Kris Kobach: Revising U.S. law is wrongly reduced to high court’s vote

When President Clinton finally selected Ruth Bader Ginsburg for the Supreme Court, the announcement sounded strangely like a political nomination for a Cabinet post.

Clinton hailed Judge Ginsburg as a champion of the women’s rights movement, a successful political crusader for a noble cause. The national media quickly ran a political “litmus test” on Ginsburg, attempting to nail down her positions on various controversial issues.

All this rhetoric suggests something very disturbing: Many of our nation’s leaders have a seriously distorted view of the Supreme Court’s role in our political system.

Such statements reinforce an insidious and growing misconception in America today, that the Supreme Court justices are merely politicians with robes, hacks who bring a political agenda with them to the court and lobby their fellow justices accordingly.

This sentiment was dramatically illustrated in the politicized attack on Robert Bork in 1987. The Senate Judiciary Committee vilified Bork for holding politically incorrect views. Bork and subsequent appointees were asked, in effect, “What constitutional `rights’ will you create or repeal when you get on the court?”

This approach to judicial appointments weakens the very foundation of constitutional democracy. Rather than expecting justices to objectively interpret and apply the Constitution, many politicians want their favorite justices to amend the Constitution. Justices are assessed not on the basis of their intellect and objectivity, but according to what their predicted decisions will be.

Revising the fundamental law of the United States is reduced to a simple vote of nine people: Get five on your side and you win.

Meanwhile, Article V, which stipulates how the document is supposed to be amended, is abandoned. Article V requires any amendment proposed by Congress to be ratified by the legislatures or ratifying conventions of three-fourths of the states.

Unfortunately, many politicians and interest groups would rather not go to the trouble of persuading the people of 38 states to adopt their amendment when all they need is a few more votes on the Supreme Court.

Why does it matter if there is another way of amending the Constitution? Because it matters a great deal who does the amending. Elections ensure that legislatures and executive remain the people’s servants, not their rulers. The Supreme Court is supposed to be the ultimate judge of when such political bodies overstep their powers and threaten the rights of the people or the structure of the political system.

But who is to guard us from our guardians? The justices of the Supreme Court are unelected, unaccountable, life-tenured individuals with the capacity to thwart the will of elected majorities.

The only answer is that the justices must regard themselves as bound by the Constitution. That means being bound by the plain meaning of the various clauses and amendments at the time of ratification, not being free to add new meaning whenever they see fit.

If justices are appointed with the expectation that they will transform the Constitution, then the Constitution ceases to be an expression of “We the People of the United States.” Instead, it becomes the authority by which nine unelected individuals rule a nation of 260 million.

So what does all of this mean for Ginsburg’s confirmation hearings?

First, it means Clinton should refrain from defending Judge Ginsburg on the basis of litmus-test issues like abortion. This approach only reinforces the misconception of the Supreme Court as a body entitled to mold the Constitution as it sees fit.

Second, the Senate Judiciary Committee should stop running their hearings like a political inquisition. The senators must ascertain not what Ginsburg’s political views are, but whether she is willing to put them aside in interpreting the Constitution.

Third, it must be realized that the gender, race and religion of a Supreme Court justice are largely irrelevant. The Supreme Court has no business representing anyone. The justices are there to apply the Constitution objectively, not to shape it according to the demands of various social groups.

If constitutional protection is sought for a freedom which receives ambiguous treatment in the text of the Constitution, then both sides need to take their case to the people of America and seek an amendment in accordance with Article V. Only this can ensure that constitutional democracy does not wither away to see constitutional oligarchy grow in its place.

Kris W. Kobach of Topeka is a teaching fellow in political science at Yale University and a student at Yale Law School in New Haven, Conn.

This story was originally published July 23, 1993 at 12:00 AM.