Commentary: Voters right to worry about court vacancy

By Travis Weber

Much effort on both sides of the aisle has gone into determining the ideological leanings of Judge Merrick Garland and how he would rule on the hot-button issues of the day. However, some GOP senators running for reelection are hearing far more from those opposed to Garland than from those supporting him.

Why? There is an increasing "intensity gap" among voters on which president, the current one or his successor, should get to fill the vacancy left by Antonin Scalia's passing. Most important, there has been a seismic shift in Americans' view of the role of the court in our government. A recent Rasmussen Reports survey found that 81 percent of likely voters say "the selection of a new U.S. Supreme Court justice is important to their vote in November, with 60 percent who say it's very important."

It was not always so. For most of our history, Supreme Court nominees were proposed by the president and confirmed by the Senate with relatively little fanfare.

For much of U.S. history, the courts occupied the role ascribed to them by Alexander Hamilton, who observed that the judiciary "will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." It "can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment."

Yet over time, the Supreme Court began to be perceived as possessing a general power of ultimate constitutional interpretation, covering all people and trumping other branches of the state and federal governments. Other branches remained silent despite their duty to independently interpret the Constitution. This only fed the court's outsize view of its authority.

This view has been exacerbated by distorted court decisions that have appropriated legal territory not prescribed by the Constitution. Decisions proclaiming new rights concerning controversial social issues, supposedly on the basis of "substantive due process" under the 14th Amendment, have taken issues out of the hands of voters while warping the text the court was entrusted to interpret. For decades, such activist decisions have disenfranchised millions of voters who feel they no longer have a voice in government. It is therefore easy to see why these voters are concerned about Garland's nomination.

Social conservatives have reason to be wary about any nominee put forward by one of our nation's most socially liberal presidents, who has not tempered his dogmatic advocacy of abortion and radical sexual autonomy or his dismissal of religious objections to his policies. And when Planned Parenthood is even marginally supportive of a nominee, pro-life voters who want to see the horror wrought by Roe v. Wade recede should take note.

All Americans have reason to be concerned about anyone reflecting Obama's judicial philosophy. Justices are called on to interpret the Constitution, not make law. That is not a social pronouncement, nor is it a conservative or liberal issue. It is a constitutional issue.

Obama has not shown adherence to the limited role of the judiciary as reflected in the Constitution, and his nominees will only reinforce the bloated power the court has aggregated. This is why the Senate, under the leadership of Judiciary Committee Chairman Chuck Grassley (R., Iowa) and Majority Leader Mitch McConnell (R., Ky.), has committed to refusing any hearings or votes on Supreme Court nominees during this presidential election year.

Perhaps under the next president, Americans will see a nominee who pledges fidelity to the Constitution and has the track record to support it.

Travis Weber is the director of the Center for Religious Liberty at the Family Research Council (www.frc.org) in Washington. He wrote this for InsideSources.com.