What Senate Democrats want, of course, are “moderate” nominees who will not “politicize” the court. What they fail to grasp — along with the “good‐government” White House — is this: The court is politicized because the country is politicized. For that, liberal critics of the President have no one to blame but themselves.
We must recognize, however, that the problem began not with the current crop of liberals but with the Progressive Era, when modern liberalism was born — and with it the idea that government should be the engine of social progress. That view led inevitably to a politicized court, as an early visitor to this country, Alexis de Tocqueville, helps us to understand.
“Scarcely any political question arises in the United States,” Tocqueville observed, “that is not resolved, sooner or later, into a judicial question.” While Tocqueville noted here the role of the judiciary as the final arbiter in our system of government, he drew that point with reference to “political questions,” questions about what “we,” collectively, should do. Because those questions resolve into judicial questions, it falls to the court to say whether “we” have the authority to pursue some goal and, if so, whether rights restrict the way we can do it. It falls to the court to interpret and enforce those constitutional constraints.
When the court understands the Constitution as instituting limited government — through its specification of both enumerated powers and enumerated and unenumerated rights — most political questions are answered in the negative. Thus when someone complains that “we” haven’t the authority to do something, or that doing so violates rights, the court has to take those complaints seriously. That’s what it means to live in a constitutional democracy.
For better than a century, that juridical mind‐set served an extraordinarily useful function. It kept government limited. We didn’t seek public solutions to private problems, because when we did, the court usually said no. That kept the political wrangling that inevitably goes with public solutions out of court. And that kept the court largely from being politicized.
All of that began to change with the Progressive Era. Modern liberals, forgetting their roots in limited government, started looking to the state to solve a host of “social” problems. Today, we hardly think twice about asking what “we” should do about day care, medical costs, auto imports — indeed, sexual harassment. At the turn of the century, those kinds of questions were novel. And when they arose, the court was still there, saying no.
With the New Deal, however, the pressure to turn the Constitution on its head — to find unenumerated powers restrained only by enumerated rights — grew until even the judiciary succumbed. Once the judicial floodgates were opened, public law poured through. Thus everything today is a political question. Everything, sooner or later, is a judicial question. And every court in the land is politicized.
When Senate Democrats ask for a nominee who will not “politicize” the court, therefore, they are asking for someone who will allow this process to continue. That was what Sen. Joseph R. Biden Jr. meant when he told Judge Thomas that we cannot afford to compensate property owners for all the regulations we impose — that we cannot afford to enforce the Fifth Amendment. It seems not to have occurred to the good senator that, equity aside, it was precisely to restrain the growth of government that the Founders wrote the Fifth Amendment to begin with.
In the end, there are only two questions before us: Shall we have more government or less? Shall we pursue political solutions to the problems of life or private solutions?
Over the course of the 20th Century, liberals have become the champions of big government. They have created a huge public sector, where monopoly rules the day, and have driven countless private alternatives out of existence.
Clarence Thomas understood this. He supported limited government not in the name of big business, which too often leads the charge for government protection, but of his entrepreneurial grandfather, beholden to the licensing bureaucrats. Because he understood the fundamentals, he was a fundamental threat to the interests whose very existence turns on a growing state. Like the Soviet nomenklatura, those interests are fighting for their life. That is why the battle was so vicious.