the desires of the majority of the people under Democratic control. Polls have shown that voters agree more with Democratic positions regardless of which party they actually voted for.)